Dealing with a Probation Officer

April 19, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

Probation officers have a hard job.  They deal with many difficult people going through difficult times in their lives.  Probation officers can be your ally or they can be your enemy.

I’m frequently asked by clients and potential clients about how to handle certain situations with a probation officer.  Sometimes it may be appropriate to involve your lawyer but sometimes that can backfire unintentionally.

Probation officers are people too.  Like most people – they don’t react well to being challenged by a probationer or by a lawyer.  Some probation officers will retaliate harshly when their actions are called into question.  In Texas, the probation officers technically work for the judges… but judges want to stay out of the day-to-day monitoring of probationers.  If it seems as if it is a situation where the judge will not be interested — or if it’s an area where the judge and prosecutor will traditionally back up the probation officer, the better course of action may be to tough-it-out with the bad situation.

This doesn’t mean you should subject yourself to an abusive probation officer, however.  You should contact an attorney if you feel like the terms and conditions of your probation need to be modified to avoid an abusive situation.  Also remember that your right to remain silent isn’t checked-in at the door.  In Texas, you do not have to incriminate yourself with regards to other offenses or violations the probation officer may want to question you about.

Sometimes the probation officer can be a valuable ally.  Once in a while, a prosecutor will attempt an aggressive approach to a revocation or adjudication proceeding and the probation officer — who knows the accused far better may disagree.  Having the probation officer on your side can convince the prosecutor to take a different approach or even help convince the judge that the prosecutor is wrong in their assessment.

It goes without saying, but always do your best on probation and always do your best to get along with your probation officer.  They are people too with the same pressures and shortcomings we all have.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any situation, you should contact an attorney directly.

Probation Revocations

October 15, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy F. Rosenthal

(972) 562-7549

A probation revocation in Texas is a post-judgment motion filed by the State alleging that the defendant in a criminal case violated some term or condition of probation (technically called “community supervision”).  If the State is seeking to convict after Deferred Adjudication, that procedure is called a “motion to adjudicate” and acts very similarly under the law.

There is extremely detailed law in the area of probation revocations, but it can be summarized as follows:

1.  The State usually makes a handful of allegations as to different violations;

2.  The Defendant no longer has the right to a trial by jury of the underlying facts of the original case — and the judge will be the sole decider of the facts in the revocation.

3.  You cannot be legally revoked for inability to pay alone.

4.  The Defendant has the right to plead “true” or “not true” to the allegations.

5.  If the Defendant pleads “not true,” the State only needs to prove a probation violation by a pre-ponderance of the evidence and not by proof beyond all reasonable doubt for the Judge to grant the motion to revoke.

6.  If the Judge grants the motion to revoke, he can sentence the defendant up to the maximum underlying jail sentence in the case.  (For example, if an accused plead guilty to a DWI a year prior to revocation and agreed to a 90-day suspended sentence, then upon revocation, the Judge can jail the defendant up to 90-days.)  The judge can also take no action, or can extend probation adding additional terms and conditions.

7.  If the judge grants a motion to adjudicate, then he can sentence the accused to a period of jail anywhere within the original punishment range for an offense.  This is what makes deferred adjudication particularly precarious on felony offenses.  For example, if  a defendant had deferred on a 2nd degree felony — and they violate deferred (even if they were nearly complete), they’re still facing possibly 20 years of prison!

8.  If the defendant pleads true, they essentially throw themselves on the mercy of the Court.  Some judges accept agreements on revocations, but unlike an original plea bargain — a deal with the prosecution is not binding on the Court.  Most courts have their own policies on revocation deals between the defense and the prosecution.

Dealing with motions to revoke require an experienced defense attorney.  There is a lot at stake!

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For specific legal advice, you should directly consult an attorney.