Most people who come in contact with the criminal justice system will wind up on some type of Probation also known as “Community Supervision” in Texas. There are Two Types of Probation in Texas. Read that blog post to find out the differences between the two. I’m going to assume that you’ve read that while I’m explaining Probation Revocation Hearings on this page. Although this information isn’t specific to Travis County or Williamson County, they are the main areas I practice. Just like there are two types of probation, there are two types of Probation Revocations:
Most people are put on some type of probation through a plea agreement with the State. You probably went up in front of the Judge, pleaded guilty, and accepted Conditions of Probation (aka Community Supervision) as part of your agreement. Often, Revocation of Probation Hearings can end with an agreement between you and the state as well.
Conditions of Probation
The Conditions of Probation were a list of rules and requirements for you to follow during the length of your probation. Usually this list includes:
The first condition was that you meet with your Probation Officer “PO” immediately after Court or on a specific time and date.
Your Probation Officer “PO” and a Motion to Revoke Probation or Motion to Adjudicate
The probation officer can make or break your probation. The PO has a large amount of discretion in enforcing the Conditions of Probation. For example, some may let you check in over the phone or email rather than in person. They make ask you to check in more frequently if they’re suspicious of something going on in your life or if you’re hiding something. Some PO’s will drug test frequently or be on top of you to complete certain amounts of community service hours each month. It all depends on the individual PO. If you haven’t been following the Conditions of Probation, the PO can talk to the Prosecutor where your case was originally handled and ask them to file:
Depending on the Prosecutor and the Probation Officer, there may be an Order of Arrest attached to the Motion. In the Order, prepared for the Judge to sign, the prosecutor and the PO will as the Judge to issue an arrest warrant for the Defendant. This makes sure that the person will be in Court for their Probation Revocation Hearing.
If you’re in jail, due to an arrest warrant, from the Motion to Revoke or Motion to Adjudicate, you may ask the Court to set a Bond amount so you can make bail. Certain situations do not let you bond out of jail.
When a Motion to Revoke or Motion to Adjudicate is filed, certain criteria have to be met. You are entitled to a hearing within 21 days of your arrest if you are sitting in jail. First, there have to be accusations against the Defendant. The accusations are a list of violations of the Conditions of Probation by the Defendant. The most common examples are:
When the violations are listed, they usually include times, dates, and details to support the accusations. For example on _____ date John Smith failed to ________ (condition of probation).
Burden of Proof and Evidence
In Probation Revocation Hearings, the State (through the prosecutor) has the burden of proving that you violated a condition of probation. At the hearing, instead of “guilty” or “not guilty” you may plead “True” or “Not True” to the allegations against you. You have no right to a jury trial during a Probation Revocation Hearing. The burden of proof that the state has to meet is called a preponderance of the evidence. This means that it is more likely than not, that you violated a condition of your probation. If you had to quantify this amount it would be considered 51%.
The evidence that the state will produce can be everything from testimony of your PO, to pictures, drawings, video, and testimony of other witnesses. At the Probation Revocation Hearing, you have the right to have an attorney to help you. Your attorney would have the chance to cross examine the witnesses against you and challenge the evidence presented against you. If there is a list of violations, you may plead True to some and Not True to others. There may be tactical reasons for you and your attorney to discuss before the Probation Revocation Hearing.
A Defense to A Motion to Revoke or A Motion to Adjudicate – Inability to Pay
As mentioned above, quite a few of the most common conditions of probation revolve around money. These conditions may include paying your fine, Court costs, Supervision fees, restitution, etc… If the State proves that you have not been paying, the burden the shifts to you to show an inability to pay. As you can expect, you can put on evidence relating to your inability to pay. This may include employment history, earnings/financial status, whether you support others financially, whether or not the non-payment was intentional or without cause, and any other circumstances which relate to your defense.
One of the first things I like to do before the hearing is to reach out to the PO and prosecutor assigned to the case. I like to get a feeling as to whether or not they’re “out for blood.” In my mind, this means that they’re seeking a full revocation of your probation or seeking to adjudicate you for the violations. Some of the biggest considerations I have when preparing for the hearing:
I usually go over the Motion to Revoke or Motion to Adjudicate with my client, line by line. That way we can address each of the violations at a time. Some violations might be True and my client will want to plead True. Other violations may be Not True and my client will want to plead accordingly. I always ask my clients for evidence that can support or justify their violations. Sometimes this comes in the form of documents, receipts, paperwork, invoices, billing statements, pictures, and other witnesses. Once I have some evidence to work with, I’ll begin trying to plea bargain with the prosecutor.
Plea Bargaining in a Motion to Revoke or Motion to Adjudicate
Similar to plea bargaining in a criminal case, you may want to plea bargain during your revocation. In a previous post I highlighted some considerations when it comes to your criminal case in Should I Take a Plea Bargain? It’s a very important decision for you to make. Here’s a very important difference between Plea Barganing in Probation Revocation Hearings vs. Criminal Cases: When plea bargaining in a Motion to Revoke or Motion to Adjudicate Hearing, if you plead “True” in a plea agreement to some or all of the violations, and the Judge doesn’t go along with the plea agreement, you CANNOT withdraw your plea of True. In a criminal case, if the Judge doesn’t go along with your plea agreement you CAN withdraw your plea of Guilty. This is a VERY IMPORTANT difference between the two. Don’t plead TRUE lightly.
Plea bargaining in Probation Revocation Hearings can help take a lot of fear and uncertainty out of the equation. The benefit is that you will roughly know what punishment you are going to receive.
Depending on whether or not your Probation Revocation Hearing is resolved by a plea bargain between you and the State, or a decision by the Judge, there are certain outcomes that can happen. The following four options are the only options.
At this point the violations are probably frequent and severe. The PO has a long list of violations and there may have been previous Motions to Revoke or Motions to Adjudicate filed against you. The more numerous the violations, revocations, and severity of the violations, the more likely you will be Revoked or Adjudicated guilty.
Motion to Revoke Probation
At the top of the page I wrote that the differences between a Motion to Revoke and a Motion to Adjudicate were huge and important when it comes to Probation Revocation Hearings. In this example let’s say that you accepted a plea deal for 2 years prison, probated over 5 years for Deadly Conduct with a Firearm. Deadly Conduct with a Firearm is a Third Degree Felony in Texas which means the maximum prison time is 10 years. When a Motion to Revoke Probation is filed against you, if you are revoked by the Judge, the Judge will be capped at sentencing you to 2 years in prison. The importance here is that the Judge is capped. Let’s use a similar example.
Motion to Adjudicate
In this situation, you would have the most to lose. Using a similar example as above, let’s say that instead of accepting a plea deal for Straight Probation for Deadly Conduct with a Firearm, you accepted a plea deal for 5 years Deferred Adjudication. Deadly Conduct with a Firearm is still a Third Degree Felony in Texas which means the maximum prison time is 10 years. This is where the major difference comes in between a Motion to Revoke Probation vs. a Motion to Adjudicate.
If the Judge, after reviewing the evidence against you, proceeds with an Adjudication of guilt, you can potentially receive the full range of punishment – up to 10 years prison. Here, the exposure is much greater for you than if you had accepted a Straight Probation. The stakes are MUCH higher. Follow your conditions of probation very carefully.