Probation Revocation Hearings
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:
- If you were put on a “Straight Probation” this Revocation would be called a Motion to Revoke Probation or a Motion to Revoke Community Supervision.
- If you were put on a Deferred Adjudication Probation your Revocation would be called a Motion to Adjudicate.
The Beginning: Conditions of Probation, Legal Standards, Burden, and Evidence
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:
- Not breaking any other laws (No new arrests)
- Report to Probation Officer regularly (In-person, phone, email, weekly, every 2 weeks, once a month)
- Avoid drugs and alcohol or places/people that sell them
- Stay away from the victim
- Submit to random drug testing
- Complete treatments or counseling as recommended
- Install/Keep an Ignition Interlock on your car
- Complete Community Service
- Make restitution payments to injured party
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:
- Motion to Revoke Probation – if on a Straight Probation or;
- Motion to Adjudicate – if on a Deferred Adjudication.
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.
Getting Bailed Out Before Your 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.
- Misdemeanor Probation Revocation – You are entitled to have a bond amount set for all misdemeanors, whether on Deferred Adjudication (Motion to Adjudicate) or Straight Probation (Motion to Revoke).
- Felony Probation Revocation – If you were on felony Deferred Adjudication, you are entitled to have a bond amount set after a Motion to Adjudicate is filed. If you are on a felony Straight Probation and a Motion to Revoke was filed, YOU ARE NOT ENTITLED TO BOND OUT OF JAIL.
Legal Standard for Filing a Motion to Revoke or Motion to Adjudicate
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:
- Not showing up/Checking in with your PO
- Failing Drug Tests
- Getting arrested on new charges
- Not doing Community Service
- Not attending Drug/Alcohol classes
- Non payment of Restitution
- Not having an Ignition Interlock installed (DWI Cases)
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.
Before the Probation Revocation Hearing: Preparation and Plea Bargaining
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:
- How long has my client been on probation?
- How many issues/violations has my client had while on probation?
- What’s their relationship like with their PO?
- What is the nature of the violations?
- Is my client likely to violate the same conditions in the future?
- What evidence does my client have to support or justify their violations?
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.
Plea Bargaining and After the Probation Revocation Hearing
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.
- Continuance of Probation – This route is probably the best outcome for clients. The conditions of probation probably won’t change all that much. You will likely get a very stern talk from the Judge and the PO. There will also be a warning that serious violations can result in you getting revoked or adjudicated guilty. I know that some of the conditions of probation put a great burden on my clients. However, it’s better than the alternative of being in jail/prison.
- Extension of Probation – This is the middle ground when it comes to Probation Revocation Hearings. If the violations are serious enough to warrant an increased punishment, but not serious enough to completely revoke or adjudicate someone guilty. Most of the time, the Judge will order that probation be lengthened. This essentially washes away months of your hard work, time, and supervision fees.
- Amendment of Conditions – Judges have a tremendous amount of discretion when it comes to modifying the conditions. The safety of the community is considered, as well as the safety of the victim, and the effects the conditions will have on the Defendant. For example, ankle monitors may be removed if the victim moves out of state, Ignition Interlocks may be removed after half of your probation term is over, community service hours can be reduced, fines and Court costs can be reduced or wiped clear due to inability to pay. Many options are available and all alternatives should be considered if the Judge is going to change your conditions. If the conditions are going to hurt you, it’s very important to explore alternative options to reduce costs, inconvenience, and affect on your life. If the conditions are going to help you, it’s important to show you have a good track record and that you have made a good deal of progress towards completing your probation.
- Revocation of Probation or Adjudication of Guilt – This is the worst case scenario for your case. Many factors that are considered include:
- How long has the probation been?
- How many times has the Defendant violated?
- What are the alleged violations? Are they severe?
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.
Difference between Motion to Revoke and Motion to Adjudicate
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.