Probation Violations

Probation Violations can be difficult and stressful situations. Once a person is on probation, many of the freedoms and rights that we ordinarily enjoy are limited. For example, there is no right to a jury trial for a probation violation, and the State only has to prove the violation likely occurred by a preponderance of the evidence, a lower standard than beyond a reasonable doubt.

Probation Violations occur when the State alleges you violated one or more conditions of your probation.

Don’t Lose Hope. An experienced criminal defense attorney can often help in these situations by taking advantage of the fact that the prosecutor, the Judge, and the Probation Officer all have a stake in you successfully completing probation.

If you learn that you are facing or may be facing a Motion to Revoke Your Probation, you should consult an experienced criminal defense attorney to discuss your options. The State is not required to give you advance notice prior to filing its revocation motion. Generally, the Court will issue a warrant for your arrest as soon as the State’s motion has been filed.

Need Help with Probation Revocation?

If you have violated your probation or believe that the State may be about to file a probation revocation motion, contact us at (214) 530-2056.

For more information on probation including the different types of probation in Texas, see below.

Options to Resolve Probation Revocations

  1. Plea Bargaining: State and Defendant reach an agreement regarding the continuation, modification or termination of probation.
    • State voluntarily withdraws probation revocation motion in exchange for additional conditions or an extension of the term of probation; or
    • State agrees to recommend no additional jail time and termination of probation in exchange for Defendant’s plea of true to the violation;
    • State agrees to reduce the originally charged offense to a lesser included sentence if Defendant pleads guilty to the lesser offense (only available with deferred probation).
  2. Open Plea: Defendant does not contest that the probation was violated but no agreement is reached with the State. Defendant has the right to ask the Judge to decide whether to continue, modify, or terminate the probation. If the Probation is terminated, the Defendant has the right to ask the Judge to take into accountant the Defendant’s changed circumstances and reduced any previously fixed term of jail or prison.
  3. Contested Probation Violation Hearing: Evidentiary hearing before a Judge where State must call witnesses and introduce evidence to prove to the Judge that the Defendant violated the probation as charged in the probation revocation motion.

Types of Probation

  • Straight Probation: Straight probation describes the situation where a person has been adjudicated guilty of a crime, either by pleading or after being found guilty at a trial, but instead of serving time in jail or prison, a Judge or Jury has probated (or suspended) the jail or prison term. When a person is sentenced to straight probation, there is a fixed jail or prison sentence which is then suspended / probated for a fixed term.

    For example, a person convicted of a DWI first offense might be sentenced to 120 days in jail, probated for 15 months. This means the punishment has been fixed 120 days in jail, but instead of having to serve the 120 days, the person has been placed on probation for 15 months. If the person successfully completes the probation, the person will be discharged from probation without ever having to serve any part of the sentence in jail.

    Successful completion of probation does not avoid a conviction, and a person cannot generally seal an offense after successful completion of straight probation.

  • Deferred Probation: Deferred Adjudication probation describes the situation where a Judge finds that the evidence is sufficient to substantiate your guilt for the charged offense, but instead of finding you guilty, the Judge “defers a finding of guilty” and places you on probation for a period of time. If you successfully complete deferred probation, you will be discharged from probation and the charge against you will be dismissed without a finding of guilt or conviction. With some important exceptions, you can generally seek an Order of Non Disclosure to seal your record after successful completion of deferred probation.

    For example, a person who is charged with a third degree felony offense of assault on a public servant might plead guilty in exchange for an offer of 5 years of deferred probation. Unlike with straight probation, there is no finding of guilt and no fixed prison term that has been suspended or probated.

    As you will learn below, this has advantages and disadvantages in the event of a probation violation.

  • Probation Violations: Whether you receive straight or deferred probation, you will receive written conditions of probations that you must follow in order to avoid violating your probation. Probation conditions almost always include conditions enjoining the person not to commit any new offenses, use illegal drugs, not leave the State without permission, etc. Probation conditions typically also require that you do certain things such as completing certain required classes, performing a certain number of community services, and paying court costs and probation fees.

    If you break the terms of your probation, either by doing something you were not supposed to do, or by failing to do something that you were required to do, you can face extremely serious consequences. Depending on the nature and type of the violation, your probation officer may report the violation to the Court which would likely result in the State filing a Probation Revocation motion. If you’re on deferred adjudication, the probation revocation is called a “Motion to Proceed with Adjudication”.

    If you learn that you are facing or may be facing a Motion to Revoke Your Probation, you should consult an experienced criminal defense attorney to discuss your options. The State is not required to give you advance notice prior to filing its revocation motion. Generally, the Court will issue a warrant for your arrest as soon as the State’s motion has been filed.

Need Help with Probation Revocation?

If you have violated your probation or believe that the State may be about to file a probation revocation motion, contact us at (214) 530-2056.