By Dallas and Collin County Criminal Defense Lawyer Jeremy F. Rosenthal
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 F. Rosenthal is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For specific legal advice, you should directly consult an attorney.