By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal
I often get asked what people can expect when they think they could be facing a probation revocation. I’ll try to answer that question in today’s discussion.
Here is how a probation revocation works from A to Z in Collin County where I practice:
Let’s say a person on probation upsets the probation officer, or fails a drug test, doesn’t report, commits a new offense, doesn’t report… etc., etc., etc., and now we think there could be a probation revocation.
The first thing that happens is that the Probation officer has a decision to make. The probation officer has three basic choices. They can (a) do nothing, (b) try to call the probationer into the office for agreed sanctions, or (c) recommend a full-blown revocation.
Believe it or not, but the probation officers often select option (a) depending on the nature of the violation, their caseload, and their prior relationship with the particular person on probation. Technically a traffic ticket could trigger a revocation because it is “an offense against the state of Texas,” but I can’t say that I’ve ever seen a class c traffic offense ever alleged in a revocation proceeding.
Option (b) is a tricky option and is my least favorite as a criminal defense lawyer. Frequently, probation officers will call the probationer into their office and threaten the person with telling the judge, jail, or who knows what — unless they voluntarily agree to modify their probation by agreement (virtually always without the assistance of a lawyer). The problem with option (b) is that there is no fact-checking the probationer can do and the probation officer’s predictions of how future legal proceedings will go are very slanted… not to mention they’re going to ignore important rights you might have when giving you the doomsday scenario to scare you into agreeing to a longer probation or to spend a few weekends in jail.
Then there is option (c) — a full blown revocation. Here’s how it works: The probation officer drafts a “motion to revoke probation” or a “motion to adjudicate” if the person is on deferred probation. The probation officer presents the motion to the District Attorney’s office who has final approval to file the motion with the court. Once the D.A.’s office approves and files the revocation (and they virtually always do), then the Court will issue a warrant for the probationer’s arrest.
Once arrested on the revocation/ adjudication, the person is entitled to a bond on all misdemeanor offenses. On felony revocations, a person is only entitled to a bond if they are on deferred adjudication.
After arrested, and hopefully released, the revocation proceeding goes to the original court where the person was placed on probation. The State bears the burden of proving any and all allegations in the motion to revoke beyond a preponderance of evidence (not beyond all reasonable doubt) before the judge. There is no right to a jury any longer once the person is on probation.
If the State meets their burden, or the defendant pleads “true” to the allegations, then the trial Court is empowered to sentence the defendant anywhere within the punishment range. The Court also retains the right to continue the person on probation or deferred as the case may be.
For example, if the person is on probation for DWI with an underlying jail sentence of 90 days, then upon revocation a person could legally be sentenced to the 90 days of jail, but no more. Again, the trial judge could also merely continue the defendant on probation while tacking on additional fines or other requirements.
There are several legal defenses to revocation, but truthfully most revocations come down to damage control. From a criminal defense lawyer’s standpoint — defending a revocation or adjudication requires diligent skills in building a mitigation case and also the ability to successfully negotiate with the prosecuting attorney.
A good defense lawyer has to understand that every person is just a file to the assistant district attorney and the judge. It is our job to get the prosecuting attorney to see the full picture. Not just the picture the probation department wants them to see.
*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas. Nothing in this article is designed to be legal advice. For legal advice about any specific situation, you should contact an attorney directly. Contacting the attorney through this blog does not create an attorney-client relationship and no content submitted through this blog is considered confidential.