Probation Violation FAQ’s

March 14, 2017

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Probation — officially known as “Community Supervision” in Texas — is where a person is either convicted after either a guilty plea or a trial and rather than sending the person to jail or prison their sentence is frozen while they complete probation.  Deferred Adjudication is another form of probation where a person has plead guilty or no contest and the Judge withholds a determination of guilt pending the completion of probation.

Think of Probation in two categories:  Things you must do and things you can’t do.  Obviously you can’t get arrested, break laws or go to places you might not be allowed.  On the other hand you typically have to complete community services hours, and take classes (such as anger management, alcohol awareness, or an anti-theft class).

What is A Motion to Revoke (Adjudicate)?

Revoking probation is where the State files a motion alleging a violation of probation after a conviction.  The state is essentially asking the Judge to un-freeze the jail sentence and sentence the Defendant accordingly assuming probation has been taken away.

A motion to adjudicate is the same except it is for Deferred Adjudication.  The only difference is the state is asking for the judge to proceed with a conviction and sentence the Defendant anywhere within the applicable punishment range.

When discussing a motion to revoke, I also mean to use motion to adjudicate interchangeably for ease.

What Will Happen if I Get Revoked?

If the probation officer recommends revocationthe Prosecutor typically approves it.  They file a motion with the Court and the Judge issues a warrant for a probationer’s arrest. Where a defendant has deferred adjudication they are normally entitled to a bond but this might not be set until after the arrest.  Misdemeanor deferred and convictions are eligible for bond — again sometimes only available after the arrest.  Felony convictions are typically not eligible for a bond pending revocation.

Your case proceeds to Court as did the original case.  There are two issues in play.

First is whether the probationer violated.  This is a question for the judge only because a right to a jury has since been extinguished in the original proceeding.  The standard of proof is beyond a preponderance of the evidence — much lower than beyond a reasonable doubt as it would be at trial.

The second issue is assuming the revocation is good (and statistically most are), then what should the appropriate punishment be at this point?

What Are the Reasons Most People Get Revoked?

It varies.  Legally you could get revoked by missing a single probation appointment though I’ve never seen this happen.

In Collin County most new offenses or arrests result in a motion to revoke even if they are Class C misdemeanors.

Other common reasons for revocation are failed drug tests, non-reporting, failure to complete classes, failure to do community service and failure to pay fines and fees.

The revocations in the latter group are mostly clusters of allegations.  It is very rare to see a person revoked for one short-coming while on probation.

Will My Probation Be Revoked If I (Fill in the Blank)?

It’s truly a case by case basis.  Much of it has to do with your relationship with your probation officer.  Many of them want to see a probationer succeed and unfortunately some of them want to see a probationer fail.

I Think They Want to Sanction Me.  Do I Have to Agree to It?

No.  This is where a probationer has violated probation but a probation officer would rather not go through the Court system to address the problem.

Only the Judge can unilaterally alter the terms and conditions of your probation.  A probation officer is asking you to waive that by handing you sanctions.  Many proposed sanctions are ridiculous then again many are great deals which can avoid a full-blown revocation.  The problem is often the probation officer corners someone with the proposed sanction in the office accompanied with threats and an inability to talk to a lawyer first.

What is a “Technical” Violation of Probation?

A “technical” refers to a violation which is not a new criminal charge.  As discussed above, revocations based on technical violations tend to come in clusters of violations.  Unfortunately a technical violation is typically easier to prove than a new case.

Is My Probation Officer Out to Get Me?

Probation officers have a hard job.  They deal with a lot of people who are abusive and disrespectful to them.  Being someone who makes their job harder certainly doesn’t help your chances.

Some probation officers feel a strong need for control, though, to people who challenge them.  If you fit in either of these categories then you’ll have problems with a probation officer.

*Jeremy Rosenthal is a lawyer licensed to practice in Texas and he is Board Certified in Criminal law.  Nothing in this article is intended to be legal advice and you should consult a lawyer for any criminal situation.

 


Felony Pre-Trial Diversion in Collin County

February 17, 2017

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

The Collin County District Attorney’s Office unveiled their new Felony Pre-Trial Diversion Plan earlier this month.

What Is Pre-Trial Diversion?

Pre-Trial Diversion (PTD) is when you do an “informal” probation without pleading guilty.  The case is dismissed when you are finished and the Collin County District Attorney’s Office does not oppose a Petition for Expunction clearing your record entirely.

The diversion can last a year or more and typically includes customary probation requirements such as monthly reporting, random drug tests, classes, and community service.

PTD is considered for first-time arrestees and the previous program was far more wide-spread for misdemeanor charges such as theft or possession of marijuana.   Acceptance into PTD is predicated also on an arrestee admitting to the charge in writing (though not a plea of guilty.)

If the person in the program fails-out or does not complete diversion then their case goes back to Court where the person can still have a trial.

An important dynamic of Pre-Trial Diversion in Collin County is a participant’s inclusion is at the sole discretion of the D.A.’s office and the probation department which administers it.  This means they can refuse to admit you for a good reason, bad reason, or no reason whatsoever.

What is New with the Program?

PTD was really only for misdemeanors but some felonies qualified too.  Now the D.A.’s office has promised to review far more applicants for Felony PTD cases.

A joke I’ve told prosecutors in the past was, “The first pre-requisite for felony PTD is it can’t be a felony.”  This is to say though the D.A.’s office had previously accepted felonies into diversion — the cases accepted were as common as purple unicorns grazing on the highway.

One of the problems with the old felony PTD system, from my point of view, was the daunting layers of prosecutors who had to be convinced my client was deserving of another chance.

Prosecutors handle hundreds of cases a certain way throughout their career and when you want a specific case to be treated differently — it’s an uphill battle.  This is completely understandable but a challenge none the less.

The D.A.’s office seems very serious about expanding the program if nothing else.  They have created a web page for applications and dedicated a prosecutor to review all of the applications which shows they have very much centralized their plan.

How Do I Get In to the Collin County Felony PTD Program?

The procedure for qualifying for Felony PTD isn’t an easy one.  You must go to their web-page and fill out an online application which requires you to upload things such as letters of recommendation, your resume, and school transcripts.

DO NOT FILL OUT THEIR APPLICATION WITHOUT A LAWYER!

First of all you need to have been indicted by the Collin County Grand Jury with a felony to begin this process… that is you have to be formally charged with a felony first (not just on-bond after being released from a felony arrest).

Second, anything you upload is information law enforcement probably already does not have about you. Anything you say or upload has the potential to be used against you.

Additional advocacy and lobbying by attorneys for their clients applying to the program will be a key component of getting accepted into the program.

If they invite you to interview with the probation department directly then you’re in pretty good shape.  You and your lawyer will go over additional paper-work and discuss the interview process.

What We Don’t Know About Felony PTD Yet

There are still many unanswered questions.  We don’t know how they will treat certain cases and we don’t have much of an idea of what their acceptance rates will look like.  For example in misdemeanor cases we know they will not accept family violence cases or DWI cases for diversion.  There will undoubtedly be categories of cases they will not review simply based on the charge.

There will be much trial and error both on the D.A.’s side of the program and on the defense side which only time will resolve.  They will undoubtedly get applications they don’t know what to do with just the same as we are guessing at what they will and won’t accept.

We will have a much better idea exactly how their new, expanded program is working in time.

Until then play it safe and listen to your lawyer.

*Jeremy Rosenthal is an attorney licensed in the State of Texas and is Board Certified in Criminal Law.  Nothing in this article is intended to be legal advice.  For legal advice about any matter contact a lawyer directly.

 

 

 


Probation Sanctions — Facts Versus Fiction

November 29, 2015

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Frequently, a probation officer (“PO”) in Collin County will present a probationer with proposed “sanctions” for alleged probation violations. Often the officer will request the probationer make up their mind on the spot – which prevents the probationer from truly making an informed decision.

The proposed sanction could include jail, taking new classes, and even extending probation. If the person turns down the sanction, then the probation officer threatens a motion to revoke probation or motion to adjudicate deferred adjudication.

These situations are like snow-flakes. No two are alike. Thus, you should always talk to a lawyer about your choices, and this blog (awesome as it may be) is really no substitute for case specific legal advice.

The best I can do is separate fact from fiction based on what I hear about the tactics some PO’s might use to get probationer to sign the sanctions, and what I know the law to be about revocations.  I use the terms probation revocations and adjudication of deferred interchangibly:

Facts:

  • A probation officer can seek to have your probation revoked if you violate any term and condition of probation. They need the District Attorney’s Office to sign off — but this is just a formality.
  • A probation revocation will trigger a warrant. You will be re-arrested. You are generally entitled to bond on misdemeanors but not always on felonies.  If there is no pre-set bond, then you might have to wait in jail while one is set. This could take several days or several weeks.
  • The vast majority of revocation proceedings result in plea bargains between prosecutors and your defense lawyer.
  • If you have a contested hearing, the state has the burden to prove by a preponderance of the evidence that you did violate probation at a hearing before the judge. Formal rules of evidence apply.
  • Most revocations have multiple allegations of violations, and if you lose on any one of them your probation could be revoked or deferred adjudicated.
  • If your probation is revoked then you can be punished as much as the underlying sentence will allow. If you were on deferred, then you’re subject to the maximum sentence range.

Fiction:

  • The Judge is angry with you:
    • Rarely does the judge know or care about your case if you’re just having problems with your probation officer. Collin County Judges have hundreds if not thousands of cases at one time — so your case is not as special as you think. Some judges are very “hands-on” with probationers but most would consider an every-day dispute between a probationer and a PO as a waste of their time. This obviously changes if you face revocation proceedings.
  • You Will Definitely be Revoked/ Adjudicated
    • POs often bluff.  They do not seek to revoke probation on every instance where they offer sanctions.
  • You Will Have to Explain Your Refusal of the Sanctions to the Judge
    • If you say no to the proposed sanction you are not necessarily going to have a hearing with the Judge.  The paperwork and the PO might say if you say no to the sanction you are requesting a hearing with the judge — but the reality is the PO is the one requesting it and they rarely follow through.  This is more often than not used as a threat to bully someone to accept sanctions.
  • You Will Get the Max (or Lengthy) Jail Sentence if You Say No
    • You won’t get punished for saying no to your PO.  This is normally an idol and unsubstantiated threat.  Think about it… if your PO really thought you should get a maximum sentence — then why are the offering not only to keep you on probation but not even revoke you in the first place?
  • The PO Will Make Sure You Get a Stiff Penalty if you Say No
    • Your probation officer has very little to do with process after the motion to revoke is filed.  They don’t go to your court dates and they don’t normally have a close relationship with the prosecutor.  The PO might testify if the case is ultimately contested but this is rare.  The PO typically writes a recommendation but this recommendation is not binding on anyone.

Can I Get Out of Sanctions if I already Signed Them?

Yes, it is possible. You need a lawyer and you need to file a request with the Judge to abate (pause) or undo the sanction.  The sanction can be analogized to a contract.  Most contracts can’t be executed under duress or stress.  Where a sanction was signed under threats of jail or worse — an argument can be made the consent was invalid.

The Bottom Line About Sanctions

Sometimes they make sense and you should seriously consider accepting them.  Don’t do so without a lawyer, though.  We can tell you what your alternative looks like and this will allow you to make an informed decision and you will know whether you have been offered a fair deal or not by your PO.  Your PO is likely an honest, hard working person but they do not know the court system, the laws, and the likely outcomes nearly as well as your lawyer will.

 

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas.  He is Board Certified in Criminal Law.  Nothing in this article should be considered legal advice.  For legal advice you should consult an attorney directly.


Shock Probation — Converting a Prison Sentence to Probation

October 15, 2015

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

“Shock Probation” allows a trial judge to convert a prison sentence into probation.  This can be after a plea bargain, a bench trial, or a jury trial where the Defendant is sentenced to prison.

Texas Code of Criminal Procedure Section 42.12(6)(a) allows the trial court to retain jurisdiction “for 180 days from the date the execution of the sentence actually begins” and the judge can place the defendant on probation if the defendant is otherwise eligible.  These do not apply to State Jail Felonies, however, other probation programs apply to those charges.

In other words, the defendant must still (1) be sentenced to less than 10 years of prison and (2) not have been convicted of a felony in this state or any other State.  The Judge cannot grant shock probation where the Judge couldn’t otherwise — meaning “3(g) offenses” such as murder, aggravated robbery, aggravated assault, aggravated sexual assault of a child, indecency with a child, or injury to a child to name just a few.

So here is how it works… after someone is sentenced (for example after a jury trial), the lawyer files a motion for shock probation under 42.12(6)(a).  The judge can deny the motion without a hearing but cannot grant the motion without a hearing.  The Judge must grant the request within 180 days of the date the execution of the sentence actually beings or it would be over-ruled as a matter of law.

Shock probation and an appeal are not mutually exclusive and both can be done.

A motion for shock probation is a great “second bite at the apple” and should be considered where a trial or plea bargain went wrong.

*Jeremy Rosenthal is an attorney licensed in the State of Texas.  He is board certified in Criminal Law.  Nothing in this article should be considered legal advice.  For legal advice about any situation you should contact an attorney directly.


Can I Travel on While On Probation?

September 22, 2015

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Collin County Community Supervision’s policy is that you can travel as long as you’re in “good standing.”  What exactly that means and who gets to make that decision is the big question.  Unfortunately travel requests often trigger power struggles between probation officers and probationers.

Routine travel which is work related normally isn’t an issue.  I’ve seen many probation officers balk, though, when presented with leisure travel or pre-planned vacations on the other side of the world.  It’s not uncommon for a probation officer to give vacillating answers or say they “need to check with their supervisor” which drags out the problem perilously close to date of travel.

To me – the policy is the policy.  If someone is in good standing, then the who, what, when, where and how of a probationer’s travel is none of the officer’s business as long as all requirements are otherwise being met.

Probation officers are hard working but they’re human like everyone else.  Perhaps they feel their control over the probationers is jeopardized with such a request, perhaps they think probation should be a moratorium on relaxation, or perhaps there may even be a twinge of jealousy involved.

Let the Judge Decide

The Judge has the final say about whether or not someone can travel while on probation.   They can and often do over-rule your probation officer.  They aren’t interested in the daily power-struggles between a probation officer and a probationer and they frequently see probation’s opposition to travel as petty or arbitrary.

If you are being denied the ability to travel while on probation — call your lawyer!

 

*Jeremy Rosenthal is an attorney licensed to practice in Texas.  He is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  For any question you may have you should contact an attorney directly.


Probation FAQ’s

March 29, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Probation (technically called community supervision), is where the Judge suspends all or part of the sentence in a case for a certain period of time.  In the probationary period, the person typically completes community service and other requirements such as classes or drug testing.

A person on probation in Texas must complete and abide by “terms and conditions” of probation.  Typically a person cannot commit an offense against the State of Texas or any other state as a minimum.  Other requirements range from requiring the defendant to report changes in address, changes in employment, and new arrests, if any.

Difference between Deferred and Probation

Deferred adjudication is where you have not been convicted.  Probation is where you have been convicted for the offense.  While on deferred, you must still complete community supervision as if you were on regular probation for most offenses.  The terms can be used interchangeably, but they’re not really identical.

Probation Eligibility

If you’ve never been convicted of a felony in Texas or any other state you are usually eligible for probation. Convicted felons are tricky and it is best to consult a lawyer about your specific situation.  Prosecutors have differing policies against offering probation for certain offenses such as drug trafficking, robbery, and crimes against children.

Can I have Probation Records Expunged?

No.  Expunctions for cases above class C misdemeanors require acquittal or another legal bar to prosecution.  You may be eligible for a petition for non-disclosure, however.

Is there Probation for Federal Offenses?

Yes, but it is likely that if you get probation in Federal Court that you will still serve jail at some point.  There is no parole in Federal prison so almost the only way you can be released from prison without serving all of it is to serve part of it on probation.

Can I be Released from Probation Early?

Yes, you are generally eligible for early release in Texas state courts for probation 1/3 of the way through probation and if  you’ve completed every requirement.  There is no early release for DWI offenses, certain drug offenses, and sex crimes.

Can I do Rehab Instead of Probation for Drug Crimes?

It depends on the case and the willingness of the prosecuting attorney to all an arrangement like this.  More often than not, a prosecutor or Judge may include the rehab as part of probation but not necessarily replacing probation altogether.  This is the type of deal an experienced attorney may help you reach with the prosecutor.

What if I don’t Like my Probation Officer?

Do your best to get along with them even if that means swallowing your pride.  They hold the keys to your jail cell.  In their defense, probation officers have a very difficult job.  The better you get along with them, the more they appreciate you… but they can be extremely damaging to your case if they think you’re a problem.  If they become verbally abusive or play games you may consider involving an attorney though getting a different probation officer can be difficult.

Probation Violations

If you violate probation, your probation officer can cause a probation revocation proceeding (or an adjudication proceeding if you are on deferred) to occur.  You’d be re-arrested and the only issue before the Court is whether you violated your deferred or probation.  If the state proves even one violation more than a preponderance of the evidence, the judge can convict you of the deferred, or revoke your probation.  If this is done, you may be required to serve all or part of the underlying jail sentence.  Often on revocations, however, the judge may extend probation or take some lesser action.

*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 for any situation, you should consult an attorney.