I used to be a probation officer for many years. I had many years of experience as a probation officer under my belt when I pivoted to being a defense attorney. In my capacity as both a probation officer and as a criminal defense attorney, I have become very well acquainted with the ways in which people most commonly violate the terms of their probation.
Generally, I see three major things that people do wrong on probation that get them in trouble.
Committing a new crime/catching a new charge: The most common way that people violate their probation is by catching a new charge. Anything above a traffic ticket will violate the terms of misdemeanor or felony probation. Even an arrest without a conviction can violate the terms of your probation, depending on your circumstances.
Absconding: Another common thing that trips people up and causes them to violate their probation is getting scared that they’re not going to be able to keep up with the program/terms (especially with the fees involved). When that sort of fear sets in, people often stop reporting to their probation officer. Unfortunately, by not reporting, they make the situation far worse: they are then considered absconders, and any judge will issue a warrant for their arrest. Oftentimes, the cutoff point is three missed appointments or three missed months in a row. After that streak, a warrant will usually be issued for your arrest.
Use of Controlled Substances: Another very common way that people run afoul of their probation programs is by testing positive for any controlled substances. This includes marijuana, which is still illegal in Texas. Testing positive for a controlled substance one time does not necessarily mean that you will be reported for violating your probation. Most probation officers are relatively understanding, and will give you a pass if you test positive for drugs—especially marijuana—once. However, if you do it more than once, you will more likely than not end up in violation of your probation.
Those are probably the three most common probation violations. Of course, there are other ways to violate your probation, because probation comes with a, quite frankly, inordinate number of rules that have to be followed exactly. However, not reporting, testing positive for controlled substances, and re-offending are the three most common types of probation violations that I saw as a probation officer, and that I continue to see as a defense attorney.
What happens if you are charged with a probation violation in Texas largely depends on the level of violation we’re talking about.
If you have re-offended—you can expect to have to go back in front of the same judge who issued your probation. This will require hiring a lawyer and bonding back out of jail, which are both things that I can help my clients with.
If you have a less serious violation, such as a few missed months reporting, there is usually a lesser punishment. They may sanction you with perhaps a weekend in jail, at most. Sometimes they will change the terms of your probation and make you report more frequently.
When it comes to drug usage violations (also known as “positive urinalysis” or “a dirty UA”), those, too, depend on the case in question and the probation officer you’re dealing with. Testing positive for controlled substances once or even twice can result in mandatory counseling and/or AA/NA meetings.
If you continue to test positive for controlled substances, you will most likely be required to enroll in an outpatient drug treatment program full-time. If you continue to test positive, you can even end up in inpatient treatment by order of the Court.
Oftentimes, courts are more lenient for what’s known as “technical violations”, like not reporting or drug use. They tend to be less lenient when it comes to getting new charges. So, in terms of what people can expect, a lot of it depends on the level of the violation that you are alleged to have committed.
You absolutely have the right to have an attorney present at a probation revocation hearing. Frankly, it would absolutely not be in your best interest to appear in front of a judge at that phase without an attorney.
But in any case, you absolutely have the right to an attorney at that phase, because your liberty is at stake. This phase of the process involves having to go back in front of the judge. Usually, the judge will then ask you if it is true that you violated your probation or not. There are many ways to address the court and answer these questions, and there are a lot of things that you need to discuss with an attorney before going back to court in general. You certainly don’t want to be up there without an attorney while you’re facing new allegations.
The decision on whether or not to revoke your probation is up to the district attorney. They file what’s known as a Petition to Proceed to Adjudication or a Motion to Revoke Probation. These are legal documents (Petitions and Motions) initiated by the DA’s office based on information provided to them by the probation department.
If the DA’s office does decide to initiate the charge and begin the probation revocation process, they will usually ask the Court to issue a warrant, which would necessitate you hiring a lawyer. Usually, at this part of the process, clients will hire me, and I’ll attempt to get the judge to set a bond ahead of time. If you’re on what’s known as “deferred adjudication probation”, you’re entitled to a bond in Texas.
Once I get a bond set, I arrange for the client to either do a walkthrough or to turn him or herself into the jail. Then I’ll bond them out immediately, and then we have to go back to Court. At that point, I negotiate with the DA, oftentimes about what we should do to resolve this short of the of the client having to do any prison or jail time.
If the DA and your lawyer cannot come to an agreement, then you have a hearing. You’re not entitled to a jury trial in Texas on a probation violation. You’re only entitled to a hearing in front of a judge. This can sometimes be risky, because the burden of proof is lower in a motion to revoke. It’s not beyond a reasonable doubt, as it would be on other criminal charges. Therefore, it’s oftentimes better to resolve the case ahead of a hearing than to do so in front of the judge.
For more information on Probation Violation Cases Handled In Texas, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (817) 877-0401 today.