You have been placed on probation, now what? The answer to that question is far from simple. When a person is placed on probation, whether it be regular or deferred, there are conditions that are placed on the person. Those conditions can include in addition to reporting: electronic monitoring, monitoring of social media accounts, interlock devices, curfews, random drug tests, and anything else the judge deems reasonable for your probation. Payment of probation fees and payment of any fines assessed are also considered terms and conditions of probation. Many people agree to a term of probation not fully understanding what can happen if they do not fully abide by all the terms and conditions placed upon them.
The typical scenario is that a person violates one or more terms or conditions and the State of Texas files a Motion to Revoke Probation. A motion to revoke is the pleading used by the State to alert the Judge that a person has not lived up to the terms and conditions of probation and deserves some form of sanction. Sanctions can range in severity depending on the level of violation and the number of violations. It is rare that a motion to revoke is filed on the first violation, but that can happen. The best plan, but not always feasible, is to avoid all violations and abide by all terms and conditions. Communication with the probation officer assigned to the case is key. At the beginning of the probationary term, make sure that you are fully aware of all terms and conditions and that you know what is expected of you.
If a motion to revoke is filed, however, a defendant needs to know exactly what to do and what this could mean for their future. Once the motion is filed, a defendant should seek legal counsel immediately. Many rights that a defendant had in the pre-plea bargain stage are not available during a motion to revoke. A lawyer, like a criminal defense lawyer Arlington, TX trusts, can help guide you through the process and make sure that the rights that are afforded to the defendant are fully utilized. During the proceeding, the burden of proof is lowered to preponderance of the evidence and a defendant is not entitled to a jury trial. The proceeding will be to a judge only. A defendant is still entitled to legal representation and the State still must prove that any allegations in their pleadings are true and did occur by a preponderance of the evidence. Interestingly enough, an issue relating to motions to revoke recently came before the Court of Appeals Corpus Christi Division. In Carreon v. State, the State of Texas moved to revoke the probation of a defendant based solely on the defendant’s failure to pay the monthly probation fees, court costs, and restitution. W.L. 360043 (Tex. App. —Corpus Christi 2018). At the hearing on the motion, the defendant argued that he was not able to make the assessed monthly fees associated with the ordered restitution. Id. The State argued, however, that this payment was a term of the defendant’s probation and recommended the minimum sentence to the underlying offense. Id. The trial court refused to follow the State’s recommendation and set the matter for a full evidentiary hearing. Id. The State filed a motion to dismiss the motion to revoke alleging that they had insufficient evidence to prove their own allegations. Id. The trial court denied the State’s motion and revoked the defendant’s probation holding that the defendant did not make “efforts to seek employment, or borrow money to pay the assessed amounts.” Id. The Court of Appeal reversed the trial court’s decision and found that the evidence was insufficient to find that the defendant was willfully unemployed, or underemployed. Id. The significance of this recent holding is that the State can not merely revoke a defendant’s probation on the lack of payment of fines or restitution if the defendant is unable to pay. The standard is that, as long as, the defendant is attempting to seek employment, the State cannot attempt to revoke the defendant’s probation for not making the required monthly payments.
During the evidentiary hearing on a motion to revoke, the State will and must call witnesses to establish several things. First, they must show that the defendant in the courtroom is the same person who was originally placed on probation however many months ago. That is typically done through the probation officer who is handling the case. The State must also demonstrate that at least one of the violations of probations as alleged in the motion to revoke occurred. For instance, if the allegation is that the defendant failed a drug test, the State must prove that the defendant did in fact fail the drug test. This may require the State to call all essential lab personnel to demonstrate the method of testing and to testify to the accuracy and existence of the results. If the State does not have this witness available, the evidence may be insufficient to demonstrate that the violation occurred. However, if the State does have the witnesses, the burden of proof is lower and the State must only prove that the violation occurred by a preponderance of the evidence; meaning, the State must show that it is more likely than not that the defendant committed the violation.
If the State is able to meet their burden, the judge must then decide the proper punishment. Punishment ranges depend on what type of probation the defendant was placed on. If the defendant was on regular probation the plea bargain stated an exact number of months or years probated for a certain number of years. For example, 2 years in jail probated for 3 years. In that scenario, the sentence is technically two years but a judge may sentence the defendant to any range of punishment up to the agreed sentence of two years. If the defendant was placed on deferred probation, the judge may sentence the defendant to any range of punishment up to the maximum. For instance, if the underlying crime was a state jail felony the punishment range is six months to two years in state jail. If the defendant was placed on deferred probation for committing a state jail felony, during the sentencing phase of a motion to revoke, the judge can sentence them to up to two years. No matter which type of probation, the sentence assessed will be in addition to any time already served on probation. No credit for time served on probation is given. Of course, the judge could extend probation and that is a very favorable outcome for the defendant. However, if the violation is severe enough or there are multiple violations the chances of being extended on probation are very slim. Knowing how the judge typically rules, knowing the prosecutor and whether he/she is reasonable, and knowing the facts will determine whether you stay out of jail if you happen to commit one or more violations of your probation.
Thanks to our friends and contributors from the Brandy Austin Law Firm, PLLC for their insight into criminal defense and probation.