Austin Probation Revocation Attorney
Probation Revocation In Austin, TX
A probation revocation typically happens in one of two ways. A probationer either racks up a number of technical violations that lead to a motion to revoke, or they pick up a new criminal charge, which will almost always trigger a motion to revoke.
A motion to revoke probation is filed by the prosecutor, usually after a report from the probation department. In many (but not all) cases, this triggers a warrant. Sometimes the probationer will be informed of the warrant, but not always! Also, in some cases, the Judge can issue a summons, which is not a warrant but does require presence in Court.
What sort of violations will lead to a motion to revoke probation? Missing classes or therapy sessions, violating stay-away orders, failing drug tests, IID violations (for DWIs), or skipping classes repeatedly can all lead to a motion to revoke. Nonpayment of probation fees can be a factor, but cannot be the sole reason to revoke. Even though a motion could technically be filed after a single violation, in practice, it is usually only filed after the violations begin to mount.
Typically, the Probation Department will throw in every violation along with the kitchen sink when they draft up the violation report. This is because they only need to prove a single violation for the revocation to be successful, but they also want the Court to be aware of all the bad conduct that they are alleging.
Probation Revocation When There is a New Charge
A new criminal charge will almost always trigger a motion to revoke probation. When hiring an attorney for a new case, it is very important to let him or her know that you are on probation for a previous charge.
The first problem probation causes are with the jail release. In Travis County, Pretrial Services will typically not approve a PR bond for someone who was already on probation. Sometimes, the probation revocation can trigger a new warrant even after you bond out for the new charge, so you would have to go through the bonding process a second time!
Next, it is important to handle the motion to revoke in tandem with the new charge. Sometimes these charges will be in the same court, but if one charge is a felony and the other is a misdemeanor, they will be in different courts. Your defense attorney will need to coordinate with different prosecutors and courts, and can benefit by dealing with them both at the same time. It is common to come to a plea agreement that “packages” both charges together in some way.
Hearing on Probation Revocation
The hearing to decide whether probation will be revoked can be very informal. Sometimes it is as simple as an off-the-record conversation with the judge. The violation(s) only need to be proved by a “preponderance of the evidence”, which is a lower standard than the “beyond reasonable doubt” standard needed for a conviction. Often the negotiation takes place directly with the judge, rather than the prosecutor, although this dynamic varies greatly between jurisdictions. Some prosecutors will insert themselves in the process.
The hearing will lead to one of three results. The best-case scenario is that the probationer will be continued on probation. The judge decides either that there is not enough evidence to revoke, or decides not to revoke even though there is evidence. This is at the discretion of the judge. Sometimes this will come with chastisement or admonition to do better on probation but is always a welcome result.
A second scenario is a revocation. Unfortunately, this leads to the imposition of the jail sentence that was negotiated as part of the plea. Usually, this is only imposed after repeated significant violations, and failure to correct behavior over multiple hearings. Most judges are willing to give multiple chances for the probationer to get probation right.
A third scenario – and perhaps the most common – is continued probation, but with added conditions. These conditions could include extending the time of probation, additional drug tests or alcohol monitoring, inpatient or outpatient care, an ankle monitor, or any other creative idea that the parties can come up with to forge an agreement. One such condition is known in Travis County as “shock probation”, which continues probation, but requires a stint in jail that can last months.
Motion to Adjudicate Guilt
A Deferred Adjudication is similar to probation, but with slightly different terms and consequences. Instead of a motion to revoke probation, a prosecutor would file a Motion to Adjudicate Guilt. In this case, a revoked deferred adjudication would convert into a conviction. This can be a major problem, especially in a case where a defendant has no previous felonies. Also, with deferred adjudication, there was not a negotiated jail sentence, so the judge can impose any jail sentence between the minimum and maximum for the charge.
Early Termination of Probation
On the flip side of probation revocation is early termination of probation. In this scenario, a probationer has completed most or all of the requirements of probation and can petition the court to have their probation terminated sooner than the negotiated term. Usually, this is after one-half or one-third of the term. Whether the petition will be granted is at the discretion of the judge. Limits apply, and by law, early termination is not permitted at all in DWI cases.
Talk to a lawyer in your jurisdiction to find out when and if early termination is a good idea. A lot of it will come down to the particular judge in your case, so an attorney who knows the tendencies of your judge can be very important. In some cases, if you keep a good relationship with the probation officer, he or she can let you know when is a good time to request early termination of probation.
Contact An Austin Probation Revocation Attorney
At ATX Legal, we have handled many Probation Revocations and Motions to Adjudicate Guilt in Travis and surrounding counties. Because these proceedings are typically shorter than an entire criminal case, reduced attorney fees often apply. If you would like a free case evaluation to discuss an upcoming hearing, or if you are worried that a probation revocation is imminent, call us to discuss your case.