Violation of Probation
Violation of Probation
If your probation officer has alleged that you violated a technical or substantive provision of your probation (often called “community supervision”), then the probation office can file an affidavit asking the court to file a Motion to Revoke Probation or a Motion to Adjudicate.
These motions for probation revocation or adjudication will list the ways you did not complete the special conditions of your probation. The court will then issue a warrant for your arrest for the violation of probation.
If you are accused of a violation of probation for an underlying felony, misdemeanor or juvenile offense, then contact an experienced criminal defense attorney in San Antonio, TX, at Flanary Law Firm, PLLC.
Call (210) 738-8383 today.
Types of Probation Violations in Bexar County, TX
The most common probation violations in San Antonio and Bexar County involve:
- committing a new criminal offense or violation of the law including a felony or misdemeanor;
- failing a drug test with a dirty urine;
- failing to report for a scheduled meeting with your probation officer;
- moving without permission (often called “absconding”);
- not paying all of the fines and court costs;
- not paying restitution;
- not completing a requirement of your probation such as counseling or classes; or
- not completing community service.
In a probation revocation hearing, the court does not have to decide whether the violation occurred beyond all reasonable doubt. Instead, the court will use a lower standard known as the preponderance of the evidence. Furthermore, probation revocation hearings are heard before the court and not a jury.
If the court finds by a preponderance of the evidence that you violated your probation, then the court can sentence you to the maximum sentence that could have originally be imposed for that offense. So if you are on probation, then the court can sentence you to up to five years in prison.
If you are on probation with deferred adjudication, then there is no set amount of years set as your maximum punishment. Instead, you are eligible to get the entire range of punishment available.
After an arrest for a violation of probation, you are entitled to have a hearing within 21 days. If you are on probation with deferred adjudication then you are entitled to have a bond set. If you are on regular probation, then the court can, but is not required to, hold you on “no bond.
What Happens at the Probation Violation Hearing?
In many felony and misdemeanor cases, a person enters a plea and avoids incarceration by agreeing to be on probation as part of a negotiated plea. If the court orders a person to be on probation, the court will impose various general and specific conditions of probation. If your probation officer alleges that you violated probation, then you can be arrested and your case will be scheduled for a probation hearing.
If you are found to have violated probation or if you admit that you violated probation, then the court can impose any sentence that it could have originally imposed including time in jail or prison.
Motion to Revoke Probation in Texas
After filing a motion to revoke probation, the prosecutor in Texas must prove, by a preponderance of the evidence, that appellant violated the conditions of probation in order to succeed on a motion to revoke probation.
A plea of true to any one of the alleged violations is sufficient to support the trial court’s order of revocation. Once a plea of true has been entered, a defendant may not challenge the sufficiency of the evidence to support the subsequent revocation.
In community supervision revocation cases, a claim of insufficient evidence is limited to the traditional legal-sufficiency analysis. The State has the burden to establish by a preponderance of the evidence that appellant committed a violation of the terms and conditions of community supervision.
The preponderance-of-the-evidence standard is met when the greater weight of the credible evidence before the trial court supports a reasonable belief that a condition of community supervision has been violated.
When the State fails to meet its burden, it is an abuse of discretion for the trial court to issue a revocation order. In a revocation proceeding, the trial judge is the sole trier of the facts, the credibility of the witnesses, and the weight to be given their testimony.
The “Ability to Pay” Statute in Texas
The State must also carry its burden under Article 42.12, section 21(c) of the Texas Code of Criminal Procedure to prove the defendant had the ability to pay all court-ordered fees.
Section 21(c), also known as the “ability-to-pay statute,” provides that when the only allegation at a community supervision revocation hearing is that the defendant failed to pay fees or court costs, the State must prove by a preponderance of the evidence that the defendant was able to pay and did not pay as ordered by the judge. Tex. Code Crim. Proc. Art. 42.12 § 21(c).
The ability-to-pay statute was addressed in Gipson v. State, 383 S.W.3d 152 (Tex. Crim. App. 2012), in the context of a probation revocation hearing where the trial court revoked Gipson’s probation based only on his plea of true to an allegation of failure to pay. The Texas Court of Criminal Appeals reversed and remanded the case for the court of appeals to determine, inter alia, whether the ability-to-pay statute applies to unpaid amounts that are not explicitly listed in the statute. Id. at 158.
After the cases was remanded, the Court of Criminal Appeals held that the plain language of section 21(c) applies only when the State alleges violations of probation based on failure to pay specific fees and costs enumerated in the statute, not when the State alleges violations based on failure to pay fines. Gipson v. State, 428 S.W.3d 107, 108 (Tex. Crim. App. 2014) (“Gipson II”). The court noted that the Texas Legislature easily could have included the word “fines” in the language of the statute if it wished to include them and that fines, unlike fees and costs, are punitive in nature, not remedial. Id. at 108–09.
Due Process Violations in a Probation Revocation Hearing
In the dissenting opinion in Sneed v. State, 493 S.W.3d 218, 221 (Tex. App. 2016), the court noted the “common practice for Texas trial courts to hear a motion to revoke probation, take the motion under advisement, hold the motion in abeyance, and, essentially, let the probationer’s post-hearing conduct determine whether to grant or deny the motion on one or more of the grounds alleged in the motion to revoke.”
In these types cases, the appellate courts have held that this procedure constituted a denial of due process:
It is clear … that a probationer can no longer be denied due process in reliance on the dictum … that probation is an “act of grace.” “Getting a break,” the Texas version of “act of grace,” is no more a reliable dictum for denial of due process.
This Court now has rejected the concept that constitutional rights turn upon whether a governmental benefit is characterized as a “right” or as a “privilege.” Whether any procedural protections are due depends on the extent to which an individual will be condemned to suffer grievous loss. The question is not merely the weight of the individual’s interest, but whether the nature of the interest is one within the contemplation of the “liberty or property” language of the Fourteenth Amendment.
Rogers v. State, 640 S.W.2d 248, 253–54 (Tex.Crim.App.1982) (op. on reh’g) (citations and selected quotation marks omitted).
After conducting a hearing on the violation of probation, a trial court’s options regarding someone on community supervision are limited by the legislature. The Texas legislature in Tex.Code Crim. Proc. Ann. art. 42.12, § 21(b–2) (West Supp.2015) has specifically required that after a hearing, a trial court may only “continue, extend, modify, or revoke” the community supervision.
But the legislature has not given the trial court authority to revisit a disposition with no new allegations as explained in Tex.Code Crim. Proc. Ann. art. 42.12, § 21(b–2) (West Supp.2015):
The court having exercised its authority at that earlier hearing by modifying the terms of probation instead of revoking probation, it was clearly without authority to change that disposition at a subsequent hearing at which no further violation of probation was shown.
Therefore, it is a denial of the constitutional right to due process if the trial court considers the original allegations despite the trial court’s intervening amendment of his conditions of community supervision. Although an object to that due process violation must be raised at the hearing before relief will be granted on appeal.
Habeas Corpus in Community Supervision Cases
When a defendant seeks relief from an order or a judgment of conviction ordering community supervision, a post-conviction application for habeas corpus can be filed under article 11.072 of the Texas Code of Criminal Procedure.
Habeas applications in community supervision cases are designed to permit the defendant to challenge:
- the validity of the conviction or order in which community supervision has been imposed;
- the legality of the special conditions of community supervision imposed.
The application for habeas corpus in a community supervision case is first presented to the trial judge to decide whether relief should be granted or denied. Either side can appeal the trial judge’s order that either grants or denies the application for habeas corpus in a community supervision case.
Adult Probation Department in San Antonio – Learn more about the Community Supervision & Corrections Department (also known as “Adult Probation Department” or (CSCD)) located at 207 North Comal in San Antonio, TX. The CSCD in Bexar County is a professional criminal justice agency that supervises more than 30,000 individuals sentenced to probation and residing in Bexar County. The CSCD enforces the court-ordered conditions of community supervision and provides a wide range of rehabilitative services and resources. With more than 300 community supervision officers (probation officers), assistant supervisors, supervisors, and administrators, the department also has more than 200 additional employees that provide support.
Bexar County Juvenile Probation Department – The Bexar County Juvenile Probation Department in San Antonio, TX, is a part of the Juvenile Justice System. After a judge in juvenile court determines that a child is a juvenile offender who committed a criminal offense, the judge can refer the child to the Juvenile Probation Department. If a child is found to have committed Delinquent Conduct the Juvenile Probation Department then supervises the child, if the child is court ordered onto probation. The budget for the Bexar County Juvenile Probation was 45,545,843 in 2016.
Juvenile Probation Department in San Antonio, TX
301 East Mitchell
San Antonio, Texas 78210
Finding a Lawyer for Probation Violations in Bexar County, TX
If you were sentenced to community supervision (often called “probation”) on a misdemeanor or felony offense in San Antonio, TX, then contact an experienced criminal defense attorney if your community supervision officer is going issue a violation.
Don’t just wait to be picked up on the warrant. Instead, contact a criminal defense attorney who can help you come into compliance quickly or ask the court to just reinstate your probation so that you can have another chance to complete probation.
Call (210) 738-8383 today to discuss your case.
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Donald H. Flanary III
“I see our duty as more than just counselors and advocates, but as warriors.”