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How to Fight a Motion to Revoke Probation or Probation Violation in Texas

Earlier this week, I represented a client who was facing a Motion to Revoke Probation in Denton County, which is one of the strictest counties in Texas when it comes to throwing hard time at people who have either been accused or charged with a criminal offense. I received a frantic call from the client’s wife late on Saturday night informing me that her husband had a hearing on a Motion to Revoke early on the following Monday morning.

After calming her down a bit, I learned that her husband had been charged with Driving While Intoxicated back in 2007, and he had been placed on community supervision, more commonly known as probation. However, when the client went to his initial check in at the probation department back in 2007, to his complete surprise, he was immediately placed under arrest. Evidently, he had an outstanding warrant in another county for a different charge that was totally unrelated to his DWI. As a result, he was transferred to that county where he spent 67 days in jail before being removed and deported from the country!

Approximately a month later, the Denton County District Attorney’s office filed a Motion to Revoke my client’s probation because, evidently, they still expected him to report to his probation officer each month, make payments towards his fine, attend drug and alcohol awareness classes, and complete 50 hours of community service even though he had been deported from the country against his will.

What is a Motion to Revoke Probation?

In Texas, whenever a person is placed on probation, there are certain terms and conditions that the person must abide by while on probation. Often times, the person is instructed not to commit any new crimes and not to use any illegal drugs or alcohol while on probation. In addition, the person is usually required to report to his or her probation officer each month, pay fines and restitution, attend various classes, and perform a certain number of community service hours. When a person violates one of the terms and conditions of his or her probation, often times the violation may be resolved directly with the probation officer. But, if the violation is not or cannot be resolved directly, or if the probation officer feels that the violation is serious enough to warrant the Court’s involvement, he or she will report the violation to the District Attorney’s office, and they will then file a Motion to Revoke.

A Motion to Revoke probation is always filed in the Court where the underlying criminal charge was filed, regardless of where the probation is actually being served. Once a Motion to Revoke has been filed by the District Attorney, the Judge will issue a probation violation warrant. Usually, a no bond warrant is issued. In fact, since the person on probation has already been formally convicted of the criminal offense for which they were originally placed on probation for, he or she is not even entitled to a bond anymore. However, many judges can often be persuaded to set a bond once a Motion to Revoke has been filed with the Court and the person has been taken into custody on the no bond warrant.

What Happens When Your Probation is Revoked?

If the State is successful in arguing its Motion to Revoke probation to the Judge and he or she decides to revoke your probation, then you will face up to the maximum jail term or prison term that was probated when you were originally granted probation. Using the client I mentioned earlier as an example, when he was originally placed on probation in 2007, he was sentenced to 150 days in the Denton County jail. Because the Denton County District Attorney’s office filed a Motion to Revoke his probation, this means that he was potentially facing up to 150 days in jail.

While it is within the Judge’s sole discretion whether or not to allow you to continue on probation or sentence you to jail or prison, most prosecutors and judges view a Motion to Revoke like this, “You already got a second chance when you received  probation instead of jail or prison time. You violated the terms and conditions of your probation. So, now it’s time to hammer you.” Simply put, it’s extremely likely that you are going to do time.

Worse still, the State has several legal and procedural advantages in Motion to Revoke cases.  First, the legal issue is not whether or not you committed a crime. Nobody cares if you shoplifted, possessed cocaine, or robbed a little, old lady. The only issue once the State files a Motion to Revoke is did you violate the terms and conditions of your probation in some way. In addition, you do not have a right to a jury trial in a Motion to Revoke case. The only hearing you are entitled to is called a probation revocation hearing before the Judge that sentenced you in the first place. Also, you are not entitled to the same burden of proof when facing a Motion to Revoke as you are in a criminal trial. When charging you with a crime, the State must prove that you committed the charged offense beyond a reasonable doubt, the highest legal standard that exists. However, all the State has to prove at the probation revocation hearing is that it is more likely than not, about a 51 percent chance, that you violated the terms and conditions of your probation.

What Should You Do if You’re Facing a Probation Revocation or Motion to Revoke?

Basically, you need to hire an attorney right away! Motion to Revoke cases can be defended and won. And, often times, you can be given a third or even fourth chance, which allows you to stay on probation. Again, take my Denton County client for example. Worst case scenario, he was looking at 150 days in the Denton County jail and possible removal and deportation from the county. After discussing his case with him and some of the options that may have been available, he informed me that he would essentially be willing to do anything in order to avoid a jail sentence. Therefore, I went into his hearing on the Motion to Revoke with this goal, and this goal only, in mind. Since my client had not had a chance to pay his fine, attend his court-ordered classes, or complete his community service, I was hopeful that we might be able to convince the State or the Judge to allow my client start his 15 month probation term all over so that he could have a chance to prove himself.

After a lot of back and forth maneuvering, I was able to convince the State to simply sentence my client to 60 days in the Denton County jail with back-credit for the 67 days he had already served in the neighboring county back in 2007. Therefore, my client would avoid having to spend even a single day in jail. Additionally, the extra 7 days he had already spent in jail completely covered the full amount of his fine. So, when it was all said and done, my client didn’t go to jail, didn’t pay any fine, and he was no longer on probation at all!

Granted, the outcome of every Motion to Revoke probation case may not necessarily be as favorable as my Denton County client’s, but having an experienced probation violation attorney on your side can be the difference between continued probation and a lengthy jail term. Therefore, I invite you to contact me at (972) 372-4054 for a free consultation and for any further questions you may have regarding a Motion to Revoke probation.

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