In certain criminal cases, a judge may make the decision to allow someone
convicted of a crime to serve a term of probation in place of a jail or
prison sentence. Some may also qualify to end their jail sentence early
in exchange for supervised probation by a probation officer. Probation
has strict conditions and violating even one of those conditions can result
in incarceration for the duration of their sentence.
Probation is an alternative to jail or prison that allows people convicted
of crimes to continue living in their communities. Most people on probation
can work, enroll in rehabilitative programs, and make restitution to the
people they committed crimes against. Probation is only an option for
people with sentences of 10 years or less. In Texas, there are two forms
Deferred adjudication: Deferred adjudication is a form of probation that allows people convicted
of certain crimes to keep the crime off their record. Deferred adjudication
can only be instated by a judge. Once someone on deferred adjudication
successfully completes their probation term, their case will be dismissed,
and their conviction will not appear on their record.
Straight probation: Straight probation differs from deferred adjudication in that the crime
will show on the person’s criminal record. Straight probation is
granted after a guilty conviction is made. This type of probation can
be granted by a judge, but also by a jury through trial. A judge will
sentence a guilty person to jail or prison, but instead of making them
complete the sentence in incarceration, it will be done under probation.
The person will be required to follow any rules implemented by the community
What Does Probation Restrict or Require?
Probation sentences can be trying because there are requirements that need
to be satisfied, and there’s no room for mistakes. If someone breaks
the terms of their probation, it could be revoked, and they could have
to return to incarceration. Everyone’s case is unique, as will be
the terms of their probation. However, most probation sentences require
some or all of the following:
- Staying out of criminal activity and not getting arrested
- No longer associating with other criminals
- Regular meetings with a probation officer, who will be assigned when the
probation is granted
- Allowing their probation officer to enter their home or workplace at unscheduled times
- Maintaining sobriety and submitting to regular alcohol and drug testing
at random times
- Completing programs enforced by the courts, such as addiction rehabilitation,
anger management, driving courses, etc.
- Finding and keeping employment
- Performing acts of community service
- Paying court-mandated fees related to the case, such as probation fees,
- Maintaining current child support, alimony, and other payments mandated
by the court
- Staying in a specific area outlined by the court
- Registering as a sex offender, if applicable
Violating the terms of a probation sentence can lead to criminal charges
and a revocation hearing.
Which Crimes Do Not Qualify for Probation?
In Texas, crimes that are not eligible for probation are called 3G offenses
because they used to be listed in Section 3G of the Code of Criminal Procedure.
3G offenses in Texas include:
- Aggravated kidnapping, robbery, or sexual assault
- Soliciting prostitutes
- Capital murder
- Drug cases involving children or that took place within 1,000 feet of a
school or school bus
- Causing injury to an elderly person, disabled person, or child
- Indecency with a child
- Sexual assault
- Human trafficking
How Do Courts Find Out About Violations?
Probation officers regularly check in with parolees. If a probation officer
suspects that someone is violating their probation, they will report their
suspicion to local law enforcement. The officers will then file a motion
to adjudicate probation with the courts, who will grant them an arrest
warrant. The officers will use that warrant to arrest the person on probation,
and the court will schedule a revocation hearing.
The Revocation Hearing
Revocation hearings are held by a judge, and no jury will be involved.
The prosecutor from the state will have the responsibility of proving
that the parolee violated their probation. The defendant has the opportunity
to challenge the prosecution and argue that they did not violate their
probation. Some people choose to argue that the violation was minimal
and not worth revoking probation.
If the defendant can prove their case successfully, the probation will
continue as scheduled and the defendant will not receive additional punishment.
However, if the judge determines that probation was violated, they can
cancel the probation and sentence the defendant to jail or a stricter
Multiple Probation Violations
It would be reasonable for someone to assume that a second probation violation
would result in termination of the probation. However, this is not always
the case. Although the prosecution will show less leniency to repeat probation
violators, there are multiple potential penalties a person can receive
for violating again:
- More time added to their probation
- Additional requirements added to their probation, such as fines, additional
drug testing, additional community service time, or more courses
- A short incarceration in addition to stricter probation rules
- Ending the probation and finishing the sentence incarcerated
The Most Common Probation Violations
People on probation will find themselves in trouble if they violate the
terms of their probation, even if their actions weren’t technically
illegal. There are many ways a probation can be violated, but some of
the most common are:
- Leaving their home county or state without receiving explicit permission to do so
- Missing scheduled appointments with a probation officer
- Failing to appear at a court hearing, which is considered a severe violation
- Failure to maintain employment or prove they are actively searching for
- Failing to pay the required fines or complete satisfactory community service hours
- Using drugs or alcohol
- Failing to submit to drug tests
- Moving or changing residencies without notifying a probation officer and
getting approval if the move is across county lines
Defenses Against Probation Violation Accusations
Being accused of violating a probation can be scary, especially when incarceration
is one of the potential consequences. However, defense is possible. Common
defenses against probation violations include:
- Arguing that the terms violated were not relevant to the purpose of the
probation and should not result in additional punishment. This defense
is useful for lesser violations, such as crossing county lines without
telling a probation officer.
- If it is suspected that the law enforcement or probation officers involved
in reporting the violation acted inappropriately or engaged in misconduct,
the defendant can try to prove this to the court to avoid additional punishment.
Some examples of misconduct from officers include planting drugs or drug
paraphernalia, failing to file paperwork proving the defendant completed
necessary probation requirements, etc.
- Arguing that failed drug or alcohol tests are inaccurate or were not performed
correctly. For example, Breathalyzer tests have a high tendency to be
inaccurate, so arguing against the results of such a test may be worthwhile.
Contact an Attorney Today
If you have been accused of violating your probation and need legal assistance,
contact Derek A. Adame, Attorney at Law today. Our goal is to ensure all
our clients are treated fairly and ethically during every step of the
legal process. We understand that false accusations of probation violations
can be discouraging, especially when you have been working hard to meet
the requirements of your probation. That is why we will work tirelessly
to develop an effective strategy to defend you against accusations based
on the specific details of your case. Contact us today at 940-591-0005
or via our
online contact form