Facing a Probation Violation in Fort Worth / Tarrant County?
Are you or someone you know facing a probation revocation in Fort Worth, Arlington or a surrounding city in Tarrant County, Texas? If so, you need an experienced Fort Worth Criminal Lawyer to fight on your behalf. What can you do to fight the situation that you are in? Is there a chance you can avoid jail time or prison? What are your options and alternatives?
If you are placed on deferred adjudication or straight probation and the State of Texas alleges you violated your probation, you are entitled to a hearing before your judge. One of the most common questions I receive from clients is, “What if I was innocent of the original charges? What if I only took the probation because my criminal defense attorney made me do it?” I hear this frequently, but it is important to understand that you are not entitled to contest the facts of the original charge. In other words, once you do a plea before a judge and you are placed on probation, you no longer have a right to a jury trial.
Before we determine what your options are to fight your probation revocation proceeding, we must first examine the types of probation available in Texas. There are two types of probation: straight probation and deferred adjudication.
If you plea to straight probation, it is immediately a conviction on your permanent criminal record. Although this is not ideal, there is a benefit to this if you face a probation revocation to a straight probation in the future: your punishment range is capped by the amount of exposure time you agreed to in your plea deal.
For example, if you were sentenced to two years in prison suspended for five years, you are on a five-year probation. If your probation is revoked, the maximum amount of time you can spend in prison is two years. In other words, the judge at your probation revocation hearing would be limited to sentencing you to a maximum of 2 years, even if your original punishment range for the charge was up to a 10-year prison sentence.
If you plea to deferred adjudication probation, it is not immediately a conviction. The Judge defers the finding of guilt for the length of your probation. The primary benefit to a plea on a deferred adjudication probation is that you do not become a convicted felon. Depending upon the type of criminal case you accepted deferred adjudication on, you may be eligible to have your arrest and criminal case file sealed from your criminal record. This is known as a non-disclosure. If you do not successfully complete the terms and conditions of your deferred adjudication, you face the only drawback of a deferred adjudication: a jail or prison sentence that could reach the maximum allowed under the punishment range.
For example, if you are placed on a five-year deferred adjudication probation for a possession of a controlled substance 1 – 4 grams, you are on probation for five years. Now technically, you could receive a prison sentence of up to 10 years on this third-degree felony charge. If your violation your probation in some manner and your probation is revoked, you could face up to the entire punishment range available for the crime. In other words, you could receive up to 10 years in prison in this example.
What Causes A Probation Revocation To Be Filed?
Under Texas law, if the State of Texas believes you have violated the terms and conditions of your probation, they can file a petition to proceed to adjudicate. This petition is the court document that starts the probation revocation process. After drafting the petition, the prosecuting attorney will join with the court probation officer and present it to your judge for signature.
At this stage, you will have no idea this is going on. Once the judge signs the petition to adjudicate, it will be presented to the court clerk and a warrant for your arrest will be issued. For the judge to approve a petition to proceed to adjudicate, the prosecutor must show that you had probation violations.
There are many violations for which the State of Texas may try to revoke your probation. Typical violations include:
- Fail to report
- Fail to pay fines/fees
- New offense committed
- Fail to complete required counseling or classes
- Fail to complete community service
- Positive drug test
Can My Probation Be Revoked For Not Paying My Fines And Fees?
This is one of the most frequent questions we receive regarding probation revocations. Legally, the probation department and the court system is not permitted to revoke your probation solely for inability to pay court fines and fees. In fact, if the prosecutor files a petition to proceed to adjudicate revoking your probation solely for fees and fines, they will be required to prove that you COULD pay the fines and fees but chose not to do so. That is a very difficult element to prove. As a result, the State of Texas rarely proceeds on a probation revocation solely for fees.
However, it is important to understand that if you have any other sanctions or violations during the entire term of your probation, the court and the prosecutor can add those violations on in addition to your unpaid court fines and fees and this could be sufficient to revoke your probation and send you to prison or jail.
What Are Progressive Sanctions?
It is important to understand that the probation system in Texas is based upon the concept of progressive sanctions. Under progressive sanctions, your probation officer is trained to make probation more and more difficult on you the more often you violate your probation.
Many probationers initially think that if they slip up even slightly on probation, they will be revoked. That is not the case under normal circumstances. Probation officers are trained to allow a probationer to accumulate a certain number of violations before a petition to proceed to adjudicate is recommended. Now, that might sound like good news initially, but every probationer must be aware of the fact that probation and the court are keeping score of every violation while on probation.
For example: A man receives deferred adjudication probation for 10 years on a first-degree drug charge. For 9 years he only has minor violations of failing to report a few times and a single failed drug test for alcohol use. With only a few months remaining on his lengthy probation, he picks up a public intoxication charge while walking home from a wedding. Can probation now use his minor violations and combine them with this citation to attempt to send him to prison for a minimum of 5 years to life? Yes, they can.
So, what happens if you mess up while on probation? If the probation officer does not recommend a revocation proceeding, you could be required to do additional classes, drug testing, weekends in jail, GPS devices, SCRAM devices or other sanctions as part of the progressive sanctions policy.
Can I Get Out Of Jail If I Am Arrested For A Probation Violation?
It depends. If you agreed to a plea deal to a straight probation, you have no right to a bond. Why? Because accepting a straight probation makes you a convicted felon and the judge has no legal obligation to set a bond for your case. That is not to say an experienced and aggressive criminal defense attorney may not be able to persuade the judge to set a bond, but it is important to know that it is discretionary and not mandatory by the judge.
If you agreed to a plea deal on a deferred adjudication probation, the judge is required to set a bond for you because you were not convicted of the charge. However, the judge could place certain conditions on your criminal defense attorney before the bond is set. For example, many judges in Tarrant County require the probationer to pay their delinquent court costs and probation fees in full before a bond is permitted. Additionally, the judge may place strict bond conditions on the probationer that can be costly. If the judge requires the probationer to wear a GPS monitor or SCRAM monitor as a condition of bond, the probationer could be looking at a several hundred dollars of expenses each month to maintain their freedom.
Perhaps most importantly, if you do not have a criminal attorney working with you on your probation revocation case, you may not get a bond set at all. Some courts will not set a bond for someone arrested for a probation revocation unless the criminal defense lawyer appears and requests a reasonable bond be set. You do not want to find yourself stuck in jail without a bond, so it is critical to speak to an experienced criminal lawyer that has a track record of success with probation violations and probation revocations.
Can I Avoid Going To Prison or Jail If I Violated The Terms of Probation?
Possibly. It will likely depend upon the nature of your probation violations. Although every court and prosecutor is different, your criminal defense attorney will likely have a stronger case of probation reinstatement if your violations are technical, rather than violations involving picking up new cases.
As a rule, the judge expects every probationer to do at least two things: show up and stay out of trouble. If a probationer runs from their probation requirements for years and doesn’t try to make things right, many times a judge will hold that against the probationer. Similarly, if you are on probation and you continue to pick up new criminal cases, the judge may begin to believe that you are not worth rehabilitating and that a prison or jail sentence is more appropriate.
Remember, even if you can show the court that your violations are minor, your judge will likely require you to do additional terms and conditions under their progressive sanctions policy. Unfortunately, many probationers have the false belief that the judge should forgive prior violations and allow them to go back to the same status they had prior to the violations. In practice, it does not work this way. To avoid conviction and prison time, the judge almost always will require more terms and conditions.
Finally, what can you do if you were arrested for a new crime while on probation? Does this automatically mean you will be revoked and go to jail or prison? Not necessarily. An experienced and aggressive criminal defense attorney needs to evaluate a few things regarding the new criminal offense – where did the alleged crime take place? In the same county as your probation or out of county? Are all the witnesses listed in the reports available to testify? Can the crime be proven? Was the traffic stop, search, or arrest illegal? All of these are essential questions to examine by your criminal lawyer.
If your criminal defense lawyer can determine that alleged new criminal offense was out of county or the witnesses were not available to testify against you, you may have leverage to negotiate a result with the prosecutor that allows you to maintain your freedom.
A probation violation or revocation in Fort Worth or surrounding city could have serious consequences. It is important once you believe you have violated your probation to call a Fort Worth criminal attorney immediately. The Fulgham Law Firm and our team of 5 Former Prosecutors have handled numerous probation revocations and it is critical you have an aggressive and knowledgeable Fort Worth criminal lawyer on your side. A probation revocation in Fort Worth could carry with it the prospect of jail time and other devastating consequences.
Contact our Fort Worth office now at 817-886-3078 for a free and confidential consultation with a skilled Probation Violation Attorney.
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