By: Mark Diaz
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Galveston Criminal Defense Attorney Discusses Probation Violations
Probation Violations And How They May Affect You
We’ve been getting a lot of questions lately about probation violations or potential probation violations, and what to do about them. The first thing that I need to make clear is that we use the term probation generally, to encompass community supervision and deferred adjudication.
Probation is a conviction. Meaning you’re convicted of the offense, but rather than being subject to a prison sentence or a jail sentence in the county jail, your sentence is probated, and you’re placed on community supervision. Deferred adjudication is a special type of community supervision where successful completion of community supervision results in the charges being dismissed.
Most of what we’re going to talk about today encompasses both of them. We’ll just call them probation violations. People always want to know, if they get a motion filed against them, what’s going to happen to them?
There is a whole lot that goes into the answer, including which court you’re in, which judge is going to hear your case, what were the violations, and so on. There is so much we need to know.
Two Types Of Motions For Probation Violation
For the most part, there are two types of motions that we deal with. One is for what we call technical violations like you didn’t fulfill the terms of your probation in a timely manner. For instance, if you have 200 hours of community service to do, your judgment might say that you have to do at least 16 hours a month. Sometimes people fall behind, and once you fall behind, it just keeps snowballing until you get far enough behind that your probation officer wants to do something about it.
Falling behind on money is another technical violation, but that gets more complicated because we don’t have debtors’ prisons in Texas so we don’t send people to jail for money. There are other technical violations, such as failing a drug test. So those are what we call technical violations. The other that we get very commonly is a new law violation, which means you’re on probation, and now you’ve been accused of another crime.
First, we’ll talk about technicals and how that process works here in Galveston County. For technicals, usually, your probation officer will take you into court to have a meeting with the judge to admonish you about your technicals and talk about why you’re not doing what you are supposed to be doing in regards to the terms of your probation.
I have mixed feelings about this process because your probation officer will tell you that you don’t need an attorney and that it’s just an informal meeting. so you go to court and the judge will listen to you, and make a decision whether or not to take you into custody, modify your probation, or do nothing.
The reason I have a problem with this is the judge can and often will decide that they’re going to take you into custody and have the state file a motion. Meanwhile, you’ve been in court without a lawyer answering questions from the judge about what you’ve been doing. That can be an uncomfortable situation.
We have had situations where people hired us to go to court with them for that setting. If you have a new law violation, there is not going to be any such meeting. The state will file a motion to revoke your probation or motion to adjudicate the guilt if you’re on deferred adjudication, and you will be arrested. In both situations, people always want to know, well, what’s going to happen.
Why You Need An Attorney For Violation Of Probation
Because we practice in these Galveston county courts every day, we have a pretty good idea, depending upon your circumstances, what might happen with your particular judge. If you’re on deferred there’s always the option to extend your probation. If you’re on for two years, which is the minimum on a felony, maybe we can extend you a year and add some other conditions or more community supervision.
Many times if your issue is drug-related, we can do another sanction. Outpatient rehab, inpatient rehab, depending upon your needs. Most of the courts will work with you on addiction and have you assessed to determine what form of treatment might be best for you if you want it.
In 23 years of doing this, one thing I have figured out for sure is, if someone does not want rehab, sending them into inpatient, outpatient, any of it, is not going to work. However, if you’re in a situation with a violation of your probation, and you would like some help, most of the judges here are going to work with you, and find some alternative rather than send you to prison.
When it comes to new law violations, it gets trickier. First, what were you on probation for? What is the new crime that you’re accused of? If it’s the same crime, that is not a good look. Again, one exception being if it’s drug use, then we may be able to put you in rehab or figure out some way to help you.
If you are on probation for any victim-related crime, that’s going to factor into what your punishment might be. If you’re on deferred adjudication, which for some people is a great program because if they had no other defenses, then this allows them to avoid a conviction.
Sometimes, depending upon your violation, one option, which isn’t great, is to adjudicate you guilty. But rather than send you to prison, place you on straight probation. As I said, it’s not great, but at least it helps people avoid a prison sentence. Those are generally some options that you have when facing violations of probation.
Don’t Believe Your Probation Officer Is Going To Help You
Sometimes people think they can simply talk it out with their probation officer. What they don’t understand is, it’s generally not up to your probation officer, they have a boss that they have to report to. So if you’re messing up, don’t think they can’t report it or won’t report it, they have to. It’s not their sole discretion, whether or not to file a motion or even to take you into court to have you admonished. It’s going to be their supervisor’s decision.
Sometimes people will call me and say, my probation officer loves me, I don’t think he or she will even do anything. I have to tell them, it’s not your probation officer’s decision. He or she has a boss and that boss is going to tell them whether or not to file a motion with the court to revoke or adjudicate you. Of course, it’s good if you have a solid relationship with your probation officer, but ultimately, it won’t be his or her decision whether or not to take action.
We have had odd, outlier situations. We had one recently where the guy had reported to his probation officer and she said, okay, you’re done, this is the last time you’ll ever see me because the termination date was within the next 30 days. Well, in those next 30 days, they found out that he had been arrested in Florida. So unbeknownst to him, they filed a motion to revoke him again, weeks before he was going to physically terminate. He was not going to see his officer again, so he did not know this.
The case that he was charged with in Florida was eventually dismissed, but for about five years he had a warrant out there and didn’t know it. He eventually got picked up back here in Texas, on that probation violation, and we were ultimately able to get that dismissed and he got back out.
Long Term Deferred Adjudication
Sometimes procedurally, things will happen that allow us to get you a good result on a motion to revoke or adjudicate you. There are some due diligence claims that we can make depending upon when the motion was filed. I once had a hearing where my client was in the last couple of months of a 10 year deferred. Statistically speaking, a lot of people don’t make it 10 years on deferred. A lot of people like to take it, but many people don’t complete 10 years.
My client was in her last several months and was charged with misdemeanor possession of marijuana. They filed a motion to adjudicate her guilty, which could have potentially made her a felon and put her in prison. We could not reach an agreement. They were adamant that they weren’t going to do anything other than to adjudicate her guilty. I thought the state was being unreasonable. We go through this full hearing, and in the end, not only did the judge terminate my client’s probation, he told the state don’t ever waste my time like this again.
That is one example, but there can just be so many possible outcomes. Sometimes if your motion to adjudicate or revoke is based upon a new law violation, we try to put off the motion until we can defend the new case. The theory being that if I can get the new case dismissed, then there is no basis for the motion to revoke.
Other Ways We Defend Probation Violation
If you’re on probation, and you get a DWI charge, possession, whatever it is, but you’ve had no other problems, and I think that case is defensible, I’ll try to attack that case first. If I can make that go away, then there’s not anything for the state to go on, on the motion to revoke. There have been times where the sitting judge would not let me wait on the new case. The judge can say we’re going forward on the motion to revoke or motion to adjudicate, and the new case can wait. That doesn’t happen a lot, but it has happened in my career, and with a handful of results.
Sometimes, the state will then make an offer to work out both cases, and the client will take it. Sometimes we have to take whatever outcome we are offered, and we just go with it. Sometimes, a client will get hammered on a motion to revoke, meaning get a lot of time, and then refuse to plead on the new case. So every once in a while, the state will say you’ve served enough time on that motion to revoke, and they will just dismiss the new case. There’s just almost any combination of scenarios you can guess that can come out of these types of situations.
If you have been charged with probation violation or are concerned that you may be charged, contact Mark Diaz & Associates at (409) 515-6170.