By: Mark Diaz
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Why Violating Probation is Always a Bad Idea
Poor judgment, simple misunderstandings, and minor mistakes can often lead to your arrest on criminal charges in Texas. Once a criminal case has been resolved by putting you on probation, these same factors can put you in an even worse situation.
The Texas Code of Criminal Procedure uses the term “community supervision” to refer to probation. A defendant in a criminal case can avoid the possibility of serving jail time when a person is placed on probation. Generally, you will be required to follow the rules set by the court in exchange for this benefit. As a result, there can be harsh consequences for violating probation.
The exact ramifications of violating probation will vary based upon several factors, including the type of probation you were placed on, the underlying offense, your criminal history, and how you are alleged to have violated your probation (i.e., how did you break the rules). Incarceration and fines are potential sanctions, so retaining a Texas City criminal defense attorney is a wise move. Some additional information about the process and penalties should help you understand why violating probation is always a bad idea.
Overview of Probation in Texas
As mentioned, probation is an option for resolving charges in a Texas criminal case. Some defendants may be able to avoid incarceration entirely, while others may receive a shortened imprisonment term. When a judge probates a sentence, the resulting court order will describe a set of rules for the defendant to follow while on probation. Strict compliance is essential for the two types of rules that may be included in your terms of probation:
- Active rules require you to take certain actions to remain in compliance with the court order. For instance, you may need to attend alcohol treatment classes or be ordered to pay restitution to compensate the victim of your criminal act.
- Passive rules are just as important to avoid a violation of probation. The most critical requirement is not getting arrested again during the time period set by the court, but there could be many other situations or acts you must refrain from taking.
The active and passive rules that become part of your probation will depend upon the specific type as described below, but the court will also consider such factors as:
- The nature of the crime for which you were placed on probation for, such as an offense against property versus offenses against a person.
- The severity of the crime and surrounding circumstances.
- Whether you have a prior arrest or conviction in your criminal history.
- Whether you are responsible for financially supporting a dependent(s).
Understanding Different Types of Probation
There are many types of probations in Texas. Each probation is unique in its own way; however, while there are key similarities in each type, it’s important to understand the distinctions between each of the different probations to understand the severity of the consequences that could follow.
Straight or Regular Probation: This version is the closest to what most people associate with probation, where you are found guilty and sentenced to jail time, but the judge suspends the sentence and allows you to remain in the free world. The conviction remains part of your permanent criminal record. With this type of probation, instead of remanding you into custody, the judge probates the imprisonment term and allows you to serve a set amount of time on probation and accordingly sets the rules of probation you will file until you complete the term. You are released to community supervision officials, including your probation officer. These individuals are tasked with ensuring you comply with the rules the court set out when you were placed on probation.
Deferred Adjudication Cases: For certain offenses, it is possible to resolve the criminal charges through a form of probation that does NOT result in a conviction. Deferred adjudication is ordered before a trial, and it will include many of the same requirements as a probated sentence as described above. The key distinction here (other than the fact that you do not become convicted from the onset with this type of probation) from the above-described is that you are not sentenced to a prison term at the time of the plea.
You will be required to plead guilty or no contest in exchange for deferred adjudication probation. However, if you’re successful on probation, the court will throw out your guilty plea and dismiss the case at the end. The flip side of this is that if you violated this type of probation, the court can sentence you up to the full punishment range for the offense in which you were placed on probation. For example, if you are placed on deferred probation for a Second-Degree drug case and you violate that probation, you could be looking at up to 20 years in prison.
Pretrial Diversion: Some jurisdictions in Texas, including Galveston County, have these programs that are similar to probation. Pretrial diversion is not available in Galveston County for felony cases, and only certain misdemeanors are covered. This is a type of probation that is even more advantageous than deferred probation. Here, you don’t formally enter a guilty plea but instead, you’re generally required to sign an admission of guilt. This is only used against you if you violate the terms of the probation. If you’re successful, it is thrown out and here in Galveston County, you become immediately eligible to file a petition for expunction where the court erases any record of the arrest and charge.
Felony Versus Misdemeanor Probation: Though not really a type of probation, Texas laws treat cases differently depending on the severity of the underlying crime. Misdemeanor probation may be imposed for up to 2 years, while felony probation can extend to 10 years.
If your sentence is 10 years or longer, typically for felony cases, you do not qualify for probation. In addition, probation is not available for certain crimes, known as “3g” offenses for the statutory section that lists them. Examples include:
- Human trafficking.
- Most aggravated crimes.
- Designated sex crimes involving minors.
Common Ways People Break Probation
Some violations of probation are rather obvious, as they represent a clear breach of the active or passive rules. You can expect trouble if you got arrested on new charges or fail to attend regular meetings with your probation officer. However, even when you know the importance of following the terms of your probation, you might make mistakes or not realize what is required of you. Many cases of violating probation arise because of the individual:
- Left the county, State of Texas, or the US without notifying or getting permission from your probation officer.
- Did not comply with requirements regarding registration as a sex offender, perhaps by moving to a new residence without notifying proper officials.
- Consumed alcohol or took illegal drugs.
- Failed to install an ignition interlock device on your vehicle after ordered as a part of your probation, when alcohol is detected with your interlock, or you drove a vehicle without an interlock when required.
- Did not attend and/or participate in a drug or alcohol treatment class, mental health counseling program, victim impact course, or another session.
- Failed to pay court fees, fines, or restitution to the victim.
Violation of Probation Proceedings
There is a process for addressing alleged probation violations, and it is one you should be aware of since it provides opportunities for you to defend your position. The details vary depending on your unique circumstances, and your Texas City criminal defense attorney will advocate on your behalf throughout the proceeding. It generally involves multiple steps:
- The prosecutor receives notice that you broke the rules from your probation officer, law enforcement officials, or other sources.
- The State uses this information to prepare a Motion to Adjudicate or Revoke Probation, wherein they state the specific rule and provide evidence on how you violated it.
- The prosecution, accompanied by your probation officer, will attend a court hearing for the judge to review the motion. If granted, the court will issue a warrant for your arrest.
- Police officers will serve the warrant and arrest you, and you could be held in custody until the next court appearance, the revocation hearing.
- At the revocation hearing, the prosecutor has the burden of proving that you violated the terms of your probation. You and your attorney will present evidence contesting that there was a violation of probation.
- If the judge finds no violation, you will be released and the terms of your probation remain in effect for the period stated in the original order.
- If the court agrees with the prosecution and finds that you broke the rules, it will become obvious why violating probation is a bad idea.
Penalties for a Probation Violation
Initially, you should keep in mind that there are non-jail options even when the court sides with the prosecutor. For a minor violation or mistake, you may be able to convince the judge to allow the terms to remain in place and/or issue a nominal penalty. In some cases, the court will modify probation in lieu of punishment. Usually, this involves extending the time period, so you will be required to comply with the rules for additional months or years.
However, the judge does have the power to take more extreme measures. The implications vary based upon the type of probation, you operate under:
- When your sentence was probated after a trial and finding of guilt, the court is required to refer to the original verdict in the case. A judge cannot order longer imprisonment after determining that you violated probation.
- The consequences of a probation violation after Deferred Adjudication are much more extreme. Though there was no finding of guilt by the judge at the time of the plea, you entered the plea before the court and that allows the court to use that against you if you violate. Because no sentence was issued, the judge is allowed to impose punishment based upon what could have been ordered.
For instance, if you opted for Deferred Adjudication in a Third-Degree Felony theft case, the potential sentencing range is 2 to 10 years. A court could order incarceration on the low or high end; after finding that you violated probation, the judge may be more likely to edge on the side of higher punishment.
Get Legal Help from a Texas City Criminal Defense Attorney
This synopsis is helpful for understanding why violating probation is always a bad idea, but it should also convince you why retaining skilled legal counsel is absolutely necessary. Do not let a mistake in violating probation turn into a bigger error by trying to represent yourself at a probation revocation hearing.
If you are facing allegations of a violation of probation, please contact Criminal Defense Attorney Mark Diaz right away. You can call (409) 515-6170 to set up a case evaluation. Our Texas criminal defense lawyers serve clients throughout Galveston County and Greater Houston in many types of criminal cases, so we are prepared to take on probation matters.