Probation Revocation

Probation can be tough for a lot of reasons. From failing drug tests, to failing to report, to missing a meeting there are dozens of ways to get your probation revoked. It has come to my attention that the revocation process is not well understood by probationers. Let me hit a few high points.

No Juries
A probation revocation hearing is always in front of a judge. You have no right to a jury trial.

Range of Punishment- How much time are you looking at?
Depends. If you plead for deferred adjudication then you are open for the entire range of punishment for your original offense. For example, if you are on deferred for a first degree felony you could anything from 5-99 years, or the judge could continue you on probation.

If you are on “straight” probation (non-deferred) then your maximum sentence has already been decided. Let’s take a third degree felony with a 2 for 5 plea. You are sentenced to two years in jail, probated for five years. 5 years is your maximum sentence. The judge could give you less time, or you could work out a plea bargain for less time.

Beyond a reasonable doubt? Nope.
The State need not prove you violated probation beyond a reasonable doubt. Instead, it’s a “preponderance of the evidence.” What is POTE? 51%. That is, it’s more likely than not, or the evidence is 51% in favor.

Failure to pay
The State wants its money and will revoke you for not paying fines, fees, and costs. Inability to pay is an affirmative defense that the defendant has to prove by a POTE.

New Charges
You are on probation and you get arrested again. First, you must report an arrest within 48 hours of release from jail. However, getting arrested is not enough to revoke your probation. The State must prove by a POTE that you committed a new offense.

If you get arrested call your attorney, and your PO, immediately.

Bond
Deferred probationers are entitled to bail. Word of this requirement has not spread to Kaufman county where felony probationers are almost always denied bail. The reason? Whoever typed the “recommended bond schedule” listed felony probation revocation cases as “no bond”. Being entitled to bond isn’t as great as it sounds. I’ve seen these bonds set at $200,000. Bond is not supposed to used for oppression, but we do it anyway.

If you are not on deferred no bond could be set, but you can still have a hearing to lower it. However, you are not entitled to bond.

Can I be reinstated?
Depends on the charge, and what county you are in. I have found that paying your fines and fees is a great place to start. The government loves money and they may sell you back some freedom for cash.

A better question may be “Should I be reinstated?” Some people suck at probation. You can’t drink, use any drugs, or commit any new crimes. Also, you have to work, report, do community service, and take classes. It may be too much to handle for some. Many probationers choose to just sit out a sentence rather than complete another year or two of supervision.

I can’t say I blame them. Our community supervision system almost guarantees failure. We put addicts on probation, and then act surprised when they test positive. We put the indigent on probation and then act when surprised the can’t pay.