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.
Defining Probation
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 of probation:
- 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 supervision department.
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, restitution, etc.
- 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
- Burglary
- 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
- Murder
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 probation plan.
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 employment
- 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.