Probation

From the Law Office of Alison Grinter in Dallas, Texas

Probation, or Community Supervision (also known as a "suspended sentence"), is a post-adjudication punishment. It is similar to Deferred Adjudication except that the defendant has been found guilty, and has been convicted of the offense.

1 Understanding Probation
2 Revocation
3 Notes

Understanding Probation

Eligibility

Probation eligibility depends on the person(s) who will be sentencing the defendant. At trial in Texas, the defendant may choose who (either the judge or the jury) will pass sentence should he be found guilty. That decision is based largely on the attorney's knowledge of the judge's past rulings, the climate of the public toward a certain offense or type of defendant, and also, on the rules governing probation eligibility.

A Jury can NOT give Probation if:	A Judge can NOT give Probation if the offense is:
Defendant has prior Felony Convictions, The Offense is a Capital Felony The minimum punishment is more than 10 years, or Defendant does not submit an application for Probation	Murder, or Capital Murder Indecency with a Child Aggravated Kidnapping Aggravated Sexual Assault Aggravated Robbery Sexual Assault Drug offense involving Use of a Child or a 2nd Drug Free Zone enhanced offense 1st Degree Injury to a Child Sexual Performance by a Child Deadly Weapon enhanced offense

Exposure and period of Probation

Every Probation sentence has a confinement sentence hanging over its head. This is because in order to place someone on probation, the judge must order that the term of confinement be suspended. Let's say Bob, who has no prior felony arrests, steals a car. He is found guilty at trial and elects to have the judge determine his punishment. The car Bob stole was a nice one, and this puts him in the range of punishment for a Third Degree Felony, so Bob is looking at 2-10 years in TDC. Bob is eligible for probation because he has no prior felony record, so he submits an application for probation, asking the judge to consider probation in her deliberations. The judge deliberates and determines that the community would be better off with Bob working and supporting his family than in prison. So the judge sentences Bob to 5 years in prison, but suspends the imposition of the sentence and places Bob on Community Supervision (Probation) for a period of 6 years. We would refer to this as "Five over six," or five years probated over six years. In this case, the 5 year prison sentence is Bob's "exposure". If Bob messes up on probation, the judge will impose the sentence and Bob will have to go to prison for up to 5 years. On the good side, he's not exposed to the whole 10 years anymore, he's only exposed to 5, but on the bad side, he's only protected by the procedural guarantees of the revocation hearing. He can never go to trial again on this case.

Conditions of Probation

The law insists that conditions of probation be reasonable, but there are very few conditions which have been ruled to be unreasonable. If you are placed on probation, you can expect the following standard conditions of probation regardless of your offense:

Don't commit any new offenses (Class C Misdemeanor offenses are generally not included unless the underlying offense is also a Class C)
Don't drink or use drugs - You can count on being drug tested at probation meetings, and occasionally randomly.
Stay away from known criminals
Report to your probation officer at regular intervals
Pay fines, court costs, and probation fees
Get a job or stay employed
Get a GED or graduate from High School
Attend offense-specific classes (anti-theft class, DWI education program, etc.)
Pay Restitution
Stay away from the victim
Community Service hours
Notify the probation department of your address if you move

Probation Officer

All probationers report to a probation officer. It is important to remember that the most important unwritten condition of probation is Keep your Probation Officer Happy. Probation officers are very busy people. They have giant caseloads and can get grouchy very easily. This is because they are lied to and yelled at on a daily basis. The nicer, better dressed, and more organized you are with your probation officer, the easier probation will be for you.

I recommend that all of my clients keep a spiral notebook or other folder with writing paper, and take it to all of their probation meetings. I ask that they write down all of the instructions that the probation officer gives and have the officer sign off on their notes for the meeting. This shows the officer that the probationer is serious about being organized and getting everything done, and it provides evidenced that the probationer can use at a future revocation hearing.

Money

Probation is expensive. There is no doubt about that, and many defendants will take jail time instead of probation for that very reason. In 2007, the Texas Legislature changed the law governing probation so that if a person has satisfied all of the conditions of probation other than the financial obligations, the State will have the burden to prove that the probationer had the money to pay for the fines and fees and simply refused to do so. Generally, however, I will advise someone not to take probation if they don't believe that they will be able to pay the fees, because they will soon find that failure to pay will upset the probation officer who will then pay more attention in an effort to find as many reasons to revoke as possible. An angry probation officer can find a reason to revoke the Pope.

Revocation

The probation revocation process begins when the probation officer files a Motion to Revoke with the court.The motion must be filed within the probation period and it must allege that the probationer has violated at least one of the conditions of probation that are on file with the court.

The probationer enters a plea of "True" or "Not True" (instead of guilty or not guilty).There is no right to a jury on revocation. All hearings are before the judge.

Just like in the pre-trial phase, there can be plea bargaining, and a probationer can plea True, and waive his right to contest his revocation in exchange for a lenient agreed sentence.There is also the option to enter a plea of "True" and put forth evidence to the judge (explaining any extenuating circumstances) and ask the judge to give a sentence.

If the probationer chooses to enter a plea of "Not True" and contest the revocation, the State will present its evidence, including testimony from the probation department, and the probationer, the defendant, puts up any evidence that he may have that would show that he did not violate te terms of his probation.

The State has the burden to show that the probationer has violated the terms of probation, but unlike at trial, the burden is only a preponderance of the evidence. This means that the state neeeds only convince the judge that it is "More likely than not" that the probationer committed a violation. There is no "beyond a reasonable doubt" standard. For this reason, and because there is no right to a jury, relatively few revocation cases are taken to a full contested revocation.