A probation violation in Texas is decided by a judge, not a jury, and the State only has to prove it by a preponderance of the evidence. One proven violation is enough. What happens next depends on which kind of probation you’re on. On regular probation, your sentence was already set when you were placed on probation, and revocation usually means serving it, though the judge has some room to reduce it. On deferred adjudication, there’s no sentence yet, so a motion to adjudicate opens up the full punishment range for the original charge. Either way, a violation doesn’t have to end in jail. The judge can continue your probation, add conditions, extend it or raise the fine instead (Code of Criminal Procedure Art. 42A.751(d), 42A.752), and most of the violations we handle get resolved that way.
Call (713) 664-4000. If you know you’ve missed a report, a class, a payment or a drug test, call before your probation officer files a violation report. If there’s already a warrant, we can often arrange for you to turn yourself in on your own terms instead of getting picked up at work or during a traffic stop.
How a violation turns into a warrant
Your probation officer writes up the violation and sends it to the prosecutor. The prosecutor files a motion to revoke (regular probation) or a motion to adjudicate (deferred), and the judge usually issues a warrant. A lot of people only find out when they’re arrested. After the arrest, you have to be taken before the judge who issued the warrant, or a magistrate if that judge isn’t available, within 48 hours. But only the judge who issued the warrant can set a bond (Art. 42A.751(c)). In felony cases, judges often hold people without bond until the hearing. If you’re held without bond, we can file a motion that requires the judge to hold your hearing within 20 days of the filing (Art. 42A.751(d)). The State can file the motion near the end of your probation and still revoke you after it expires, as long as the motion is filed and the warrant issued before the end date (Art. 42A.751(l), 42A.108(c)).
Regular probation versus deferred when there’s a violation
| Regular probation | Deferred adjudication | |
|---|---|---|
| The State files | A motion to revoke | A motion to adjudicate guilt |
| Worst case | The sentence already assessed. If the judge finds a shorter term is in the best interests of society and the defendant, the judge can reduce it, but not below the minimum for the offense (Art. 42A.755(a)(2)) | Anything in the full range for the original charge, and a conviction on your record (Art. 42A.110) |
| Time on probation | Doesn’t count toward the sentence, except jail time before sentencing (including time held on the violation warrant) and a completed SAFP or residential program. Jail served as a condition of probation generally doesn’t count (Art. 42A.755(c), (d); Art. 42.03, Sec. 2(a)) | Doesn’t count toward the sentence, except jail time before sentencing (including time held on the violation warrant) and a completed SAFP or residential program. Jail served as a condition of probation generally doesn’t count (Art. 42A.755(c), (d); Art. 42.03, Sec. 2(a)) |
| Other outcomes | Continue, add conditions, extend or increase the fine (Art. 42A.752) | Continue deferred with added conditions or a longer term |
The deferred column is the one that catches people off guard. Someone who pleaded to a second-degree felony and got five years of deferred is facing up to 20 years in prison and a $10,000 fine on a motion to adjudicate, even for a technical violation. And the years already spent reporting don’t count. That’s why a motion to adjudicate needs a lawyer before the first setting. See our page on deferred adjudication.
Defending a probation violation
The violation itself. The State still has to prove what it alleged. A positive drug test can have a prescription behind it or a problem in how the sample was collected (see what happens if you fail a drug test on probation). A missed report can be the probation office’s scheduling error. An alcohol monitor alert can be a device problem. A new arrest isn’t proof of a new offense, and the State has to prove the new offense happened, not just that you were charged with it.
The defenses the statute gives you. If the violation is failing to report or leaving the area you were ordered to stay in, it’s an affirmative defense that no probation officer or officer with the warrant contacted or tried to contact you in person at your last known home or work address in the probation file (Art. 42A.756, 42A.109). It doesn’t help with any other violation the State proves. If the only allegation is unpaid probation fees or court costs, the State has to prove you were able to pay and didn’t (Art. 42A.751(i)). The judge can’t revoke or adjudicate based only on an uncorroborated polygraph (Art. 42A.751(h), 42A.108(b)). And if the motion wasn’t filed and the warrant issued before your probation ended, the court can’t revoke at all.
What you’ve done since. Most violation cases are decided before the hearing. If you missed classes, we get you enrolled and bring the proof. If you relapsed, we get you into treatment and show the judge it started before anyone forced it. A judge deciding between revoking and continuing wants to see that the problem is already being fixed, and the prosecutor’s offer changes when we bring that proof early. For drug and alcohol cases, the judge can send you to SAFP, a locked TDCJ treatment facility, instead of prison on a felony, if the judge finds that substance abuse contributed and that you’re a suitable candidate (Art. 42A.752(a)(4), 42A.303).
The punishment, if it comes to that. On regular probation, the judge can cut the original sentence down to as low as the minimum if a shorter term is in the best interests of society and the defendant (Art. 42A.755(a)(2)), and on a state jail felony the judge can put you back on probation once you’ve spent 75 days in a state jail facility (Art. 42A.558(b)). On a motion to adjudicate, the punishment range is open, which means it’s open in both directions, and a judge who adjudicates can still grant regular probation on a sentence of 10 years or less, unless the offense is one the statute excludes (Art. 42A.110, 42A.053, 42A.054). We present the case for the lowest outcome with the same care we’d use at trial.
A first violation
A first violation, especially a technical one like a missed report, a missed class, a late payment or one positive test, is where continuing probation is the most realistic outcome. That usually means added conditions or a longer term instead of jail. But a first violation handled badly can still end in revocation, and people make it worse by skipping the next report because they’re afraid of being arrested there. Don’t. Call us first, and we’ll find out whether a report has been filed and what the prosecutor is asking for. If you’re on probation for a DWI, see our page on DWI probation.
Accused of violating probation in Houston? Call Blass Law
Jay Blass Cohen has defended criminal cases in Houston since 2009 and has never worked for the prosecution. We’ll find out what’s been filed and fight to keep you on probation.
Call (713) 664-4000. If there’s a warrant out for you, call now, before you’re picked up.
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Reviewed by Jay Blass Cohen, founder of Blass Law PLLC, ACS-CHAL Forensic Lawyer-Scientist, certified Drug Recognition Expert, and SFST instructor, serving Houston since 2009. This article is general information, not legal advice for your situation. Prior results do not guarantee a similar outcome.