Texas Probation Violations | Probation Revocation, Motion, and Hearing Law

Texas probation violations are difficult to fight, even if it’s a first offense probation violation. If your probation officer believes that you have violated any of your conditions of probation, then he or she will likely file a “motion to revoke” (MTR) your probation. Or, if you are on deferred adjudication probation, then it will be called a “motion to adjudicate” (MTAG) and result in the same thing: a warrant for your arrest and an eventual hearing on the motion.

If you have been sentenced to a term of “community supervision” (commonly known as probation) instead of a term of incarceration, then you already know that the court has significant power over your life. You are required to report in to your probation officer, pay fees for monitoring and seek permission before traveling among a variety of other restrictions.

In Texas, if your probation officer believes you have committed a probation violation, then state prosecutors must prove this allegation in court. You are entitled to be heard by a judge who will determine if the allegation is true. This hearing on the probation violation is important because it is the only chance you will have to present evidence that the alleged violation is not true.

You are entitled to have a lawyer represent you at the hearing. Typically our clients call us in one of four different situations:

• 1) The client thinks they may have violated their probation but has not been notified,
• 2) The client’s probation officer has informed them that they have violated the probation and the probation officer will (or may) be filing a motion to revoke,
• 3) The client has been notified that a warrant has been issued for his or her arrest because of a probation violation, or
• 4) The client has a motion to revoke coming up and he or she wants a lawyer to fight the motion to revoke on the probation violation.

The earlier you can hire a lawyer, the better. Probation officers and courts are typically more willing to work with people who take a proactive approach to resolving probation problems (or potential probation problems). Texas probation violations are very serious issues that can result in long jail sentences from seemingly minor infractions. Even failing to check in with a probation officer can result in people spending months if not years in jail. And the burden of proof that is required of the state’s attorneys is shockingly low.

You are always entitled to a hearing on a probation violation, so if you have not been to a hearing yet, do not think you are too late.

When can a deferred adjudication probation be revoked?

Texas law describes the rights of a defendant who is accused of violating the terms of his or her deferred adjudication probation to include a hearing to determine whether to proceed with an adjudication of guilt on the original charge.^[1] The determination to proceed with an adjudication of guilt on the original charge is reviewable in the same manner as a regular probation revocation.^[2]

The court retains jurisdiction to hold this revocation hearing and to proceed with an adjudication of guilt, regardless of whether the period of deferred adjudication community supervision imposed on the defendant has expired, if before the expiration of the supervision period: “(1) the attorney representing the state files a motion to proceed with the adjudication; and (2) a capias is issued for the arrest of the defendant.”^[3]

When can you be arrested for a Texas probation violation?

The judge may issue a warrant for a violation of any condition of community supervision and cause you to be arrested at any time during the period of community supervision.^[4] Any supervision officer, police officer, or other officer with the power of arrest may arrest you with or without a warrant on the order of the judge, and you may be confined until until you can be taken before the judge for a determination regarding the alleged violation.^[5]

What are the most common probation violations in Texas?

The most common Texas probation violations are the following:

• picking up a new criminal offense
• failing a UA (drug test) or alcohol test (for DWI cases)
• forgetting to report to a probation appointment
• not attending or failing to complete a required class
• missing community service hours

For DWI probations, by far the most common type of probation violation is “blowing dirty” on an interlock device.

What is the burden of proof for motions to revoke on probation violations?

In a revocation hearing at which it is alleged only that the defendant violated the conditions of community supervision by failing to pay community supervision fees or court costs or by failing to pay the costs of legal services, the state only has to prove their case “by a preponderance of the evidence” that the defendant was able to pay and did not pay as ordered by the judge.^[6]

This is a much lower standard than other criminal charges. The “preponderance of the evidence” standard is basically a 51% level. If the judge believes that it is more likely than not that you violated your probation, he can sentence you without a jury. This is why it is important that you hire an attorney to defend you. You are not entitled to a jury, and all that has to happen to put you in jail is that a judge believe you violated probation.

Can you get out on bond before your hearing on a probation violation in Texas?

Texas law provides that if you are arrested for a probation violation, you are required to be taken before a judge within 48 hours.^[7]

If you have not been released on bond, your attorney can file a motion to have a hearing on your motion to revoke within 20 days of the filing the motion.^[8]

Can you fight a Texas probation violation?

You can absolutely fight a probation violation. Hiring an attorney to defend you against an accusation that you violated your probation is the best way to defend yourself in court. We frequently represent people who are accused of probation violations.

Do you need a lawyer for a motion to revoke on a probation violation?

It is highly recommended that you hire a lawyer to defend you. The sooner you hire a lawyer, the better. If you are concerned that you might have violated your probation, book an appointment now. We do not give free consultations for probation violation cases because you need a lawyer to step in and advise you immediately, so be prepared to may a minimum consultation fee for the advice.

Can mouthwash fail an alcohol test for an interlock or deep lung device?

As a general matter, mouthwash can cause you to fail an interlock breath test for alcohol. However, it is important to note that this alone will not necessarily violate your probation so long as you follow the instructions of your interlock probation requirements. You will need to blow into the device again within a few minutes and, by that time, the residual alcohol on your breath will have gone away. If you blow dirty again, then this is likely not a result of mouthwash, and the state attorneys may very well try to revoke your probation. There might be other problems, however, with regard to the interlock device or some other kind of problem. Please call us if you are concerned about a violation resulting from an interlock test. And do not hesitate. The earlier you call us the better you will be in fighting the charge.

How can a lawyer fight probation violations on a DWI case?

We fight DWI probation violations in a number of ways. We may negotiate with the state’s attorneys on your behalf, poke holes in the state’s case or work directly with probation on the issue. Call us for more information on crafting a defense in your particular case. Learn more about DWI probation

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Legal References:

^1. Texas Code of Criminal Procedure Section 42A.108^2. Texas Code of Criminal Procedure Section 42A.108(b)^3. Texas Code of Criminal Procedure Section 42A.108(c)^4. Texas Code of Criminal Procedure Section 42A.751(b)^5. Texas Code of Criminal Procedure Section 42A.751(b)^6. Texas Code of Criminal Procedure Section 42A.751(i)^7. Texas Code of Criminal Procedure Section 42A.751(c)^8. Texas Code of Criminal Procedure Section 42A.751(d)