|MOTIONS TO REVOKE PROBATION
Important note: This office handles motions to revoke for most criminal cases, not just driving while intoxicated.
After being placed on probation (called "community
supervision" in statutes), the prosecuting attorney may file a "motion
to revoke" probation, alleging that the probationer violated the conditions
Probationers often wrongly assume that a probation officer
can "revoke" them. Revocation can occur only after a motion has
been filed, served on the probationer, and after the probationer has had
an opportunity to defend himself against the allegations in the motion.
The government is then required
to prove the probationer violated the conditions of his probation. No jury trial will occur; this hearing is before the sentencing judge. The proof requirement is a "preponderance", meaning it is more likely than not that the violation happened.
For example, a probationer who was required not to commit
any crimes gets arrested for possession of marijuana. The government can
win only if it can prove that it is more likely than not that the probationer
intended or knew he was in possession of a substance he knew to be marijuana.
The burden is the same as a regular lawsuit, like an automobile accident
The probationer also has many rights at a revocation hearing.
For example, probationers can subpoena witnesses and evidence, as well
as cross-examine witnesses against him.
If the government proves the probationer violated probation
conditions, the case is not necessarily finished; violation of probation
does not automatically equal prison or jail. The judge has many options,
including extending the length of probation, imposing an additional fine,
requiring counseling, boot camp, and requiring the probationer to submit
to drug or alcohol treatment programs.
At its most basic level, most probations are somewhat
like contracts between the judge and the probationer. The judge agrees
not to imprison the probationer for as long as he could, and the probationer
agrees to abide by rules the judge sets. Conditions of probation vary greatly
and can even include significant jail time.
Certain technical defenses exist that could prevent revocation,
even when violations have occurred.
This description is not meant to make probationer's comfortable
when a motion to revoke is filed against them, but it is important that
the probationer not lose hope. A qualified attorney may very well be able
to provide valuable assistance.
*All answers are for people 21 years or older, do not involve enhancements,
are not exclusive, and are limited to Texas.