So, basically that’s the three types of probation in Texas. So you have two kinds of motions if you violate the terms. The first one would be a motion to revoke, and that’s when you’re put on regular probation and the court brings you into the courtroom and says, “Okay, you have basically violated your probation,” and you can violate in a number of ways. You can commit a new offense; you miss reporting to your probation officer; or you do not fulfill your community service hours or pay your money.
The court can bring you back in and say, “Okay, you violated your probation. Now we’re going to decide what to do with you.” They can continue you on probation and add some more sanctions, extend your probation if they desire to, they can revoke your probation and send you to prison or jail, for the maximum time period you would have been sentenced to.
So, in other words, if you went to court and were convicted and sentenced to, say, two years state jail, and you violate your probation, then what happens is you go back to court and you can be sentenced to up to two years state jail. Sometimes, a plea bargain with the district attorney for less time, but the court can basically send you for two years state jail on a situation like that.
If you violate your deferred adjudication, it’s called a motion to adjudicate. And what happens is you go before the judge, and the judge at that time can decide to adjudicate you, to find you guilty, and convict you.
He can then continue you on probation, revoke your probation, or adjudicate you and sentence you to jail or prison. Or he can just extend your probation, keep you on deferred, and impose more service hours or give you more time pay.
So, there are different things that can happen, depending on what type of violation you do. The worst kind of violation is you pick up a new offense; then, followed by not reporting, or failing a drug test; followed by not doing your community service and not paying any court-imposed fines.
There are a number of factors they can allege, but most severe is if you get re-arrested and pick up a new offense.
Interviewer: Now what if you get arrested with a new offense, but it’s a situation where you’re not actually guilty of that offense?
Gary Churak: Even though you’ve not been convicted on your new offense, it doesn’t stop being prosecuted under a motion to revoke or a motion to adjudicate, and unlike a criminal case, to find you violated your probation. It’s not a reasonable doubt burden of proof situation; it’s a basically a preponderance of the evidence to establish burden of proof.
So it’s conceivable that you could allege that you didn’t do it, that you’re innocent, and your probation could still be revoked, because you were arrested.
Sometimes the court allows you to go through your new case and find out what happens to that case, versus terminating your probation right there. But most times they–especially what we call new number ones where you pick up a new offense; often they’re done simultaneously, where you do a plea bargain agreement to get rid of both cases.
Interviewer: How often in criminal cases is probation ordered by the court?
Gary Churak: I’d say probably more than 50% of the time.