It Is Possible to Apply for Early Termination of the Probation?
San Antonio Probation Termination Lawyer
Interviewer: Can you help your clients apply for early termination of their probation if they have met all the terms imposed by the judge?
Gary Churak: There are provisions for early termination of probation. With straight probation served, you have to serve 60% of your time period on probation to able to get off of probation. On deferred adjudication there is no set time of probation that you have to serve. They can just let you off probation in a week as long as you complete your terms of probation.
And I’ve had a situation like that where it was a restitutionordered on a huge amount of money and the money was paid, and the judge basically said, “Okay, you’re off probation,” and dismissed the case, because my client complied with the restitution.
Is It Likely You Could Unintentionally Violate a Condition of Probation?
Interviewer: Have you ever had a client violate his or her probation unintentionally?
Gary Churak: For the most part, they give you your terms and conditions of probation when you get placed on probation. They tell you, don’t drink alcohol, don’t hang around bars, and don’t commit any offenses against the state of Texas, except a traffic ticket.
So the chances of you not knowing that you’re violating your probation are very slim.
Now there are situations where it happens. I have had clients who have an interlock device in their vehicle on in-home alcohol monitor device because of alcohol-related offense. Sometimes they’ll make an excuse and say, “Oh, I had used mouthwash and when I blew into the device, it gave a positive reading because of the alcohol in the product.”
Some Medical Products Contain Alcohol but to Avoid Incurring a Violation, Users Must Have a Valid Prescription
Primarily, that is just an excuse. Now I’ve had situations where people have been prescribed as a mouth rinse as a medication for gingivitis and that contains alcohol but they had a doctor’s prescription. So they were precluded from the violation because technically, they didn’t violate their probation.
I had to argue with judges over that, and they were claiming, “He should have known better.” And I’m saying, “Well, Judge, you read the terms and conditions it says, you know, do not drink alcohol or take any drugs unless prescribed by a doctor, and this was prescribed by a doctor. Here’s the prescription.”
So there are exceptions, but for the most part, you know you’re violating your probation.
Will Your Probation Be Public Knowledge?
Interviewer: When someone’s on probation, how public is that going to be?
"The Probation Officer Can Visit Your Home and Place of Employment"
Gary Churak: It is viewable on a criminal record search. If you do a criminal background check, it’ll show up. Also, I have known of a probation officer showing up a probationer’s employment to check up on him.
The officers can come into your home and they can go to your place of work.
Interviewer: Do you think it’s better to be up front with the employer?
Gary Churak: I think it is, for the most part. But it depends on the offense. If it’s a serious offense, there could be issues. If it’s a DWI, it may not be a big issue, depending, of course, on the job. If they have to drive as part of their job, it may affect insurance rates. But most of the time you don’t need to tell your employer and they’re not going to find out.
But a serious offense could be a different story.
Probation: What It Means To You
San Antonio Probation Law Firm
What exactly does it mean to have a Motion to Revoke Probation (MTR) or a Motion to Adjudicate (MTA) filed against you. It means that you have failed to comply with the terms of your probation. Some of the most common probation violations include, getting arrested for a new offense, failing to perform your community service hours, failing to pay your fines and court costs, or failing to attend your court ordered classes or programs like AA and Anger Management. These are not all the reasons that the court can revoke your probation but are usually the main ones. It also means that unless you hire an attorney as soon as you find out about your violations you will be arrested and held without bond until your court date. At the Law Offices of Gary F. Churak we will take all steps necessary to have a bond set for you and if possible be processed at the Courthouse Satellite Office avoiding a trip to Jail.
What can happen to you at a hearing on a Motion to Revoke Probation? The District Attorney and Probation Department are trying to have your probation revoked and send you to prison or county jail.
If you are on felony probation you are looking at potential time in the Texas Department of Corrections. If you are on misdemeanor probation you are looking at the county jail. Neither one is a good option.
Attorney Gary F. Churak personally handles all MTR cases and will provide experienced and quality legal representation to you in an effort to have your MTR dismissed or have you continued on probation. Let us work for your freedom.
If you are on deferred adjudication probation and you are facing a Motion to Adjudicate, the District attorney and Probation Department are trying to have your deferred adjudication probation terminated and a finding of guilt entered against you. You will be convicted. You will not be able to have your case dismissed at the completion of your probation. You also are looking at going to prison or county jail. Criminal Defense attorney Gary F. Churak will personally handle your case and use his 30+ years of experience as a criminal defense lawyer handling probation cases to represent you to avoid a conviction and prison or jail time.
He will represent you in probation cases in South Central Texas as he has represented clients in probation and criminal cases throughout the State of Texas and in the counties of Comal, Guadalupe, Hays, Kendall, Kerr, Karnes, Wilson, Medina, Uvalde, Frio, Travis, Kimble, Atascosa and Bexar Counties.
If you are facing a Motion to Revoke Probation (MTR) or a Motion to Adjudicate (MTA) in in any of these counties, contact us at (210) 545-3850 and let our experience and knowledge of Probation laws work for you.
Consequences of Probation Violations
San Antonio Probation Violations Attorney
Interviewer: What are some of the consequences of violating probation?
Even a First Violation Might Entail Jail or Prison
Gary Churak: If you violate the first time you can be revoked and sent to prison. There are no automatic second chances and things like that. It doesn’t have any set rules. It depends on, one, what your offense is and why did you violate it.
Failing to Pay Fines or Fulfill Community Service Is More Likely to Result in a Continuance of the Probation
If you pick up a new offense, a new number one, your chances are less that you’re going to be continued on probation than if you hadn’t paid your money or fulfilled your community service. For the latter two, typically they can go ahead and basically continue your probation.
In Texas, Drug Violations May Result in a 12-Month Mandatory Rehabilitation at a State or County Facility
There are some situations where, especially on drug cases, where if you violate your probation by testing positive on a UA they can send you to what’s called a “Safe T”. These are lock-down drug rehabilitation facilities, run by the state of Texas or the counties. And that basically can be up to a year of court-mandatory rehabilitation.
I mean, sometimes I have seen people do more time on “Safe T” than they would have done if they would have been in jail. It is an interesting situation when you get into drug cases.
The Role of the Probation Officer
Interviewer: Let’s talk about the probation officer. What is their role?
Different Probation Officers Supervise Different Offenders, Depending on the Nature of the Offense
Gary Churak: Well, a probation officer is basically a court officer and they are trained to supervise and monitor the probationary person. If you’re under a more serious offense you’ll probably have a more experience probation officer. If they think you’re a gang-affiliated, they place you in the gang-unit probation department and they monitor you that way.
Interviewer: Have you ever seen them conduct themselves with any bias toward a particular offender?
Gary Churak: All probation officers are human. And I’ve seen probations officers who can’t get along with somebody. There may be personality issues. And they make a life miserable for the probationer.
There are other ones that are just laid back and as long as you do what you’re supposed to do, they don’t have a problem with you. You’re dealing with people, and when you deal with people there are personalities involved.
Do All Probationers Have the Same Level of Interaction with the Probation Officers?
Interviewer: Is there a set method of reporting where they have to report to their probation officer once a month or can they come up with a customized pattern?
Gary Churak: It’s up to the probation officer on what he or she wants to do, in terms of probation. I have seen where after a period of time people are allowed to report by mail. It does depend on the probation officer and the nature of the offense and how comfortable they are with you.
If they feel you’re not going to be an issue and not going to be a problem, and if they haven’t had problems with you, chances are toward the end of your probation they may allow you to report by mail, instead of having to go downtown to report all the time.
It Is Possible to Have Your Probation Revoked for Missing One Meeting with the Probation Officer
Interviewer: What are the consequences for missing the scheduled probation meetings?
Gary Churak: They can revoke you. You can miss one and they can file a motion to adjudicate you or revoke you, your probation, because you didn’t report to your probation officer. Missing a reporting is a violation of your probation. The times of the reporting vary; it’s up to your schedule and the probation officer’s schedule.
If You Are Unable to Make a Scheduled Meeting, You Must Notify the Probation Officer
Interviewer: Do you think a probation officer would be willing to work with me, like if I had something going on next month?
Gary Churak: It’s up to your probation officer; you know, they can work around your schedule, or their schedule, and as long as you report once a month is all they care about.
Common Misconceptions about Probation
San Antonio Sex Offender Probation Lawyer
Interviewer: What are some of the misconceptions that people have about probation?
Probation Is Not as Easy to Undergo as Some People Believe
Gary Churak: That it’s easy; it’s a walk in the park. It’s a slap on the wrist and that you “get away with it,” because you got probation. Some probation conditions are very difficult; some are not. It just depends on the nature of the crime.
If you’re a convicted sex offender and you get put on probation—in my opinion, sex offender probation is designed to fail. You have to go to sex counseling sessions; you have to be limited to where you can be, who you can be around. They limit your access to computers. There are just all kinds of regulations they put on you that make it very difficult to complete that type of probation.
So I think that’s the misconception, that if you get put on probation, you beat the system, and you somehow or another came away ahead of the game. And like I said, that’s not necessarily true. It happens occasionally on serious offenses sometimes; some people do get probation and they slide through and get it done and it’s not that difficult for them to complete probation.
But it just depends on the judge; it depends on the court system and the probation officer, how difficult probation is and how much they push you on it. There are a lot of factors involved.
Common Probation Violations
Interviewer: So what are the more common ways that you’ve seen people violate the probation?
Gary Churak: They pick up a new crime.They fail to report to the probation officer once a month. They fail a UA or drug test. They do not do their community service and pay their fines and court costs.
Costs Associated with Probation: Court Costs and Fines
Interviewer: How are the fines and other costs determined?
Gary Churak: It also depends on the offense, for the most part. Certain offenses in Texas have fines up to $10,000. The lowest level would be for a misdemeanor. A class-B misdemeanor is a fine up to $2,000. A class-A misdemeanor would be $4,000.
Then you get up into the felony levels, which can be $10, 000 to $20,000 fines. Usually don’t see fines that high, but there are situations where your fines can be a thousand dollars, plus court costs. When you have $1500 you have to pay in fines and courts costs, they usually let you pay that out through the term of your probation.
There Are a Number of Actions That Constitute a Probation Violation
San Antonio Probation Violation Lawyer
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.
After the Court Finds You in Violation, They Can Extend Your Probation with New Sanctions or They Can Revoke Probation and You Will Be Facing the Maximum Incarceration Period
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.
The Most Serious Probation Violation Is Committing a New Offense
There are a number of factors they can allege, but most severe is if you get re-arrested and pick up a new offense.
Even If You Are Found to Be Not Guilty for the Second Offense, Your Probation May Be Revoked
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.
Can You Travel or Relocate While on Probation?
San Antonio Probation Relocation Lawyer
Interviewer: What about travelling during job searching, and what if I needed to move for work during my probation?
Gary Churak: You have to get permission from the court to move. If you move within the state, you would have to get your probation transferred to the county where you’re going to move to. And in that same situation, if you were residing in another county and picked up an offense in a different county, you would have to get the court probation officer to transfer your probation.
To move out of state is a lot more difficult, because it is difficult to transfer probations between states. It can be done, but an interstate compact with that that has to be complied with before you can actually transfer.
Interviewer: What if I just wanted to travel out of state?
Gary Churak: You’d have to get court permission.
You Should Request Permission to Travel out of State 30 Days in Advance
Interviewer: How long in advance should I do that?
Gary Churak: I would recommend at least 30 days, if not longer.
Interviewer: Do they usually grant permission?
Gary Churak: It would depend on the situation. I’ve had judges that, for the most part, have not denied a person’s right to travel. Permission may depend on the type of probation and, how wellyou’re doing complying with the conditions. If you haven’t had any problems on probation, chances are the court’s going to let you do that.
Community Service and Probation
Interviewer: Does all probation automatically include community service?
Gary Churak: Most, for the most part, yes. For the most part, all probation has a community service element in it.
Interviewer: Can you give me some examples of community service?
Community Service Is Performed at Establishments That Foster Community Good Will
Gary Churak: Anything non-profit, usually. For example, working at Good Will, working at churches; any establishment that’s related to good will is recognized as valid community service.
Interviewer: Would they have you picking up trash by the side of the road, that sort of thing?
Gary Churak: I imagine that’s part of it. I’ve seen probationary people there picking up trash by the side of the road, so–that is itself a type of probation.
Interviewer: Does the amount of the community service hours imposed depend on the crime?
Your Attorney Can Negotiate the Number of Hours of Community Service You Must Fulfill
Gary Churak: Yes, usually it does depend on the crime. Felonies are subject to usually more time than misdemeanors. It also depends on your attorney and what you can negotiate with the district attorney. I’ve had situations where the courts have granted community service if it’s a student. Basically letting him attend class; each hour he attends class is considered towards his community service.
I’ve had judges allow people who have a tight work schedule donate to the Food Bank in lieu of community service. So it’s flexible.
Interviewer: What if someone really wants to reduce community service, but the court feels they should perform the maximum?
Gary Churak: It’s part of being in the system. You committed an infraction and this is a component of your sentence. You have to abide by the rules.
Deferred Adjudication Is an Option for Felony Charges
Interviewer: If someone has a felony charge, would they be able to have probation and have their case dismissed after that?
Gary Churak: Yes, it’s called deferred adjudication probation. With that type of probation, if you complete successfully your probation you will get a dismissal of your case.
Certain Cases That Receive Deferred Adjudication Can Later Be Sealed, with the Exception of Family Violence Cases
Interviewer: Does that mean that the case is sealed or expunged?
Gary Churak: Yes, you have to come back in after that, depending on the type of case and there are some exceptions to being able to seal it. For example, family violence cases cannot be sealed.
In Lieu of a Sealing, Those Cases Can Be Petitioned for Non-Disclosure
But what you do is you do a petition for non-disclosure. For most misdemeanors, you can do it immediately after your discharge. Felonies you have to wait five years. After five years, you file a petition for non-disclosure.
It’s processed through the court, and once that’s entered it goes to DPS. DPS has some rules and regulations on releasing information to basic reporting services.
Ten Years Is the Maximum Probation Period in Texas
Interviewer: I know it would depend on the crime, but what’s the maximum amount of probation time that can be imposed?
Gary Churak: Ten years is the maximum probation in the state of Texas. On extended probation, the probationary person can go through numerous probation officers during his term.
Probation Violations Are Not Subject to a Statute of Limitations—If a Warrant Is Issued for Your Arrest, It Does Not Expire
Interviewer: If someone violates probation and for some reason, it slips through the system, is there a statute of limitations in which the authorities can prosecute him or her?
Gary Churak: No. The only statute of limitations is they have to file the motion to revoke probation before the probation expires. That’s only thing they have to do. So if your probation is set to expire on December 31, and they file a motion to revoke on you on December 30, and issue a warrant –that warrant is good forever. And they can pick you up anywhere and anytime with that warrant.
It Is Important to Contact an Attorney If You Have Been Re-Arrested while on Probation
Interviewer: Now when they finally pick that person up, does that increase the time that they’re going to be incarcerated?
Gary Churak: It doesn’t increase time they’re going to be incarcerated, but the fact of the matter is they have now been arrested. Most motions to revoke probation do not have a bond set on them. What happens is you have your attorney talk to the judge to get a bond set before you can even bond out.
People have been known to sit in jail for months before they have a hearing because they don’t talk to an attorney or don’t have an attorney representing them. And they can’t get out of jail.
What Kinds of Offenses Carry Probation?
San Antonio Deferred Probation Attorney
Interviewer: What kinds of offenses carry probation with them?
Under Texas Law, All Offenses Can Be Subject to Probation
Gary Churak: Under Texas law you can get probation for every offense, either deferred or regular probation. There are some statutes where the court cannot grant you probation; they can only give you deferred adjudication probation. And that’s basically in a situation where you have either an aggravated offense or a deadly weapon count or a sex crime, usually a 3-d sex crime, where the court cannot grant probation.
Probation can only be granted from the jury and, of course, if you’re dealing with a child there’s limitations on the age of the child. For instance, in Texas if the child is under the age of 13, they cannot get probation from a jury, but they can only get deferred adjudication from a judge.
There are different complicated statutes on dealing with the probation side of it, but the for most part, all offenses can get probation in Texas, one way or another, either through the judge or the jury.
Probation Is Classified by Terms, Not Levels of Severity
Interviewer: Are there different levels of community supervision?
Gary Churak: Well, it’s not different levels. There are different terms of probation. In other words, some are longer than others; some are more stringent and supervised more intense than others. It just depends on the nature of the offense and it’s based upon the nature of the offense.
A shoplifting case is going to be supervised at a different level than, say, an assault case or a robbery. The more serious the offense, basically what happens is the tougher the probation.
Probation Will Have Different Conditions Depending on the Nature of the Offense
Interviewer: Will the terms of the probation always be the same in that instance? Will that person always have to report to a probation officer? Will they always have to be taking a drug test?
Gary Churak: No, not necessarily. Most probation conditions require that the person be subject to random drug testing, known as UAs. But it’s not necessarily a requirement of probation, but they may impose it. It depends on the offense.
If you’ve got a drug offense, you can be sure you’re going to be given regular UAs. If you’ve got a shoplifting case or a hot check case, chances are they’re not going to UA as often; they may UA you at one time on probation, they may never UA you ever. It just depends on the nature of the offense and who your probation officer is and factors like that.
Electronic Supervision: Ankle Monitors
Interviewer: What would warrant having an ankle monitor?
Gary Churak: Ankle monitors are unique situations and happen not as much in probation as it does on bond. The purpose is basically to keep an eye on the individual, especially on more serious offenses. You usually don’t see them on just straight probation situations.
Interviewer: So what kind of crime would one have to commit to get an ankle monitor?
Gary Churak: They would order ankle monitors for felony assaults, robberies, which are more serious crimes. I’ve seen them for lesser offenses too, but for the most part, it’s more or less violent crimes.