Over the past few years, with increasing frequency, you’ve read articles and editorials in the papers or heard media reports about prison overcrowding in Texas and the “broken“ probation system. One major issue regards how many offenders are in prison as a result of motions to revoke their probation for “minor and technical” violations of probation.#1
During my career as a prosecutor, some of the greatest examples of justice for victims occurred as a result of motions to revoke probation. Likewise, I have seen the rehabilitation of some defendants who needed more guidance to complete their probation.
If the public comments of some legislators become reality in the form of legislation, then expect that in the very near future there will likely be significant changes in both probation and probation revocations. In this article, I seek to cover some basics about probation revocation practice, but I cannot cover every facet or nuance. Thus, as always, I urge you to research your specific issue to ensure your law is correct and up to date.2#
The practical aspect
In 17 years of Texas criminal law practice, I have observed wide variance in the methods that counties and judges handle their revocation proceedings. My first 15 years were spent in Fort Bend County, one of the fastest growing counties in the nation, where the population grew from roughly 200,000 to more than 750,000 during my tenure. As the various criminal justice agencies expanded rapidly, so did our revocation proceedings. As a prosecutor, I was privileged to practice before many fine judges, yet there was little consistency even among these elected and visiting judges as to how each handled and treated revocation proceedings.
Through practice in each court, prosecutors should have a very good idea which violations will result in revocation and which violations will not.
Probation vs. deferred adjudication
As you know, a defendant placed on formal probation has been convicted of the offense, but the defendant placed on deferred adjudication has not been convicted. Instead, the deferred adjudication probationer has had his finding of guilt deferred, pending successful completion of the probated sentence.
This difference becomes important in many cases because of the range of punishment. When a defendant is placed on probation, his sentence time is probated for a number of months or years. For example, a felony DWI offender might receive a 10-year sentence in TDCJ probated for five years, meaning that if his probation is revoked, he cannot receive more than a 10-year prison sentence.
But with deferred adjudication, the full range of punishment is available if that deferred adjudication is adjudicated. Thus, an offender who receives a 10-year term of deferred adjudication probation for the 1st-degree felony of aggravated robbery, if adjudicated, could be sentenced to anywhere in the entire five to 99 years or life range.
In the jurisdictions where I have practiced, the probation department presents the violations to the prosecutor, who decides whether to file a Motion to Revoke Probation or Motion to Adjudicate Guilt. The probation department submits a written violation report to the prosecutor alleging the violation’s particulars, and the prosecutor drafts a formal MRP, containing sufficient information3 to appraise the defendant of the alleged violations to comport with due process.4 The prosecutor can request that a capias issue for the defendant’s arrest or that a summons issue to notify him of the setting of the case. My general rule, like many other prosecutors, is that offenders who have money- or community service-related technical violations are summoned, but those offenders who are constituting some danger to society by their violations have a capias requested, often with bond conditions.5 When I feel that it is in the best interest of public safety to have a probation violator arrested on the MRP, I request a capias from the court, and I make a bond recommendation (with conditions of bond if necessary) at that same time.
Motions to show cause and administrative hearings
A motion to show cause can be a step between administrative hearings conducted by the probation department and filing a formal revocation motion. These are especially useful for technical violators. It summons the probationer to court to show cause why a MRP based upon the violations should not be filed against him. The court and the probationer then have the opportunity to discuss the violations, and the court can give the offender an opportunity to resolve those issues prior to filing a MRP. The case can be reset as needed so the offender can correct his violations. Both administrative hearings and motions to show cause are a good way to address initial non-compliance with minor probation violations.
The hearing itself
Revocation hearings are administrative in nature,6# but because a finding of revocation implicates a defendant’s liberty interest, probation cannot be revoked without due process of law.#7 The defendant has the right to representation by counsel at a revocation hearing.#8 The burden of proof is by preponderance of the evidence for the State,9# and the rules of evidence are often relaxed.
Because a revocation hearing is administrative in nature, there is no right to a trial by jury.10# The probationer doesn’t plead guilty or not guilty; rather, he pleads true or not true to the allegations in the MRP. A plea of true is sufficient to uphold a revocation of probation.#11 Also, an extrajudicial confession or a judicial confession of a violation of the conditions of probation is sufficient to revoke probation.#12
I always ask the defense attorney if his client will stipulate to his identity, and 99 percent of the time, the defense agrees. I always obtain a written stipulation of identity for the case.13# Note that if the defendant doesn’t raise the issue of identification in the hearing, it is waived for all time.14#
A defendant has a right to appeal a probation revocation hearing resulting in a revocation.#15 However, a defendant may not appeal an order adjudicating guilt.#16
The MRP must be filed and the capias or warrant issued prior to the expiration of the term of probation,#17 but the hearing can be held after the term of probation has ended.#18 Check your motion to ensure that your dates, facts, and violations are properly alleged and that they give adequate notice of the manner and means that the condition of probation was violated; amend it if necessary at least seven days prior to the hearing, and give adequate notice of the amendment to opposing counsel. Thereafter, the motion can be amended only for good cause but not after presentation of the evidence has begun.19
Prior to the hearing, review the probation department file, and have the officer make copies of all relevant documents, such as admissions of drug or alcohol use in the defendant‘s handwriting, positive urinalysis results, etc. Rather than introduce the entire file, I seek to introduce select documents and have the officers testify that they are true and correct copies made from their files for the proceeding. This practice keeps the officer from having to copy the entire file and prevents huge files containing many irrelevant documents from taking up space in the district clerk’s office.
The probation department’s file is a business record and is therefore admissible as such. I usually cover the business record predicate with the probation or court officer, then I ask the following:
• When was the defendant placed on probation?
• What is the cause number and offense?
• What is the period of supervision?
• Has the probation been terminated and/or was the MRP filed prior to the end of the probation period?
• Did the violations occur while probation was in full force and effect?
• Did the defendant acknowledge in writing the receipt of a copy of the conditions of probation at the onset of his probation?
• What conditions did the defendant violate? How so?#20
A special word of caution regarding defendants who are supervised outside of your county: Although notes of the supervising department can be a business record and thus in some cases a probation officer from your jurisdiction can testify to them, I always try to bring the officer supervising the defendant from the jurisdiction in question to testify personally. I have seen judges exclude probation records from outside the county because your local probation officer does not have the capacity to testify, based upon personal knowledge about how those records are kept. I have found that often the records do not reflect the probationer’s attitude or demeanor the way that his supervising officer can, and oftentimes the records do not contain detailed information on just how much the supervising officer tried to help the probationer succeed.
Finally, ask your judge to make a finding on the record as to which conditions were violated. Such a finding is especially important if there are non-payment violations alleged because there are no indigency concerns for non-monetary condition violations.
Indigency issues
If the State shows that the probationer failed to meet certain financial obligations of probation, and if the defendant raises the defense of inability to pay those fines, fees, costs, restitution, or other probation expenses, the burden then shifts to the State to prove that the probationer was able to pay some or all of the amounts in question.#21 This area of revocation gets very complicated very fast in caselaw because there are constitutional implications as to whether the court must inquire as to the issue of inability to pay even if the defendant does not raise it.#22
Cross examination
Perhaps the best crosses I have ever observed in a MRP proceeding were those done in the late 1990s by former Fort Bend County narcotics prosecutor Glenn Cook.#23 Glenn began by asking defendants if they did or did not violate the conditions alleged in the motion. Invariably, on direct the defendant would “promise” not to violate his conditions of probation (again). Glenn then got them to admit that, in this very case, they had made that same promise and broken it. If the probationer had prior probated sentences that had also been revoked, Glenn went over these and established that in each of those cases, he had promised the judge that he would obey the probation conditions. Glenn summarized that the probationer had previously had two or three (or more) chances to succeed but had decided consciously to violate those promises. He would do this very briefly, not beating a dead horse, but often this type of questioning resulted in revocation, not reinstatement.
Motion practice
Be sure to review the probationer’s performance with the probation officer well in advance of the hearing to determine if any further probation violations have occurred. Likewise, have your probation officer or investigator run the probationer’s criminal history to ascertain if he has been arrested or charged with a new crime during the pendency of the MRP. Often you will find that numerous further violations or other crimes were committed after a MRP was filed.
Regarding absconders, be sure to amend your motion before the term of probation expires. Many prosecutors neglect to amend the MRP once a probationer has absconded, but it’s the perfect opportunity to allege yet another offense and increase the probability that the MRP will be granted.
Allege each and every violation of the conditions of probation in your MRP. Do not be tempted to allege only one major violation or to leave out what your judge may consider to be “minor” violations. If a probationer has a new law violation and many technical violations, allege them all. Your proof at the hearing may fall short on the new law violation, but a probationer could still be revoked on a failure to perform community service hours.24
Another reason to allege every violation in the MRP probation is to comply with due process requirements of notice. The probationer has the right to notice as to which conditions you allege were violated. By alleging all violations of probation, you can paint a complete picture for the court as to how seriously the probationer took his probated sentence. If you do not allege certain violations, a competent defense attorney will object that you are introducing evidence outside the MRP and therefore not relevant to the decision of revocation.25# How many times have you heard a probationer tell the court,“I was late paying my fine, but I am doing everything else that my probation officer has told me to do”? He’s not mentioning, of course, that he failed to report, failed to abstain from injurious habits, failed to do community service, etc.
Also, because the court may revoke (except in rare exceptions) for the commission of one violation of probation, the more violations you allege ensures you have a better chance of seeing that justice is done. For example, many conditions of probation prohibit the use of illegal substances and alcohol as “injurious habits.” Caselaw has said that one positive urinalysis does not a habit make. In other words, you must have more than one example of drug or alcohol use as evidence to comprise a “habit.”
MRP proceedings do not invoke double jeopardy.26 If a motion has been filed but no plea was made and no revocation hearing held (i.e., the probation is modified and/or the MRP is withdrawn), then previous allegations may be refiled in a new MRP.27 However, if a defendant was continued on probation after a revocation hearing, the court may not grant a continuance of the revocation hearing and then revoke the probation without a new motion and a new hearing, and the grounds for revocation must have occurred after the defendant was continued on probation.28
Zero tolerance caseload
In my opinion, certain offenders must be targeted for intense monitoring to ensure public safety and, in financial cases, to ensure that victims are compensated for their losses. I always work closely with probation officers in cases involving large amounts of restitution (often embezzlement or white-collar theft), DWI, and sex offenders.
For restitution cases, I recommend establishing a guideline where the probation officer notifies you if the defendant falls behind in his restitution payments. I have found that quickly addressing this type of violation through a Motion to Show Cause, an MRP, or an administrative hearing at the probation department often results in the probationer quickly catching up on his restitution payments, thus negating a call to my boss from the victim about how we are not doing our job. Restitution-paying probationers are pretty motivated about not being sent to a restitution center.29# (For those who don’t know, a restitution center is a Texas Residential Program, a form of Community Corrections Facilities administered by the Texas Department of Criminal Justice. Restitution centers target offenders who have problems maintaining employment and meeting court-ordered monetary obligations; these facilities provide employment, housing, education, community service restitution, and life skills/cognitive training programs.)30 I usually won’t initially move to revoke an offender who has restitution due unless there is a total and absolute failure to pay. I will modify to a restitution center, several times if necessary. The victim deserves to be made whole unless the probationer is committing other crimes while on probation.
Likewise, for DWI probationers, I request that I be notified upon any positive urinalysis or interlock alert. I bring those violations to the court’s attention immediately because quick intervention is the key to avoiding injury or death resulting from a DWI probationer causing a collision while intoxicated. I have often found it useful to suggest to the probation officer voluntary modifications for the initial violations of DWI offenders, including daily AA meetings or other intensive counseling. If those do not work, SAFPF is the next step, either by modification or hearing.
And so it goes with sex offender probationers. These offenders are often on a specialized caseload with a very attentive officer, but I want to know of any problems (other than payment issues for non-restitution conditions) as soon as they occur. As far as I am concerned, the court needs to be appraised immediately of a sex offender not attending or participating in treatment, not reporting, absconding, failing a polygraph or plethysmograph examination,31 accessing the Internet, or other related violations.
Judicial economy
An MRP can also be used to further judicial economy. For example, if a person is serving a probated sentence for a 1st- degree felony and while on probation commits a misdemeanor or a lower-level felony, it may make sense to proceed on the new case as the basis of a revocation motion rather than filing a new criminal case. The newer and lesser offense will oftentimes be dismissed upon the revocation of probation. Conversely, if a state jail probationer commits a murder, then the murder case should be pursued because its sentence would likely greatly exceed the maximum state jail sentence.
But what if your chief witness in the murder case dies before trial or the overwhelming guilt of the probationer is based upon weakly corroborated co-defendant testimony? Then at least you have the alternative of trying the law violation in an MRP, where the burden is by a preponderance of the evidence instead of beyond a reasonable doubt, giving the murder victims some justice in the matter.
If there is a new law violation in your or another jurisdiction, good communication between yourself and the prosecutor handling the new charge is key to insuring success in both prosecutions. Be sure to consult with appellate attorneys if you have a question of collateral estoppel regarding proceeding on the revocation first or on the new charge first. Obviously, if a defendant is on deferred probation for murder and picks up a new charge (say, a 3rd-degree felony), then you will probably want to proceed on the MRP because of the larger punishment range. The lower burden of proof in revocation proceedings (preponderance of the evidence) is at times advantageous when there are issues that might complicate a trial on the new charge, where the burden is beyond a reasonable doubt. Another consideration is that a judge might not be as readily confused as a jury might in a complex factual or legal case based on a new offense. As always, good communication makes for effective law enforcement.
Endnotes
1# I will refer in this article to motions to revoke probation/community supervision and motions to adjudicate guilt collectively as MRPs, except as where otherwise specifically indicated concerning deferred adjudication. Community supervision will be referred to as probation. I’m from the old school, and it’s easier for me this way.
#2 And as always, attend the 2007 TDCAA Legislative Update Seminar to learn what changes this current session holds.
3 Garner v. State, 545 S.W.2d 178 (Tex. Crim. App. 1977).
4 It is also common for prosecutors in different jurisdictions (and states) to contact each other when a probationer is arrested in another county. I often fax copies of indictments and informations to other DA’s offices at their request, which can be beneficial in more than the obvious way. Perhaps your charge has witnesses who do not wish to cooperate or other issues, which would more easily be tried in an MRP hearing. Communication between offices is the key.
5 Examples of cases where I feel a capias is necessary are DWI defendants (who continue to drink, fail to have an interlock device, or have violations with said device), persons who commit crimes against a person or property crimes (I usually do not arrest for non-chronic DWLS-type offenses), and others.
6# Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973); Cobb v. State, 851 S.W. 2d 871 (Tex. Crim. App. 1993).
7# Gagnon, at 781-782.
8# Ex Parte Shivers, 501 S.W. 2d 898 (Tex. Crim. App. 1973); Tex. Code Crim. Pro. Art. 41.12 §21(d)
9# Kulhanek v. State, 587 S.W. 2d 424 (Tex. Crim. App. 1979)
10# Valdez v. State, 508 S.W.2d 842 (Tex. Crim. App. 1973); Barrow v. State, 505 S.W.2d 808 (Tex. Crim. App. 1974).
#11 Cole v. State, 578 S.W. 2d 127, 128 (Tex. Crim. App. 1979).
#12 Bush v. State, 506 S.W.2d 603, (Tex. Crim. App. 1974); Valdez v. State, 508 S.W.2d 842 (Tex. Crim. App. 1973).
13# I use a simple fill-in-the-blank form that contains the style, cause number, and court, entitled “Agreed Stipulation of Identity” and reads as follows: “The defendant ____ and The State of Texas hereby stipulate that the defendant present in the courtroom today, namely ___, is the same person that pleaded ___ to the offense of ______ on ______ in the above-styled and numbered cause of action, and that the defendant was placed on community supervision on or about that date.” It also contains signature and date lines for the State, the defendant, and his attorney. I introduce form as an exhibit and read it into the record.
14# Batiste v. State, 530 S.W.2d 835 (Tex. Crim. App. 1975).
#15 Tex. Code Crim. Proc. Art. 42.12 §23(b).
#16 Tex. Code Crim. Proc. Art. 42.12 §5(b); Wright v. State, 592 S.W. 2d 604 (Tex. Crim. App. 1992).
#17 Strickland v. State, 523 S.W.2d 250 (Tex. Crim. App. 1975).
#18 Tex. Code Crim. Pro. Art. 42.12(2)(e); Strickland at 251.
19 Tex. Code Crim. Pro. Art. 42.12 §21(b).
20# I usually do not seek to admit the entire file of the probation department. If I do, I ask the court to allow the probation department to submit a copy of the file for the record.
#21 Stanfield v. State, 718 S.W.2d 734 (Tex. Crim. App. 1986).
#22 Ortega v. State, 860 S.W.2d 561 (Tex. App.—Austin 1993); Hicks v. Feiock, 485 U.S. 624 (1988).
#23 Also formerly of the Harris County District Attorney’s Office and now an assistant United States attorney in the Southern District of Texas.
24# Note that many conditions of probation direct a probationer to perform the total number of community service hours “as directed.” Usually language directs that community service be performed at no less than four hours per week.
25# Although evidence of probation violations outside the allegations contained in the MRP are certainly admissible for the punishment portion of a revocation proceeding.
26 Bass v. State, 501 S.W.2d 643 (Tex. Crim. App. 1973).
27 Winkle v. State, 718 S.W.2d 306 (Tex. App.—Dallas 1986, no pet.).
28 Rogers v. State, 610 S.W.2d 248 (Tex. Crim. App. 1982).
#29 Similar to the fear of attending SAFPF as exhibited by drug offenders. They would often rather go to prison or state jail than SAFPF.
30 Report from the Texas Department of Criminal Justice Community Supervision and Corrections Departments Judicial Advisory Commission to the Texas House of Representatives Corrections Interim Committee-2002.
31 Wikipedia says: “Another common but more controversial type of plethysmograph is the penile plethysmograph (PPG), a device used to measure changes in blood flow in the penis. Although controversial, there are many learned and respected experts who believe it is an effective tool. Allen Cowling of Cowling Investigations states on his website concerning false allegation cases that: ‘The penile plethysmograph is a machine that measures changes in the circumference of the penis. A stretchable band with mercury in it is fitted around the subject’s penis. The band is connected to a machine with a video screen and data recorder. Any changes in penis size, even those not felt by the subject, are recorded while the subject views sexually suggestive or pornographic pictures, slides, or movies, or listens to audio tapes with descriptions of such things as children being molested. Computer software is used to develop graphs showing the degree of arousal to each stimulus.’ The plethysmograph directly measures the outside evidence of sexual arousal. When a man becomes sexually aroused, there is engorgement of the penis. When the penis becomes engorged, you are measuring sexual arousal, so for all practical purposes, the test is a blood pressure measurement. … The tests have been used to weed out false gays, in the treatment of sex-offenders, in sentencing decisions for sex offenders, as a condition of parole for certain sex offenders, and in some child custody cases to determine if a father is or is not likely to abuse his child. Some psychologists use the PPG to measure the success of the therapy.” I have seen it admitted in Texas courts in revocation hearings in conjunction with polygraph evidence and other evidence regarding sex offenders from their treatment providers who utilize the instrument.