I’ve often thought of probation like a mortgage loan. When a person obtains a mortgage, they place themselves in debt for a number of years and promise to pay a certain amount of money every month until the loan is paid in full. If the indebted person fails to make his or her payments on a monthly basis and continues in this manner, they will be in default, and the bank will foreclose on the loan and the property associated with it.

So, if someone fails to do what they have promised to do after taking out a mortgage, they lose a house and wind up with a foreclosure on their record. However, the consequences for failing to meet the terms and conditions of probation are even more severe. Taking out a mortgage is like a loan against your finances, but being placed on probation is like taking out a loan against your freedom. 

It’s easier to get probation in the first place than to stay on it. Probation is very arduous for most people. When you think about the things you have to do, it can seem overwhelming - maybe even insurmountable to most people. For recidivists, it’s nearly impossible. It’s very difficult for most people to get through it without a good working relationship with their probation officer and an abundance of discipline. Probation is really a contract, and the person signing that contract is typically motivated to do so only because “anything is better than jail.”

It has to be this way. Probation is more than just a punishment - it’s designed to teach skills, instill accountability, and foster rehabilitation. For instance, if someone gets placed on probation for a DWI, the state will often ask them to attend alcohol awareness classes. These classes can be pointless or redundant for many people if they don’t possess the attitude for self-improvement. As much as it may seem a waste of time, these classes are designed to convey the danger of irresponsible alcohol consumption. If someone is placed on probation for assault family violence (domestic violence) then the court will require them to take some type of batterer's intervention class, or some other class that promotes healthy family relationships and teaches useful coping techniques.

Another function of probation, in my opinion, is that it is designed to act as a remedy and deterrent. For first time offenders, an encounter with the judicial system will hopefully serve as a fork in the road in that person’s life. That person may consider this event the worst and most humiliating experience that they have ever dealt with. Others may not take it seriously enough and only see the event as a minor setback in their lives. Regardless of their perspective, the probation could “right the ship” for some people. Making probation difficult is intended to serve as a deterrent for individuals - so they won’t be as likely to commit further misconduct. Most people live a life free of crime, but others do not. 

Another thing to remember about probation is that the judge is taking a chance by allowing someone to go back out in the community and is expecting them to put their head down and abide by the rules. Most judges do not tolerate any sort of violation by a probationer. When people sign up for probation, they are happy to do so because it means forgoing jail. Some people fail to realize that prison is always still on the table. In some cases, it’s easier for probationers to end up back in jail than to stay out because any sort of violation can result in a warrant for that person’s arrest.

Well, why is that?

When a person signs up for probation, they are literally signing an agreement. Within that agreement, there are over a dozen conditions or clauses that the probationer is agreeing to satisfy. Some of those conditions include paying fines and fees. The fines are typically set by the prosecutor and must be within the guidelines of the Texas Penal Code. Also, the fees are assessed by the courts and may include restitution (any sort of monetary damage that may have been caused as a result of the criminal actions that the probationer is obligated to pay back). All these amounts are added together and that sum is then divided by the amount of months of the probation.

Example:If Jane gets a DWI and this is her first offense, she may be placed on probation for 15 months and assessed a fine of $800. She may also incur county and court costs of another $500. Before she was arrested she may have hit a mailbox. She would be liable for the cost of repairing the mailbox along with paying the above fines and fees. Let’s say the mailbox costs $200 to replace. If so, then her total amount of costs for probations will be $1,500 ($800 for the fine, $500 for the court costs, and $200 for the restitution.) What will then happen is the total amount that she owes will be divided by the amount of months she is on probation, here it would be the $1500 divided by 15 months. Her monthly cost to stay on probation would be $100. Jane also has to keep in mind that there is a nominal fee that she must pay to the probation department every month. That fee could realistically be about $25 a month. In totality, Jane would have to pay $125 a month to stay on probation.

Other conditions a probationer promises to meet may include working a certain number of community service hours per month and/or taking classes. If the probationer does not work community service every month as agreed, that would be considered a violation. If the classes are not completed in a timely fashion, that would also be considered a violation. My experience is that the judges want to see any classes completed immediately.

If drugs or alcohol were involved in the commission of the crime, another clause in the probation agreement is a “consent.” The consent is for the probation officer to call the probationer “out of the blue” and request a random drug and alcohol screen. Typically, the person on probation has 24 hours to come to the probation office and provide a sample. In most circumstances, this would be considered an illegal search and seizure and a violation of a person’s 4th amendment rights, but the terms of probation make it clear that during the probation, this right is waived.

Another important clause in probation agreements is the one giving up a right to a bond. In most cases, once a probationer is apprehended because of a violation, he or she will have to stay in jail until brought before a judge. However, once they come before a judge on a motion to revoke, the judge will then have to decide to do one of three things.. 

1 - He can do nothing. He will hear the evidence and then decide to keep the defendant on probation. I find this route to be extremely rare outside of some very unusual circumstances. In order for the judge to opt to do nothing, the violations would have to be very minor. 

2 - He can choose to modify the probation. He can follow any recommendations from the probation department or those requested by the state and then decide to order additional classes, fines, or community service. If the underlying probation resulted from a crime involving drugs or alcohol, then the judge might order some sort of outpatient or inpatient treatment.

Typically in a revocation hearing I find the judge will do one of these first two things: either modify or revoke. In order for the probationer to be modified, he or she has to show a willingness to earn the ability to stay on probation. 

3 - The final scenario is if the judge decides to revoke the probation. This is the least desirable outcome of all of these scenarios because all the time and effort that may have been put into probation will have been for nothing. It means that the defendant will now have to go to jail and serve out his or her sentence. This typically means that there will now be a conviction on the probationer’s record as well.

The burden of proof in a revocation hearing is much lower than in a criminal trial. To be found guilty of a crime, the state must prove beyond a reasonable doubt that you committed a certain crime. However, in a revocation hearing, the burden of proof is simply by “the preponderance of the evidence.” It is a much lower standard to meet, and the trier of fact (the judge) only has to believe that the act or failure of an act was more likely to have occurred than not.

I know what I just described was a bunch of legal mumbo jumbo. For lawyers, it’s hard to turn this off. To put it simply, in all criminal cases the state has to prove that the defendant is guilty of a crime by proof beyond a reasonable doubt. This means that they have to present evidence that is so convincing, that it would be hard for a normal bystander to have any doubt regarding the evidence. The person passing judgment has to leave the courtroom thinking to themselves “I wasn’t there, I didn’t see it happen, but because of the evidence, I know he did it and I have no doubt in my mind.”

However, in a “preponderance of the evidence” situation, that evidence has to be just more than 50/50. It has to be enough so that the person passing judgment leaves the courtroom thinking to themselves “I wasn’t there, I didn’t see it happen, but based on the evidence, he or she most likely did it.” In this scenario, there is a little more left to interpretation than in the first scenario. The trier of fact still has to believe the defendant did the crime - they just don’t have to be as certain.

So, in a probation hearing, when you come before a judge, he just needs to believe that you likely committed a violation. Normally the testimony of the probation officer is enough to convince the Judge that a violation has occurred. So, as mentioned earlier, it becomes very important to have a good working relationship with the probation officer.

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I’ve often considered probation officers to be something like a probation “coach.” They will line up what each probationer has to do and keep them on track with probation. They meet with their probationers every month to see how each person is doing and remind them if they are falling behind in a certain area - such as paying fines or doing community service. But as described earlier, they can always ask for a DNA sample to test for drugs or alcohol. If a probationer is not doing what they are supposed to, the officer will let the judge know. In my county, I find that probation officers can be very nice at first, but they lose patience with probationers fast, especially when that probationer isn’t doing what they agreed to do and gives the officer “the run around.”

I know it sounds daunting, and I’ve spent this entire article preaching of “fire and brimstone,” but the point I’m trying to make is that probation is very difficult and it takes a lot to get through it. If the probationer is not willing to sacrifice and be disciplined, then it’s probably better not to sign that agreement and just “do the time.”

I have seen countless probationers make it seven or eight years on a ten year probation and relapse or commit a crime. I’ve seen them repeat the exact same behavior that landed them in probation in the first place. And when these circumstances arise, I’ve seen the judges make the tough decision to revoke the probation for these individuals and send them to jail. 

Bottom Line: The best way to make it through probation is to do everything you agreed to do and work with your probation officer.

There is one bit of good news. If a probationer completes all of the terms and conditions of probation, he or she can file for early termination of their probation. I don’t see judges let probationers off early very often but it does happen. In my experience, the only way they will allow for this is if all the conditions have been met and at least half of the time for probation has elapsed. The judge will also want to hear testimony from the probationer to see if he or she exhibits any remorse for the criminal actions and to learn how the probation has impacted his or her life. If the judge is convinced that the probationer has in fact learned something from the experience, then he may sign the order for early termination.

Probation serves as a chance to be better, to prove a lesson has been learned, to show the same mistake won’t be made again.

The last thing a judge wants to see is for the probationer to commit another crime. In my short time practicing law, I’ve quickly determined that more crime committed by a probationer is the most certain way to see that person’s probation revoked 

If you find yourself in a situation where you are on probation and violations have occurred, please call me. I can assist in these cases. Or perhaps you are on a long probation and have completed everything that has been asked of you and are seeking an early end to probation - I can assist in those situations as well. If you do find yourself needing such guidance and advice, please do not hesitate to contact me at 903-753-4955 or via e-mail at LongviewLawyers@gmail.com.



Contact Sung R. Kim, Attorney at Law for Aggressive, Hands-On Representation in Longview, Texas