By Allen, Texas Criminal Defense Lawyer Kyle T. Therrian
Office Number: (972) 562-7549
24 Hr Jail Release: (214) 403-6522
www.rosenthalwadas.com

Probation is a contractual relationship between the probationer (a person on probation) and the Court. In order to administer probation terms and conditions, the Court employs a county probation office. Reduced to their very basic functions, probation officers are responsible for monitoring probation compliance and suggesting sanctions for non-compliance. But make no mistake, their authority is limited by law.

When a probation officer believes a probationer to be in violation of probation he or she may request the probationer to agree to a “sanction.” A sanction is nothing more than a modification of the contract . . . but under duress. Sanctions range from minor extensions of the probation term to full blown periods of incarceration and sometimes even intensive inpatient or outpatient treatment. Like any other contractual relationship, any party has the right to refuse a modification. This is why a probation officer will seek an agreement instead of changing the terms and conditions of probation unilaterally. Of course, the right to refuse may feel next to non-existent when threatened with a motion to revoke, potential jail time, and in the case of deferred adjudication probation, the inability to seal the record upon completion.

Surely, these are the very things the probationer was trying to avoid before being placed on probation. Even more, these are the reasons the probationer hired a lawyer who sat down with the lawyer for the State to reach an agreement that was presented to a judge who ordered the original terms and conditions of the probation. In this context, agreeing to a probation sanction without first seeking legal advice seems silly.

The truth is that the probation officer’s proposal is cleared by neither a lawyer nor a judge before it is presented to the probationer and the legal consequences of refusing a proposed sanction are often depicted as unrealistically severe. Of course, each case is unique and the propriety of agreeing to a sanction will depend upon unique circumstances. But, in no case should you rely on a probation officer to fully explain the legal ramifications of your decision. If the opportunity presents itself, consulting with an attorney first would pay dividends.

Here are some quick facts about probation sanctions:

• A probation officer cannot unilaterally modify probation.
• A probationer is not required to agree to a modification.
• Without an agreement, the probation officer may only request the prosecutor to file a motion to revoke or motion to adjudicate.
• A motion to revoke or adjudicate will require an arrest.
• Probationers on deferred adjudication are legally entitled to be released on bond.
• Probationers on regular probation can sometimes be released on bond.
• Probationers unable to post a bond are entitled to a hearing within 20 days.
• If the basis of the State’s motion is purely monetary, the Court must consider ability to pay.

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.