San Antonio Probation Violation Lawyer: Motions to Revoke and Adjudicate in Bexar County

The call comes on a Thursday afternoon, on a job site off I-35. It is his mother. Two deputies came to the house in San Antonio asking for him, and one of them said the word warrant. He knows what it is about. He missed a reporting date in the spring when the work moved out of town, and last month a drug test came back positive. He has been on deferred adjudication for two years. The State filed a motion, a judge signed a warrant, and the question now is what happens when he walks into the Magistrate's Office on Comal Street.

A probation violation in Texas is not a new trial. It is a hearing before the court that granted supervision, with no jury, a lower burden of proof, and choices besides prison. On regular probation, the judge can continue, modify, extend, or revoke, and on revocation impose the sentence already assessed or a shorter one. On deferred adjudication the stakes are larger: an adjudication means a conviction and a sentence anywhere in the full range for the original charge. So the first question for a San Antonio probation violation lawyer is which of the two applies.

Two kinds of probation, two kinds of motion

Texas calls probation "community supervision," governed by Chapter 42A of the Code of Criminal Procedure. On regular supervision, the person was convicted and sentenced, and the judge suspended the sentence; a violation brings a motion to revoke. On deferred adjudication, the judge never found the person guilty, and a clean finish ends in dismissal; a violation brings a motion to adjudicate guilt. Under Article 42A.108(b), that hearing is limited to one question: whether the court will adjudicate guilt on the original charge.

In either case the State need not prove a violation beyond a reasonable doubt. The courts have long held that the burden is a preponderance of the evidence, more likely than not, and that one proven violation is enough. Article 42A.751(d) provides that the hearing is held without a jury. Under Article 42A.751(k), the person has a right to counsel, appointed if he cannot afford a lawyer.

Some allegations are technical; others allege a new offense, which can mean a separate case beside the motion.

What the judge can do after a violation

A violation does not require revocation. Article 42A.751(d) lets the judge "continue, extend, modify, or revoke" supervision.

• Continue, with added conditions: community service; fine increase up to the offense maximum (CCP 42A.752)
• Extend the term: 10 years total for a first-, second- or third-degree felony; 3 years for a misdemeanor, plus up to 2 for unpaid fines, costs or restitution (CCP 42A.753)
• Jail as a condition: 30 days (misdemeanor) or 180 days (felony), counted together (CCP 42A.302)
• Treatment facility (SAFP): felony cases, on findings about drugs or alcohol (CCP 42A.752(a)(4))
• Revoke regular probation: the sentence assessed, or a shorter one not below the offense minimum (CCP 42A.755(a))
• Adjudicate deferred: any sentence in the full range for the original offense (CCP 42A.110(a))

On adjudication, the ordinary ranges apply: up to 180 days for a Class B misdemeanor (Penal Code § 12.22); up to one year for a Class A (§ 12.21); 180 days to two years in a state jail (§ 12.35); two to ten years for a third-degree felony (§ 12.34); two to twenty for a second-degree (§ 12.33); five to ninety-nine or life for a first-degree (§ 12.32). For the man on the job site, that whole range is back.

Time credit, and the time that does not count

The months spent reporting do not come off a sentence; Article 42A.755(c) says no part of the supervision period counts. Article 42A.755(d) makes one exception: time in a treatment facility or other court-ordered residential program is credited, but only if the program was completed. Article 42.03, Section 2(a)(1), credits jail time on the case from arrest to sentencing, but excludes jail served as a condition of supervision.

Consequences outside the courtroom

On deferred, adjudication turns a possible dismissal into a final conviction. The nondisclosure order in Government Code § 411.072 for certain first-time misdemeanors depends on a discharge and dismissal, so adjudication closes that path. A felony conviction brings the firearm prohibition in Penal Code § 46.04(a), which runs five years from release from confinement or supervision and limits possession to the home after that. Federal law, 18 U.S.C. § 922(g)(1), separately bars anyone convicted of a crime punishable by more than a year from possessing a firearm, with no five-year limit and no home exception. A person who is not a citizen should get advice about immigration consequences before admitting any violation.

How a violation case moves in Bexar County

Under Article 42A.751(b), a judge may issue a violation warrant at any time during supervision. Article 42A.751(c) requires that the arrested person be brought before that judge, or a magistrate, within 48 hours; in Bexar County that can mean the Magistrate's Office on Comal Street. Only the judge who issued the warrant may authorize release on bail. For a felony that is a district court judge; for a misdemeanor, a judge of the Bexar County Courts at Law.

A person held without bail may file a motion that requires a hearing within 20 days, under Article 42A.751(d). Either side may seek a continuance for good cause under Article 42A.751(g).

One rule surprises people. The court keeps power to revoke or adjudicate after the term ends, if the State filed its motion and a capias issued before it ended (Articles 42A.751(l) and 42A.108(c)). How long the rest takes varies; see how long a criminal case takes in Bexar County.

What this office looks at in a probation violation case

First, the motion: what it alleges, and whether each allegation can be proved with admissible evidence rather than a line in a supervision file. A failed test raises questions about collection, testing, and whether a lab confirmed a screening result. A missed report raises the due diligence defense in Articles 42A.109 and 42A.756: for failing to report or failing to remain within a specified place, it is an affirmative defense that no officer contacted or tried to contact the person in person at the last known home or work address in the department's file.

A new-arrest allegation is examined like any new case, including the stop and search; Code of Criminal Procedure art. 38.23 excludes evidence obtained in violation of law. Then the rest of the record, the classes finished and the job held, because a judge who may continue supervision decides whether to. In drug possession or DWI cases, the original charge shapes both the range and the conditions.

Questions people ask about probation violations in Texas

Can I get a bond on a probation violation warrant in Texas?

Sometimes. Under Article 42A.751(c), a person arrested on a violation warrant must be taken before the judge or a magistrate within 48 hours, but only the judge who ordered the arrest may authorize release on bail. A person held without bail may ask for a hearing within 20 days.

Is a probation violation hearing the same as a trial?

No. There is no jury. The State must prove a violation only by a preponderance of the evidence, and one proven violation is enough. The person has a right to a lawyer, can challenge the State's evidence, and can offer evidence about why supervision should continue. The ruling may be appealed.

What happens if I violate deferred adjudication in Texas?

The State may file a motion to adjudicate guilt. If the judge adjudicates, Article 42A.110(a) says the case proceeds as if adjudication had never been deferred: a conviction, and a sentence anywhere in the full range for the original offense. The judge may instead continue or modify the supervision.

Does the time I spent on probation count toward my sentence?

Mostly no. Under Article 42A.755(c), time on community supervision does not count. Time in a court-ordered treatment or residential program is credited if the program was completed. Jail time on the case between arrest and sentencing is credited under Article 42.03, but jail served as a probation condition is not.

Back to the phone call

The man on the job site off I-35 has a warrant, not a verdict. A judge still has to decide whether the missed report and the test are proved, and what to do if they are. When a warrant or a motion is already on file, call (210) 201-3096, or send the details through the contact form.

By Christian O. Vega, Attorney at Law

The Law Office of Christian Vega · 130 E Travis St, Suite 425, San Antonio, Texas 78205

Texas State Bar No. 24121180

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