|
Probation: A judge usually has the option of jailing a convicted offender or may sentence to some or all of the potential jail time on “probation”. The basic tenet of “probation” is that the offender (who has been given a chance to avoid straight jail time by the sentencing judge) will not get into additional trouble during the period of the probation term. If so, a “probation revocation” may occur. While on probation, the offender must report to and stay in touch with a probation officer to assure that the judge’s orders are complied with.
The Texas Constitution grants the legislature the power to determine the conditions under which the court may place a defendant on community supervision. The Legislature has in turn provided the following list of community supervision conditions that may be imposed on a probationer by the judge. As a general rule, a probationer must: |
-
Not commit an offense against the law of any state or the federal government. (There need be no proof of conviction to justify revocation of probation if the commission of offense is proved.
-
Avoid injurious or vicious habits. (Proof of one-time drug use may be sufficient for revocation.
-
Avoid persons or places of a disreputable or harmful character. (The state must show that you had knowledge of a person or place's bad reputation to justify revocation of community supervision for violation of this condition.)
-
Permit visits at your home and elsewhere by the supervision officer. (However, it is an unreasonable privacy invasion to require submission to search and seizure at any time of the day or night.)
-
Work faithfully at suitable employment.
-
Remain within a specified place (usually within the State or county).
-
Pay all probation fees, court costs and fines, as well as make any applicable restitution. (The amount of restitution that must be paid is a matter for trial court's determination. However, due process requires that there be evidence in the record to show that the amount set by the court has a factual basis.)
-
Support your dependents.
-
Complete community service work. (In rare cases, the judge may exempt you from the requirement of community service if the judge determines and notes on the order that any of the following circumstances exists:
-
You are physically or mentally incapable of participating in the project.
-
Participating in the project will work a hardship on probationer or his dependants.
-
You are confined in a substance abuse punishment facility as a condition of community supervision.
-
There is other good cause
shown.
-
Reimburse the county for any compensation paid to a court-appointed attorney to defend you.
-
If ordered, remain under custodial supervision in a community correction facility, obey the facility's rules, and pay for room and board. (While under custodial supervision in a community correction facility, a probationer must pay a percentage of any income earned for the support of his or her dependants.)
-
If ordered, submit to testing for alcohol or controlled substances.
-
If ordered, attend counseling sessions for substance abusers or participate in substance abuse treatment services in a program or facility approved or licensed by the Texas Commission on Alcohol and Drug Abuse.
-
If ordered, participate in victim-defendant mediation for the purpose of making restitution to the victim.
-
If ordered, submit to electronic monitoring.
-
If ordered, reimburse the general revenue fund for any amounts paid under the Crime Victim's Compensation Act, or, if no reimbursement is required, make one payment to the fund in an amount not to exceed $50.00 for a misdemeanor or $100.00 for a felony.
-
If ordered, reimburse the appropriate law enforcement agency for the analysis, storage, or disposal of raw materials, controlled substances, chemical precursors, drug paraphernalia, or other materials seized in connection with the offense.
-
If ordered, pay all or part of the reasonable or necessary costs incurred by the victim for psychological counseling made necessary by the offense or for the counseling and education related to acquired AIDS or HIV made necessary by the offense.
-
If ordered, make a one-time payment to crime stoppers.
In setting the terms and conditions of probation, the court is not limited to the above conditions and may impose any reasonable condition it chooses to protect or restore the county, protect or restore the victim, or punish, rehabilitate, or reform the probationer.
Probation revocation: When a judge has permitted an accused person who either pleads guilty or is FOUND guilty at trial to NOT GO TO JAIL for some portion of the sentence handed down, the judge sets conditions under which the person can stay out of incarceration. The failure of the probationer to follow the judge’s “conditions” can and usually does lead to a “probation revocation”. Typically, the person is seized (arrested) first. Thereafter, on a fixed schedule of that judge, the violator is given a day in court to explain or challenge the “violation”. Individuals who are on probation no longer enjoy all the constitutional protections that he or she had BEFORE the guilty (or nolo
contendere) plea or guilty verdict at trial was rendered. For example, the ‘standard of proof’ in a criminal trial is the HIGHEST in the world: proof beyond a reasonable doubt. In a probation revocation, depending on the state you are facing a revocation in, it is either preponderance of the evidence or probable cause to believe that a violation has occurred.
|
