Probation

January 21, 2021

Ineffective Assistance of Counsel- Probation Revocation Hearings

It’s hard to second guess a defense lawyer’s work on a case, and it’s something we are asked to do often. When someone takes has a trial or enters an open plea to the court (pleading guilty with no agreed sentence) and gets a result they don’t want they usually pivot to see if their lawyer was defective. A bad result can frame the whole attorney-client experience in hindsight. It’s one reason that setting expectations and letting clients manage their own risks is so important. The risk of pleading guilty or not, having a trial or not, is always the clients’ risk to take or not. As criminal defense lawyers, we can advise clients on what their options are, but we never choose for them.

What about pleading true to a probation revocation?

Pleading true to allegations in a motion to revoke without a plea bargain leaves a defendant open any sentence in the range of punishment if on deferred, or up the maximum number of years in the sentence if the plea is straight probation (straight probation means you are convicted).

February 27, 2019

Can I get a new probation officer? Probably not, but consider moving.

by Robert Guest

Probation offices have a terrible amount of control over the fate of a probationer. Like so many human relationships some people just don’t work well together. Probation officers are people and suffer from the usual human frailties, some enjoy the power of ordering others around and making their lives miserable. If you end up with an unlucky draw and get a PO you can’t work with, or that hates you, what are your options?

First the bad news, you can’t just switch probation officers. Judges don’t care if your PO hates you, they aren’t going to let you change. Probation departments don’t care about customer service, they aren’t going to let you change. Prosecutors really don’t care. So the odds are you can’t change.

Consider what you control and what you can change.

May 14, 2014

Speedy Trial Rights in Probation Revocation Cases

by Robert Guest

It’s strange to talk about speedy “trials” in probation revocation cases, because a probation revocation hearing is nothing like a criminal jury trial. For example, in probation cases your only audience is the judge, you have no right to a jury, and the burden of proof is much lower to revoke (preponderance) than convict (beyond a reasonable doubt). Still, a person facing a motion revoke probation has a right to a speedy trial, or hearing. A recent case from the Dallas Court of Appeals addressed this issue. Today’s case of the day is

No. 05-13-00371-CR GEORGE GUO, Appellant v. THE STATE OF TEXAS, Appellee

So what happened to Mr. Guo?

October 20, 2013

What’s a 12.44(a)? What’s a 12.44(b)?

by Robert Guest

My first job out of law school was as a public defender in Wichita Falls. Inmates often lack a technical understanding of the law, but they have a very pragmatic understanding of what it takes to get out now. I was asked often about 12.44(a) and (b) deals to help these indigent defendants get out of jail. Most people are not familiar with these provisions, but they are important to anyone considering a plea offer.

First, a drug war rant. Texas has some of the worst drug laws in the nation. We have a special state jail unit that was invented to warehouse small time (less than one gram) drug users. State jail has no parole possibility, so no one wants to go there, and it’s super expensive to warehouse them once they get there.

Guess what? Drugs won the drug war, and in spite of our state’s drug laws people still use meth and coke and heroin etc. So we have some laws in place to somewhat correct this horrible policy failure and provide a way to keep from sending even more people to state jail and wasting more tax dollars. 12.44(a) and (b) serve that purpose.

November 30, 2012

Good Guy CCA- “Our bad, Polygraphs are still unreliable and inadmissable”

by Robert Guest

You know, I can be pretty hard of appellate decisions I don’t agree with. One of my main sources of blog inspiration is outrage at the loss of civil liberties through appellate decisions. It’s only fair that I point out when our State’s highest criminal court does something right, and today is that day.

Today’s case of the day is Leonard vs. State, the Sequel!

What happened?

March 10, 2011

Judicial Clemency for Probationers- Texas Code of Criminal Procedure 42.12(20)

by Robert Guest

Everyone on paper wants the same thing, to be off paper and done with probation. The best way to finish probation is to apply for judicial clemency under 42.12(20). This provision allows the judge to not only terminate your probation early, but to do so in a way that effectively dismisses the underlying charge (with a few exceptions).

What does a DWI defendant possibly have in common with a sex offender? Both are ineligible for early release under this provision.

ec. 20. (a) At any time, after the defendant has

April 10, 2009

Probation Revocation

by Robert Guest

Probation can be tough for a lot of reasons. From failing drug tests, to failing to report, to missing a meeting there are dozens of ways to get your probation revoked. It has come to my attention that the revocation process is not well understood by probationers. Let me hit a few high points.

No Juries

A probation revocation hearing is always in front of a judge. You have no right to a jury trial.