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probation violation

A probation violation is the criminal offense committed when a person fails to follow the terms of their probation order following conviction for a crime—and such a person is said to have violated a condition of probation. Probation is a criminal sentence in lieu of jail or prison, for example, and allows the convicted person to remain in the community under court supervision and while meeting the requirements of the court’s probation order.

For example, the court’s probation order may require the convicted person to attend drug or alcohol treatment programs, avoid drug and alcohol use, submit to drug or alcohol testing, relinquish firearms, perform community service, make restitution payments, not leave the county, not contact or be in the presence of certain persons, and report to a probation officer.

If the defendant received deferred adjudication for the underlying criminal offense that placed the defendant on probation, the defendant was convicted but the final verdict was deferred while the defendant was given the opportunity to successfully complete probation. If the defendant violates probation following a deferred adjudication and the defendant’s probation is revoked, the underlying verdict is finalized and the case goes directly to the sentencing phase—meaning the defendant may immediately go to jail upon sentencing for the underlying conviction.

The question of whether a defendant violated the terms of probation is determined by the judge during a revocation hearing. The defendant has a right to counsel at a probation revocation hearing, and if the defendant is unable to pay for a lawyer (is indigent) the state or federal government must provide a lawyer to represent the defendant at the revocation hearing.

A person may be on probation for a criminal offense prosecuted in the state court system under state law, or in the federal court system under federal law. For example, in the federal court system if the court finds that a defendant violated a condition of probation, the court may continue probation, with or without extending the term or modifying the conditions, or may revoke probation and impose any other sentence that initially could have been imposed. 18 U.S.C. § 3565. For certain violations, revocation is required by statute.

In Texas, a probation violation occurs when an individual fails to adhere to the conditions set forth in their probation order after being convicted of a crime. Probation allows the individual to remain in the community under court supervision instead of serving time in jail or prison. Conditions of probation may include attending treatment programs, abstaining from drugs and alcohol, submitting to testing, surrendering firearms, performing community service, paying restitution, staying within the county, avoiding contact with certain individuals, and regularly reporting to a probation officer. If a person is on deferred adjudication, a probation violation can lead to the finalization of the verdict and immediate sentencing, potentially resulting in jail time. During a revocation hearing, a judge determines if probation has been violated. Defendants have the right to an attorney at these hearings, and if they cannot afford one, the government must provide one. Probation can be under state or federal jurisdiction. Under federal law, specifically 18 U.S.C. § 3565, a court may continue, modify, or revoke probation based on the violation, and impose any sentence that could have been initially imposed. Certain violations may mandate revocation by statute.


Texas Statutes & Rules

Federal Statutes & Rules

18 U.S.C. § 3563 - Conditions of probation
This statute outlines the possible conditions a court may impose on a person who is sentenced to probation for a federal offense.

Under 18 U.S.C. § 3563, a court may impose discretionary conditions of probation that it considers to be appropriate. The conditions must be reasonably related to the factors set forth in 18 U.S.C. § 3553(a), which include the nature and circumstances of the offense, the history and characteristics of the defendant, and the need for the sentence to serve various purposes such as just punishment, deterrence, protection of the public, and providing the defendant with needed educational or vocational training, medical care, or other correctional treatment. Mandatory conditions for all probation sentences include not committing another federal, state, or local crime, cooperating with DNA collection, and not unlawfully possessing a controlled substance. The court may require the defendant to pay a fine, restitution, or comply with other conditions such as community service, drug testing, and treatment programs.

18 U.S.C. § 3564 - Running of a term of probation
This statute governs how the term of probation commences and what may affect its length.

According to 18 U.S.C. § 3564, the term of probation begins on the day the sentence is imposed, unless the court specifies a different start date. The statute also provides that the court may extend the probation period if, before its expiration, the probation officer files a petition to revoke probation or if the defendant has not paid a fine or restitution that was part of the sentence. However, the total term of probation, including any extensions, cannot exceed the statutory maximum term of probation permitted for the offense under 18 U.S.C. § 3561(c).

18 U.S.C. § 3565 - Revocation of probation
This statute details the process and consequences of probation revocation for federal offenses.

Under 18 U.S.C. § 3565, if the court finds that a defendant violated a condition of probation, it may continue the probation with or without modifying the conditions, extend the term of probation, or revoke the probation and impose any other sentence that was available at the time of the initial sentencing. The statute also specifies that if the defendant possesses a controlled substance, refuses to comply with drug testing, or possesses a firearm, revocation of probation is mandatory. Additionally, if probation is revoked, the court may require the defendant to serve in prison any time that was not previously served. The statute also provides for a hearing and the right to counsel for the defendant during revocation proceedings.

18 U.S.C. § 3583 - Supervised release after imprisonment
This statute is relevant for understanding the consequences of violating terms of supervised release, which is similar to probation but follows a period of imprisonment.

18 U.S.C. § 3583 outlines the conditions and potential revocation of supervised release. While supervised release is distinct from probation, the procedures and consequences for violating conditions are similar. The court may impose a term of supervised release to follow imprisonment, and the conditions of supervised release are similar to those of probation. If a condition of supervised release is violated, the court may revoke the supervised release and require the defendant to serve part or all of the remainder of the term in prison. The statute also provides for modification of conditions or extension of the supervised release term if the defendant violates a condition of release.