What is a Texas Motion to Revoke under Art. 42A.751?
A Texas Motion to Revoke (MTR) under Code Crim. Proc. art. 42A.751 asks the trial judge to terminate straight community supervision and impose any sentence within the original-charge range. The judge alone decides violations by a preponderance of the evidence — the lowest burden of proof in criminal practice.
- The motion — filed by the State on a CSCD violation report
- CSCD (Community Supervision and Corrections Department) field officers monitor compliance with the Conditions of Community Supervision and report alleged violations to the prosecuting attorney for the supervising court. The prosecutor drafts and files the Motion to Revoke, alleging each violation by paragraph and citing the specific condition breached. The court issues a capias warrant for the defendant's arrest under art. 42A.751(b); bond may be set or denied depending on the alleged violations and the supervising judge's practice. In Collin, Denton, Dallas, and Tarrant CSCD practice, the warrant typically issues within days of the violation report being forwarded to the DA.
- The hearing — bench trial under preponderance
- Under art. 42A.751(d) the trial court — not a jury — hears the MTR and decides each alleged violation by a preponderance of the evidence. Cobb v. State, 851 S.W.2d 871 (Tex. Crim. App. 1993), establishes that revocation hearings are administrative in character and beyond-a-reasonable-doubt does not apply. The defendant retains the right to counsel (appointed if indigent), to call and confront witnesses, to testify or remain silent, and to present mitigating evidence. The State need prove only one alleged violation to sustain a true finding — Antwine v. State, 268 S.W.3d 634 (Tex. App.—Eastland 2008, pet. ref'd).
- The disposition — continue, modify, extend, or revoke
- On a true finding under art. 42A.751(d), the court has four basic options: (1) continue supervision under the same conditions; (2) modify conditions to add restrictions or treatment requirements under art. 42A.751(a); (3) extend the supervision period within the statutory maximum; or (4) revoke supervision and impose any sentence within the original-charge range. The court may also impose a short jail term as a condition of continued supervision under art. 42A.302. Many MTRs in DFW practice resolve at modification rather than full revocation, particularly on technical-violation-only allegations.
- Original-charge range cap
- A critical structural feature of the MTR — unlike a Motion to Adjudicate on deferred adjudication — is that revocation cannot exceed the cap discussed at the original plea or imposed at original trial. If the defendant pled to or was found guilty of a state-jail felony with a 2-year deferred or probated sentence, revocation maxes out at the state-jail-felony range (180 days to 2 years). On a 2nd-degree felony with a 10-year probated sentence, revocation maxes at 10 years. The contrast with MTA is sharp: MTA reopens the full statutory range, while MTR is confined to the original-charge range. Taylor v. State, 131 S.W.3d 497 (Tex. Crim. App. 2004), is one of several CCA decisions on the original-cap principle.
The MTR is among the most common contested hearings in Texas criminal practice — and among the least understood. Defendants placed on straight probation after a plea or jury sentence often spend years in compliance only to face revocation on a single missed appointment, a positive UA, or a new-offense allegation that has not been independently prosecuted. The MTR is fast, fact-intensive, and decided by the same judge who originally placed the defendant on probation — judges who, in DFW counties, are often well-acquainted with the defendant's history and the supervising CSCD officer's patterns of recommendation. That dynamic shapes every strategic decision, from how aggressively to contest the State's evidence to whether the better posture is modification negotiation rather than a full hearing.
Defense work begins the moment the warrant issues. The first 48 hours often determine whether the defendant is held without bond, released on a low PR bond, or set at high cash conditions while awaiting hearing. Counsel can routinely move to set or modify bond, file a motion to dismiss the MTR for failure to state a violation, and begin the documentary record that will define the defense theory at hearing. Many of the most successful MTR outcomes — straight dismissal, withdrawal of the motion, or last-minute modification deals — are negotiated before any hearing date is set, often based on CSCD officer cooperation and mitigation work that demonstrates the defendant's prospects for continued compliance.
MTR vs. MTA — straight probation versus deferred adjudication
A Motion to Revoke under Art. 42A.751 applies to straight (regular) community supervision after final conviction. A Motion to Adjudicate under Art. 42A.108 applies to deferred adjudication where no conviction has been entered. The procedural and sentencing consequences diverge sharply.
The most consequential preliminary question in any probation-violation case is which kind of probation the defendant is on — straight community supervision under art. 42A.501 or deferred adjudication under art. 42A.101. The two are easily confused because both are colloquially called "probation," both involve a CSCD officer and standard Conditions of Community Supervision, and both can be terminated by State motion. The legal consequences of termination are entirely different. A defendant on straight probation has already been convicted; the only contested issue at revocation is what sentence the court will impose within the original-charge range. A defendant on deferred adjudication has not been convicted; on adjudication, the judge first enters the conviction the defendant originally avoided and then sentences within the full statutory range of the underlying offense, unconstrained by any cap discussed at the original deferred plea.
The procedural framework also differs in subtle but meaningful ways. Under art. 42A.751 (MTR), the trial court hears the motion as a bench trial under the preponderance standard and may continue, modify, extend, or revoke. Under art. 42A.108 (MTA), the trial court conducts a substantively identical hearing under the same preponderance standard — but the dispositional menu changes: continued deferred is the only alternative to adjudication, and on adjudication the court is statutorily authorized to impose any sentence within the full statutory range. Davis v. State, 195 S.W.3d 708 (Tex. Crim. App. 2006), is the foundational decision recognizing this structural distinction, and the CCA has consistently confirmed that the cap principle applies to MTR but not MTA.
A practical example illustrates the stakes. Consider a defendant who pled to a 1st-degree felony with a 10-year deferred adjudication probation. If the State files an MTA after a new-offense allegation and proves it by preponderance, the judge enters the conviction and can sentence anywhere within the 1st-degree felony range — 5 to 99 years or life. Now consider the same defendant who pled to the same 1st-degree felony but received a 10-year probated sentence under straight supervision instead of deferred. If the State files an MTR and proves the same violation, the maximum exposure on revocation is 10 years — the originally-imposed cap. The structural protection of the cap is precisely why many experienced defense attorneys prefer straight probation over deferred adjudication on felony cases even when deferred avoids a conviction in the short term.
This MTR-vs.-MTA distinction also shapes plea-bargain posture from day one. A defendant facing a new MTR on an old straight-probation case has a much harder ceiling than a defendant facing a new MTA — the MTR cannot grow the exposure, while the MTA can. Defense counsel asked to evaluate an MTR therefore enters negotiations from a substantively different position than counsel evaluating an MTA: the leverage on the MTR is "we can fight this and the worst case is the original cap, so let's negotiate modification or a reduced revocation"; on the MTA the leverage is "we cannot afford to fight this on bad facts because the worst case is the full statutory range." Confusing one motion type for the other can produce catastrophic strategic errors.
Common violations — technical breaches and new-offense allegations
MTRs typically allege either technical violations (failed UA, missed report, unpaid fees, incomplete community-service hours, missed classes, curfew breach) or new criminal offenses. Each type carries different defense strategy implications.
CSCD field officers monitor compliance with the Conditions of Community Supervision through monthly (or more frequent) reporting visits, random urinalysis, residence checks, employment verification, and review of court-cost and supervision-fee payments. Reportable violations in DFW practice fall into recurring categories: failed urinalysis (most often THC, methamphetamine, or cocaine — Texas does not currently recognize medical-marijuana use as a defense to a marijuana-positive UA in this context); failure to report at the scheduled monthly appointment; failure to pay supervision fees, court costs, or restitution; failure to complete required programming (drug-education classes, batterers' intervention, anger management, MADD victim-impact panels); incomplete community-service hours; curfew breaches in cases where electronic monitoring or curfew was imposed; failure to maintain employment or attend school; association with disallowed persons (often co-defendants or known gang members); leaving the county or state without prior CSCD approval; failure to register if registration was a condition; possession of firearms or ammunition; and new criminal offenses arising during the supervision period.
Technical violations are typically the strongest candidates for modification rather than full revocation, particularly on a first MTR. Bringham v. State, 433 S.W.3d 51 (Tex. App.—Houston [14th Dist.] 2014, no pet.), illustrates this category — the court addressed materiality of a one-day-late report and the manner in which the trial court may weigh minor technical breaches. Bradley v. State, 478 S.W.3d 868 (Tex. App.—Fort Worth 2015, pet. ref'd), addressed deficient community-service hours. These cases stand for a broader proposition: not every technical breach justifies the drastic remedy of revocation, and the defense can effectively argue that modification — adding conditions, extending supervision, or imposing a short jail-time-served sanction — adequately serves the supervisory purpose without imposing the full original-charge sentence.
New-offense allegations present a fundamentally different defense problem. When the MTR alleges a new criminal offense committed during the supervision period, two parallel proceedings often unfold: the new criminal prosecution itself (with the higher beyond-a-reasonable-doubt standard) and the MTR proceeding (with the lower preponderance standard). Even acquittal or dismissal on the new offense does not necessarily defeat the MTR — the State can still prove the conduct by preponderance under Antwine v. State. The reverse is also true: a true finding on the MTR does not bind the new-offense prosecution. Strategic sequencing therefore becomes critical: defendants often benefit from resolving the new-offense case first when possible, because a dismissal or acquittal there can dramatically improve the negotiation posture on the MTR even though it is not legally dispositive.
The pattern of CSCD officer recommendations in each DFW county also shapes outcomes. Collin County's Adult Probation Department is widely viewed as among the more rigorous in DFW on technical compliance, with Denton CSCD running similarly tight; Dallas and Tarrant carry larger caseloads and (in practice) often show somewhat more flexibility on first-time technical violations, particularly where the supervising officer can credibly support continued supervision. None of this is binding on any individual judge, but the officer's recommendation — and the defendant's relationship with that officer over months of reporting — is among the most important predictors of MTR outcome. A defendant who has built a record of overall compliance and has the supervising officer's willingness to recommend continuation has substantially better prospects than a defendant whose violations have come amid a broader pattern of disengagement.
The preponderance standard and the Cobb / Antwine rule
At an MTR hearing the State need prove only one alleged violation by preponderance — more likely than not — to sustain revocation. Cobb v. State and Antwine v. State are the workhorse cases. Beyond-a-reasonable-doubt does not apply.
Cobb v. State, 851 S.W.2d 871 (Tex. Crim. App. 1993), is the foundational Texas decision on the burden of proof at probation-revocation hearings. The Court of Criminal Appeals held that revocation proceedings are administrative in nature rather than fresh criminal prosecutions — the defendant has already been convicted (or, on deferred, has already admitted facts sufficient to support conviction), and the contested question is whether the conditions of an already-imposed disposition have been violated. The Court adopted the federal standard from Gagnon v. Scarpelli, 411 U.S. 778 (1973), and Morrissey v. Brewer, 408 U.S. 471 (1972), holding that proof by a preponderance of the evidence satisfies due process. Antwine v. State, 268 S.W.3d 634 (Tex. App.—Eastland 2008, pet. ref'd), reiterates the principle and applies it in the modern Texas appellate context.
Preponderance is dramatically lower than beyond-a-reasonable-doubt. "More likely than not" can be sustained on circumstantial evidence, on CSCD officer testimony alone, on documentary records (UA reports, court-cost ledgers, electronic-monitoring logs), or on the defendant's own admissions during plea-in-bar negotiations. The Texas Rules of Evidence apply at revocation hearings — but with important modifications. Hearsay is more freely admitted under the Texas analog of Gagnon's good-cause framework; chain-of-custody requirements for UA samples are not always rigorously enforced; and the right of confrontation is qualified rather than absolute. Defense counsel routinely contests evidence admissibility under TRE 803, 804, and 901, but the practical reality of revocation practice is that the trial court enjoys substantial discretion to admit and weigh evidence that would not survive at a criminal trial.
One critical procedural protection survives the relaxed standard: the State must prove the violation by competent evidence, and the violation must be one actually alleged in the motion. The State cannot prove a violation not pled, and the State cannot rely on bare CSCD records without some authenticating predicate. The defense routinely challenges UA results under Mata v. State, 13 S.W.3d 1 (Tex. App.—San Antonio 1999), and analogous cases on lab-protocol foundations; challenges to record authenticity under TRE 901; and challenges to officer hearsay under Crawford v. Washington's modified application at revocation. None of these challenges typically defeats the entire MTR — but each can narrow the scope of provable violations, which in turn affects the disposition.
A frequent misunderstanding among defendants and family members: the State need prove only one violation to sustain revocation. A motion alleging eight separate violations does not require the State to prove all eight; if the State proves any one, the court has authority to revoke. This is why partial wins at hearing are common — the defense may persuade the court to make "not true" findings on six allegations but still face a true finding on two — and why the disposition stage rather than the violation stage is often where defense work has its greatest impact. The presentation of mitigation and the framing of appropriate sanction become decisive once one or more violations have been proven.
Due process at revocation — Gagnon and Morrissey
Gagnon v. Scarpelli and Morrissey v. Brewer establish the federal due-process floor for probation and parole revocation. Texas folds these protections into the unitary art. 42A.751 hearing rather than holding a separate preliminary hearing.
Morrissey v. Brewer, 408 U.S. 471 (1972), was the U.S. Supreme Court's first comprehensive statement of constitutional due process at revocation proceedings. The Court held that parole revocation, although administrative rather than criminal, implicates a liberty interest sufficient to require certain procedural protections: (a) written notice of the claimed violations, (b) disclosure to the parolee of the evidence against him, (c) opportunity to be heard in person and to present witnesses and documentary evidence, (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation), (e) a neutral and detached hearing body, and (f) a written statement by the fact-finders as to the evidence relied on and reasons for revocation. Gagnon v. Scarpelli, 411 U.S. 778 (1973), extended these protections to probation revocation and added a qualified right to appointed counsel.
Texas implements these protections through art. 42A.751 itself rather than through a separate preliminary hearing. Many states maintain a two-step structure — a preliminary "Morrissey hearing" on probable cause shortly after arrest, followed by a final revocation hearing — but Texas typically conducts a single hearing under art. 42A.751 that satisfies both the probable-cause and the merits inquiries. Ex parte Carmona, 185 S.W.3d 492 (Tex. Crim. App. 2006), addresses Texas-specific application of these federal floor requirements. The practical consequence: Texas defendants do not get a separate "first hearing" to challenge the warrant or test the State's preliminary showing; they get the unitary hearing under preponderance.
The right to confrontation at revocation is qualified rather than absolute. Under Gagnon and its progeny, hearsay may be admitted at revocation when the hearing officer makes a "good cause" finding for not requiring the declarant's presence — typically because the declarant is unavailable, because production would impose undue burden, or because the hearsay carries sufficient indicia of reliability. Texas trial courts routinely admit CSCD officer summaries, lab reports, and other documentary evidence under this framework, with the defense challenge focused on the reliability prong rather than on a categorical exclusion. The lower courts apply this analysis with varying degrees of rigor; appellate review is for abuse of discretion.
The qualified right to appointed counsel under Gagnon is fully realized in Texas practice — indigent defendants facing MTR are routinely appointed counsel, and Texas does not impose the case-by-case discretionary analysis Gagnon technically permits. This is among the more generous Texas applications of federal due-process minima. The collateral benefit: appointed counsel at MTR can develop the same mitigation record, challenge the same evidence, and negotiate the same dispositions that retained counsel could pursue — which means that the quality of MTR defense is more strongly correlated with the attorney's investment in case-specific work than with whether the attorney is retained or appointed. Many experienced criminal defense attorneys handle a substantial volume of court-appointed MTR work alongside their retained practice.
Sentencing on revocation — the original-range cap and jail-time credit
On revocation of straight probation, the judge may impose any sentence within the original-charge range up to the cap at original plea or trial. Tex. Code Crim. Proc. art. 42A.755 mandates credit for jail time served on the case, including post-warrant confinement.
When the trial court finds a true violation and revokes straight probation under art. 42A.751(d), the judge's sentencing discretion is bounded above by the original-charge range. If the defendant originally pled to a state-jail felony (180 days to 2 years) with a 2-year probated sentence, the maximum on revocation is 2 years. If the defendant pled to a 3rd-degree felony (2 to 10 years) with a 7-year probated sentence, the maximum on revocation is 7 years — the originally-imposed cap, even though the statutory range extends to 10. If the defendant pled "open" to the original range with the court placing him on probation at, say, the bottom of the range, the cap is the full statutory ceiling. The exact mechanics turn on the recital in the original judgment and on negotiated plea-bargain language; defense counsel reviews the judgment carefully before any MTR posture is set.
The court's sentencing menu on a true finding includes the four options noted earlier: continue, modify, extend, or revoke. In DFW criminal-district court practice, "intermediate" outcomes are common — a true finding accompanied by modification (adding ankle monitoring, a curfew, a residential-treatment placement, additional UAs, or a jail-time-served condition under art. 42A.302) rather than a straight revocation to the original range. These intermediate outcomes are negotiated in advance of the hearing date in most cases; the typical posture is a Rule 11 agreement or plea-in-bar where the defense stipulates to a single violation in exchange for a defined modification package, sparing the court a contested hearing. Defense counsel's role in pre-hearing negotiation often produces the most material outcome change of any work performed during the MTR period.
Tex. Code Crim. Proc. art. 42A.755 mandates jail-time credit on the imposed sentence for time the defendant was confined as a result of the alleged violation between the warrant's issuance and the hearing's disposition. Pretrial confinement on the original case also runs as credit under the general jail-credit framework. Defense counsel typically prepares a detailed day-by-day credit accounting at sentencing — booking records from each county jail involved, CSCD case-file entries, court minute orders, and any prior judgment recitals. Failure to assert credit at sentencing does not waive it; nunc-pro-tunc motions are routinely available to correct credit miscalculations post-judgment. Ex parte Ybarra, 149 S.W.3d 147 (Tex. Crim. App. 2004), and Ex parte Hayward, 711 S.W.2d 652 (Tex. Crim. App. 1986), address the credit framework.
Two further considerations shape sentencing on revocation. First, parole-eligibility math on the revoked sentence runs under the same Government Code rules that would have applied at original sentencing — for non-3g offenses the lesser of one-quarter of the sentence or 15 years with good-conduct credit applied; for 3g aggravated offenses the lesser of one-half of the sentence or 30 years without good-conduct credit. Second, mandatory-supervision eligibility on the revoked sentence runs under Government Code § 508.149, which excludes 3g offenses and certain enumerated convictions. The defendant who is revoked on a 2nd-degree felony with a 10-year original-cap sentence reaches parole consideration in roughly 2.5 years actual time with good-conduct credit; on the same sentence with a 3g designation the actual time is 5 years. These calculations directly affect plea-and-modification strategy at the MTR.
Defense strategy — building the record before the hearing date
MTR defense is document-driven and front-loaded. The most successful outcomes — withdrawal, dismissal, modification — are negotiated before any contested hearing. The defense begins building the record the day the warrant issues.
The single most important strategic decision in MTR defense is choosing between contested hearing and negotiated resolution. A contested hearing produces a binary outcome — the violation is either true or not true on each allegation, and the court then exercises its discretion on disposition. A negotiated resolution produces a tailored outcome — typically a plea-in-bar to one or more allegations in exchange for a defined modification package. The negotiated path produces predictable results; the contested path can produce dismissals or modifications but also produces full revocations to the original-range cap. The right choice depends on the strength of the State's evidence on the most serious allegations, the defendant's track record of compliance on other conditions, the supervising CSCD officer's posture, the assigned judge's historical practice, and the defendant's willingness to accept the modification terms on offer.
CSCD-officer mitigation work is often the highest-yield activity in the pre-hearing period. The supervising officer's recommendation carries substantial weight with the assigned judge; an officer who recommends continuation with modification almost always produces that outcome, while an officer who recommends straight revocation rarely sees the court depart from the recommendation. Defense counsel routinely meets with the supervising officer (with prosecutor consent) to discuss the defendant's circumstances, present mitigating documentation (employment verification, treatment records, family-support letters), and propose specific modification terms that the officer can credibly endorse. The officer's ability to recommend a particular modification package is often the deciding factor between continued supervision and revocation.
Evidence-challenge motions narrow the scope of the State's case where they cannot defeat it entirely. UA-result challenges under Mata v. State and related authority — chain of custody, lab-protocol foundations, GC/MS confirmation testing — are well-developed in Texas practice. Authentication challenges under TRE 901 on documentary evidence (court-cost ledgers, programming attendance records, treatment-discharge summaries) shift the burden to the State to lay a competent predicate. Confrontation-clause challenges on absent declarants under Gagnon's good-cause framework can exclude unreliable hearsay. Where these challenges succeed in narrowing the allegations, the State's leverage to demand straight revocation typically softens.
Setting an MTR off for delay pending resolution of a new-offense case is among the most common procedural maneuvers in DFW MTR practice. If the new offense is the centerpiece of the State's MTR allegations, dismissal or acquittal on the new offense substantially weakens the MTR — though it does not legally defeat it, because the State retains the preponderance burden rather than the beyond-a-reasonable-doubt burden. The defense routinely moves to continue MTR settings to allow the new-offense case to proceed first, particularly where bond is set and the defendant is at liberty. The strategy carries some risk — extended pre-hearing custody on a held defendant works against this approach — but the strategic benefit is often substantial.
Documenting jail-time credit is both a substantive task and a leverage point in plea negotiation. A defendant who has been held in custody for 90 days awaiting an MTR hearing on a state-jail felony with a 2-year original cap has substantial credit already running against any imposed sentence; that credit can be folded into negotiation as part of the modification package. Defense counsel's detailed accounting — booking and release dates on the original case, capias custody dates after the warrant, any treatment-facility placements credited as confinement — sets up a precise number that anchors the negotiation. CSCD case-file entries supply the foundational documentation.
Collateral consequences of revocation
Revocation triggers immediate collateral consequences — TDCJ confinement, professional-license suspension, immigration impacts, firearms restrictions, voting eligibility — that vary by underlying offense and individual circumstances.
Revocation of straight probation immediately converts the originally-suspended sentence into an active TDCJ commitment. The defendant goes from at-liberty supervision to incarceration on the date of the revocation judgment — or, more commonly, remains in capias custody from arrest through hearing and is transferred to TDCJ Intake (typically the Holliday Unit in Huntsville for males or the Plane State Jail / Christina Crain Unit pathway for females) within several weeks of judgment. The collateral consequences attached to that custodial transition reach across the defendant's personal and economic life.
Professional-license consequences depend on the underlying offense and the licensing agency. The State Bar of Texas conducts its own inquiry on attorney-discipline matters; the Texas Medical Board, the Texas Education Agency / SBEC for teachers, the Texas Real Estate Commission, the Texas Department of Insurance, and other licensing bodies each maintain separate disciplinary frameworks. Revocation of probation on an underlying offense that the licensing body considers material can produce suspension or revocation of the license — independent of the original conviction's disciplinary impact. Defense counsel routinely advises licensed-professional defendants to engage licensing counsel separately on the disciplinary track running parallel to the MTR.
Immigration consequences run independently of any sentence-cap analysis. For non-citizens, the revocation produces an executed sentence on a deportable or inadmissible offense — and even a sentence shorter than the original cap can trigger removal proceedings under 8 U.S.C. § 1227. Where the defendant's original probation kept removal at bay (because no actual sentence had been imposed), revocation flips the calculus. Defendants whose immigration status is implicated by the revocation should have immigration counsel involved in MTR posture decisions; Padilla v. Kentucky-style advice obligations apply at the original plea, but ongoing advice on post-judgment revocation impacts is among the more under-served areas of practice.
Firearms restrictions for federal-felony convictions under 18 U.S.C. § 922(g)(1) attach the moment the underlying judgment becomes final; revocation does not change the firearms status for a felony probationer, who was already federally prohibited. Voting eligibility in Texas is restored upon completion of the sentence, including any post-revocation TDCJ time and any subsequent parole or mandatory-supervision period — revocation extends the period of non-eligibility to include the executed sentence rather than truncating it. The defendant who would have completed probation in two more years and immediately voted now waits until completion of the revoked sentence plus any parole tail.
CSCD supervision fees, court costs, restitution, and fines remain owing on revocation. Imprisonment does not extinguish these obligations; they survive into any post-release supervision period and remain collectable through civil-judgment processes if the defendant is later discharged without payment. Defense counsel routinely negotiates "indigency findings" under Tex. Code Crim. Proc. art. 43.091 and related authority to limit collection actions where the defendant lacks present ability to pay; some courts in DFW counties more readily make those findings than others. The collateral debt structure is a routinely-overlooked element of MTR mitigation and deserves the same attention as the sentence-length question.
