Probation Violations in Texas
Quick answer
When a probation officer alleges you violated probation, the State files a Motion to Revoke (MTR) — or a Motion to Adjudicate (MTA) if you are on deferred adjudication. The State only has to prove the violation by a "preponderance of the evidence" — a much lower standard than at trial. The judge can extend probation, modify conditions, or revoke entirely and impose the full underlying sentence. The defense path: contest the violation, mitigate at the hearing, or negotiate before the hearing.
A probation violation is not a new charge — it is a hearing on whether you should be allowed to remain on probation. The procedure is faster, the rules of evidence are looser, and the burden of proof is lower. The State only needs to prove one alleged violation by a preponderance of the evidence — about 51 percent — to revoke. Defendants on deferred adjudication face the additional risk that the original guilt finding gets entered, which converts the case into a final conviction.
What's on this page
Motion to Revoke vs. Motion to Adjudicate — the critical distinction
Texas has two flavors of probation:
- Straight (regular) probation: The defendant was convicted and sentenced. The judge probated the sentence. If probation is revoked, the original sentence is imposed — capped at the original sentence amount. The State files a Motion to Revoke (MTR).
- Deferred adjudication: The defendant pled guilty or no contest, but the judge did not enter a finding of guilt. If the defendant successfully completes deferred, there is no conviction. If the defendant violates, the judge can enter a finding of guilt and sentence up to the maximum punishment range — not just what the defendant pled to. The State files a Motion to Adjudicate (MTA).
This distinction matters enormously. On an MTA after a deferred plea, the defendant's punishment exposure is the entire range of the offense, not the cap of the original plea agreement. We have seen first-time deferred adjudication probations on a third-degree felony result in 10-year TDCJ sentences on the adjudication after the defendant tested positive for marijuana. The original agreement (5 years deferred) does not limit punishment on adjudication.
The most common alleged probation violations
From our caseload, the most common alleged violations are:
- Failed drug test (UA): Often a positive test for marijuana, methamphetamine, or cocaine. THC metabolites stay in urine 30+ days for heavy users — a positive test does not prove recent use.
- Missed appointment with probation officer: Failure to report.
- Failure to pay fines, fees, or restitution: The Supreme Court held in Bearden v. Georgia that you cannot be revoked solely for inability to pay — but the State must prove inability, not just nonpayment.
- Failure to complete community service hours: Track records become important here.
- New criminal offense: Even an arrest (not conviction) can trigger an MTR if the probation officer alleges it as a violation.
- Failure to complete required treatment or class: Anger management, DWI education, drug treatment, etc.
- Travel without permission: Leaving the county or state without prior approval.
The procedure — from allegation to hearing
The path is typically:
- Allegation: The probation officer files a violation report with the prosecutor.
- Motion filed: The State files an MTR or MTA. A summons or capias issues.
- Arrest or summons: The defendant either turns themselves in or is arrested on the capias. Some defendants get a "summons" with a court date instead of immediate arrest.
- First appearance: The court re-addresses bond. The defendant may or may not be released pending the hearing. Probation revocation bonds are typically higher than original bonds.
- Hearing: The State must prove at least one violation by a preponderance. The defendant can plead "true" (admit) or "not true" (contest).
- Disposition: The judge can dismiss the motion, modify conditions, extend probation, or revoke.
The hearing is in front of the trial judge — not a jury. There is no constitutional right to a jury on a revocation, and waiver to bench trial is automatic.
Standard of proof and rules of evidence
The State's burden on a probation revocation is "preponderance of the evidence" — more likely than not — under Cobb v. State, 851 S.W.2d 871 (Tex. Crim. App. 1993). That is a substantially lower standard than the "beyond a reasonable doubt" required at trial.
The rules of evidence apply, but with two important exceptions:
- Hearsay: Some hearsay is admissible under Code of Criminal Procedure 42A.108. Probation officer reports and drug test results can come in, sometimes without the underlying technician testifying.
- Confrontation Clause: Courts have held the Confrontation Clause applies less rigorously at revocation hearings than at trial, though the right to confront witnesses still exists.
The State only needs to prove ONE alleged violation. If the motion alleges 10 violations and the State proves 1, the court can revoke. This is why getting alleged violations dismissed at the motion stage matters.
Defenses and mitigation strategies
The two categories of defense:
- Contest the violation:
- Lab chain-of-custody issues on UA results
- Confidence intervals on drug test cutoffs (THC can take 30+ days to clear, especially for chronic users)
- The probation officer's notes do not support the alleged violation
- The defendant did appear / pay / complete — there's a documentation error
- Bearden defense to nonpayment: the defendant could not pay despite good-faith effort
- Mitigate at the hearing:
- Plead "true" but present extensive mitigation: employment, family ties, treatment progress, restitution paid, classes completed
- Propose alternative sanctions: additional community service, intensive outpatient treatment, expanded probation conditions instead of revocation
- Letters of support from employers, family, treatment providers
- Pre-hearing negotiation with the prosecutor for a non-revocation disposition
The most successful outcome is often a "continued probation with conditions" — the judge finds the violation true but does not revoke. We have negotiated this outcome in many cases by presenting the defendant's current trajectory rather than the moment of the violation.
Possible outcomes of a probation hearing
| Outcome | What it means |
|---|---|
| Motion withdrawn | State drops the motion before hearing — usually after defense negotiation |
| Motion dismissed | Judge dismisses for lack of evidence |
| Continued on probation | Violation found true but probation continues, sometimes with modified conditions |
| Probation modified | New conditions added (treatment, more reporting, electronic monitoring) |
| Probation extended | The probation period is lengthened by up to the maximum allowed |
| Revocation — straight probation | Underlying sentence imposed, capped at original cap |
| Adjudication of guilt — deferred | Finding of guilt entered, sentence imposed up to full range of offense |
If your case is at this stage, do not wait for the State to make the next move.
Call (972) 370-5060 Email UsKey Texas terms
- MTR
- Motion to Revoke probation — filed by the State when a probationer allegedly violates a condition of straight probation.
- MTA
- Motion to Adjudicate guilt — filed by the State when a defendant on deferred adjudication allegedly violates a condition. Adjudication enters a finding of guilt.
- Preponderance of the evidence
- The standard of proof at a revocation hearing — more likely than not. Far lower than the "beyond a reasonable doubt" trial standard.
- Bearden defense
- A constitutional defense, from Bearden v. Georgia, that a probationer cannot be revoked solely for inability to pay fines or restitution.
Frequently asked questions
How long do I have to wait for a probation revocation hearing in Texas?
Reasonable time — usually within 30-60 days of arrest on the capias. There is no specific speedy-trial deadline applied at revocation hearings, but excessive delay can violate due process.
Do I get a jury at a probation revocation hearing?
No. Revocation and adjudication hearings are decided by the trial judge alone. There is no constitutional or statutory right to a jury.
Can I get a court-appointed lawyer for a revocation hearing?
Yes, if you cannot afford counsel. Gagnon v. Scarpelli, 411 U.S. 778 (1973), established the limited right to counsel at revocation hearings. In Texas, indigent defendants get appointed counsel as a matter of routine.
What is the maximum punishment if my deferred adjudication probation is revoked?
The full punishment range of the original offense. A defendant on 5-year deferred for a 2nd-degree felony (range 2-20 TDCJ) can be sentenced up to 20 years on adjudication. This is the most important risk of deferred adjudication.
Will a positive drug test always result in revocation?
Not always. We have kept clients on probation after positive tests by showing context — first violation, immediate treatment enrollment, supportive employment, and a solid mitigation package. The judge's reputation in the assigned court is a major variable.
Can I bond out after being arrested on a probation violation warrant?
Sometimes. Some courts set "no bond" on probation capiases pending the hearing. Others set a bond — often higher than the original. We file motions for reasonable bond on every revocation case where the client is held without bond.
If I complete my probation, can the State still file a Motion to Revoke?
Only if the motion is filed and capias issued before the probation period expires. The court loses jurisdiction at the end of the probation term unless the motion is timely. Many cases have been thrown out on this jurisdictional ground.
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