Pitfalls of Probation: What You Need to Know BEFORE You Sign Up

Sometimes, probation is a great offer on your case. If you are offered probation on a serious felony in which a long prison term is also an option under the law, you need to seriously consider taking it despite the multiple restrictions on your freedom you will experience.

However, on misdemeanors and state jail felonies, it’s a different story. You may be better off pleading to a short term in jail to finish the case. Or, in the alternative, if you are offered a reduction or a dismissal in exchange for doing something, like a class or a community service, you need to do it to avoid probation.

There are many, many pitfalls to probation. Many people approach probation as if it is an easy way to avoid jail or get out of jail quickly if you are in jail pretrial, but this is absolutely not the case and you need to rid yourself of this assumption. Probation is not easy and you have the threat of jail hanging over your head the entire time.

When you are on probation, you are seriously restricted in your freedom in many, many ways. You are given certain requirements and certain policies by which you must abide, and if you fail to do so your probation officer is going to file what is called a “motion to revoke probation”. Once this motion is filed, it will generate a warrant. You are usually given a no bond on that warrant, meaning you will not be allowed out on any type of bond. If a judge chooses to set a bond, it is really, really unlikely you will be allowed out of jail on a personal bond. If you cannot get a surety bond, you will be in jail until the motion to revoke probation is resolved.

I will discuss three common ways you might violate your probation:

• Committing a new offense: You will get a motion to revoke probation filed if you commit a new offense of a Class B misdemeanor or above. Do not think under any circumstances that your probation officer is “cool” and will not file a motion if you get arrested again. S/he will and you will go back to jail even if you are released on the new offense already. If you cannot make bond on the new offense, then you will be held on the motion to revoke and the new offense.

• Drug and alcohol use: It is absolutely a violation of your probation to use alcohol at all or any kind of illicit drug or prescription drug if it is not prescribed to you. If you go into a probation meeting looking like you are intoxicated or hung over, the probation officer is going to test you – and if you test positive s/he is going to file a motion to revoke. There is no room for just a single positive test.

• Absconding or missing meetings with no phone call or attempt to reschedule: missing meetings with your probation officer is not allowed. If you miss meetings and make no attempt to reschedule, you will get a motion to revoke filed.

I get many phone calls from people who want off probation and tell me that “they did not realize this is what they were getting into” when they pled to probation. I represent many clients on revocations of probation. Probation is not an easy path. Jail sounds like a terrible fate, but it is important to remember that you may go back to jail anyway if you are filed on for revocation.

If you are facing a probation revocation, call me today to talk about the possibilities of how to resolve your case.

Indigent Defense: Using Experts

Low-Bono and Indigent Defense and the Use of Experts: Why and How to Do It

If you are poor (the fancy word is “indigent”), and you are accused of a crime, you are entitled to a court appointed attorney (or a public defender when the jurisdiction has an office).  Now that can be dicey, because you cannot choose your court-appointed attorney and there are very limited circumstances in which you can request a new one.  I do the best I can for all clients, court appointed or hired, but I cannot speak for all attorneys.

If you choose to scrape together some money and hire an attorney, you may be able to find one to work with you on a payment plan or for a reduced fee.  We sometimes call this a “low-bono” case.  I do this for some clients.

Bottom line is, you may not have any money to hire an attorney or you may run out of money by hiring an attorney.  You may have nothing left to fund other aspects of your defense.

In complicated cases, and in cases in which there are witnesses, you may need to utilize other professionals in your case to competently and successfully mount your defense.  You may need to use an “expert”.  This can be a psychiatrist/psychologist, a scientist, or an investigator.  These can all help either gather defense evidence or analyze and criticize parts of the state’s evidence. This can be very helpful in negotiations and persuasive with a jury at trial.

If you cannot afford an expert, your attorney can petition the court to order the prosecuting county to pay for your expert.  Under Ake v Oklahoma (a federal case), and State v Briggs (a Texas case) the county (or other relevant jurisdiction) has to provide you with money for a competent expert if you show that: 1) you are indigent (and you can qualify under this prong even if you hired an attorney if you have run out of resources) and 2) you make a substantial showing of material need for this expert. 

If science if a relevant piece of the trial, like in a DWI with a breath or blood test in which the state is going to have a scientist testify to their evidence of a particular Blood Alcohol Content, you can almost always show that you have a material need for your own expert to look at the state’s evidence and form an opinion.  If you have witnesses, you can usually show a need for an investigator as you (as the attorney or defendant) cannot interview these witnesses yourself AND testify to what they said. 

What do you do with an expert?  Choosing the right one is a different matter.  You might want to find one that another attorney can vouch for as effective and qualified.  You can ask them to write a report that you can use in cross-examination.  You can also ask them to testify (this usually costs additional money). 

The point is this:  a good attorney is going to know when and how to utilize an expert.  S/he isn’t going to be afraid to insist that the county pay for it. S/he isn’t going to be intimidated by scientific or pseudo-scientific evidence in your case and insist you plead guilty.  I’d like to think I’m describing myself. 

Why Its Important to Go To Court on Class A and Class B misdemeanors

Why it is important to go to court on your court dates:  part two --- Class A and B misdemeanors

In this article I am going to run down what happens if you miss a court date on a Class A or Class B misdemeanor.  I will talk about Travis County specifically and then in general terms about possibilities throughout the state of Texas.

None of the consequences of missing a court date on a Class A or Class B misdemeanor are good and they should be avoided at all costs.  If you are facing emergency circumstances, you should contact your lawyer if you have one or the court you are supposed to report to if you do not have a lawyer and explain the circumstances.  Simply not showing up will result in things that can lead to you spending more time in jail than necessary.

Bail Jumping and Failure to Appear:  If you have been charged with a Class B or Class A misdemeanor and miss a court date, you could very well be charged with an additional Class A misdemeanor of Bail Jumping and Failure to Appear.  The court staff has to go through a procedure to ensure you are indeed not present in order to charge you with this, but regardless of whether or not you are technically guilty, being charged with this will complicate your life.  You will have a warrant out on the new charge of Bail Jumping and Failure to Appear and probably on the underlying original charge as well, and you are risking arrest on both.  If you are arrested on both charges, even in Travis County it will be very unlikely you will get a personal bond.  You will have to use a bail bondsman to post a surety bond on both cases, which costs you much more money than just bonding out on the original charge. 

Being charged with Bail Jumping and Failure to Appear is not likely in Travis County except in one instance.  This is only charged when you are given a cite and release – explained in other articles, this is when you are given a citation on a Class B or Class A misdemeanor instead of going to jail and given a court date to report in a Justice of the Peace court – and you do not show up.  In this instance, the County Attorney will file a Bail Jumping and Failure to Appear charge and you will be expected to post bond on this and the original charge in order to bond out if arrested. 

Bond Forfeiture: If you are out on bond for a Class A or Class B misdemeanor – either personal or surety bond – and you fail to appear for court, your posted bond will be “forfeited”.  This means you no longer have a good bond.  A warrant will be issued for your arrest. 

In Travis County, the County Attorney will file a civil suit against you if you are out on personal bond for the full amount of the bond set when you were originally magistrated.  You may get a default judgment against you if you do not file an answer to this civil suit.  It may go to collections or be placed on your credit report.  It is easy to settle these suits for much less than the full amount but you will still have to pay something.  You may not be able to get the warrant withdrawn and get back on the court’s docket in good standing with a good bond if there is a civil suit.  It is up to the court.  Some will expect you to settle the civil suit first. If you are out on surety bond, the civil suit will be filed against your bail bondsman and in turn, your bail bondsman will seek to get the money they pay to settle it from you. 

If you have a bond forfeiture and are arrested on the warrant that was issued, a new and higher bond will be set and you will not be eligible for personal bond.  No judge except the no one presiding over your case will be inclined to release you except in rare circumstances – so if you are arrested on a weekend you will be there until Monday when the judges come back.  You will have to hire an attorney except in rare circumstances to ask the judge to do a bond forfeiture set aside, reinstate your bond, release you on the reinstated bond, and put you back on the docket with another court date. 

In some places around Texas, both a new Bail Jumping/Failure to Appear charge will be filed and a bond forfeiture will be entered.  It is very complicated to sort this out and you may not have a method of being released except posting a new surety bond. 

The moral of the story is:  don’t miss court and if you do, tell the court your circumstances – which have to be an emergency – prior to not showing up.  Don’t just throw your hands up and hope for the best.  You will not like what happens.

If you have a bond forfeiture or warrants out on an original charge and Bail Jumping/Failure to Appear – call me today.  I’m happy to help.