Your attorney did a fantastic job and was able to get you sentenced to probation instead of prison. You are doing well. You meet with your probation officer monthly. You maintain a fulltime job. You have not been arrested again in the year since being placed on probation. You are sure that you will never be in the position of potentially going to prison again.


Then, your probation officer shows up for an unannounced inspection of your home and finds a small baggie of marijuana. Suddenly, you are faced with having to go to court and realize your liberty is again at risk.

It’s just marijuana; how serious can this be? The answer, unfortunately, is very serious. There are two types of violations of probation, substantive and technical. With a few limited exceptions, substantive violations result from a new arrest while technical violations include everything else such as missing a meeting with your probation officer, failing to pay the cost of supervision, failing to pay restitution, or failing to complete court ordered counseling.

Though possession of a small amount of marijuana would be a minor offense for anyone else, that same small baggie of marijuana can get probation revoked and prison imposed on someone who is currently on felony probation.

How hard is it to prove a violation of probation?

The State needs to present evidence in order to prove the violation of probation. Most likely, the State will call your probation officer as a witness as well as anyone else who may have witnessed the conduct that your violation is based on. In our example above, in addition to your probation officer, the State would also likely call a chemist to testify that the substance found was actually marijuana.

Despite the fact that the burden of proof is on the prosecution, violations of probation are much easier for the State to prove than most people realize. The burden of proof in a probation violation hearing is not the same as it would be at a trial. In a trial, the prosecution must prove the offense beyond and to the exclusion of all reasonable doubt. That is a very high burden which is often difficult for the State to meet. However, at a probation violation hearing, the prosecution only has to prove the case by a preponderance of the evidence. A preponderance of the evidence is just slightly more likely than not.  Picture the scales of justice; the State merely has to tip the scales ever so slightly in their direction to prove a violation.

What can happen if a violation of probation is proven?

If you are found in violation of your probation, the judge has several options. If the judge determines the violation is minor, he may just reinstate your probation and give you a warning. The likelihood of this occurring is more significant if the original charge is minor as well. For example, if you are on probation for misdemeanor possession of marijuana and you violate by testing positive for the use of marijuana, the judge may decide to give you another chance by reinstating your probation.

If the violation is moderately serious, the judge may exercise his discretion to modify the terms of your probation. Modifications can include almost anything. Some examples of additional restrictions that could be imposed include house arrest, mandatory drug testing, or court-ordered counseling. Generally, the penalties will escalate with each violation so it is important to strictly adhere to the terms of your probation, especially if a judge has already given you the benefit of a reinstatement previously.

If the violation is serious, the judge has the discretion to re-sentence you to anything he could have originally sentenced you to, including prison. How much prison time you could face is entirely dependent on the original charge. If you were originally facing 20 years in prison, the judge could sentence you to 20 years in prison for the probation violation.

Judge’s perspective

Keep in mind, that even if the basis for the violation seems minor, the judge has an enormous amount of discretion at re-sentencing. While it may seem unfair for the judge to be able to sentence up to the maximum penalty for the original crime even when the violation is based on something minor, from the judge’s perspective, the judge is not merely sentencing the defendant for the violation. Instead, the defendant is being sentenced for the original crime as well as for the violation of probation. The likelihood of the judge sentencing harshly on a minor violation of probation is increased if there have been multiple previous violations.

Can anything be done to increase the likelihood of reinstatement?

When someone is charged with a violation of their probation, often the person reacts as if their probation will automatically be revoked. They stop reporting to probation, fail to appear for the hearing and try to hide from the court. That is precisely the type of conduct that will get you re-sentenced to a lengthy term of prison.

Instead, keep reporting to probation. Show up to court on time. Be respectful of the judge. Prior to your hearing on the violation, take steps to address the violation itself. If the violation was for testing positive for marijuana use, get into drug counseling. An effective advocate will help you determine a plan of action that will show the judge and your probation officer that you are serious about being a productive member of society.

Since the consequences of a violation of probation are just as serious as the original charge and because the State’s burden is lower than it would have been at trial, it is imperative to have an attorney represent your interests. You wouldn’t represent yourself at trial, so don’t try to represent yourself at a Fort Worth probation violation hearing. Doing so could cost you and your family several years of your life.