Probation Modifications Explained
Probation modifications are legal requests made to the court to change certain terms or conditions of a person’s probation. In the state of Texas, a person may request a modification of the standard terms of probation if they feel that it is necessary to avoid more severe penalties, or if continuing the conditions would be an undue burden. These requests are typically made in response to something that occurs during the probation period that is not strictly speaking a violation of the terms , but that might lead to future issues if not addressed. A request for a modification would be in a non-violent situation or some situation where it would be in everyone’s best interest to make a slight change to the conditions of a person’s probation. A violation would be a completely different issue; this could include anything from abuse of alcohol or drugs to any circumstance that acts against the regular conditions of a person’s probation.
There are many situations that could warrant a modification that are somewhat common. One might be a job that requires business travel for a specified period of time. This could be particularly difficult if the probationer is required to report to a probation officer on a regular basis, and has to schedule the travels around the reporting period. Another might be a person who needs mental health treatment or counseling. There are various types of situations that could warrant a request for modification, as long as there is proper justification and documentation.
Legal Authority for Modifying in Texas
In Texas, the legal grounds for filing a motion for modification of probation conditions fall under the realm of discretion. A court has the power to modify the terms of probation and is guided only by what is in the best interest of justice. The statutory authority for probation modification appears in the Texas Code of Criminal Procedure, under Article 42.12. Section 20 of this article states that "the judge may increase, decrease, or modify the conditions of community supervision, including extending the period of community supervision beyond 10 years if imprisonment in the Texas Department of Criminal Justice is assessed in the underlying judgment, and that extension is within the maximum term authorized". Acceptable conditions of probation are held in Texas Penal Code Section 42.12. Section 11 of this code states that a judge may impose any reasonable condition on community supervision except for a condition requiring residence in a facility or program, which is for career schools. According to the Harris v. State case (Sept. 2015) states that the ruling in this case upheld the trial court’s ruling to modify the terms of current probation which states the following: "The Court finds that defendant shall not be on shock probation . . .. Defendant’s probation is ordered lengthened to the maximum term of ten (10) years". This ruling is distinct because it states the conditions of probation will be extended, not terminated. Rushing v. State (June 2011) ruled in luck with the State and found that the "trial court was authorized to order that Community Supervision not be reduced to less than 10 years or be terminated before the 10 years expired." While the ruling can result in the terms of probation being increased, the motion is always taken on a case by case basis.
Filing An Application To Modify
Steps to File a Motion for Modification of Probation
In Texas, probation is generally known as deferred adjudication or community supervision. Either of these can be ended before the probation is set to end, but there are a few steps to take.
Usually, after you have completed 1/3 of the "probation term," your attorneys (or you) can file a motion to modify, and the court will consider whether or not it is appropriate to end probation. The statute provides a list of conditions that lead the judge to grant a modification. Here’s how it works:
STEP 1 – WHERE TO FILE
You file the motion in the same court where you received your probation or deferred adjudication. This is where the judge who sentenced you is sitting.
STEP 2 – THINGS YOU MAY HAVE TO PROVE
If the judge needs to be convinced to grant an early dismissal of your probation or deferred adjudication, there are several things that may help the judge to be satisfied. These include:
STEP 3 – FILING REQUIRED DOCUMENTS
Once you determine that this process is right for you, and you have satisfied all of these conditions, you need to prepare the months’ long preparation of documents to convince the judge to grant the motion.
The motion itself must include a request for approval of attorney’s fees, a request for attorney’s fees to be waived (if you don’t wish to use an attorney), and a request for a finding of indigency. (We don’t like to use the word "indigent," so we don’t use that word in our courts anymore.)
There is another category of motion to modify that is simply a request for a hearing. In this situation, you are asking the judge to consider your case and your issue, but do not want to make any argument at this time.
There are several documents required for the above. A sample of those is:
In order to accomplish this, the best way to go about this process is:
One of the documents you must file is a request for the judge to find you indigent and unable to pay attorney’s fees. If you and your lawyer are not filing in your home court, you must also file a request for a hearing before the case is sent to the judge. Be sure to check with the district clerk’s office concerning forms and fees specific to your county.
How To Prepare For The Hearing
Leading up to the hearing on the motion to modify conditions of probation, the offender should take the opportunity to be proactive. Before the hearing, the offender should do the following: The offender can show the court that he or she is taking this process very seriously. This is another opportunity to gain favor with the judge deciding the motion.
It will be critical for the offender who is seeking modification of probation conditions to include as much evidence as possible. Past and recent letters of appreciations from judges, attorneys on both sides, treatment providers, family members, law enforcement, co-workers, or religious leaders may be very helpful. Also, if the offender has received a significant award for personal achievement such as employee of the month, awards, or special recognition, this information should be provided. Any community service work, volunteer work or participation in local charitable organizations should also be included. Furthermore, if the offender has a positive story about his or her work and/or rehabilitation, it should be mentioned in this letter. Finally, the letter must be signed.
Assuming the court set a date on the motion, prepare to arrive early on the day of the hearing to find the courtroom . Be sure to know where the courthouse is located. Look up the proper title of the court that is set to hear the motion. Be sure to check the jurisdictional statement at the top of the motion (the heading) to see where the court is located. Look up the judge’s name. Each judge’s courtroom will have a different location.
On the day of the hearing, plan to arrive at the courthouse early to ensure that you find the courtroom. The offender should know where the courthouse is located prior to the hearing date. Look up the proper title of the court that is set to hear the motion. Be sure to check the jurisdictional statement at the top of the motion (the heading) to see where the court is located. As mentioned above, look up the judge’s name. Each judge’s courtroom will have a different location.
Once you arrive at the courthouse, pay close attention to any posted signs that indicate the correct location of the courts. The offender should also check to see if the case is on an actual docket. For instance, on a criminal probation modification, the judge may place your case on the "short cause" or "long cause" docket. If the case is assigned to a special docket, be sure to review the court’s website as to trial procedures before showing up to the hearing.
Potential Results and Appeals
After a hearing on the motion to modify conditions of probation, the court will make a final decision. If the motion to modify is granted, both the defense and the State may have the opportunity to present evidence on the conditions of probation the defendant will be required to follow. The court basically sets the terms of probation that the defendant will have to follow. If the court does not grant the motion, the motion to modify is denied and the defendant can continue to serve out their community supervision as ordered. The defendant will leave the courtroom after a denial of the motion to modify conditions of probation, and will likely still be supervised by their probation officer in accordance with the previous terms of probation.
A motion to modify conditions of probation can be denied. If the court denies the motion, the motion is over. If a defendant wants to appeal the court’s decision, then an appeal can be filed, although this occurs in very limited circumstances. In some cases, appeals aren’t heard, if appeals are heard, then the case will be decided by the court of appeals for the jurisdiction where the case was located.
Finding an Attorney and Resources
Filing a motion to modify conditions of probation can be daunting, especially if you are unsure of the process. To avoid potential complications and ensure that your motion is handled appropriately, seeking legal assistance as soon as possible is recommended. A knowledgeable attorney can guide you through the necessary steps and help you avoid potential pitfalls.
In Texas, legal aid services provide information about modifying probation and other related topics. Legal Aid of NorthWest Texas assists in civil legal matters for those who meet their income requirements .
The Texas Criminal Justice Coalition provides "Roadmaps to Reentry" which includes a wealth of information about the law, common legal problems and questions, and resources available across the state, including a list of re-entry agencies and support groups for ex-offenders.
The Texas Parole and Mandatory Supervision Handbook includes rules and information about parole and the status of probationers in Texas. If your situation involves parole, it may be worth reviewing the rules found in this handbook.
Finally, the Texas Department of Criminal Justice website includes information on parole, probation, and parole guidelines. The website is a good resource for general information.