Can You Appeal a Probation Revocation in Texas?
Yes, a Texas defendant whose community supervision is revoked may appeal the revocation, and a defendant on deferred adjudication whose guilt is adjudicated may appeal both the decision to adjudicate and the sentence. The notice of appeal is due 30 days after the judge imposes sentence in open court, or 90 days if a motion for new trial is filed within those 30 days.
| Action | Deadline | Rule |
|---|---|---|
| Notice of appeal | 30 days after sentence is imposed in open court | Rule 26.2(a)(1) |
| Motion for new trial | 30 days after sentence is imposed in open court | Rule 21.4(a) |
| Notice of appeal, if a timely motion for new trial was filed | 90 days after sentence is imposed in open court | Rule 26.2(a)(2) |
| Ruling on the motion for new trial | 75 days after sentence is imposed; an unruled motion is deemed denied | Rule 21.8(a), (c) |
| Motion to extend time for the notice of appeal (filed in the court of appeals) | 15 days after the notice-of-appeal deadline | Rule 26.3 |
Texas has two kinds of probation, and each has its own appeal.
Texas law calls probation “community supervision.” On regular community supervision, the defendant has already been convicted, and the judge has suspended imposition of the sentence. Tex. Code Crim. Proc. art. 42A.053(a)(1). On revocation, the judge may dispose of the case as if there had been no community supervision, or may reduce the term of confinement to anything not less than the minimum for the offense. Tex. Code Crim. Proc. art. 42A.755(a). A defendant whose community supervision is revoked and who is called on to serve a sentence “may appeal the revocation.” Tex. Code Crim. Proc. art. 42A.755(e).
Deferred adjudication works differently, because the defendant has not yet been convicted. When the State moves to adjudicate, the hearing is “limited to a determination by the court of whether the court will proceed with an adjudication of guilt on the original charge,” and that determination “is reviewable in the same manner as a revocation hearing.” Tex. Code Crim. Proc. art. 42A.108(b). After adjudication, “all proceedings, including assessment of punishment, pronouncement of sentence, granting of community supervision, and defendant’s appeal, continue as if the adjudication of guilt had not been deferred.” Tex. Code Crim. Proc. art. 42A.110(a). No sentence was assessed when the defendant was placed on deferred adjudication, so the judge now assesses punishment from the whole range for the offense, even if the original plea bargain recommended less. Von Schounmacher v. State, 5 S.W.3d 221, 223 (Tex. Crim. App. 1999). A violation on deferred adjudication can therefore cost more than the same violation on regular probation.
The time to appeal starts when the judge pronounces sentence.
The notice of appeal must be filed within 30 days after the day sentence is imposed or suspended in open court. Tex. R. App. P. 26.2(a)(1). A motion for new trial filed within the same 30 days extends the notice-of-appeal deadline to 90 days. Rule 21.4(a); Rule 26.2(a)(2). The court must rule on that motion within 75 days of sentencing, or the motion is deemed denied. Rule 21.8(a), (c). A motion for new trial lets the defense put in evidence the judge never heard at the revocation hearing. If the 30 days have just passed, a notice of appeal and a motion for extension filed within the next 15 days might save the appeal. Rule 26.3. Our pages on Texas appellate deadlines and the first 30 days after a conviction cover these rules in more detail.
What can a revocation appeal challenge?
A judge hears the motion to revoke without a jury. Tex. Code Crim. Proc. art. 42A.751(d). Appeals from that hearing usually raise three kinds of issue.
- The first kind challenges the proof of the violation. The State must prove the violation it alleged by a preponderance of the evidence, meaning the greater weight of the credible evidence, a lower standard than proof beyond a reasonable doubt. Hacker v. State, 389 S.W.3d 860, 864–65 (Tex. Crim. App. 2013). A judge may not revoke or adjudicate on an uncorroborated polygraph result alone. Tex. Code Crim. Proc. arts. 42A.751(h), 42A.108(b). When the only allegation is unpaid fees or costs, the State must prove by a preponderance of the evidence that the defendant was able to pay and did not. Tex. Code Crim. Proc. art. 42A.751(i). A defendant accused of failing to report has an affirmative defense if no officer tried to contact him in person at his last known home or work address. Tex. Code Crim. Proc. art. 42A.756.
- The second kind concerns the hearing itself. The defendant has a right to counsel, appointed if he is indigent. Tex. Code Crim. Proc. art. 42A.751(k). The court keeps jurisdiction after the supervision period ends only if the State filed its motion and a capias issued before the period expired. Tex. Code Crim. Proc. arts. 42A.751(l), 42A.108(c). Due process applies at the hearing: the defendant is entitled to written notice of the alleged violations, disclosure of the evidence, a chance to be heard and to present witnesses, and the right to confront the State’s witnesses. Gagnon v. Scarpelli, 411 U.S. 778, 782, 786 (1973). Complaints that these rights were denied are raised on appeal.
- The third kind concerns punishment. A sentence outside the lawful range can be corrected on appeal, Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003), and so can a judgment that omits credit for a completed treatment program in a substance-abuse felony punishment facility. Tex. Code Crim. Proc. art. 42A.755(d).
Does a plea of “true” end the appeal?
Texas courts treat a plea of “true” to a single violation as enough to support revocation, so after a plea of true, a challenge to the proof rarely succeeds. Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. 1979). A plea of true, even one traded for an agreed sentence, leaves the right to appeal in place, because Rule 25.2(a)(2) limits only guilty-plea bargains. Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005). A sentence outside the lawful range can be challenged on appeal or by habeas corpus. Mizell, 119 S.W.3d at 806.
Complaints about the original plea usually come too late.
The right to appeal the conviction and punishment is “accorded the defendant at the time the defendant is placed on community supervision.” Tex. Code Crim. Proc. art. 42A.755(e). A defendant who did not appeal then generally cannot use the revocation appeal to attack the original conviction, and the same rule applies to the original deferred-adjudication plea. Manuel v. State, 994 S.W.2d 658, 661–62 (Tex. Crim. App. 1999).
Article 11.072 covers people who are or were on community supervision.
An application for writ of habeas corpus under article 11.072 of the Code of Criminal Procedure lets a person who is or was on community supervision challenge the legal validity of the conviction or order imposing it, or of the conditions of supervision. Tex. Code Crim. Proc. art. 11.072, § 2(b). It is unavailable if the applicant could get the same relief by appeal. Tex. Code Crim. Proc. art. 11.072, § 3(a). A denial is itself appealable. Tex. Code Crim. Proc. art. 11.072, § 8. Once a felony sentence has been imposed on revocation and any appeal has ended, the post-conviction route is ordinarily an article 11.07 application; our page on Texas post-conviction habeas corpus explains that writ.
Talk to an appellate lawyer before the 30 days run.
The deadlines leave little time to order the record, read it, and decide whether a motion for new trial is needed. Mark Bennett is Board Certified in both Criminal Law and Criminal Appellate Law by the Texas Board of Legal Specialization—one of fewer than fifty Texas defense lawyers holding both certifications—and handles criminal appeals throughout Texas.
If you or someone you care about has just had probation revoked or guilt adjudicated, email us at [email protected] or use our contact form. Tell us the county, the offense, whether the probation was regular or deferred adjudication, the date of sentencing, and whether a notice of appeal or motion for new trial has been filed.