Deferred adjudication is a great mechanism to prevent a client from having a conviction and a terrible way to keep a person’s record “clear” (and even more problematic complicated if your client is an immigrant, non-immigrant, works for the state or federal government, or has a job that requires state licensure).
The Law On Deferred: The granting of deferred adjudication is provided for in Article 42.12 of the Texas Code of Criminal Procedure, §5.
What is Deferred Adjudication?: Deferred adjudication is a type of probation (community supervision). Like “straight” or “regular” probation, there are terms and conditions of the deferred adjudication probation that the probationer must follow. Unlike regular community supervision probation, if the probationer successfully completes deferred adjudication probation, then they are not convicted of the offense to which they have pled. If the States alleges and proves by a preponderance of the evidence that probations did not comply with any of the terms and condition of the deferred probation, then the judge may revoke the deferred probation and proceed to a final finding of guilt.
Who is eligible for Deferred?: For a defendant to be eligible to receive deferred adjudication: 1) the defendant must plead guilty or nolo contendere, 2) the judge presiding must find “the best interest of society and the defendant will be served”, 3) the judge must find that the evidence supports a finding of guilt, 4) and there must be no statutory exception to deferred adjudication. Tex. Crim. Proc. Ann. 42.12 §5 (a)
Statutory Exceptions to Deferred Adjudication / Offenses Not Eligible for Deferred Adjudication:
- DWI or other Driving While Intoxicated Related Offenses: Tex. Penal Code 49.04-49.08;
- Controlled Substance Offenses in a School Zone with a Previous Conviction: Section 481.134(c), (d), (e), or (f), Health and Safety Code, if it is shown that the defendant has been previously convicted of an offense for which punishment was increased under any one of those subsections;
- Continuous Sexual Assault of a Child or Aggravated Sexual Assault where the victim is younger than 6 or younger than 14 and the act involves serious bodily injury or the threat of serious bodily injury: charged with an offense under: (A) Section 21.02, Penal Code; or (B) Section 22.021, Penal Code, that is punishable under Subsection (f) of that section or under Section 12.42(c)(3) or (4), Penal Code;
- Murder: the defendant is charged with an offense under Section 19.02, Penal Code, except that the judge may grant deferred adjudication on determining that the defendant did not cause the death of the deceased, did not intend to kill the deceased or another, and did not anticipate that a human life would be taken.
- Sexual Offenses Against Children: Before ordering deferred adjudication probation for a sexual offense against a child, the court is required to make a finding that deferred adjudication is also in the best interest of the victim: regardless of the age of the victim, or a defendant charged with a felony described by Section 13B(b) of this article, only if the judge makes a finding in open court that placing the defendant on community supervision is in the best interest of the victim.
Term of Deferred Adjudication
For misdemeanor offenses, the maximum term of an initial deferred probation sentence is two years. The judge may increase the sentence under Tex. Code Crim. Proc Ann. 22(c) or 22A.
For felony offenses, the maximum term of an initial deferred probation sentence is ten years.
Violation of Terms and Conditions of Deferred
If while on deferred adjudication probation, the probationer violates a term and condition of probation, the person may be arrested. The State files a Motion to Adjudicate Guilt or a Motion to Proceed to Adjudication of Guilt. The Court then has a hearing to determine whether to proceed to an adjudication of guilt on the original charge. If the court adjudicates the person to be guilty of the offense, then “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. 42.12 §5(b).
Successful Completion of Deferred Adjudication
If the term of the deferred adjudication community supervision expires without the court moving forward to an adjudication of guilt, the judge must dismiss the proceedings against the defendant and discharge him from probation. In the interest of justice, a court may discharge a defendant from deferred adjudication prior to the expiration of the original term. A judge may not terminate a deferred adjudication probation early for a person on probation who is required to register as a sex offender.
The discharge and dismissal may not be used as evidence of a conviction, except:
1 evidence of a deferred adjudication probation may be used as punishment evidence if the person is ever convicted of another offense,
2 if the person applies for a license government by chapter 42 of the Texas Human Resource Code,
3 if the person applies to be a mental health provider to sex offenders,
4 as an enhancement for the penalty range on the trial of a first degree felony offense involving sexual offenses against children where the deferred adjudication probation was for a sexual offense against a child (Tex. Penal Code 12.42(c), (g)).
The law regarding petitions for nondisclosure is located in Texas Government Code 481.081.
Upon successful completion of deferred adjudication, a person may petition the court who placed the person on deferred adjudication to order that the record of the arrest and probation be sealed. Generally, these records may still be accessed by law enforcement, but may not be disclosed to others not in law enforcement.
After proper notice to the State, the court will consider 1) whether the petitioner is statutorily eligible, and 2) whether issuance of a nondisclosure order is in the best interest of justice. The statute provides the court with some discretion to deny a nondisclosure, even if the petitioner is statutorily eligible.
Texas deferred adjudication probations, even if successfully completed, are considered convictions for immigration purposes.
This page was updated May 2, 2014.