Managing Attorney
Any criminal offense in Texas will typically be resolved in one of three ways: dismissal, trial or plea agreement. Of course, a dismissal of a charge is usually the best resolution of a criminal case. However, if your case is not dismissed, and you do not go to trial, then one common plea option is for deferred adjudication probation. But what exactly is deferred adjudication and how is it different from regular probation? What should I know about deferred adjudication probation before accepting an offer of deferred adjudication to resolve my case?
This article is written for information purposes and should not be taken as legal advice. The law on probation in Texas is highly complex and you should always consult with an experienced criminal defense lawyer before considering accepting any offer of probation.
What is deferred adjudication in Texas and when is it available?
In Texas, a deferred adjudication probation is a type of probation that does not leave a “final” conviction on a person’s record, if the probation is completed successfully. As implied by its name, deferred adjudication involves “deferring” the “adjudication” of a person’s guilt (in other words, putting off finding someone guilty).
Deferred adjudication is only available to defendants who plead guilty or no contest before the judge after waiving their right to a trial by jury. Deferred adjudication is not available to anyone who has been convicted, which includes being found guilty by a jury.
What are the advantages of a deferred adjudication probation?
The best-known advantage of a deferred adjudication probation is that a person may be eligible to have their records sealed if they successfully complete a deferred adjudication probation (this is also known in Texas as a non-disclosure). While not as good as an expunction, getting your records sealed can still be a good way to protect your record as it prevents many private entities from accessing a record of the arrest. It is important to understand that some offenses (such as offenses requiring sex offender registration or most intoxication offenses) cannot be sealed even if a deferred adjudication probation is successfully completed.
Some of the other potential advantages of a deferred adjudication probation (as compared to a regular probation) include:
-Eligibility for bond if probation revoked: When a person is completing a regular probation and violates their probation, a judge is not required (but may) grant the person a bond. However, since no conviction has been entered for a deferred adjudication, a person who violates their probation while on deferred adjudication probation is entitled to a bond.
- Immediate Eligibility for early termination: In Texas, most offenses are eligible for early termination of probation. However, unlike regular probation, there is no minimum time that must be completed before a judge can legally consider a request for early termination.
- Cannot be used to “enhance” some crimes: In Texas, many offenses are punished more harshly if the defendant has a prior conviction. In some, but not all, cases a deferred adjudication will not be counted as a prior conviction for purposes of punishing a subsequent offense more severely.
What happens if you violate the terms of a deferred adjudication probation?
When a person is accused of violating the terms of a deferred adjudication probation, the State will usually file a Motion to Adjudicate asking the court to revoke the defendant’s probation and find him guilty. The defendant may be arrested and detained and the person will be entitled to a hearing limited to the issue of whether the defendant did indeed violate the terms of his probation and whether the judge should proceed with an adjudication of guilt on the original charge.
When a person’s deferred adjudication probation is revoked, the judge has the “full range of punishment” available to him and may sentence the defendant anywhere within the punishment range. For example, if a person charged with a third-degree felony has their deferred adjudication probation revoked, the judge can sentence the defendant between 2 and 10 years in the Texas Department of Criminal Justice (one of the few advantages of a regular probation is that the judge’s potential sentence is capped at whatever the probated prison sentence was). However, the judge also has other options available, such as leaving the defendant on probation, extending the probation, modifying the terms of probation, or assessing some days in jail.
Are all offenses eligible for deferred adjudication?
In Texas, most offenses are eligible for deferred adjudication probation. However, under Texas Code of Criminal Procedure 42A.012 there are several offenses that are not eligible for deferred adjudication probation. These include many intoxication offenses (driving while intoxicated above .15 or with an accident, DWI second, intoxication assault, etc), certain drug offenses, offenses involving trafficking of persons, certain drug offenses and sex crimes.
If you are charged with any criminal offense in Texas, it is critical that you consult with an attorney who understands and can explain the many complexities of probation so that you can make an informed decision regarding any potential resolution of your case. If you are charged with any criminal offense in the Houston area, call Ceja Law Firm for a free consultation.
