Are You Eligible for Deferred Adjudication in Texas?

If you or someone you love has questions about deferred adjudication eligibility in Texas, this post explains who is eligible for deferred adjudication, what it is, and how it works.

A pervasive myth about deferred adjudication is that, by successfully completing it, the offender’s criminal charge is automatically removed. This isn’t true.

Deferred adjudication won’t disappear after the terms of the agreement are complete. Instead, the offender’s lawyer must file a certain non-disclosure petition to seal his or her record.

Not all offenses are available for non-disclosure in Texas. The felon offender must wait at least five years from the date of successful competition of probation if he or she committed a felony offense.

It’s important to weigh the pros and cons before deciding that deferred adjudication is the right next step for you.

Wondering if you’re eligible for deferred adjudication?
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Major Advantages of Deferred Adjudication in Texas

There are several major advantages of deferred adjudication vs. standard community supervision.

Deferred adjudication isn’t considered a conviction, so it may prevent some of the after-effects of conviction. For instance, a drug conviction in our state usually arrives with an automatic suspension of the defendant’s driver’s license. A deferred adjudication prevents that.

The defendant can later file for a non-disclosure petition to seal his or her criminal record from the eyes of private entities. Sealed records prevent prospective employers, rental managers, and others from accessing the record.

What Offenses Are Ineligible for Deferred Adjudication in Texas?

Some offenses are ineligible for deferred adjudication. Chapter 49 of the Texas Penal Code states that DWI, intoxication manslaughter, boating while intoxicated (BWI), flying while intoxicated, or operating an amusement ride while impaired or intoxicated deem the defendant ineligible for deferred adjudication.

The good news is that the defendant is eligible for deferred adjudication if he or she was charged with any other type of offense in Texas. However, the District Attorney might not immediately offer it.

When is the District Attorney Willing to Offer Deferred Adjudication?

The District Attorney decides to offer deferred adjudication on a case-by-case basis. The DA’s office considers 1) the defendant’s prior criminal history, 2) the nature of the crime (and whether violence or a deadly weapon involved), or 3) bodily injuries that resulted from the crime.

An experienced deferred adjudication lawyer works to convince the District Attorney to offer deferred adjudication by arguing any weaknesses in the prosecution’s case.

Straight Probation vs. Deferred Adjudication in Texas

Let’s start with several basics:

Probation is referred to as community supervision in the state of Texas. There are two types:

• “Regular” community supervision
• Deferred adjudication

Community supervision allows the defendant to remain in the community under court-supervision instead of prison or jail. This supervision period may be as long as two years in a misdemeanor case and as much as 10 years in a felony.

The judge imposes certain requirements to the person receiving community supervision. For instance, he or she may need to submit to drug tests, have a stable job, and typically must perform community service.

Importantly, the probationer must avoid breaking the law. If he or she violates any of the terms and conditions of supervision, the District Attorney may ask the judge to revoke his or her probation. In that case, he or she will be sent to jail or prison.

The judge could order the individual to spend some time behind bars as one of the conditions of community supervision:

• For a misdemeanor offense, the offender may be required to spend at least 30 days in a jail.
• For a felony offense, the offender may need to spend as much as 180 days in a jail.

Deferred Adjudication in Texas

Deferred adjudication is generally available to first-time offenders only. It’s often a better deal for the offender than standard community supervision because, if he or she successfully completes deferred adjudication, he or she doesn’t have a conviction. In its use here, conviction means a finding of guilt.

Successful completion of the deferred adjudication may enable the offender to request sealing his or her records from public access via a non-disclosure.

Deferred adjudication isn’t granted by a jury. Once a defendant decides to go to trial, he or she can’t elect deferred adjudication as a possible punishment.

If the individual electing deferred adjudication doesn’t comply with the terms and conditions (T&Cs) of this form of community supervision, the District Attorney might request the judge to find the defendant guilty (adjudicate) and place them in jail/prison.

If the judge agrees to adjudicate the defendant, he or she may be sentenced to an appropriate term within the statutory range.

For example, let’s imagine Dexter agrees to nine months of deferred adjudication because he assaulted another person in a tavern. This is considered a Class A misdemeanor. It’s punishable by up to 12 months in jail. After three months into the deferred adjudication, Dexter fails his drug test. He is pulled over by a police officer and receives a DWI. After a hearing, a judge may decide to revoke Dexter’s community supervision agreement and sentence him up to the full jail term, up to one year in jail, for assault.

Primary Differences between Deferred Adjudication and Community Supervision in Texas

1. “Regular” community supervision typically results in the offender’s conviction. The record can’t be expunged or sealed later on.
2. “Regular” community supervision may be offered as an option if the defendant asks for a jury trial.
3. If the defendant’s “regular” community supervision gets revoked, he or she usually doesn’t face the statutory minimum sentence.

When a defendant receives standard community supervision, his or her maximum prison or jail sentence is established at the time of the plea. In a robbery (a second-degree felony that’s punishable from a minimum of two years and a maximum of 20 years in a Texas prison), the offender might receive five years’ incarceration /10 years’ probation. In this example, the offender’s standard community supervision term is 10 years. If his community supervision is revoked, he can go to prison for up to five years.

Rather than face the statutory 10-year prison sentence (which would be established if the individual agreed to deferred adjudication), the offender’s maximum prison term is five years.

Effects of Deferred Adjudication

By successfully completing deferred adjudication, the offender avoids a conviction. His or her charges are dismissed.

Importantly, though, completion of deferred adjudication might still affect his or her future job search. It could negatively influence his or her ability to get a loan or find a place to live. It might even disqualify him or her in some cases from getting a state professional license or buying a gun. If he or she is an immigrant, the deferred adjudication could affect his or her citizenship application status.

That’s because, under U.S. laws governing many gun laws and immigration, deferred adjudication is still considered a conviction.

As noted above, it’s untrue that in one’s successful completion of deferred adjudication, the offense goes away as though it didn’t happen.

Unlike deferred adjudication, however, standard community supervision can’t be sealed through a non-disclosure. Moreover, the record can’t be expunged.

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Community Supervision Considerations

There are two primary ways to terminate standard community supervision in Texas:

1. The defendant’s community supervision expires. He or she is released.
2. If the defendant completes one-third or two years of the sentence (the lesser of the two), he or she may petition the court to dismiss the charges by setting aside the indictment. If the court agrees, the defendant who’s set aside doesn’t have a final felony conviction on his or her record (as the individual who completes the probation term does).

Although the individual in #2 doesn’t have a final felony conviction, he or she doesn’t have the option to petition that his or her offense be expunged or sealed. For that reason, even if his or her offense is dismissed, a future employer has the ability to see it.

Moreover, while the individual who completes standard community supervision (sans a set aside) can apply for a Governor’s pardon, the individual whose standard community supervision was set aside can’t.

For that reason, the individual whose indictment is later dismissed can’t request a pardon of his or her pardon, while the person who completes his or her standard community supervision term can.

In addition, criminal records may be sold by the state or county to private background check providers. These providers are well-known for their misreporting of criminal records.

For instance, a background provider might incorrectly report that the individual’s completed deferred adjudication resulted in a conviction. For that reason, future employers are apt to reject the job candidate for his or her conviction.

It’s obviously essential for individuals considered deferred adjudication or standard community supervision to know the risks and possible results of the decision.

Deferred Adjudication Misconceptions

Many folks share popular misconceptions about deferred adjudication in Texas.  To recap:

• The record won’t automatically disappear. To expunge or erase the record and have the ability to deny the arrest, an attorney must file a non-disclosure petition.
• Some kinds of deferred sentences aren’t eligible for non-disclosure. For instance, any type of offense relating to family violence is automatically ineligible. This type of sentence is indelible.
• Some types of deferred sentences demand a waiting period before the defendant’s attorney can petition for the filing of a non-disclosure. For instance, an assault misdemeanor will require a two-year wait period before the petition may be filed. The waiting period for a felony is five years.

Deferred Adjudication Vigilance

It’s important to realize that, in some instances, an offense can’t be sealed—ever.

Many require a significant waiting period.

So, even though deferred adjudication may be considered the better of two deals, you or someone you care about may be better off to fight the charge in court to prove your innocence.

Are You Eligible for Deferred Adjudication in Texas?

As you can see, there are pros and cons to deferred adjudication in Texas. It’s important to weigh them before agreeing to either type of community supervision. And, as above, it may be best to fight the charges you or a loved one is facing in court.

Contact an experienced Texas criminal defense lawyer in Texas to discuss your case. Call The Law Office of Greg Tsioros in Houston at 832-752-5972 now.