Texas has two forms of probation in criminal cases: Traditional community supervision and deferred adjudication. Deferred adjudication is a special form of judge-ordered community supervision that allows an alleged offender to accept responsibility for a crime without an actual conviction being placed on their record.
A judge is the only person who can grant deferred adjudication, so a prosecutor and alleged offender must agree to waive a jury trial. The only people eligible for deferred adjudication are alleged offenders charged with misdemeanor crimes other than driving, flying, or boating while intoxicated, and alleged offenders charged with felony offenses except driving, flying, or boating while intoxicated, intoxication assault, intoxication manslaughter, repeat drug offenses enhanced with drug-free zone findings, and repeat sex offenses.
Dallas, TX Deferred Adjudication Lawyer
If you were arrested for a family violence crime in the Dallas area, you need to understand all of the true costs of deferred adjudication before agreeing to such a deal. Make sure that you are working with an experienced criminal defense attorney.
The Law Offices of Richard C. McConathy can help you determine which option will be the best for all of your long-term interests. Call (972) 233-5700 or contact us online right now to have our firm perform a complete review of your case during a free consultation.
Section 5 of Texas Code of Criminal Procedure § 42.12 establishes that when a judge believes the best interest of society and an alleged offender will be served, the judge can, after receiving a plea of guilty or plea of nolo contendere, hearing the evidence, and finding that it substantiates the alleged offender’s guilt, defer further proceedings without entering an adjudication of guilt, and place the alleged offender on community supervision. A judge can place on community supervision an alleged offender charged with indecency with a child, sexual assault, or aggravated sexual assault, regardless of the age of the alleged victim, or an alleged offender charged with a sexual offense against a child, only if the judge makes a finding in open court that placing the alleged offender on community supervision is in the best interest of the alleged victim.
The failure of the judge to find that deferred adjudication is in the best interest of the alleged victim is not grounds for the alleged offender to set aside the plea, deferred adjudication, or any subsequent conviction or sentence. After placing the alleged offender on community supervision under this section, the judge must inform the alleged offender orally or in writing of the possible consequences of a violation of community supervision. If the information is provided orally, the judge must record and maintain the judge’s statement to the alleged offender. The failure of a judge to inform an alleged offender of possible consequences is not a ground for reversal unless the alleged offender shows that he was harmed by the failure of the judge to provide the information.
In a felony case, the period of community supervision cannot exceed 10 years. For an alleged offender charged with a felony under Texas Penal Code § 21.11, Texas Penal Code § 22.011, or Texas Penal Code § 22.021, regardless of the age of the victim, and for an alleged offender charged with a felony described by Section 13B(b) of this article (a sexual offense against a child), the period of community supervision cannot be less than five years.
In a misdemeanor case, the period of community supervision cannot exceed two years. A judge can increase the maximum period of community supervision and may impose a fine applicable to the offense and require any reasonable conditions of community supervision, including mental health treatment, that a judge could impose on an alleged offender placed on community supervision for a conviction that was probated and suspended, including confinement.
The provisions specifying whether an alleged offender convicted of a state jail felony is to be confined in a county jail or state jail felony facility and establishing the minimum and maximum terms of confinement as a condition of community supervision apply in the same manner to an alleged offender placed on community supervision after pleading guilty or nolo contendere to a state jail felony. However, upon written motion of the alleged offender requesting final adjudication filed within 30 days after entering such plea and the deferment of adjudication, the judge shall proceed to final adjudication as in all other cases.
Before placing an alleged offender on deferred adjudication community supervision, the court must inform the alleged offender of their right to petition the court for an order of nondisclosure under Texas Government Code § 411.081, unless the alleged offender is ineligible to pursue that right because of:
- the nature of the offense for which the alleged offender is placed on deferred adjudication community supervision; or
- the alleged offender’s criminal history.
In violation of a condition of community supervision, the alleged offender may be arrested and detained. The alleged offender is entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge.
The court cannot proceed with an adjudication of guilt on the original charge if the court finds that the only evidence supporting the alleged violation of a condition of community supervision is the uncorroborated results of a polygraph examination. The determination to proceed with an adjudication of guilt on the original charge is reviewable in the same manner as a revocation hearing conducted under Section 21 in a case in which an adjudication of guilt had not been deferred.
After an adjudication of guilt, all proceedings, including assessment of punishment, the pronouncement of sentence, granting of community supervision, and alleged offender’s appeal continue as if the adjudication of guilt had not been deferred. A court assessing punishment after an adjudication of guilt of an alleged offender charged with a state jail felony may suspend the imposition of the sentence and place the alleged offender on community supervision or may order the sentence to be executed, regardless of whether the alleged offender has previously been convicted of a felony.
On the expiration of a community supervision period, if the judge has not proceeded to adjudication of guilt, the judge shall dismiss the proceedings against the alleged offender and discharge them. The judge can dismiss the proceedings and discharge an alleged offender, other than an alleged offender charged with an offense requiring the alleged offender to register as a sex offender, prior to the expiration of the term of community supervision if in the judge’s opinion the best interest of society and the alleged offender will be served.
The judge cannot dismiss the proceedings and discharge an alleged offender charged with an offense requiring the alleged offender to register. Except as provided by Texas Penal Code § 12.42(g), dismissal and discharge under this section may not be deemed a conviction for the purposes of disqualifications or disabilities imposed by law for conviction of an offense.
For any alleged offender who receives a dismissal and discharges under this section:
- upon conviction of a subsequent offense, the fact that the alleged offender had previously received community supervision with a deferred adjudication of guilt shall be admissible before the court or jury to be considered on the issue of penalty;
- if the alleged offender is an applicant for a license or is a licensee under Chapter 42, Human Resources Code, the Department of Family and Protective Services may consider the fact that the alleged offender previously has received community supervision with a deferred adjudication of guilt under this section in issuing, renewing, denying, or revoking a license under that chapter; and
- if the alleged offender is a person who has applied for registration to provide mental health or medical services for the rehabilitation of sex offenders, the Council on Sex Offender Treatment may consider the fact that the alleged offender has received community supervision under this section in issuing, renewing, denying, or revoking a license or registration issued by that council.
A judge who dismisses the proceedings against an alleged offender and discharges the alleged offender must:
- provide the alleged offender with a copy of the order of dismissal and discharge; and
- if applicable, inform the alleged offender of the alleged offender’s eligibility to petition the court for an order of nondisclosure under Texas Government Code § 411.081, and the earliest date the alleged offender is eligible to file the petition for the order of nondisclosure.
In all other cases, the judge may grant deferred adjudication unless:
- the alleged offender is charged with an offense under Texas Penal Code § 49.04-49.08; or
- for which punishment may be increased under Texas Health and Safety Code § 481.134(c), (d), (e), or (f), if it is shown that the alleged offender has been previously convicted of an offense for which punishment was increased under any one of those subsections;
the alleged offender:
- is charged with an offense under Texas Penal Code § 21.11, Texas Penal Code § 22.011, or Texas Penal Code § 22.021, regardless of the age of the victim, or a felony described by Section 13B(b), and
- has previously been placed on community supervision for any offense under Paragraph (A) of this subdivision.
the alleged offender is charged with an offense under:
- continuous sexual abuse of young children or children
- aggravated sexual assault that is punishable under Subsection (f) of that section or under Texas Penal Code § 12.42(c)(3) or (4),; or
- the alleged offender is charged with murder, except that the judge may grant deferred adjudication on determining that the alleged offender did not cause the death of the deceased, did not intend to kill the deceased or another, and did not anticipate that human life would be taken.
If a judge places on community supervision under this section an alleged offender charged with unlawful restraint, kidnapping, or aggravated kidnapping, or an attempt, conspiracy, or solicitation to commit one of those offenses, the judge shall make an affirmative finding of fact and file a statement of that affirmative finding with the papers in the case if the judge determines that the victim or intended victim was younger than 17 years of age at the time of the offense.
If a judge places on community supervision an alleged offender charged with a sexually violent offense, the judge must make an affirmative finding of fact and file a statement of that affirmative finding with the papers in the case if the judge determines that the victim or intended victim was younger than 14 years of age at the time of the offense.
It is important to note that a record in the custody of the court clerk regarding a case in which a person is granted deferred adjudication is not confidential. If a judge places on community supervision an alleged offender charged with indecency with a child or sexual assault, the judge must make an affirmative finding of fact and file a statement of that affirmative finding with the papers in the case if the judge determines that:
- at the time of the offense, the alleged offender was not more than four years older than the victim or intended victim and the victim or intended victim was at least 15 years of age; and
- the charge to which the plea is entered under this section is based solely on the ages of the alleged offender and the victim or intended victim at the time of the offense.
A court retains jurisdiction to hold a hearing and to proceed with an adjudication of guilt, regardless of whether the period of community supervision imposed on the alleged offender has expired, if before the expiration the attorney representing the state files a motion to proceed with the adjudication and a capias is issued for the arrest of the alleged offender.
If a judge places on community supervision under this section an alleged offender charged with an offense, on the motion of the attorney representing the state the judge shall make an affirmative finding of fact and file a statement of that affirmative finding in the papers in the case if the judge determines that, regardless of whether the conduct at issue is the subject of the prosecution or part of the same criminal episode as the conduct that is the subject of the prosecution, a victim in the trial:
- is or has been a victim of a severe form of trafficking in persons, as defined by 22 U.S.C. Section 7102(8); or
- has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity described by 8 U.S.C. Section 1101(a)(15)(U)(iii).
That part of the papers in the case containing an affirmative finding must include specific information identifying the victim, as available; may not include information identifying the victim’s location; and is confidential, unless written consent for the release of the affirmative finding is obtained from the victim or, if the victim is younger than 18 years of age, the victim’s parent or guardian.
Deferred adjudication is often seen as preferable to traditional community supervision because an alleged offender who successfully completes deferred adjudication will not have a conviction on their record. The major catch to that provision, however, is that a person who completes deferred adjudication will not be able to have their criminal record sealed or expunged.
While orders of nondisclosure are possible for certain deferred adjudication are possible in some cases, they are generally prohibited in most family violence cases. A person is not eligible for an order of nondisclosure if they were placed on deferred adjudication for indecency with a child, abandoning/endangering a child, online solicitation of a minor, aggravated kidnapping with intent to abuse victim sexually, repeated violations of bond conditions in a family violence case, continuous sexual abuse of young children, burglary of a habitation with intent to abuse a victim sexually, stalking, injury to a child or elderly person, compelling prostitution aggravated sexual assault, violation of a protective order, possession/promotion of child pornography, incest, unlawful restraint, kidnapping or aggravating kidnapping of a person under 17, sexual performance by a child, sexual assault, capital murder/murder, indecent exposure, offenses requiring registration as a sex offender, and most importantly, any offense involving family violence.
Much like community supervision, deferred adjudication also stresses that if an alleged offender picks up another criminal offense while on supervision, the court can revoke their probation and then sentence them to prison. Considering that supervision may last up to 10 years, that is a long period in which an alleged offender is going to have to stay out of trouble.
Deferred Adjudication – Texas Courts — View this written testimony for the Texas Senate Jurisprudence Committee by the Administrative Director for the Texas Office of Court Administration. Learn more about who is eligible and who is not eligible for deferred adjudication as well as how orders of nondisclosure work. There is also a section expunction.
What is Deferred Adjudication in Texas? – Legal Guides – Avvo — Learn more about the definition of deferred adjudication on this section of the Avvo website. You can also read about the difference between deferred adjudication and straight probation. The page also touches on the advantages of deferred adjudication.
Find a Dallas Deferred Adjudication Attorney | Law Offices of Richard C. McConathy
Are you being offered deferred adjudication for a family violence crime in Dallas? You will want to discuss your case with a criminal defense lawyer to be sure that accepting such an agreement will really be serving your best interest.
The Law Offices of Richard C. McConathy can ensure that you get the case outcome that is actually going to work best for you now and well into the future. Call (972) 233-5700 or contact our firm online to receive a free consultation that will allow us to look over your case and help you understand what you can do.