Understanding Deferred Adjudication and Straight Probation

First some basics:

In Texas, probation is called community supervision. There are two types of community supervision in our state–deferred adjudication and regular community supervision.

Basically, community supervision means that instead of going to jail or prison as a punishment, a defendant is allowed by the judge to stay in the community and be supervised by the court. The supervision term can be up to two years for a misdemeanor and up to ten years for a felony.

The judge will impose requirements on the community supervision–for example, a defendant may be drug tested, will have to be employed, and will probably have to do community service. The most important requirement is not to pick up another offense. If one violates the terms of community supervision, the D.A. can ask the judge to revoke the probation and put the person in jail.

As a condition of community supervision, the judge can order the person to spend time in jail. For example, on a misdemeanor, the judge can order the defendant to spend up to 30 days in jail. For any felony, the judge can order up to 180 days in jail as a condition of the community supervision.

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Deferred Adjudication:

Deferred adjudication is usually offered to first time offenders. It is typically a better deal than regular community supervision because if a person finishes the term successfully, the person does not have a conviction. A conviction is a loose legal term that means a finding of guilt.

A successfully completed deferred adjudication often can be sealed from public view with a non-disclosure.

Deferred adjudication cannot be granted by a jury. So once a defendant elects to go to trial, deferred adjudication is a not a possible punishment.

If a person on deferred adjudication does not comply with the conditions of his community supervision, the D.A. may ask the judge to “adjudicate” (find guilty) the person and put them in jail or prison. If the judge decides to adjudicate the person, the person can be sentenced to any term in the statutory range.

Example: Say Tex is put on 9 months deferred for assaulting someone at a bar. This is a Class A misdemeanor punishable by up to a year in jail. Three months into the term, he fails a drug test or picks up a DWI. Eventually, after a hearing, the judge can revoke his community supervision and sentence him to up to one year (the statutory maximum for assault) in jail.

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Regular Community Supervision or “Straight Probation”

There are three major differences between deferred adjudication and regular community supervision: 1) A regular community supervision usually results in a conviction and thus can never be sealed or expunged 2) Regular community supervision is usually a punishment option if a person elects to have a jury trial 3) If regular community supervision is revoked, the maximum punishment is usually not the statutory maximum.

That is, when someone receives regular community supervision, the maximum jail or prison term will be set at the time of the plea. For example, on robbery, a second degree felony punishable from two to 20 years in prison, the deal might be five years prison probated for ten. That means the community supervision period is ten years; if the person messes up and gets revoked by the judge, he can get up to five years in prison. So instead of the statutory maximum of ten years which would be available if the person was on deferred adjudication, the maximum prison sentence is five years.

The Effects

Finishing a deferred adjudication does not result in a conviction. Technically, the charges are dismissed.

However, a successful deferred will still impact a job search. It can disqualify a person in some instances from owning a gun or getting licensed by the state in professional capacity. If a person is an immigrant, it can impact applying for citizenship. In fact, under federal law (which governs immigration and most gun laws), deferred is considered a conviction.

As I have said before, the number one myth in Texas criminal law is “finish your deferred and the offense disappears. It’s like it never happened.” This lie is told to defendants every day in every court house in every county in Texas.

Back to regular community supervision–the important thing to remember about regular community supervision is that–unlike deferred adjudication for most crimes–regular community supervision can never be sealed with a non-disclosure or expunged.

There are two ways to end regular community supervision. First, is the way that most end–the term expires and the defendant is released. However, there is a special provision in the Texas Code of Criminal Procedure that allows for the charges to be “dismissed.”

Basically, after the defendant has completed 1/3rd or two years of his sentence (whichever is less), he can petition the court to set-aside the indictment and dismiss the charges. If the judge agrees, the “set-aside” person does not have a final felony conviction like the person who simply finishes the probation term.

While the person does not have a final felony conviction, he cannot have the offense expunged or sealed. So even if the offense has been dismissed, employers will be able to see it.

Furthermore, while a person who finishes regular community supervision without a set-aside can apply for a pardon from the Governor, a person whose community supervision is set-aside cannot.

So a person whose indictment is dismissed cannot try to get the record pardoned while the person who finishes the term can. Doesn’t make much sense, does it?

A final problem: criminal records are often sold by the counties and the state to private background check companies. These companies often misreport criminal histories. For example, they may incorrectly report a completed deferred or a set-aside as a conviction. Some employers may disqualify an applicant for a conviction.

Another example–under Federal law, a set-aside on a felony community supervision may not prohibit a person from owning a handgun under the felon in possession rule. Under the DPS concealed handgun rules, however, a set-aside on a felony prohibits an applicant from applying for a CHL.

If you are considering either type of community supervision, make sure you understand the risks and effects of your decision.

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