Community Columns

Deferred adjudication is a special form of judge-ordered community supervision (commonly known as "probation") that permits the defendant to accept responsibility for a crime without automatically suffering all of the consequences of a formal finding of guilty and sentence. The judge literally defers a decision on the defendant’s guilty, places the defendant on a period of supervision, and imposes certain contractual conditions designed to rehabilitate or punish the defendant and protect the public.

Texas law provides that, depending on the offense, a criminal defendant may be placed on one of two types pf probation: regular or deferred adjudication. Regular probation requires a finding of gui8lt (conviction) for the crime followed by a specific punishment of confinement and/or fine (sentence) that is then suspended. A defendant placed on deferred adjudication avoids a conviction or sentence because the judge is authorized to delay any finding of guilt or punishment for as long as the defendant successfully complies with the conditions of supervision.

A defendant placed on deferred adjudication can avoid a formal conviction and punishment. However, that does not mean there will never be any negative consequences. The admission of guilt could be used in a future punishment trial, a deportation hearing, an administrative license hearing, by a potential employer, or to trigger other collateral consequences. Furthermore, a violation of supervision could expose the defendant to substantial punishment without a jury trial and with no right to appeal the judge’s decision to adjudicate guilt.

Any defendant charged with a misdemeanor crime other than driving/flying/boating while intoxicated is eligible for deferred adjudication. For a felony defendant, there is a longer list of charged crimes that disqualify him or her from receiving deferred adjudication:

To qualify for placement on deferred adjudication, the defendant must accept responsibility for the crime by pleading guilty or no contest. The defendant also must have the consent of the prosecutor to waive the right to a jury trial because only a judge (not a jury) may grant deferred adjudication. The need for an agreed jury waiver effectively means the defendant must reach a plea agreement with the prosecutor to become eligible for deferred adjudication. Except for the above-described drug and sex offenses, a criminal history does not automatically disqualify a defendant from receiving deferred adjudication. However, such a history might well discourage a prosecutor from agreeing to recommend deferred adjudication.

For a Class C misdemeanor, the maximum period of supervision is 180 days. For a Class A or B misdemeanor, the maximum period of supervision is two years. For a felony offense, the maximum period of supervision is 10 years. For most offenses, the judge may set the period of supervision for any of these offenses for a lesser period of time, down to a single day. However, for felony sex offenses, the period of supervision may not be less than five years. In addition, except for sex offenses, the judge may later terminate the supervision early if it is in the best interest of society and the defendant.

At the time a defendant is placed on deferred adjudication, the judge must warn the defendant that violation of any of the conditions of supervision may result in the prosecutor filing a motion to adjudicate. Upon that motion, the judge may issue a warrant for the defendant’s arrest and hold a hearing. After the hearing, if the judge (not a jury) decides that the defendant violated a condition of supervision, the judge may summarily proceed to find the defendant guilty and set a punishment anywhere within the range of punishment for the crime committed by the defendant. Significantly, a defendant has no right to appeal the judge’s decision to find the defendant guilty.

Originally, deferred adjudication was meant to give first offenders an opportunity to avoid a criminal record and prove themselves worthy of avoiding a formal conviction. However, over the years since its inception, amendments to the laws have diluted those worthy intentions.

If a defendant successfully completes a deferred adjudication, the judge must dismiss the case against the defendant, leaving the official record to show that the defendant has not been convicted of a crime. However, there are other laws that contradict that conclusion.

For example, sex offenders who are placed on deferred adjudication and successfully complete the supervision must nonetheless register annually for substantial periods of time (many times for the rest of their life) with local police. In addition, if a sex offender commits a subsequent sex offense, the prior deferred adjudication may be considered a conviction for the purpose of enhancing the punishment to an automatic sentence of life in prison. Other state laws also define a deferred adjudication as a conviction (e.g., family violence assault) for enhancement purposes.

Federal law also has altered the concept of deferred adjudication by treating even a successfully completed supervision as a conviction for the purpose of deciding immigration status. This change, made in 1996, was applied retroactively and has resulted in the removal of numerous defendants who otherwise would not have qualified for deportation.

Finally, successful completion of a deferred adjudication and dismissal of the case does not mean that a record of the proceedings will no longer exist or be accessed by an employer or other interested parties. The Department of Public Safety’s statewide computerized arrest database and the local clerk’s records will continue to exist unless the defendant qualifies for and files a petition for closing those records to the public. Not all offenses are subject to such a petition, and a defendant has no right to expunction (destruction) of the records, except as to Class C offenses.

Texas Bar Journal, March, 2006, Vol. 69, No. 3, reprinted with permission, all rights reserved.