Deferred adjudication is a way to resolve a criminal case in Texas. It involves the defendant pleading guilty or no contest to the charges. The judge then defers, or delays, the verdict. The defendant gets a chance to complete a sentence of probation. If successful, the charges are dismissed. The defendant can then work to seal their criminal record.
If probation is violated, though, the guilty plea is entered. The case goes to sentencing. The defendant will likely go to jail.
1. What is deferred adjudication in Texas?
Deferred adjudication is one way to end a criminal case. It uses probation, rather than a jail sentence. It gives defendants a way to avoid having a criminal record. In Texas, though, they have to plead guilty to the crime to be eligible. They may also have to wait for several years to seal their criminal record.
If the defendant completes his or her probation sentence, the case is dismissed.
If he or she violates the terms of probation, the guilty plea is entered.
Deferred adjudication is an attractive offer for people who have never committed a crime, before. It can let them:
- avoid jail, and
- keep their criminal record clean.
However, deferred adjudication can be risky. Defendants have to plead guilty to get it. They then have to complete a sentence of probation. If they violate probation – even if the violation is minor – it will be revoked. The guilty plea is then entered and the sentence handed down. They get no credit for the time they spent on probation.
In essence, defendants give up their right to defend themselves in order to get deferred adjudication.
Deferred adjudication is Texas’ version of what many other states call diversion.
2. What is probation?
How probation works is central to deferred adjudication.
Probation is an alternative to jail. It is also known as community supervision. Rather than being monitored in jail, probationers are supervised while living in the community.
That supervision is very close, though. The terms of probation depend on the criminal conviction. However, common ones include:
- not committing another crime while on probation,
- weekly or monthly meetings with a probation officer,
- not leaving the county without prior approval from a probation officer,
- covering the costs of the probation,
- paying court costs,
- making restitution payments to the victims of the crime, and
- performing community service.
All of the terms of probation have to be obeyed under deferred adjudication. One mistake can lead to a probation violation. If a judge decides that there was a probation violation, he or she can revoke it. Once probation is revoked, the guilty plea is entered.
3. How does probation get revoked?
Probation can be revoked any time one of its terms is broken. The term can be broken intentionally or accidentally. In Texas, it does not have to be an important rule for it to lead to a revocation.
If law enforcement thinks that probation has been violated, the prosecutor can file a motion to adjudicate probation. The court will then issue an arrest warrant. The probationer will be taken into custody. He or she may have to wait in county jail. A revocation hearing will be scheduled.
At the revocation hearing, the prosecutor has to show that probation was violated. They can prove this with only a preponderance of the evidence. Defendants can challenge the prosecutor’s evidence at the hearing.
If the judge decides that there was a probation violation, he or she can either:
- edit the terms of probation to make them even stricter, or
- revoke probation entirely.
4. How does the criminal record get sealed?
A successful deferred adjudication can remove the criminal case from the defendant’s record. However, removing the case – or sealing it – is not automatic. In Texas, defendants have to file a motion of non-disclosure.
These motions seal the defendant’s criminal record from public view. Technically, the record still exists. However, no one in the public can find it. Most background checks will not detect it. Only certain government agencies will see it. People do not have to disclose a criminal conviction that has been sealed.
5. Can a non-disclosure motion be filed immediately?
When the non-disclosure motion can be filed depends on the type of crime it seals.
Misdemeanors can be sealed the quickest. The non-disclosure motion can usually be filed immediately. However, some misdemeanors require 2 years to pass before the motion is filed. These include crimes in the following chapters of the Penal Code:
- 20 (like unlawful restraint (Penal Code 20.02)),
- 21 (like public lewdness (Penal Code 21.07)),
- 22 (like assault (Penal Code 22.01)),
- 25 (like child enticement (Penal Code 25.04)),
- 42 (like disorderly conduct (Penal Code 42.01)),
- 43 (like prostitution (Penal Code 43.02)), and
- 46 (like unlawfully carrying a weapon (Penal Code 46.02)).1
Felonies typically require 5 years to pass.
During this period of time, the defendant cannot get convicted of another crime. They also cannot receive another deferred adjudication. If either one of these things happens, a non-disclosure motion is no longer an option.
6. Which offenses cannot be sealed?
Some offenses cannot be sealed with a motion of non-disclosure. These include:
- Stalking (Penal Code 42.072),
- Repeated violations of restraining orders (Penal Code 25.072),
- Aggravated kidnapping (Penal Code 20.04), and
- Any offense requiring registration as a sex offender.2
- Texas Government Code § 411.0725(e)(2).
- Texas Government Code § 411.074.