Deferred Adjudication

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What Is Deferred Adjudication?

Deferred adjudication is a sentencing alternative that can be given only by a judge and only after  the defendant enters a plea of guilty or nolo contendre (no contest). It can be given as part of an agreed plea (prosecutor and defense agree on a sentence) or an open plea (there is no agreement between the prosecutor and defense, and the defendant elects to enter a plea and leave sentencing up to the judge).

If the judge grants deferred adjudication, he/she must first make a finding that there is evidence to substantiate the defendant's guilt, but instead of finding the defendant guilty, the judge agrees to defer (postpone) any finding of guilt for a set period of time, and during that period the defendant will be placed under community supervision (probation). Ath the end of the set period, if the defendant has successfully completed the community supervision, the judge will enter no finding of guilt, and the defendant will have avoided any conviction in the case.

How it Works

Deferred Adjudication is like a "time out" at a critical moment in the judicial process. Under normal circumstances, after a person enters a plea of guilty (or nolo contendre) to a judge, the judge then enters a finding of guilt. First a plea of guilty, then a finding of guilty. It's like a rubber stamp, but an important one, because you're not legally guilty until a judge finds you guilty. When a judge grants deferred adjudication, she hears your plea of guilty (or nolo contendre) and then calls a "time out" right before she would normally enter a finding. She then says that she has sufficient evidence to support a finding of guilt (read: she could find you guilty if she wanted to) but instead, she will defer (postpone) any decision for a period and put you on Community Supervision. If you satisfy all of the requirements, she'll call "time in" after the specified period is over, and then close the case without finding you guilty. The "time out"  is fragile, though, and at any time if the defendant violates any of the conditions of supervision, the judge can call "time in" and find the defendant guilty (adjudicate). If this happens, the defendant will not get credit for anything that happened during the "time out."

Community Supervision

Deferred Adjudication feels a lot like Probation because it is.. During the term of community supervision, the defendant will be subject to all the same terms as someone who has been given regular post-conviction Probation. This includes reporting to a probation officer, drug testing, Community Service, and paying fines and fees. The revocation process is essentially the same, except that it is called "Adjudication" and is begun with a Motion to Adjudicate.

Benefit to Criminal Record

The big draw of deferred adjudication is that it does not result in a conviction. This doesn't mean that if you successfully complete deferred adjudication, the arrest "comes off your record" as is often said. The arrest is still on your record, but the disposition is "No Finding of Guilt." For some people that's good enough, but in the age of information, prospective employers, landlords, and even creditors will be able to see the record, and it is more than likely that they either won't read carefully enough to see that there was no conviction, or they won't care. For this reason, after a person completes deferred adjudication, they will want to look into an order of Nondisclosure. Many people who have successfully completed deferred adjudication are entitled to petition the court for an order of nondisclosure and have all record of the case sealed from the public.

Defendants who are granted deferred adjudication in a class C misdemeanor are entitled to an expunction upon successful completion. Expunction is even better than Nondisclosure.

Who is Excluded from Deferred Adjudication?

The following offenses can not be given Deferred Adjudication:

Statute

Code of Criminal Procedure 42.21 Sec. 5.

(a) Except as provided by Subsection (d) of this section, when in the judge's opinion the best interest of society and the defendant will be served, the judge may, after receiving a plea of guilty or plea of nolo contendere, hearing the evidence, and finding that it substantiates the defendant's guilt, defer further proceedings without entering an adjudication of guilt, and place the defendant on community supervision. A judge may place on community supervision under this section a defendant charged with an offense under Section 21.11, 22.011, or 22.021, Penal Code, regardless of the age of the victim, or a defendant charged with a felony described by Section 13B(b) of this article, only if the judge makes a finding in open court that placing the defendant on community supervision is in the best interest of the victim. The failure of the judge to find that deferred adjudication is in the best interest of the victim is not grounds for the defendant to set aside the plea, deferred adjudication, or any subsequent conviction or sentence. After placing the defendant on community supervision under this section, the judge shall inform the defendant orally or in writing of the possible consequences under Subsection (b) of this section of a violation of community supervision. If the information is provided orally, the judge must record and maintain the judge's statement to the defendant. The failure of a judge to inform a defendant of possible consequences under Subsection (b) of this section is not a ground for reversal unless the defendant shows that he was harmed by the failure of the judge to provide the information. In a felony case, the period of community supervision may not exceed 10 years. For a defendant charged with a felony under Section 21.11, 22.011, or 22.021, Penal Code, regardless of the age of the victim, and for a defendant charged with a felony described by Section 13B(b) of this article, the period of community supervision may not be less than five years. In a misdemeanor case, the period of community supervision may not exceed two years. A judge may increase the maximum period of community supervision in the manner provided by Section 22(c) or 22A of this article. The judge may impose a fine applicable to the offense and require any reasonable conditions of community supervision, including mental health treatment under Section 11(d) of this article, that a judge could impose on a defendant placed on community supervision for a conviction that was probated and suspended, including confinement. The provisions of Section 15 of this article specifying whether a defendant 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 a defendant placed on community supervision after pleading guilty or nolo contendere to a state jail felony. However, upon written motion of the defendant 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.
(b) On violation of a condition of community supervision imposed under Subsection (a) of this section, the defendant may be arrested and detained as provided in Section 21 of this article. The defendant 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. This determination is reviewable in the same manner as a revocation hearing conducted under Section 21 of this article in a case in which an adjudication of guilt had not been deferred. After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of community supervision, and defendant's appeal continue as if the adjudication of guilt had not been deferred. A court assessing punishment after an adjudication of guilt of a defendant charged with a state jail felony may suspend the imposition of the sentence and place the defendant on community supervision or may order the sentence to be executed, regardless of whether the defendant has previously been convicted of a felony.
(c) On expiration of a community supervision period imposed under Subsection (a) of this section, if the judge has not proceeded to adjudication of guilt, the judge shall dismiss the proceedings against the defendant and discharge him. The judge may dismiss the proceedings and discharge a defendant, other than a defendant charged with an offense requiring the defendant to register as a sex offender under Chapter 62, as added by Chapter 668, Acts of the 75th Legislature, Regular Session, 1997, prior to the expiration of the term of community supervision if in the judge's opinion the best interest of society and the defendant will be served. The judge may not dismiss the proceedings and discharge a defendant charged with an offense requiring the defendant to register under Chapter 62, as added by Chapter 668, Acts of the 75th Legislature, Regular Session, 1997. Except as provided by Section 12.42(g), Penal Code, a 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 defendant who receives a dismissal and discharge under this section:
     (1) upon conviction of a subsequent offense, the fact that the defendant 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;
     (2) if the defendant is an applicant for a license or is a licensee under Chapter 42, Human Resources Code, the Texas Department of Human Services may consider the fact that the defendant 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
     (3) if the defendant is a person who has applied for registration to provide mental health or medical services for the rehabilitation of sex offenders, the Interagency Council on Sex Offender Treatment may consider the fact that the defendant has received community supervision under this section in issuing, renewing, denying, or revoking a license or registration issued by that council.
(d) In all other cases the judge may grant deferred adjudication unless:
     (1) the defendant is charged with an offense:
          (A) under Sections 49.04-49.08, Penal Code; or
          (B) for which punishment may be increased under Section 481.134(c), (d), (e), or (f), Health and Safety Code, if it is shown that the defendant has been previously convicted of an offense for which punishment was increased under any one of those subsections;
     (2) the defendant:
          (A) is charged with an offense under Section 21.11, 22.011, or 22.021, Penal Code, regardless of the age of the victim, or a felony described by Section 13B(b) of this article; and
          (B) has previously been placed on community supervision for any offense under Paragraph (A) of this subdivision; or
     (3) the defendant is charged with an offense under:
          (A) Section 21.02, Penal Code; or
          (B) Section 22.021, Penal Code, that is punishable under Subsection (f) of that section or under Section 12.42(c)(3), Penal Code.
(e) If a judge places on community supervision under this section a defendant charged with an offense under Section 20.02, 20.03, or 20.04, Penal Code, 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.
(f) A record in the custody of the court clerk regarding a case in which a person is granted deferred adjudication is not confidential.
(g) If a judge places on community supervision under this section a defendant charged with an offense under Section 21.11, 22.011, 22.021, or 43. 25, Penal Code, 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:
     (1) at the time of the offense, the defendant was younger than 19 years of age and the victim or intended victim was at least 13 years of age; and
     (2) the charge to which the plea is entered under this section is based solely on the ages of the defendant and the victim or intended victim at the time of the offense.
(h) A court retains jurisdiction to hold a hearing under Subsection (b) and to proceed with an adjudication of guilt, regardless of whether the period of community supervision imposed on the defendant 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 defendant.
(i) If a judge places on community supervision under this section a defendant 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:
     (1) 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
     (2) 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).
(j) That part of the papers in the case containing an affirmative finding under Subsection (i):
     (1) must include specific information identifying the victim, as available;
     (2) may not include information identifying the victim's location; and
     (3) 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.


Notes

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