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A Misconception About Deferred Adjudication in New Braunfels

The most common misconception about deferred adjudication in New Braunfels or Central Texas is that successful completion removes the criminal charge from one’s record. This belief is not valid.

Merely completing deferred adjudication does not remove it from your record. Instead, one must file a petition for nondisclosure to seal the record. Some offenses are not even eligible for nondisclosure. Additionally, with a felony charge, one must wait five years from the day one finishes the probation before filing for nondisclosure.

Deferred Adjudication vs. Regular Probation in New Braunfels

First, let’s talk about some basics:

In Texas, probation is called community supervision. There are two types of community supervision in our State;

  1. deferred adjudication, and
  2.  regular community supervision

Community supervision means a defendant is allowed to stay in the community and be supervised by the court. The supervision term can be up to two years for a misdemeanor and ten years for a felony.

The judge will impose requirements on community supervision. For example, a defendant may be drug tested, employed, and have to do community service.

The most crucial requirement is not to pick up another offense. Suppose one violates the terms of community supervision. In that case, 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 community supervision.

Deferred Adjudication in New Braunfels

Often, prosecutors offer first-time offenders deferred adjudication. It is typically a better deal than regular community supervision because if a person finishes the term successfully, they do not have a conviction. A conviction is a legal term that means a finding of guilt.

A nondisclosure can seal a completed deferred sentence from public view.

A jury cannot grant deferred adjudication. So once a defendant elects to go to trial, deferred adjudication is not a possible punishment.

Suppose a person on deferred adjudication does not comply with the conditions of his community supervision. In that case, the prosecutor may ask the judge to “adjudicate” (i.e., find guilty) the person and put them in jail or prison. If the judge decides to adjudicate the sentence, the judge may impose any sentence within the applicable range. 

Example: Say the judge puts Jack on nine months deferred for assaulting someone at a bar. Assault, in this case, 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. The judge can revoke his community supervision after a hearing and sentence him to up to one year (the statutory maximum for assault) in jail.

Regular Community Supervision or “Regular Probation” in New Braunfels

There are three significant differences between deferred adjudication and regular community supervision:

1. 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 a judge revokes regular community supervision, the maximum punishment is usually not the statutory maximum.

When someone receives regular community supervision, the judge sets the maximum prison sentence at the time of the plea. For example, on robbery, a second-degree felony punishable by two to 20 years in prison, the deal might be five years, 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 State dismisses the charges.

However, a successful deferred will still impact a job search and could affect future car lease deals and used cars you buy. It can sometimes disqualify a person from owning a gun or getting a professional license. If a person is an immigrant, it can impact applying for citizenship. Deferred is considered a conviction under federal law, which governs immigration and most gun laws.

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 courthouse in every county in Texas.

The critical thing to remember about regular community supervision is that a defendant can never seal it with nondisclosure or expunction. This fact distinguishes it from deferred adjudication.

Ways to End Community Supervision

There are two ways to end regular community supervision. First is how most end: the term expires, and the defendant is released.

However, a special provision in the Texas Code of Criminal Procedure allows the charges to be “dismissed.” After the defendant has completed a third 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 finishes the probation term.

While the person has no final felony conviction, he cannot have the offense expunged or sealed. So even if the State dismissed the charges, employers could see it. Furthermore, while a person who finishes regular community supervision can apply for a pardon from the Governor of Texas, a person whose community supervision is set aside cannot.

So a person whose indictment was dismissed cannot try to get the record pardoned, while the person who finishes the term can.

A Final Problem

Central Texas counties and the State often sell criminal records 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.

Here’s 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.

Deferred Adjudication Warnings

Many people have misconceptions about deferred adjudication probation in Texas. The most common misconception is that the offense is erased from your record if you complete the deferred probation period. This belief is false.

The Truth About Deferred Adjudication

A deferred sentence will still be on your criminal history after you complete the probation period. To erase the record and be able to deny the arrest, you must file a petition for nondisclosure.

Furthermore, some deferred sentences are ineligible for nondisclosure. For example, any crime involving family violence is ineligible for nondisclosure. So, take deferred adjudication for a Class A assault that involves family violence. That sentence will stay on your criminal history forever.

Finally, some deferred sentences require a waiting period before the defendant can file a petition for nondisclosure. For example, some misdemeanors like assault or unlawfully carrying a weapon require a two-year waiting period before the defendant can file a petition. You must wait two years after completing your deferred probation before attempting to clear your record. For felonies, the waiting period is five years.

Watch Out

Many lawyers convince clients to take deferred sentences by arguing that the record will eventually be sealed. Remember that some offenses can never be sealed, and some require a waiting period. While deferred adjudication is often a good deal, sometimes you are better off fighting the charge and proving your innocence.

Contact me for a free case review if you are charged with a crime in Comal County or other Central Texas counties such as Hays County, Guadalupe County, Travis County, or Bexar County.