Are Deferred Adjudication and Deferred Prosecution the Same Thing?

“Deferred Adjudication” is a type of probation where you go before the judge in the court where your criminal case is pending and you enter a plea of guilty or no contest to the charge against you but your plea is set aside and you are not adjudicated guilty. That means you are not actually found guilty and convicted at that time. In other words, the adjudication of your case is deferred, or put off. Typically, deferred adjudication is supervised. That means it is just like being on probation. You may hear the term “deferred adjudication probation.” You will very likely have a probation officer with whom you have to check in and there will be tasks you have to complete (such as community service) and fees to pay. If you complete your term of deferred adjudication successfully, the charge against you will be dismissed in the end and you will not be convicted. The length of the term of deferred adjudication varies depending on the offense. Deferred adjudication can be a great resolution of a case for those who are willing and able to comply with all of the terms.

If you violate any of the terms of the deferred adjudication, the state can file a motion to adjudicate you. This means that you will have to go back to court and the judge will determine whether or not to go forward with actually using the plea you previously entered and convicting you of the offense. If the judge adjudicates you, he or she has the discretion to sentence you to the maximum punishment allowable by law for the offense or any punishment that is within the “range of punishment” for that specific offense. The judge can actually keep you on deferred adjudication with no changes or can swing all the way up to the maximum allowable punishment. If you are on straight probation the judge cannot sentence you to more years than already established by the judgment in the original sentence.

There are some district attorneys in Texas that will offer a ten year deferred adjudication plea to a very serious criminal accusation. I believe they do that to set up some clients, because on a first degree charge the judge can then sentence someone to an extremely high number of years if they violate the conditions of their deferred adjudication probation. An attorney should always consider who the client is as an individual and make sure they are ready to do whatever it takes to complete the period of probation successfully.

By law, deferred adjudication is NOT available for any type of Driving While Intoxicated charge (DWI, DWI with Child, Felony DWI, Intoxication Assault, and Intoxication Manslaughter, etc.). Surprisingly, some very serious violent crimes do allow deferred adjudication probation. This is due to the lobbying efforts of MADD and other groups opposed to drinking and driving. In recent years there has been a push towards allowing deferred adjudication for Texas DWI cases and MADD has even joined in on that effort. There is a lot to be said for allowing it in DWI because that can provide a client the option to avoid a trial and the risk of a conviction. The judge can then order conditions of probation that lessen the chances of a future DWI arrest.

If you successfully complete a deferred adjudication, you may be eligible for a non-disclosure. This means that you may be able to get the fact of the arrest and subsequent prosecution “sealed” so that it is not available to the public. This does not happen automatically. It is a separate legal proceeding. For more information on non-disclosures, click here.

If you successfully complete a deferred adjudication but do not seek or are not eligible for a non-disclosure, your record will show that you were arrested and charged with the offense but that the charge was ultimately dismissed after you completed the deferred adjudication. The advantage to this disposition is you can forever deny being convicted of a crime on a job application. Arrested? Yes, convicted? No!

In a “Deferred Prosecution” scenario, you again enter a plea of guilty or no contest to the offense, this time on paper, rather than in front of a judge. However, the charge is dismissed at the front end and will not be reinstated unless you violate the terms of the deferred prosecution agreement. Deferred prosecution is not an official supervised probation. There is no supervision imposed, but you will likely be required to complete certain tasks. While the agreement is in effect, you are not allowed to commit any other offenses besides a Class C moving traffic violation. Again, the length of the deferred prosecution agreement will vary depending on the offense. If you violate the terms of the deferred prosecution agreement and the state can refile the charge and prosecute the case to the full extent of the law. The State takes the position that the plea that you already entered is admissible against you if you violate the agreement but I have successfully kept that from happening in the past by arguing that this was plea negotiation and am therefore not allowed into any subsequent courtroom proceedings.

Deferred prosecution is available, though uncommon, for a Driving While Intoxicated charge. It is a highly attractive resolution of a case. Our office refers to that as “an offer we can’t refuse” because you totally avoid the risk of a bad result at trial. This is a win-win situation for both the state and the citizen accused of the agreement, is honored and satisfied by the citizen.

Successful completion of a deferred prosecution agreement means that you may be eligible for an expunction, which is a complete erasure of the fact of the arrest and subsequent prosecution. Again, this does not happen automatically; it is a separate legal proceeding.

If you do not seek or are not eligible for an expunction, your record will show that you were arrested but the charge was subsequently dismissed. We always recommend getting an Expunction in these cases because you never know how an arrest record make affect a job situation in the future.


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