– by John Armstrong
There is a lot of confusion about the terms “Deferred Adjudication” and “Deferred Disposition” as well as “Deferred Prosecution” and “Pre-Trial Intervention” particularly in and around Central Texas, particularly in Williamson and Travis County.
What is a Deferred Disposition?
Deferred Disposition is not a formal reporting form of probation. It only pertains to Class C misdemeanors that are usually only found in City Municipal Courts or Justice of the Peace Courts. There are no probation officers or monthly meetings involved in this method. Typically, you might pay an administrative fee with court costs, might take some kind of class, and stay out of trouble, i.e., do not get any tickets, or get arrested, etc., usually for ninety (90) to one hundred eighty (180) days.
At the end of the deferred period, you will turn in class certificates. Then a clerk will follow up by checking the file to ensure that you paid the fees, completed the class (es), and they will run a criminal background to confirm that you were not arrested on some other charge during the deferral period. Then the case will be dismissed.
If you successfully completed the Deferred Disposition, then you are specifically entitled to seek an expunction of the record.
What is a Deferred Adjudication?
Deferred Adjudication is a form of probation that applies to cases ranging from Class B misdemeanors up to felonies. As long as the defendant completes the requirements of the deferred probation successfully, the court never finds the defendant GUILTY of the crime. In fact the defendant’s criminal record indicates a dismissal of the charge. When the plea is going to occur in Court the Judge usually states, “Based on your plea of Guilty or Nolo Contendere (no contest), I find that there is enough evidence to find you guilty, but I will “defer” a finding of Guilt at this time, and in the best interest of justice I will place on probation at this time, and if you successfully complete this probation your case will be dismissed.”
In other words, to “defer,” means to put off or postpone a finding of guilt. Adjudication in the criminal law context means to find the individual guilty. Consequently, when the judge places an individual on deferred adjudication, he has postponed or put off a finding of guilt. If the defendant successfully completes the requirements or conditions of probation, the Judge will never find the person guilty.
Unlike Deferred Disposition, Deferred Adjudication means a real and formal probation including monthly visits to your probation officer, community service determined by classification of the offense, urinalysis for drugs and alcohol as determined by the probation officer, payment of monthly supervisory(probation) fees (usually about $65.00), payment of fines, and court costs.
As with regular probation, a Defendant who has completed all the conditions of their Deferred Adjudication early may file a petition with the Court to early terminate the Deferred Adjudication.
The major distinction with Deferred Adjudication is that it only applies to Class B offenses or higher, including Class A misdemeanors and felony offenses. Additionally, upon completion of a Deferred Adjudication, the criminal history record shows the case is dismissed. Unfortunately, the case is not eligible for expunction. However, most offenses are eligible for a Motion of Non-Disclosure, or having the record sealed. It cannot be used as a prior conviction to increase the punishment, should the individual be arrested for another or same offense.
What is Deferred Prosecution?
A Deferred Prosecution is a contractual agreement between the prosecutor and the defendant. The prosecutor offers to dismiss the charge against a defendant in return for defendant’s signature to a contract that can last from one (1) year to two (2) years stating that the defendant will take certain classes, do counseling if necessary, do community service hours, agree to drug and/or alcohol testing and communicate electronically (email) with someone in the prosecutor’s office. As long as the defendant does everything they are supposed (agreed) to do and on time (by the agreed deadline), the prosecutor will not re-file the case. However, if the Defendant does not meet any one (1) or more of the conditions by the specified deadline or gets arrested again during the deferral period, the prosecutor will re-file the original charge and use the signed confession in the contract as evidence to support the conviction. However, if the Defendant meets all of the conditions during the deferred contractual period, the case will only look as though the case was not prosecuted and at the end of the “Statute of Limitations” period the defendant can seek an “Expunction”of the record.
Deferred Prosecution Agreements are used usually by the County Attorney’s Office in Travis County, Texas. Typically, they are only offered to Defendants in misdemeanor case(s) when the defendant does not have any prior convictions; there are no serious allegations of violence; and it is acceptable to the alleged victim if there is one in the case. On occasion, the District Attorney’s Office will agree to a Deferred Prosecution Agreement with a first-time Defendant(s) facing third degree or state jail felony charges such as theft, forgery, or evading arrest again when the defendant does not have any prior convictions; there are no serious allegations of violence; and it is acceptable to the alleged victim if there is one in the case.
A Deferred Prosecution Agreement is not as good as a straight dismissal of the case, but it is a better deal than a Deferred Adjudication.
What is Pre-Trial Intervention? (Williamson County and Bell County examples cited)
Pre-Trial Intervention is another form of a contractual agreement similar to Deferred Prosecution. However, the prosecutor offers to dismiss the charge against a defendant upon completion of the contract. The defendant must complete an application and in the process admit (confess) their guilt in the case, and basically state why they want to apply for the program. The application is located in the Williamson County Attorney’s Office and upon completion the form is to be turned into the prosecutor handling the case. The contracts usually have application deadlines of ninety (90) days once the case is filed.Like Deferred Prosecution, they are only offered to Defendants in misdemeanor case(s) when the defendant does not have any prior conviction(s); in DWI cases if there is not a breath test score result or blood test result over a .15/EOTH; there are no serious allegations of violence; and it is acceptable to the alleged victim if there is one in the case.
The contract last for approximately six (6) months in Williamson County and up to one (1) year in Bell County. Again, the contract requires the Defendant to admit (confess)their guilt; states that the defendant will take certain classes, do community service hours weekly, agree to drug and/or alcohol testing; and communicate electronically (email) with someone in the probation office by the 15th of each month. In DWI cases the Defendant will have to install an interlock device with a camera in their car, and if they do not have a car they are required to use a portable device with a camera. As long as the defendant does everything they are supposed (agreed) to do, and on time (by the agreed deadlines) the prosecutor will dismiss the case. However, if the Defendant does not meet any one (1) or more of the conditions by the specified deadline(s) or gets arrested again during the deferral period, the prosecutor will prosecute the original charge and use the signed confession in the contract as evidence to support the conviction. However, if the Defendant meets all of the conditions during the deferred contractual period, the case will only look as though the case was not prosecuted.
Whether a Defendant can file for an Expunction will depend on the type of case the defendant was charged with and in which county the defendant is charged. For example in Williamson County, if the Defendant is originally charged with a DWI, the Defendant is not eligible for an Expunction at all. With regards to other charges in Williamson County, at the end of the “Statute of Limitations” period, the defendant can seek an“Expunction” of the record. On the other hand, upon successful completion of the Pre-Trial Intervention in Bell County, the charge(s) will be dismissed and at the end of the “Statute of Limitations” period, the defendant can seek an “Expunction” of the record, including a DWI, as of the date of this paper. There are options available to avoid a criminal conviction that do not require you to win a jury trial. Our lawyers will negotiate for the very best result for your specific case. You can reach us in the Austin area at 512-278-0935 or in San Antonio at 210-394-3833. Save these numbers to your cell phone so you are always ready to protect your legal rights. And remember, Busted? Call the Dudes, Attorneys Sean R. Simpson and David P. Lamb.