The Question of Deferred Adjudication Probation

There has been a lot of talk recently about a form of probation known as deferred adjudication. We have gotten a number of inquiries here at EverythingNac about it. Who got it? Who gave it? How many were given? One of the most important questions is; what is it? Followed by, who cares?

Too many times, people who either don’t know, or don’t understand the workings of the criminal justice system get it wrong. Here at EverythingNac our mission is to give the public the facts and information they need to make informed decisions and develop intelligent opinions.

So let’s talk about deferred adjudication.

Before that, let’s cover some basic criminal procedure. Most times when a judge grants probation in a criminal case, it results in a conviction but saves a defendant from going to jail. The way it works; a defendant pleads guilty, based on that plea the judge finds them guilty and sentences them to jail time. In a probation case, instead of sending a defendant to jail, the judge places them on probation, or community supervision for a set amount of time. While on probation, the defendant will have to live under the judge’s rules, called terms and conditions. More on that later…

Article 42.12, Section 5 of the Texas Code of Criminal Procedure says a judge, in their discretion, may choose to grant a special kind of probation to a defendant: Deferred adjudication.

In limited circumstances, if the judge feels the best interest of both society and the defendant would be better served, after a defendant pleads guilty, the judge may defer, or put off, the finding of guilt. So a defendant accepts responsibility for the crime, gets placed on community supervision just like in regular probation, but they don’t have a final conviction on their record.

What does that do?

Well, in today’s age of information, just about anybody with a couple dollars and an active curiosity can run down a criminal history on someone. (Search engines like PublicData.com, etc… make it as simple as paying a fee and entering a name). So a conviction is a very important life event. The first two questions asked on most job applications are what? Have you ever been convicted of a felony? Or, have you ever been convicted of any level crime of moral turpitude? (Those include things like: theft, credit card abuse; burglary, robbery, just to name a few. Crimes that mean you can’t be trusted…).

So keeping a conviction off of someone’s criminal record is very important. Especially in a college community where many first time offenders are facing the possibility of a lifetime payment for a momentary lapse in judgment that results in a criminal charge.

How does it come about?

In the course of talking about a case, the prosecutor and defense lawyer are going to cover a lot of ground to try and resolve a pending matter. The nature of the crime, a defendant’s criminal history and what does the victim want to happen from the case all are in the mix. Many times a victims desires are the prosecutor’s guide. Say a business has lost money in a theft, they may just want the money back. In that case, deferred adjudication allows a defendant to pay back the damage (restitution) but not have a conviction on their record.

From a prosecutor’s point of view, to consider deferred, they want to know; is the defendant someone who’s never been in trouble before and just made a bad judgment call? Were they hanging out with the wrong crowd? Was it a wrong place at the wrong time situation? Any one of those may qualify a defendant to be considered for deferred. Or, is the defendant someone who has been in the system many times before with a history of hurting people that needs as much time in jail as possible and deferred is not an option.

From the defense side, the focus is on the defendant’s future and what impact a conviction might have. Can they find a job? Are they disqualified from military service? Will the defendant be able to pursue the professional goals their educational path offers?

The good and bad of deferred adjudication.

Obviously, keeping a conviction off of the criminal history is a huge benefit to a defendant. But it comes at a cost. As with everything in the world, if there’s an upside, a downside must be lurking somewhere. That down side to deferred adjudication is since the judge has not sentenced the defendant, if the defendant messes up their probation, they are looking at the full range of punishment for the crime if revoked off probation. In felony cases, that could be any where from six months in a state jail facility all the way up to 99 years or life in the Texas Department of Criminal Justice – Institutional Division (also known as TDC, or the state penitentiary system).

Many times a prosecutor will deliberately offer the defendant deferred adjudication for this reason. Say it’s a case with a child victim and the family does not want to put the child through the stress of a trial. The prosecutor may have to dismiss the case if forced to trial. Instead, they can opt for deferred as a compromise. If the defendant complies with the probation and does well, it’s a positive outcome all around. But, if the defendant messes up, then the full weight of the original offense can be imposed without the victim ever having to testify. The witnesses of the underlying case aren’t needed in a revocation hearing since the defendant has already plead guilty, the only question for a judge is; did the defendant violate the terms and conditions of their probation. The old saying for this is “the defendant holds the key to their own cell…”

Not a walk in the park.

Probation is not an easy thing to complete. The terms and conditions of probation can fill pages in a probation order. There’s the financial impact; hefty fines, court costs, restitution (paying back damages). In addition, there are monthly supervision fees of probation, drug test fees and a whole host of other fees that can add up to a lot in a short order of time.

Then there are the numerous conditions which include basic things like, reporting monthly, performing community service (like the people you see picking up litter on the side of the road), not committing new offenses, etc… But things can start to move fast when you add conditions like mandatory counseling, curfews, additional reporting requirements and the like.

What happens if a defendant violates probation?

Non-compliance on any of these can mean a defendant is going to be arrested on a motion to revoke probation and brought back into court. Once there, the defendant may have a hearing where the state has to prove the defendant violated their probation. There is no right to a jury for that hearing, only the judge will decide if the defendant lived up to their obligations. Another huge difference between a revocation hearing and a new criminal charge is the burden of proof. In a criminal case, the state has to prove the allegations beyond a reasonable doubt, a very high standard. However, in a revocation of probation, since the defendant has already plead guilty and been given a “second chance”, the burden of proving probation violations gets lowered to the civil burden of proof, preponderance of evidence. This means the state only need show it “more likely than not” the defendant violated probation to meet their burden. Usually, all that is required is for a supervising probation officer to come in to court and testify how the defendant did not comply with the terms and conditions of their probation. If the state meets that burden, and they usually do, the judge may revoke the defendant’s probation, find them guilty and sentence them to anywhere in the full range of punishment for the crime they now have been convicted of.

Short Answer

While lip service can be given to how many deferred adjudications are offered in a period of time, with a questioning air of justification, that is a disservice to the system. There is a lot more to it than that as shown above. Also, without some context of what the numbers mean, they are meaningless. Deferred adjudication is a limited application of community supervision where, in the best interest of society, a defendant is held accountable for their crime but without a lifetime scar on their criminal record. It is a necessary tool to help manage busy criminal dockets and seek the legitimate ends of justice.