Criminal Law: Deferred Adjudication v. Probation

In Texas, a defendant, through either an agreed plea or by a judge, may be placed on probation technically called “community supervision”) in one of two ways: through regular probation, or through deferred adjudication.

Both regular probation and deferred adjudication place similar conditions on a defendant. These conditions can include reporting to a community supervision officer on a regular basis, performing community service, taking education classes, submitting to random urinalysis testing, completing a drug and alcohol evaluation as well as many other conditions. Both programs allow a person to repay their debt to society without having to spend an extended period of time confined in jail.

These two programs offer different risks and rewards. With regular probation, a person is found guilty of the offense and sentenced to a specific amount of time in jail, but, the sentence is probated (suspended) and the person is not actually thrown in jail as long as they successfully complete the terms of their probation. The down side to “straight” probation is that a conviction will be entered on the person’s criminal record FOREVER. On the other hand, if a person fails to live up to their probation obligations and the probation is revoked, the defendant can be sent to jail only for the amount of time to which they have already been sentenced.

With deferred adjudication, a judge waits on – defers – a finding of guilt during the period of community supervision. If a defendant successfully completes probation, there will be no conviction on his or her record, and the case is dismissed. However, if the defendant fails to successfully complete probation, the judge will find the defendant guilty, and could send the defendant to jail for the maximum range of punishment for that offense. If there is no conviction, then the defendant will be entitled to have his record sealed to the public through an order of non-disclosure. It will then appear to the public like the crime NEVER happened.

For example, suppose Sam is accused of a Class A misdemeanor. A Class A misdemeanor has a maximum punishment range of one year in jail. If Sam chooses to plea guilty and is offered regular probation, he may be sentenced to 90 days in jail, probated for twelve months of probation. The misdemeanor will be a final conviction on Sam’s record even if he successfully completes the twelve months of probation. If Sam messes up and violates the terms of probation, the judge cannot sentence him to any more than the original 90 days in jail.

If Sam is offered 12 months of deferred adjudication and does everything right, he will not have a conviction on his record. However, if Sam screws up, the judge has the entire punishment range at his disposal, meaning he could put Sam in jail for a full year.

If you ever find yourself in the position of being accused of a criminal offense, consult an attorney who can fully explain all of your options to you before making a decision on how to best handle your case.

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