Regardless of whether you are charged with a felony or misdemeanor in Texas, there is an entire range of punishment you may face. The are many factors that influence the outcome of a case, including the severity of the crime, whether certain punishment is mandatory, and mitigating or aggravating circumstances. In addition, an important factor is your criminal history. The question of whether a particular offense merits (or legally requires) punishment involving “straight probation,” deferred adjudication, county jail time, penitentiary time or some combination thereof is often a legally and factually complex question. You should never attempt to predict the likely outcome of a particular case until you have discussed it in detail with a qualified criminal defense lawyer who has become very familiar with the facts of the case and the facts and circumstances of the accused person’s life.
Nevertheless, we will explain in general terms the legal significance of the different types of punishments under Texas law, and some of the factors that influence the punishment.
There are also different arrangements for probation, which Texas law terms “community supervision.” You may be generally familiar with probation as a way to avoid jail time, and you may know that there are certain terms you must comply with during the probation period. However, if you are facing charges, you need to have a deeper understanding of the two primary types of community service, especially since there can be serious consequences for probation violations in Texas. An overview of deferred adjudication and straight probation should be helpful.
Deferred Adjudication in Texas
With this type of community supervision, you are on probation for a designated period of time after pleading guilty to the charges. However, the judge does not officially enter an order of guilt at these proceedings; your guilty verdict is “deferred,” or put off instead. Under the circumstances of a deferred adjudication, admitting guilty is not considered a conviction. Your criminal record will show an arrest for the underlying offense, as well as the deferred adjudication resolution to your case.
When you are under deferred adjudication status, there will be certain terms of probation. You must report to the proper authorities, must avoid an additional arrest, and comply with other conditions. If you complete the terms of your deferred adjudication within the time required by the court order, there is no finding of guilt entered. If you violate the terms of your probation, you return to court, where the judge may sentence you up to the full punishment for the underlying crime. Since you already pled guilty, you would no longer be entitled to a jury trial, however you are legally entitled to a hearing before a judge to contest any allegation that you violated the terms of your community supervision. At that hearing, the State would bear the legal burden of proving you violated any term or condition of your community supervision by a preponderance of the evidence.
In a deferred adjudication supervision situation, there is no minimum amount of time you must be on deferred adjudication before you may seek early termination of supervision. In addition, in most cases, you may seal the record if you successfully completed deferred adjudication. The technical legal term for a court order sealing the record is an Order of Nondisclosure. However, there are notable exceptions to the general rule that you may seal the record after deferred and different offenses have different waiting periods. This is an area of law that is a bit complex and one should consult an attorney prior to the decision to be placed on deferred adjudication.
Finally, deferred adjudication on Class C offenses will allow you to expunge the record, not merely seal it. However, this option is available only for Class C deferred adjudication. Deferred on a Class B offense or higher-level offense will result in eligibility to seal the record only.
Like deferred adjudication, straight probation requires to you plead guilty; however, the difference with this arrangement is that it is considered a conviction for purposes of your punishment and criminal record. A judge will enter your plea of guilty and sentence you to a designated period of incarceration, and then suspend the sentence of the agreed upon probationary term. For example, the order for straight probation may read “180 days in prison, probated for 12 months.” You still avoid incarceration because the court holds off on your jail sentence and places you on community supervision.
If you comply with the terms of your straight probation, you will not serve time in jail. Unlike deferred adjudication, a violation of your probation conditions means that you could be incarcerated only for the time period indicated in the order. In the above example, you could not be imprisoned for more than 180 days.
Still, the most severe consequence of this process is the conviction itself. You cannot petition for non-disclosure as you can for deferred adjudication.
Considerations with Specific Offenses
You should note that there are certain restrictions on what a prosecutor can agree to or what a judge can order for probation. If you are charged with a “3g” offense, termed as such under an older version of Texas Code of Criminal Procedure, you may be ineligible for straight probation from a judge, and must request it from a jury. However, if you also have a previous felony conviction you may also be ineligible for probation from a jury. If you are a person who has been charged with a 3g offense, and you have a previous felony conviction, you are ineligible by law to receive straight probation. You must negotiate a deferred or be sentenced to prison if convicted. This is a very complex area of the law. Please consult a qualified lawyer if you or a loved one are this situation.
The 3g crimes are quite serious, including:
- Aggravated offenses that involve use of a weapon, such as kidnapping, sexual assault or robbery;
- Certain types of drug crimes;
- Assault on an elderly person, child, or disabled individual; and,
- Other offenses as designated by law.
Consult with a Skilled Collin County Criminal Defense Attorney Today
This summary of Texas law on deferred adjudication or straight probation may be helpful, but it is no replacement for having a knowledgeable lawyer on your side. Not only are the eligibility rules complex, but there are harsh sanctions for violations of either type of probation.
Our Collin County criminal lawyers at Rosenthal & Wadas can explain your legal options regarding deferred adjudication or straight probation, and assist you with the process. Contact us at 972-369-0577 or check us out online to schedule a consultation with one of our criminal defense attorneys.