CRIMINAL RECORDS AND DEFERRED ADJUDICATION
What is deferred adjudication?
There are two types of community supervision or probation: straight probation and deferred adjudication. With a straight probationer, the judge or jury finds him guilty and sentences him to prison or jail, but the judge will probate his sentence for a specified number of years. This means the straight probationer will not have to serve the sentence while he’s on probation if he doesn’t violate his probation conditions. Nonetheless, a guilty verdict will be placed on his criminal record.
With a deferred adjudication probationer, he pleads guilty before the judge, but the judge does not find him guilty nor sentence him to prison or jail. Instead, the final disposition of his case is deferred or delayed pending his behavior on probation. Like a straight probationer, he must not violate his probation conditions. If he doesn’t, the court dismisses his case, and unlike a straight probationer, he’s not convicted of the offense.
Consequences of Violating Probation Conditions
The consequences of violating probation are much more onerous for deferred adjudication probationers than straight probationers. Let me explain.
If a straight probationer violates any probation condition, the probation department could file a Motion To Revoke Probation and request the judge to issue a warrant against him. If the judge issues the warrant, the government must prove the probation violations are true. If so, the judge could sentence the straight probationer to the probated sentence only, not any amount of years within the punishment range. For example, if the judge sentenced the straight probationer to five years but probated this sentence for three years, and the straight probationer violates his probation before the three years expire, the judge can only sentence him to five years.
Now let’s compare the potential consequences for deferred adjudication probationers who violate their probation. The procedures the probation department must follow to violate deferred adjudication probationers are the same as straight probationers. The probation department must file a Motion To Revoke, request the judge to issue a warrant and prove the violations are true. Remember, however, the judge does not find deferred adjudication probationers guilty nor sentence them to prison at the plea hearing. Therefore, the judge can sentence him to any amount of years within the punishment range at the probation hearing. For example, if a deferred adjudication probationer committed a third-degree felony, the judge can sentence him up to 10 years if he violates. The judge doesn’t have this discretion with straight probationers.
This difference in potential consequences gives deferred adjudication probationers huge advantages upfront but very onerous disadvantages if they violate.
Expunction and Deferred Adjudication
When a police officer arrests a person, the arrest becomes part of the person’s criminal record. The arrest remains on the person’s criminal record even if a judge places him on deferred adjudication. Significantly, completing deferred adjudication causes the judge to dismiss his case, but the judge cannot remove his case from his criminal record. Removal of a case from his record is expunction, and deferred adjudication cases are not expungable.
However, deferred adjudication probationers can file a Petition for Non-Disclosure. Most people call this getting their cases sealed. If their case is sealed, then certain private entities may not see the case on a background check. Many governmental agencies will still see the case from a background check. Moreover, given the reach and permanency of the internet, the case can likely be found even after it is sealed.
As we acknowledged above, a background search will show arrests, even for deferred adjudication probationers. Again, the good thing is deferred adjudication probationers were not convicted of the offense. They can answer “no” if a job or other type of application asks whether they were convicted of the offense. However, if the application asks if they were arrested for the offense, then a truthful answer would be “yes.” We have found that truthful answers on applications are better in the long run.
Even better is if companies “Ban The Box” completely so people who paid their debt to society cannot be punished again for the same crime.