Written by attorney Michael Lai Howard

Deferred Adjudication Probation: An Overview of Deferred Probation in Texas

What is deferred adjudication probation (also called deferred probation or non-adjudicated probation) and how does it work in Texas? How does deferred differ from regular probation? What about your record - can you get a deferred case removed from your record or get your record sealed? This brief legal guide aims to answer all these questions and give you a basic understanding of deferred adjudication probation in Texas.

What is Deferred?

Deferred probation is a special type of probation where the court finds that there is enough evidence to find you guilty, but holds off on, or defers finding you guilty and places you on a period of probation. If you successfully complete that period of probation, the case is then dismissed and you walk away without a conviction on your record for that case.

How does Deferred Differ From Regular Probation?

In regular probation, once you enter your plea of guilty or nolo contendre (no contest), the court finds you guilty. At that point the case is a conviction and will go down as a conviction on your record. Absent a pardon (or in limited circumstances getting the judgment set aside), a conviction isn't coming off your record. Deferred probation avoids this by giving you the chance to successfully complete probation and avoid the conviction on your record.

Once you're on probation, the day-to-day is the same on deferred and regular probation. If the probation is supervised, you report to a probation officer, you pay fines/fees, you do community service and any classes that are required of you, et cetera.

Aside from the deferred finding of guilt at the outset of probation, the other main difference is in what happens if your probation is revoked. In regular probation you are sentenced to a jail/prison term and that sentence is then suspended. If you then violate probation and the court revokes you, the judge can sentence you to any term in jail/prison up to the original sentence. So if you were sentenced to 6 months in jail on a Class A misdemeanor and that term was probated for 1 year of probation, you could do up to 6 months in jail if you were revoked. In a deferred probation, if you are revoked the only limit to your sentence is the punishment range for the crime. So if you're on deferred probation for that same Class A misdemeanor, you could get up to 2 years in jail.

Deferred thus carries a substantial risk alongside the substantial benefit of avoiding a conviction. You should weigh your options carefully and only take deferred if you're serious about completing probation successfully.

What about Your Record?

A successfully completed deferred probation case cannot be expunged (removed) from your record. You can, however, ask the court to order that it not be disclosed to the public (sealed); this is called "nondisclosure." This doesn't happen automatically -- at the end of your deferred probation it remains on your record (depending on how your county/district clerk handles it's records, people can see either that the case was dismissed or that you got deferred and completed probation). In order to get the nondisclosure you have to file a petition for nondisclosure in the county where your original case was filed.

Deferred probation is an excellent tool to avoid a conviction in a criminal case when you cannot get a not guilty verdict or a straight dismissal. Consider the pros and cons and consult a knowledgeable criminal defense attorney in your area.

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