Former: District Judge l Federal Prosecutor l Chief Felony Prosecutor
What is the difference between (regular) probation and deferred adjudication?
There are two kinds of probation in Texas: (1)"regular" probation, and (2) deferred adjudication probation. The term "probation" in the
Texas Code of Criminal Procedure has now been replaced with the phrase "community supervision". (In spite of this, I use the terms "probation" and the
"community supervison" interchangeably). There are many similarities and a number of differences between regular probation (RP) and deferred adjudication (DA)
probation. As a general rule, DA is considered by most attorneys to be advantageous--as compared to RP--for the defendant.
First, the similarities. RP and DA both require reporting to a probation officer (usually once per month), paying a monthly fee ($60 in Travis County), many standard
conditions (no alcohol or drugs; work; support your dependants; do not violate the law; etc.) and several tailored conditions, such as drug/alcohol/family violence counseling.
RP and DA both subject the probationer to jail or prison--depending on whether the probation is a misdemeanor or felony--if the probationer violates a condition of probation.
The details of the probation--such as the offense probated and the length of probation will be posted on the Texas Department of Public Safety's (DPS) online "conviction" database
as a result of being placed on either type of probation. (The DPS "conviction" database is a misnomer, since it publishes DA data even though no conviction has occurred. See below.)
Many people get confused about this fact and mistakenly believe that a DA probation will not appear on the probationer's criminal record.
What are the differences? As a technical legal matter, DA is not a "conviction". Before a person is placed on DA, the person pleads "guilty" or "no contest".
The Judge accepts the plea but "defers" a finding of guilt and places the person on DA. A finding of guilt is never made unless the person violates DA and the Judge, after a hearing,
adjudicates (ie. makes a finding of guilt) the case. The original idea behind DA was that it allowed probationers on DA to be able to answer--on an employment application, for example--
that they had never been convicted of a crime. In today's modern/internet world, the Texas Department of Public Safety posts all DA probation dispositions and sells that information
to criminal history database companies like PublicData.com. In short, the value of not having been convicted under DA is debatable. However, there is one clear advantage with DA. The
law now allows, in some cases, for a probationer who successfully completed DA to apply to have the records sealed. The mechanism is called a Petition for Non-Disclosure. There are notable
exceptions, such as assault/family-violence offenses, that may never be sealed. There are also waiting periods depending upon the type and/or severity of the crime. For example,
no felony offense can be sealed until five years after succcessfully completing DA.
There is also a detrimental aspect to receiving DA. Particularly in the case of a felony, if probationer on DA violates the terms of the DA, the probationer is exposed to
the entire punishment range for that particular felony offense. Take burglary of a habitation for example. If a Judge ruled after a hearing that a probationer on a five year DA
probation violated probation, the Judge could sentence the probationer to anywhere between two and twenty years in prison (i.e. the full range of a second degree felony). Alternatively,
if a burglary probationer had been sentenced to five years in prison probated for five years (i.e. 5/5 probation), the Judge could only assess punishment between two and five years in
prison.
If you have more questions, you can click on the links tab to the left and then click on Texas Code of Criminal Procedure. Article 42.12 is the main Community Supervision
statute. DA provisions are found in Section 5.