Deferred Adjudication v. Regular Probation (Community Supervision)

Generally speaking, there are two types of probation, regular (or "straight" probation) and deferred adjudication (or "deferred"). Although probations are very similar there are some important differences. The main difference is that the conviction and sentencing are deferred (postponed), in a deferred adjudication probation. There’s a lot of confusion about the terms “deferred disposition” and “deferred adjudication” in Texas. A defendant doesn't always have a choice as to whether or not probation is available, or as to which type of probation he or she may get. In a jury trial, a defendant is only eligible for probation from the jury (or judge, depending on the case, situation, etc.) if the defendant has never been convicted of a felony in this or any other state. Unless a jury asses a defendant's punishment at confinement for greater than 10 years, the judge may grant probation to the defendant.

Normally, deferred adjudication is considered the more lenient punishment because the defendant avoids a conviction if the probation is successfully completed. There are, however, possible significant downsides to deferred adjudication probation. If the defendant does not successfully complete a deferred adjudication, and a "Motion to Revoke" or a "Motion to Adjudicate" is filed, punishment can then be assessed the maximum sentence available by law. Deferred adjudication is a type of actual probation, for a Class B misdemeanor or higher charge, where the judge usually will state something similar to the following: “Based on your plea of No Contest or Guilty, I find the evidence is sufficient to find you guilty, but I will defer the finding of guilt, and will place you on deferred community supervision, and upon the successful completion of this, I will dismiss this case.” To defer, by definition, means – to put off, or postpone. To adjudicate – in the criminal context means to find you guilty. So when the judge places a defendant on deferred adjudication, they are postponing finding the person guilty, and will never find them guilty, if they successfully complete the terms of probation.

I have personally heard one Judge in Texas explain the difference between the two as such, and I personally found it enlightening and beneficial when in terms of a helpful explanation. What you will have to do, on straight probation, or with deferred adjudication, is the same for you - the conclusion, and the actual distinction, however, lies with the end result. Upon successful completion of deferred community supervision probation, the case is dismissed. An individual, in many contexts, can file an Order for a Non-Disclosure with many offenses (though various waiting periods can apply). In Texas, therefore, with both, this means a real, formal probation with a monthly visit to a probation officer, minimum community service hours, urinalysis for drugs and alcohol, fines, court costs and monthly probation fees. Again, the major distinction here is that this is only for Class B and Class A misdemeanors, and felony charges in Texas. It’s not for Class C, which are for traffic ticket level offenses. There is no formal community supervision when deferred adjudication is given for Class C misdemeanor offenses. There is no probation officer, or monthly meeting.

Deferred adjudications are NOT expungeable (with the exception of Class C misdemeanor offenses), but most are eligible for Motions of Non-Disclosure. The theory is the same (whether with a Class C or otherwise) – that is, if you pay a fine, usually take a class, and stay out of trouble, etc. at the end of the deferral period you are not convicted of the offense. The big difference between deferred adjudication and probation is that deferred adjudication is not a conviction. If someone successfully completes deferred adjudication they will not have a conviction on their record. Probation is a conviction. With the exception of selective types of assaultive offenses, you may be able to get your records sealed some years after completing a deferred adjudication. You CAN NOT get a deferred adjudication expunged. Other than the lack of a conviction, deferred adjudication and probation are very similar. You will be assigned a probation officer, you will be required to report to that probation officer at least monthly and generally required to perform community service hours. Regardless of your offense you will likely be evaluated to see if you should participate in drug or alcohol counseling. If charged with assault, you will have to take family violence classes. Deferred adjudication is usually a better choice than regular ("straight") probation.

However, it should be noted, that for immigration purposes, deferred adjudication will likely be treated the same as a regular probation. With deferred adjudication, you are not found guilty by the judge after completion of all requirements. However, in order to receive deferred adjudication, you must begin by pleading guilty to the judge. The requirements are similar to those of probation. The judge puts off, or “defers” a finding of guilt to see whether you successfully comply with the terms of the probation. If you do, you are adjudicated (adjudged) “not guilty” and the case is listed on your record as a dismissal after the completion of deferred adjudication. Deferred adjudication is a “second chance” for first-time offenders to keep their record clear of any final convictions but is not available for all types of charges, such as DWI. Probation is a final conviction. It will remain on your record forever and there is nothing an attorney can do to remove it. With probation, you are found guilty by the judge, but placed on community supervision in lieu of incarceration. It may include but is not limited to monthly visits to a probation officer, supervisory fees, fines, court costs, random urinalysis tests, restitution payments (if the situation calls for it), classes of various types (anger management, parenting, drug abuse, etc.), and community service. If you fulfill all of your probationary requirements and do not get charged with any new cases while on probation, you will not be incarcerated.