Probation vs Deferred Adjudication: 5 Key Differences

As a criminal lawyer, I often find clients eager to know more about how probation works in Texas. It is always best to fight the prosecution and prove your innocence. But when there is indisputable evidence to establish your guilt, you may want to explore the option of probation, community supervision, as mentioned by Article 42.12 of the Texas Code of Criminal Procedure, enables you to avoid jail time.

No doubt, it is better to plead guilty and be placed on probation than going to prison. However, probation is not the sole option. You may avoid prison and substitute the jail term with community supervision in two ways – probation and deferred adjudication. Let’s find out the similarities and major differences between the two.

• Conviction and Sentence

Probation follows your conviction if you opt to plead guilty. The court determines that you are at fault and pronounces the sentence. However, in the interest of justice, public, or your favorable record, the judge may suspend the sentence and order you to remain under community supervision with certain conditions. Though listed as guilty, you can avoid incarceration if you can maintain a clean record during the period and adhere to set conditions.

However, with deferred adjudication, the court spares you by not convicting you. Deferred adjudication means the court is postponing your prosecution. Following your plea to no contest, the judge may find evidence sufficient to establish your liability. However, he puts the process on hold and orders community supervision for a period. After successful completion of deferred adjudication one can seek a way to have their records sealed.

In both instances, supervision conditions remain the same, but probation will show as a guilty and deferred adjudication can be sealed/hidden.

• Eligibility and Charges

You may get a straight probation only after you are convicted by a jury verdict  or plea bargaining. The judge must approve the plea of probation negotiated between the prosecutor and the defense attorney. Since probation is a negotiated deal, repeat offenders or more serious crimes may not be eligible for probation.

In Texas, all charges in and above Class B misdemeanor are punishable with prison terms. Deferred Adjudication can apply to both misdemeanors and felony cases. However, as deferred adjudication is viewed as more lenient, it is less likely to be granted when you face serious charges depending on the facts.

• Violation and Punishment

If you violate probation terms, you have to go through the original sentence. For example, you are found guilty of a charge that carries 2-10 years of jail. You got a 5-year sentence after pleading guilty and the court sends you on probation. You may end up in prison for 5 years if you infringe the probation.  

But if you are on a deferred adjudication, this violation may cause more trouble. The prosecution will restart and you may be awarded anywhere between 2 to 10 years sentence. The judge may not favor a regular probation and even announce the maximum punishment. However, if you have a competent criminal lawyer defending you, you have a chance of securing probation or lower the sentence.

• Termination of Supervision

According to the Texas state law, no straight probation can be terminated before half the term. You can claim specific time credits for your good work and accelerate your reach to the half-way mark. However, their application may vary from one case to another.

In the case of deferred adjudication, your sentence is not fixed yet. So, you have a chance that the court may terminate your supervision at any time. Having an experienced criminal defense attorney who is familiar with the local court system may help you reach these results.

• Criminal Record

If you were on  probation that means you were convicted and the police have records of it. The probation period is equivalent to your sentence, though without any jail term. But with a deferred adjudication in Texas, you can potentially hide your criminal record from potential employers and the public.

However, it is a myth that the offense disappears once you complete the deferred adjudication. Once you complete deferred adjudication you can request what is called an Order of Non-Disclosure. This will allow you to seal your record so that the public cannot see it.

Even if you receive deferred adjudication, the federal laws consider deferred adjudication a conviction for the purposes of immigration. Therefore if someone is applying or in immigration proceedings, they should know that deferred is a conviction.

Contacting an experienced criminal defense attorney can be a big difference in your case. Call us at Zavala Texas Law (832) 819-3723.