Probation vs. Deferred Adjudication

These may look similar but they are two different things with different consequences.


Probation (aka Community Supervision) is a conviction with a suspended sentence.  As long as the probationer complies with his conditions of probation, the sentence will stay suspended and he will not have to go to jail.    But it is a conviction for many purposes.  It creates a permanent record regardless of the ultimate outcome of the probation.  The good part is that if probation is revoked, the sentence is limited to the length of the term of probation.  In other words, if the range of punishment for the crime is between two and twenty years, and a person gets six years probation, upon revocation he can only get a maximum of six years to serve.

Deferred Adjudication is different.   The judge accepts a guilty plea, but does not find the person guilty.  Instead, the charge is still pending and the person is placed on conditions that look just like probation.

Advantages:  The good part is that if the deferred adjudication is successfully completed, there will not be a conviction and many times the record can be sealed (non-disclosure).   And while on deferred adjudication, the person can truthfully say he has not been convicted.

The Disadvantage:    The bad side is that if deferred is revoked, the entire range of punishment is open.   In other words, if the range of punishment for the crime is between two and twenty years, and a person gets six years deferred adjudication, upon revocation he can get anywhere between to and twenty years to serve.

In short, deferred adjudication is better . . . . but only if you can do it successfully.


Deferred adjudication is also not available if a person pleads not guilty and goes to trial.

Probation Eligibility in Texas

Probation, also known as Community Supervision, (i.e. a suspended sentence) is a possibility for most crimes in Texas.  However, the Legislature has made it such that the Judge cannot grant probation for a number of crimes, among them the following:


Murder

Capital Murder

Indecency with a Child

Aggravated Kidnapping

Aggravated Sexual Assault

Aggravated Robbery

Certain drug offenses, if a child is used in the commission of the offense, or if the offense is committed in a drug-free zone

Criminal Solicitation

Sexual Assault

Injury to a Child

Sexual Performance by a Child

Compelling Prostitution

Trafficking of Persons
 
And, in addition, any felony in which a deadly weapon is used or exhibited.


Parole consequences

Not only can the Judge not grant probation, but a person convicted has to serve a minimum of two years or one-half the sentence assessed, whichever is greater, before becoming eligible for parole.


As you can see the penalties for these cases are very serious indeed, and require a lawyer with experience defending against them.   

Ordinary Conditions of Probation in Texas

The judge may impose any reasonable condition that is designed to protect or restore the community, protect or restore the victim, or punish, rehabilitate, or reform the defendant.  Conditions of community supervision may include, but shall not be limited to, the conditions that the defendant shall:

(1)  Commit no offense against the laws of this State or of any other State or of the United States;

(2)  Avoid injurious or vicious habits;

(3)  Avoid persons or places of disreputable or harmful character, including any person, other than a family member of the defendant, who is an active member of a criminal street gang;

(4)  Report to the supervision officer as directed by the judge or supervision officer and obey all rules and regulations of the community supervision and corrections department;

(5)  Permit the supervision officer to visit the defendant at the defendant's home or elsewhere;

(6)  Work faithfully at suitable employment as far as possible;

(7)  Remain within a specified place;

(8)  Pay the defendant's fine, if one is assessed, and all court costs whether a fine is assessed or not, in one or several sums;

(9)  Support the defendant's dependents;

(10)  Participate, for a time specified by the judge, in any community-based program, including a community-service work program under Section 16 of this article;

(11)  Reimburse the county in which the prosecution was instituted for compensation paid to appointed counsel for defending the defendant in the case, if counsel was appointed, or if the defendant was represented by a public defender's office, in an amount that would have been paid to an appointed attorney had the county not had a public defender's office;

(12)  Remain under custodial supervision in a community corrections facility, obey all rules and regulations of the facility, and pay a percentage of the defendant's income to the facility for room and board;

(13)  Pay a percentage of the defendant's income to the defendant's dependents for their support while under custodial supervision in a community corrections facility;

(14)  Submit to testing for alcohol or controlled substances;

(15)  Attend counseling sessions for substance abusers or participate in substance abuse treatment services in a program or facility approved or licensed by the Department of State Health Services;

(16)  With the consent of the victim of a misdemeanor offense or of any offense under Title 7, Penal Code, participate in victim-defendant mediation;

(17)  Submit to electronic monitoring;

(18)  Reimburse the compensation to victims of crime fund for any amounts paid from that fund to or on behalf of a victim, as defined by Article 56.32, of the defendant's offense or if no reimbursement is required, make one payment to the compensation to victims of crime fund in an amount not to exceed $50 if the offense is a misdemeanor or not to exceed $100 if the offense is a felony;

(19)  Reimburse a law enforcement agency for the analysis, storage, or disposal of raw materials, controlled substances, chemical precursors, drug paraphernalia, or other materials seized in connection with the offense;

(20)  Pay all or part of the reasonable and necessary costs incurred by the victim for psychological counseling made necessary by the offense or for counseling and education relating to acquired immune deficiency syndrome or human immunodeficiency virus made necessary by the offense;

(21)  Make one payment in an amount not to exceed $50 to a crime stoppers organization as defined by Section 414.001, Government Code, and as certified by the Texas Crime Stoppers Council;

(22)  Submit a DNA sample to the Department of Public Safety under Subchapter G, Chapter 411, Government Code, for the purpose of creating a DNA record of the defendant;

(23)  In any manner required by the judge, provide public notice of the offense for which the defendant was placed on community supervision in the county in which the offense was committed; and

(24)  Reimburse the county in which the prosecution was instituted for compensation paid to any interpreter in the case.

These are only the ordinary conditions of probation a Texas court may impose.   Different offenses may require specialized conditions, and the judge can and probably will impose additional "customized" conditions.  

Penalties for Delivery of Marijuana

For delivery of marijuana, or possession of marijuana with intent to deliver, the penalties depend on the amount of marijuana:

Misdemeanor:

Up to one year in jail if the amount of marihuana delivered is one-fourth ounce or less and the person committing the offense receives remuneration for the marihuana.

Felonies:

From 180 days to two years in a state jail if the amount of marihuana delivered is five pounds or less but more than one-fourth ounce;

Two to 20 years in prison if the amount of marihuana delivered is 50 pounds or less but more than five pounds;

Five years to 99 years, or life imprisonment, if the amount of marihuana delivered is 2,000 pounds or less but more than 50 pounds; and

Life or for a term of not more than 99 years or less than 10 years, if the amount of marihuana delivered is more than 2,000 pounds.

Penalties for Possession of Marijuana

The possible penalties depend on the amount of marijuana possessed.


Misdemeanors:

Up to 180 days in jail if the amount of marihuana possessed is two ounces or less;

Up to one year in jail  if the amount of marihuana possessed is four ounces or less but more than two ounces;

Felonies:

From 180 days to two years in state jail if the amount of marihuana possessed is five pounds or less but more than four ounces;

From two to 10 years in prison if the amount of marihuana possessed is 50 pounds or less but more than 5 pounds;

From two to twenty years in prison if the amount of marihuana possessed is 2,000 pounds or less but more than 50 pounds; and

For life or for a term of not more than 99 years or less than 5 years, if the amount of marihuana possessed is more than 2,000 pounds.


In addition, there may be other consequences such as loss of driver's license, loss of educational benefits, immigration problems, and the like.

Bath Salts are Illegal in Texas

In 2011, Governor Perry signed House Bill 2118 into law, which bans the synthetic drugs commonly referred to as “Bath Salts”."  These chemicals were legal to possess and sell but are now outlawed.

Several chemicals were made illegal.    Two of the common active ingredients in “Bath Salts” are Mephedrone and Methylenedioxypyrovalerone, also known as MDPV.

 The penalties for possession of these “bath salts” are all felonies, depending on the amount possessed.  There are enhanced penalties if the accusation is possession with intent to deliver or delivery of bath salts.

Consequences of a felony conviction in Texas

In addition to possible fines and imprisonment, there are long-term, even life-long, consequences to a felony conviction in Texas:

1.   Loss of the right to possess firearms or ammunition.

2.  Possible restrictions on foreign travel, including revocation of a passport.

3.  Loss of the right to vote and serve on a jury.

4.  Loss of, or ineligibility for, licenses for professional or otherwise regulated employment, such as:


Lawyers
Doctors, dentists, nurses, opticians, physical therapists
Psychaitrists, sychologists, clinical social workers, certain types of counselors,
Veterinarians
Barbers and cosmetologists
Construction workers such as plumbers, electricians, HVAC, irrigation, fire protection
Certified public accountants (CPA)
Insurance agents
Private security such as watchmen or security guards
Pawnbrokers
Bail bondsman
Real estate brokers, appraisers, salesmen

These are just some of the licenses which can be denied a person with a prior felony conviction.

5.  Dismissal or exclusion from employment by state or local government offices.

6.  Dismissal or exclusion from private-sector employment.

7.  Ineligibility for student loans or grants (drug convictions).

8.  Ineligibility to volunteer for charitable organizations (Boy Scouts, Little League, etc.).

9.  Difficulty leasing an apartment or house.

10.  Social problems resulting from your reputation being damaged by a public record for a felony.

11.  Forfeiture of assets, especially in drug cases.

12.  Immigration consequences, if one is not a citizen, including deportation, exclusion and denial of naturalization.

13.  Loss of driver's license for drug cases and certain other crimes. 

14.  Loss of the right to hold public office.

15.  Consequences related to child custody.   


This list is not all-inclusive, and there are other disabilities and difficulties that can and probably will arise from a felony conviction.    

You need a lawyer who can help you avoid these consequences.

Consequences of a Drug Conviction in Texas

In addition to possible jail time and monetary fines and costs, a conviction for possession of drugs or controlled substances, or for possession of marijuana,  can have lasting consequences.  These may include


--  Suspension of your driver's license for six months (if you are under 21, one year).

--  Ineligibility for student loans (federal Stafford Loans).

--  Possible denial of state professional licenses.

--  Possible deportation, exclusion or denial of naturalization if you are not a U.S. Citizen.

--  Creation of a permanent criminal record which can be used to discriminate against you in housing,           employment and other ways.


You can see that the consequences for a conviction for a drug offense, no matter how "minor," can be far-reaching and can last a lifetime.   You need a lawyer who can explore alternatives which blunt or avoid the effects of these possible consequences.

Do You Qualify for Non-Disclosure of your Record?

If you had a prior deferred adjudication, and successfully completed it, you may be eligible for a non-disclosure of your record. 

Exceptions:    If you have ever been convicted of  one of the following crimes, you are  not entitled to seek an order of nondisclosure:

• Indecency with a child
• Sexual assault
• Aggravated sexual assault
• Prohibited sexual conduct (incest)
• Aggravated kidnapping
• Burglary of a habitation with intent to commit any of the above offenses
• Compelling prostitution
• Sexual performance by a child
• Possession or promotion of child pornography
• Unlawful restraint, kidnapping, or aggravated kidnapping of a person younger than 17 years of age
• Attempt, conspiracy, or solicitation to commit any of the above offenses
• Capital murder
• Murder
• Injury to a child, elderly individual, or disabled individual
• Abandoning or endangering a child
• Violation of protective order or magistrate's order
• Stalking
• Any other offense involving family violence

 There is a waiting period before you can petition for non-disclosure, and that waiting period begins when you got off deferred adjudication.


                              
Felonies of any kind:                      5 years from date of discharge and dismissal.


The following misdemeanors:       2 years from date of discharge and dismissal. 

• Abuse of corpse
• Advertising for placement of child
• Aiding suicide
• Assault
• Bigamy
• Cruelty to animals
• Deadly conduct
• Destruction of flag
• Discharge of firearm
• Disorderly conduct
• Disrupting meeting or procession
• Dog fighting
• False alarm or report
• Harassment
• Harboring runaway child
• Hoax bombs
• Indecent exposure
• Interference with emergency telephone call
• Leaving a child in a vehicle
• Making a firearm accessible to a child
• Obstructing highway or other passageway
• Possession, manufacture, transport, repair or
• sale of switchblade knife or knuckles
• Public lewdness
• Riot
• Silent or abusive calls to 9-1-1 service
• Terroristic threat
• Unlawful carrying of handgun by license holder
• Unlawful carrying weapons
• Unlawful possession of firearm
• Unlawful restraint
• Unlawful transfer of certain weapons
• Violation of protective order preventing offense
• caused by bias or prejudice

All other misdemeanors:       May file immediately upon discharge and dismissal.

 If the court signs a non-disclosure order, law enforcement and state regulatory agencies will still have access to your record, but the general public, including people such as prospective employers, landlords, and other curious citizens, will not.

Do You Qualify for Expunction?

An arrest record is a serious matter.   Even if you were later acquitted, or had your case dismissed, it can still cause you trouble. 

If you have been arrested for either a felony or misdemeanor, you may be entitled to have your criminal record expunged  if:

1. Your case was tried and you were found not guilty.
2. You were convicted, but were later pardoned;
3. You have not been indicted or otherwise formally accused for the arrested conduct, or had your indictment dismissed or set aside. and,
   a.   The statute of limitations has expired, or
   b.   The Court finds that the indictment or other formal charge was dismissed or set aside because the presentment had been made because of mistake, false information, or other similar reason indicating a lack of probable cause.
4. The arrest has not resulted in a final conviction, is no longer pending and there was no court-ordered community supervision (probation) for any offense above a Class C misdemeanor. Deferred Adjudication, even if successfully completed, does not qualify unless it is a Class C misdemeanor.
5. The person has not been convicted of a felony in the five years preceding the date of arrest.

If you think you qualify for an expunction, or have any questions about whether you qualify, you can call me and we can discuss it.

The sooner the better, because your arrest record will, over time, find its way into various data-bases.

Guns / Firearms and Domestic Assault / Domestic Violence Cases:   What you Need to Know

 If you are convicted of a domestic assault, even a misdemeanor, you may be permanently barred under Federal law from possessing a firearm or ammunition.


You MUST take this into account if you have a domestic violence case filed against you.


Who is affected by this law?

The 1968 Gun Control Act and subsequent amendments codified at 18 U.S.C. § 921 et seq. prohibit anyone convicted of a felony and anyone subject to a domestic violence protective order from possessing a firearm. The intended effect of this new legislation is to extend the firearms ban to anyone convicted of a "misdemeanor crime of domestic violence."

Qualifying Offenses: As enacted the statute defines "misdemeanor crime of domestic violence" (MCDV) as any state or federal misdemeanor that -

"has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim."

This definition includes all misdemeanors that involve the use or attempted use of physical force (e.g., simple assault, assault and battery), if the offense is committed by one of the defined parties. This is true whether or not the statute specifically defines the offense as a domestic violence misdemeanor. For example, a person convicted of misdemeanor assault against his or her spouse would be prohibited from receiving or possessing firearms.

Date of Previous Conviction: The prohibition applies to persons convicted of such misdemeanors at any time, even if the conviction occurred prior to the new law's effective date, September 30, 1996.

Limitations on Previous Convictions -- 18 U.S.C. §  921(a)(33)(B). To qualify: (1) at the time of previous conviction, the defendant must have been represented by counsel, or knowingly and intelligently waived the right to counsel; (2) if the offense of previous conviction entitled the person to a jury trial in the jurisdiction in which the case was tried, either the case was tried by a jury, or the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise; and (3) the conviction can not have been expunged or set aside, or be an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

There is no law enforcement exception: One of the provisions of this new statute removed the exemption that 18 U.S.C. § 925(a)(1) provided to police and military. Thus, as of the effective date, any member of the military or any police officer who has a qualifying misdemeanor conviction is no longer able to possess a firearm, even while on duty. We now have the anomalous situation that 18 U.S.C. § 925(a)(1) still exempts felony convictions for these two groups. Thus if a police officer is convicted of murdering his/her spouse or has a protection order placed against them, they may, under federal law, still be able to possess a service revolver while on duty, whereas if they are convicted of a qualifying misdemeanor they are prohibited from possessing any firearm or ammunition at any time. Currently pending before Congress are at least two bills that would substantially modify the impact of the amendment to this section.

Immigration Consequences of Criminal Cases

If you are not a US citizen, a  criminal case can, and most likely will, affect your immigration status. 

Here are some examples of criminal convictions for which you can be deported, if you are convicted (including some other dispostions of your case):

CRIMES INVOLVING MORAL TURPITUDE

• Crimes that involve an intent to steal or to defraud, like burglary, grand

larceny, or even petit larceny;

• Crimes where bodily harm is intentionally or willfully caused or threatened,

like assault or menacing;

• Crimes where serious bodily harm is caused or threatened by an act of

recklessness, like manslaughter;

• Most sex offenses.

If you are convicted of a crime involving moral turpitude within the first five years of your residence in the U.S., and the crime carries a possible sentence of at least one year in prison, you can be deported based on the conviction. This is true, even if you were only sentenced to probation.

If you are convicted of two crimes involving moral turpitude, you may be deported at any time.

CONTROLLED SUBSTANCE OFFENSES - DRUGS

If you are convicted of any offense relating to controlled substances (drugs) you

may be deportable. Even if you are not convicted (found guilty), but you admit to the

facts underlying the crime, you may be deportable. The only exception is a single offense of simple possession of 30 grams or less or marijuana.

FIREARM OFFENSES

You may be deportable for almost any offense involving a firearm, whether it is a

felony or a misdemeanor.

 Examples:

• Criminal Possession of a Weapon, in any degree;

• Criminal Sale of a Weapon;

• Criminal Purchase of a Weapon.

CRIMES OF DOMESTIC VIOLENCE, STALKING, OR A CRIME AGAINST CHILDREN

You may be deportable if you are convicted of any crime of domestic violence.

Domestic violence crimes are crimes of violence committed against your spouse, ex-spouse, current or former domestic partner, boyfriend or girlfriend, or child. The conviction must have occurred on or after October 1, 1996. Examples of crimes of

violence:

• Assault;

• Terroristic Threat;

• Violation of an Order of Protection;

• Stalking;

• Child abuse, neglect, or abandonment.

AGGRAVATED FELONIES

• Any “crime of violence” where prison sentence is one year or more;

• A crime of theft or burglary where prison sentence is one year or more;

• Sexual Abuse of a Minor;

• Drug Trafficking – including some Texas sale or possession misdemeanor offenses;

• Firearm Trafficking;

• Murder;

• Rape / sexual assault / indecency.

Aggravated Felonies are the most serious kind of criminal convictions under the immigration laws.

WARNING:  Some crimes may be classified as misdemeanors under state criminal laws, but they may be considered as aggravated felonies under immigration law.

As you can see, if you are in the United States, under any status other than “citizen,” such as Permanent Resident, Green Card Holder, or holder of a work or student visa, it is extremely important to take this status into account when you decide how to deal with a criminal accusation.

Call me if you have questions about the effect of a conviction on your immigration status.