Deferred Adjudication Under Indictment

[blanfear]

(Excellent explanation on deferred adjudication in Texas. This is a testimony that was presented to a Senate Interim Charges hearing on June 5th of 2008. )

Deferred Adjudication Under Indictment!


To almost 2 million Texas citizens (plus their families), the negative consequences of having to live with a criminal record associated with a deferred adjudication plea is horrific and unending.

People who took and successfully completed deferred adjudication currently face a lifetime of employment discrimination, housing discrimination, broken families, and an endless cycle of poverty and misery.

Being proactively "tough on crime" by overseeing those individuals who have a criminal record is the approach that the Texas state legislature and courts have taken for a number of years now. All of this sounds good on paper, until one begins to investigate and "drill down" into what deferred adjudication really is and what it was originally intended to do
and what it has become.

What deferred adjudication is NOT:

• DA is not a finding of guilt
• DA is not a conviction

What deferred adjudication is:

• A plea bargain agreement between a defendant and the state
• A "contractual agreement" between a defendant and the state
• A court agreement between a defendant and the state in which the state will postpone or “defer" a final finding of guilt pending the defendant's success in following all of the court's sanctions and guidelines. If a defendant successfully completes all the court's requirements, then the case is dismissed with no final finding of guilt and no conviction imposed.





What was deferred adjudication originally intended to do?


In the words of Williamson county Prosecutor John Bradley, stated in part:

"...Originally, deferred adjudication was meant to give first offenders an opportunity to avoid a criminal record and prove themselves worthy of avoiding a formal conviction. However, over the years since its inception, amendments to the laws have diluted those worthy intentions..."

Deferred Adjudication - Southeast Texas Columns & Newsletters on Digital Texas - Southeast Texas


In a press statement released on June 24, 2003, Senator Royce West said, stated, in part

"... The original intent was to give those charged with lesser crimes the opportunity to "wipe the slate clean" and make a fresh start..."

The Texas State Senate - Royce West's 2003 Press Releases Archive

Previous to serving in the capacity as an elected Texas state senator, Mr. West was a felony prosecutor in Dallas, TX. Mr. Bradley and Mr. West, both of whom have served as respected prosecutors in the state of Texas, freely admit that deferred adjudication, as it was originally written, and as it has been explained to defendants in Texas for almost 30 years to Texas defendants by their respective attorneys, was meant to allow deserving Texas citizens who completed all the requirements of their court sanctions the ability to not have a criminal record for a first time offense.



Sadly, this has not taken place because the state of Texas has not kept its end of the contractual agreement which it signed with each and every one of the approximately 2 million Texas citizens who have taken, and successfully completed court ordered deferred adjudication over the past 30 years.

Part of the deferred adjudication "contractual agreement" that the state of Texas signed with the approximate 2 million Texans is stated, in part, as found in Texas Criminal Code 42.12 Section 5(c):

"...Except as provided by Section 12.42(g), Penal Code,
a dismissal and discharge under this section may not
be deemed a conviction for the purposes of disqualifications
or disabilities imposed by law for conviction of an offense..."

AND

Texas Criminal Code 42.12 Section 20:

"... If the judge discharges the defendant under this section, the
judge may set aside the verdict or permit the defendant
to withdraw his plea, and shall dismiss the accusation,
complaint, information or indictment against the defendant, who
shall thereafter be released from all penalties and
disabilities resulting from the offense or crime of which he
has been convicted or to which he has pleaded guilty..."


Effectively, these provisions in 42.12 emphatically and undeniably state that not only is a successfully completed deferred adjudication NOT to be deemed a conviction, it is in no way allowed to be treated in the same respect with regards to penalties and disqualifications that a conviction is to be treated. This law is very, VERY specific in the delivery and purpose of the intent of the law.

Not only has statutory law carefully made the statement that a successfully completed deferred adjudication is not a conviction and is not to be treated as a conviction, but recent case law (Donovan vs. State of Texas No. 1310-00 Court of Criminal Appeals ruled on January 20, 2002), has even declared that a deferred adjudication is NOT a finding of guilt! To wit:

"... Under the deferred adjudication scheme, a judge does not make a "finding of guilt"; instead the judge makes a finding that the evidence "substantiates the defendant's guilt" and then defers the adjudication. (8) Appellant argues that a finding that the evidence substantiates guilt is a finding of guilt. But this construction of Art. 42.12 §5 is inconsistent with our holdings on the meaning of deferred adjudication. A deferred adjudication is often referred to as a deferral of a finding of guilt. (9) Trial courts routinely say, upon adjudication, that they "find (the defendant) guilty." (10) A defendant on deferred adjudication has not been found guilty. (11) That is one of the signal benefits of deferred adjudication as opposed to, for instance, regular community supervision. When adjudication is deferred, there is no "finding or verdict of guilt." Because there is no finding or verdict of guilt, there is nothing that can be set aside so as to create an occasion for implementation of Rule 21. ..."
In other words, the Texas Court of Criminal Appeals has ruled, once and for all, that a
successfully completed deferred adjudication is NOT an affirmation of guilt; a defendant on deferred adjudication has NOT been found guilty and has not been convicted!

And if all of this is not enough, then let us all agree to carefully defer to what US Supreme Court Justice Stevens had to say on the subject of deferred adjudication in a US Supreme Court case of a "Denial of Writ of Certiorari" which was ruled on by the US
Supreme Court on October 10, 2006 in the case (Caldwell/Martinez vs. Texas Department of Criminal Justice Decided October 10, 2006 Case No. 05-10671)

"...The whole point of [the deferred adjudication probation] statute is to avoid having to formally adjudicate the defendant's guilt unless and until he demonstrates that he cannot abide by the terms of probation set by the court. If the defendant successfully completes his probation, his offense is essentially expunged..."

-- US Supreme Court Justice John Paul Stevens

(Currently the most senior sitting Associate Justice of the US Supreme
Court)

Members of the committee, there you have it. One of the top prosecutors in the state of Texas, John Bradley has spoken. The Texas Criminal Code Procedure found in 42.12
has spoken. The Texas Criminal Court of Appeals has spoken. And most recently, the
most senior sitting Associate Justice in the highest court in the United States has openly declared that a successfully completed deferred adjudication is an expungement.

Members of the committee, in light of the overwhelming preponderance of legal evidence given to you in this presentation, given to you in the form of statements made by a chief Texas prosecution source, given to you in the recitation of current law governing the execution of legally binding deferred adjudication contracts between Texas defendants found in Texas Criminal Code 42.12, evidence given to you in recent, fixed case law ruled on in the Texas Court of Criminal Appeals, and finally, the overwhelmingly convincing opinion recently issued by US Supreme Court Justice Stevens, we, honest, and law abiding...and voting citizens of the state of Texas ask you to remove the legal disqualification which currently bars deserving, one-time offending, and law abiding Texas citizens the right to expunction. This bar to expunction must be removed to satisfy the legal mandate handed down by section 42.12 which plainly states that:

"...a dismissal and discharge under this section may not be deemed a conviction for the purposes of disqualifications or disabilities imposed by law for conviction of an offense..."

Members of the committee, the presentation of our grievance is very clear. Statutory
law and case law regarding this matter are very clear. The powerful, undeniable, and unimpeachable opinion issued by Justice Stevens is very clear. And at the end of all this testimony and presentation, it should also be unmistakably clear to this committee that the only ethical and proper legal course of action is remove the bar to expunction (found in Texas Criminal Code 55.01) for any and all Texas defendants who executed a legally
binding deferred adjudication contract between themselves and the state of Texas which
is governed by statutory law as codified in Texas Criminal Code 42.12.

Having said all of that, we, the citizens of Texas request the following grievances be fully addressed during the next legislative session by drafting an expunction reform bill to be submitted for authorizing signature by the Governor of the State of Texas to be made law when the next legislative session convenes in 2009. This bill shall contain the following provisions:



List of Grievances and Requested Relief:


(1) Amend Texas Criminal Code Procedure 55.01 so that any and all successfully completed cases of deferred adjudication (covered under sections 42.12 and 42.13 which have been dismissed by a criminal court are to be statutorily expunged within 30 days of written application to the court and the court will provide official notice of expunction to the defendant within 15 days of expungement. Expungements will be automatic and as mandated by law. This expungement action is not available as a discretionary power of the presiding criminal court judge. The judge's only action in the expungement process is to verify that the expungement process is expedited and the judge's written signature/stamp will be affixed to the expungement order and will see to it that the expungement order is executed and carried out.

(2) Amend the Texas Administration Code and all other state/county/municipal statutory/legal/administrative codes so that all successfully completed deferred adjudications are no longer a barrier to employment, professional/occupational licensing, etc.

(3) Include a provision in this expunction reform bill which will provide a significant criminal penalty (felony) for any person, company, state agency, or any other private or public entity who knowingly retains and disseminates criminal records that have been expunged under this act.

For the past fourteen years I have been struggling with having a deferred adjudication on my record. It has limited my job choices and I have followed all the procedures to get a non-disclosure, but that is not a permant fix. I still have problems and I'm scared to apply for positions that I know that I'm qualified for. I hope and pray that Texas law makers finally see that some peolple have really turned their lives around. I hope they give people like me a chance.

[gradstudent]

It's only been a couple of years since my case was dismissed in court, but having a DA in my background has left me helpless and feeling like there is little hope. I keep reading so many other stories just like mine, and yet, there is little comfort.........because this is not a situation anyone should ever go through..........everywhere i turn.......this DA is no different than a conviction as far as employers are concerned....