Deferred adjudication means you plead guilty or no contest and the judge holds off on finding you guilty. You go on community supervision instead (most people just call it probation), and if you finish it, the case is dismissed with no conviction (Code of Criminal Procedure Art. 42A.101, 42A.111). For a lot of people that’s the best realistic way out of a case. But it isn’t free. It still blocks an expunction on anything above a Class C. A DWI deferred still counts as a prior. Some charges can’t get it at all. And if you violate, the judge can sentence you anywhere in the full range for the original charge.
Call (713) 664-4000 before you sign a deferred offer. We’ll tell you what it costs you down the road, along with what it saves you today.
Jay Blass Cohen has defended people in Houston since founding Blass Law in 2009, and he has never worked for the prosecution. Sometimes deferred is the right call, and sometimes a dismissal you can expunge is within reach. A Houston criminal defense lawyer who does this every day can tell the difference.
How deferred adjudication works
You plead guilty or no contest. The judge hears the evidence and then stops short of finding you guilty (Art. 42A.101(a)). A misdemeanor deferred can run up to two years and a felony deferred up to 10 (Art. 42A.103). The conditions can be anything a judge could order on regular probation, including jail time as a condition (Art. 42A.104(a)). When the term ends and the judge hasn’t adjudicated you guilty, the judge has to dismiss the case and discharge you. A judge can also let you off early, except on a charge that requires sex offender registration (Art. 42A.111(a), (b)).
Deferred isn’t available for every charge (Art. 42A.102(b)), and our guide to who is eligible for probation in Texas covers the rest. The bars we run into most:
- DWI or BWI where your alcohol concentration was 0.15 or more, or you held a commercial driver’s license or learner’s permit.
- Any intoxication offense the State can enhance with a prior under Penal Code § 49.09 (a second DWI, for example), plus DWI with a child passenger and intoxication assault or manslaughter.
- Human trafficking, and murder unless the judge finds you didn’t cause the death and never intended or expected anyone to die.
- Continuous sexual abuse and certain aggravated sexual assaults.
Deferred vs. straight probation vs. a conviction
| Deferred adjudication | Straight probation | Conviction (jail or prison) | |
|---|---|---|---|
| Conviction on your record? | No, once you’re dismissed and discharged (Art. 42A.111(c)) | Yes | Yes |
| If you violate | Judge can sentence anywhere in the full range for the original charge (Art. 42A.110(a)) | Judge can impose the sentence already assessed, or a shorter one (Art. 42A.755(a)) | No supervision to violate |
| Expunction | No, unless it was a Class C (Art. 55A.051) | No | No |
| Sealing (nondisclosure) | Most offenses; automatic for some first misdemeanors (Gov’t Code §§ 411.072, 411.0725, 411.0726) | Some misdemeanors and some first DWIs, by petition (§§ 411.073, 411.0731) | Some misdemeanors and some first DWIs, by petition (§§ 411.0735, 411.0736) |
| Ending early | Judge can dismiss early, except registrable sex offenses (Art. 42A.111(b)) | Possible after a third of the term or two years, whichever comes first, but not on intoxication offenses or certain violent and sex offenses (Art. 42A.701(a), (g)) | Doesn’t apply |
On paper, deferred is the better deal. The catch is the violation row: on straight probation you know your worst case the day you plead, and on deferred you don’t. If the DA offers a pretrial diversion program, ask about that first.
Sealing your record after deferred
Finishing deferred doesn’t erase the arrest. Because it’s court-ordered community supervision, expunction is off the table unless the charge was a Class C (Art. 55A.051(3)). What you can get is an order of nondisclosure, which stops criminal justice agencies from releasing the record to the public.
Automatic sealing for some first misdemeanors. The judge has to issue the order without a petition when you finish deferred on a misdemeanor and you’ve never been convicted of or put on deferred for anything except a fine-only traffic ticket (Gov’t Code § 411.072). The excluded misdemeanors are DWI and BWI and anything under Penal Code chapters 20, 21, 22, 25, 42, 43, 46 or 71, which takes out assault, disorderly conduct, harassment, prostitution and unlawful carrying of a weapon. Misdemeanor theft or possession of a small amount of marijuana can qualify. The judge can block it by finding automatic sealing isn’t in the best interest of justice (Art. 42A.105(f)), and then you petition instead (§ 411.072(d)). There’s a $28 fee, and if you’re discharged before day 180, the order comes on or after day 180 (§ 411.072(b), (c)).
A petition for everyone else. Anyone who doesn’t qualify for automatic sealing, other than on a DWI or BWI, petitions under § 411.0725, and the judge grants the order if it’s in the best interest of justice. Most misdemeanors can file the day you’re discharged. A misdemeanor under chapter 20, 21, 22, 25, 42, 43 or 46 waits two years, and a felony waits five (§ 411.0725(e)). A first DWI deferred has its own section: you file two years after completion, and the State can defeat it by showing the DWI caused a collision involving another person, including a passenger in your own car (§ 411.0726).
Every route requires that you pick up no new conviction or deferred, other than a fine-only traffic ticket, during supervision and any waiting period (§ 411.074(a)). And some charges can never be sealed: anything requiring sex offender registration or involving family violence, plus a list that includes murder, aggravated kidnapping, trafficking, injury to a child, elderly or disabled person, violating a protective order and stalking. A prior on that list bars sealing anything else, too (§ 411.074(b)). More on our nondisclosure page.
Where deferred still counts against you
After dismissal, deferred isn’t a conviction for the disqualifications the law ties to a conviction, and it can’t be the grounds for denying most professional licenses (Art. 42A.111(c), (c-1)). But it still follows you in places that matter:
- A DWI or BWI deferred counts as a conviction for enhancement (Penal Code § 49.09(g)). A later DWI can be charged as a second, and deferred is off the table for that one.
- A family violence assault deferred counts as a prior that can make the next family violence assault a felony (§ 22.01(f)).
- Deferred on a registrable sex offense is still a reportable adjudication, so registration applies (Art. 62.001(5)).
- If you’re convicted of something later, the deferred can be put in front of the judge or jury on punishment (Art. 42A.111(d)(1)).
If you aren’t a U.S. citizen, talk to us before any plea, deferred included.
What happens if you violate deferred
The State files a motion to adjudicate, and the judge, not a jury, decides whether to proceed to a finding of guilt (Art. 42A.108(b)). If the judge does, the case continues as though guilt was never deferred, so the sentence can land anywhere in the full range (Art. 42A.110(a)). Running out the clock doesn’t save you, either. If the motion is filed and a capias issued before the term ends, the court keeps the case (Art. 42A.108(c)). These hearings are defensible. An uncorroborated polygraph can’t support an adjudication on its own, and a failure-to-report allegation can run into a due diligence defense (Art. 42A.108(b), 42A.109). See our probation violation page.
Deferred and probation results from our case files
- Dismissed in Montgomery County: client already on probation was arrested for failing to report a change of address as a sex offender, a state jail felony, and faced a motion to adjudicate his deferred.
- New charge dismissed in Harris County: client with prior felony convictions, on deferred for drug possession, was charged with possession with intent to deliver 4 to 200 grams of cocaine after HPD narcotics officers served a search warrant at his home.
See more of our case results. Prior results do not guarantee a similar outcome.
Deferred adjudication questions
Does deferred adjudication show up on a background check?
Until it’s sealed, yes. The arrest and the deferred stay in your public criminal history. An order of nondisclosure stops criminal justice agencies from releasing it to the public (Gov’t Code §§ 411.072(b), 411.0725(d)).
Can you get deferred adjudication on a DWI in Texas?
On a first DWI under 0.15, with no commercial license, yes, if the judge agrees (Art. 42A.102(b)(1)). It still counts as a prior if there’s ever another one (Penal Code § 49.09(g)). Our DWI probation page covers the tradeoffs.
Offered deferred in Houston? Call before you sign
Once you plead, the deal is done. We get the video and the lab work before we talk about any plea, because the best deferred is the one you never needed. Call (713) 664-4000 or fill out the form for a free consultation.