Deferred Adjudication

[jvanwink]

What happens if you are sentenced to two years deferred adjudication after pleading nola contendere for a Class A misdemeanor (non fire arms offense)?
Does this compromise your CHL?

[Keith B]

What happens if you are sentenced to two years deferred adjudication after pleading nola contendere for a Class A misdemeanor (non fire arms offense)?
Does this compromise your CHL?

Not sure if you are asking about getting a CHL or you already have one?

To try and answer, deferred adjudication in Texas is the same as a conviction. If you are applying, you will have to wait 5 - 10 years from the date of disposition, depending on what the Class A was for. There is one caveat; depending on what the Class A was for, if for some reason it changed to now be a felony in that jurisdiction, then you are ineligible permanently.

Now, if you already have a CHL, you will have to forfeit your CHL as you cannot be convicted of a Class A. The timer will start from date of disposition for being able to re-apply depending on what the Class A is.

Hope that makes sense. And, I am not a lawyer (disclaimer)

[johnnyt6]

When you complete the terms, the case should be set aside by a judge, at that time you could get it back.

[Charles L. Cotton]

If you currently have a CHL, then it will be revoked because a deferred adjudication is statutorily defined as a "conviction" for CHL eligibility purposes. If it is revoked, you will not be eligible to reapply for 7 years; 5 for the Class A "conviction" plus 2 more because of the revocation. There is a way to avoid the additional 2 years of ineligibility, but you have to act before DPS revokes your CHL. Send me a PM if you need my information.

If you don't have a CHL, you will be ineligible for 5 years from the date the judge entered his order, not the date your probation ends in 2 years.

As of Sept. 1, 2009, a conviction is considered a felony only if it was a felony both at the time of conviction and at the time of application for a CHL.

Chas.

[almostfree]

Has this changed since H.B. 2730? it is my understanding that the successful completion of deferred adjudication results in the conviction being "set aside." Doesn't this mean that after the conviction is "set aside" that an individual is again elgible for a CHL since they are no longer convicted?

Here is what I am looking at:

http://www.txdps.state.tx.us/administra ... bility.pdf" onclick="window.open(this.href);return false;

and

http://www.txdps.state.tx.us/administra ... alysis.pdf" onclick="window.open(this.href);return false;

[Charles L. Cotton]

Has this changed since H.B. 2730? it is my understanding that the successful completion of deferred adjudication results in the conviction being "set aside." Doesn't this mean that after the conviction is "set aside" that an individual is again elgible for a CHL since they are no longer convicted?

Here is what I am looking at:

http://www.txdps.state.tx.us/administra ... bility.pdf" onclick="window.open(this.href);return false;

and

http://www.txdps.state.tx.us/administra ... alysis.pdf" onclick="window.open(this.href);return false;

In Texas, a person receiving a deferred adjudication does not receive a conviction, even though they have to plead guilty or "no contest" which is the same as a guilty plea. Since there is no "conviction," there is no conviction to be set aside. The order of deferral is not set aside either.

Chas.

[almostfree]

I guess I am a little confused by that then. The law now reads that orders of deferred adjudication that have been: "vacated, set-aside, annulled, invalidated, voided, or sealed" are no longer convictions. If such actions are not possible in Texas, then what is the point of amending the law? What cases can be "set aside"? I would like to assume that this revision was made with Texas law in mind, but I suppose that may not be the case. I do know that a deferred adjudication cannot be pardoned.

The law now reads:

"Convicted" means an adjudication of guilt or, except as provided in Section 411.1711, an order of deferred adjudication entered against a person by a court of competent jurisdiction whether or not the imposition of the sentence is subsequently probated and the person is discharged from community supervision. The term does not include an adjudication of guilt or an order of deferred adjudication that has been subsequently:
(A) expunged;
(B) pardoned under the authority of a state or federal official; or
(C) otherwise vacated, set aside, annulled, invalidated, voided, or sealed under any state or federal law

My understanding of the deferred adjudication process is that a judgement is "deferred" while the person is on community supervision/ probation and then is subsequently dismissed upon successful completion of that probation. I have seen background checks where some of these conviction show up as unknown or unreported. Following that, an order of non-disclosure is possible to stop the record from being released to the public. This leaves the criminal record available to law enforcement agencies and other state approved entities, but not to general public release. Expungement is an option, but generally only if it can be shown the person was in fact not guilty in the first place.

Generally, the unsuccessful completion of a deferred adjudication probation results in a true conviction. These individuals will likely receive probation and will eventually be released from it, but are convicted. I think it is also worth noting that I think Texas may be the only state the specifically calls it "deferred adjudication" as well.

In the first link, DPS states: "The most common situation is likely to be a conviction "set-aside," which may (but need not) follow the successful completion of probation."

I would think that most people who have been on deferred adjudication and have successfully completed it and were not convicted would think that this language applies to them.

[Kinetic]

Deferred adjudication is a conviction in Texas until which time the probation requirements as ordered by the court have been completed.

Government Code
Sec. 411.171. DEFINITIONS.
(4) "Convicted" means an adjudication of guilt or, except as provided in Section 411.1711, an order of deferred adjudication entered against a person by a court of competent jurisdiction whether or not the imposition of the sentence is subsequently probated and the person is discharged from community supervision. The term does not include an adjudication of guilt or an order of deferred adjudication that has been subsequently:

(A) expunged; or

(B) pardoned under the authority of a state or federal official.

Sec. 411.1711. CERTAIN EXEMPTIONS FROM CONVICTIONS. A person is not convicted, as that term is defined by Section 411.171, if an order of deferred adjudication was entered against the person on a date not less than 10 years preceding the date of the person's application for a license under this subchapter unless the order of deferred adjudication was entered against the person for an offense under Title 5, Penal Code, or Chapter 29, Penal Code.

[Kinetic]

Government Code
Sec. 411.187. SUSPENSION OF LICENSE. (a) A license may be suspended under this section if the license holder:

(1) is charged with the commission of a Class A or Class B misdemeanor or an offense under Section 42.01, Penal Code, or of a felony under an information or indictment;

(2) fails to display a license as required by Section 411.205;

(3) fails to notify the department of a change of address or name as required by Section 411.181;

(4) carries a concealed handgun under the authority of this subchapter of a different category than the license holder is licensed to carry;

(5) fails to return a previously issued license after a license is modified as required by Section 411.184(d);

(6) commits an act of family violence and is the subject of an active protective order rendered under Title 4, Family Code; or

(7) is arrested for an offense involving family violence or an offense under Section 42.072, Penal Code, and is the subject of an order for emergency protection issued under Article 17.292, Code of Criminal Procedure.

(b) If a peace officer believes a reason listed in Subsection (a) to suspend a license exists, the officer shall prepare an affidavit on a form provided by the department stating the reason for the suspension of the license and giving the department all of the information available to the officer at the time of the preparation of the form. The officer shall attach the officer's reports relating to the license holder to the form and send the form and the attachments to the appropriate division of the department at its Austin headquarters not later than the fifth working day after the date the form is prepared. The officer shall send a copy of the form and the attachments to the license holder. If the license holder has not surrendered the license or the license was not seized as evidence, the license holder shall surrender the license to the appropriate division of the department not later than the 10th day after the date the license holder receives the notice of suspension from the department unless the license holder requests a hearing from the department. The license holder may request that the justice court in the justice court precinct in which the license holder resides review the suspension as provided by Section 411.180. If a request is made for the justice court to review the suspension and hold a hearing, the license holder shall surrender the license on the date an order of suspension is entered by the justice court.

(c) A license may be suspended under this section:

(1) for 30 days, if the person's license is subject to suspension for a reason listed in Subsection (a)(3), (4), or (5), except as provided by Subdivision (3);

(2) for 90 days, if the person's license is subject to suspension for a reason listed in Subsection (a)(2), except as provided by Subdivision (3);

(3) for not less than one year and not more than three years if the person's license is subject to suspension for a reason listed in Subsection (a), other than the reason listed in Subsection (a)(1), and the person's license has been previously suspended for the same reason;

(4) until dismissal of the charges if the person's license is subject to suspension for the reason listed in Subsection (a)(1); or

(5) for the duration of or the period specified by:

(A) the protective order issued under Title 4, Family Code, if the person's license is subject to suspension for the reason listed in Subsection (a)(6); or

(B) the order for emergency protection issued under Article 17.292, Code of Criminal Procedure, if the person's license is subject to suspension for the reason listed in Subsection (a)(7).

[almostfree]

I did find some more information that may or may not help. In Donovan vs. State of Texas, the Court of Criminal Appeals wrote:

"... 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 of guilt, there is nothing to "set-aside." That does seem a little odd though. An example:

1. Person A committed misdemeanor assault and received deferred adjudication, successfully completes it, and is then considered not convicted, but cannot apply for a CHL for 5 years from the date of conviction.

2. Person B committed misdemeanor assault and received straight probation. At the termination of probation, person B requests that the judge "set aside" the conviction and be allowed to withdraw their plea. The request is granted and the person is then eligible to immediately apply for a CHL.

Why would Texas CHL law be harsher on person A than B? It is the same offense, but it would seem that the person that was given an opportunity not to receive a conviction is being treated harsher in terms of a CHL. Would an order of non-disclosure be considered "sealing" the record for purposes of the new language?

[Kinetic]

Government Code
Sec. 411.186. REVOCATION. (a) A license may be revoked under this section if the license holder:

(1) was not entitled to the license at the time it was issued;

(2) gave false information on the application;

(3) subsequently becomes ineligible for a license under Section 411.172, unless the sole basis for the ineligibility is that the license holder is charged with the commission of a Class A or Class B misdemeanor or an offense under Section 42.01, Penal Code, or of a felony under an information or indictment;

(4) is convicted of an offense under Section 46.035, Penal Code;

(5) is determined by the department to have engaged in conduct constituting a reason to suspend a license listed in Section 411.187(a) after the person's license has been previously suspended twice for the same reason; or

(6) submits an application fee that is dishonored or reversed.

(b) If a peace officer believes a reason listed in Subsection (a) to revoke a license exists, the officer shall prepare an affidavit on a form provided by the department stating the reason for the revocation of the license and giving the department all of the information available to the officer at the time of the preparation of the form. The officer shall attach the officer's reports relating to the license holder to the form and send the form and attachments to the appropriate division of the department at its Austin headquarters not later than the fifth working day after the date the form is prepared. The officer shall send a copy of the form and the attachments to the license holder. If the license holder has not surrendered the license or the license was not seized as evidence, the license holder shall surrender the license to the appropriate division of the department not later than the 10th day after the date the license holder receives the notice of revocation from the department, unless the license holder requests a hearing from the department. The license holder may request that the justice court in the justice court precinct in which the license holder resides review the revocation as provided by Section 411.180. If a request is made for the justice court to review the revocation and hold a hearing, the license holder shall surrender the license on the date an order of revocation is entered by the justice court.

(c) A license holder whose license is revoked for a reason listed in Subsections (a)(1)-(5) may reapply as a new applicant for the issuance of a license under this subchapter after the second anniversary of the date of the revocation if the cause for revocation does not exist on the date of the second anniversary. If the cause for revocation exists on the date of the second anniversary after the date of revocation, the license holder may not apply for a new license until the cause for revocation no longer exists and has not existed for a period of two years.

(d) A license holder whose license is revoked under Subsection (a)(6) may reapply for an original or renewed license at any time, provided the application fee and a dishonored payment charge of $25 is paid by cashier's check or money order made payable to the "Texas Department of Public Safety."

[Kinetic]

Notice in my previous posts that the code reads a license "MAY" be revoked, or a license "MAY" be suspended. It does not say it is required that it be suspended or revoked. The way the law reads, a good lawyer may be able to save your license, depending on what the conviction was for. As you can see by my previous posts, for the purposes of CHL, deferred adjudication is a conviction unless, for new license application, it has been 10 years since the conviction, or for current license holders, the conditions of the sections for suspension and revoke of license. A link below for you. The Government Code and Penal Code sections are of particular interest to CHL. When you click the drop menus for each section, you need to give them time to expand, there is a lot of data. Click once and wait, it will expand. I hope I have been helpful, good luck to you and keep us updated.

http://www.statutes.legis.state.tx.us/" onclick="window.open(this.href);return false;

[johnnyt6]

I guess I'm the G-pig.

I pled no contest to a class A misd.

I got six months unsup probation.

Six months later, I have an order from a judge which clearly states my case was set aside. In those words.

The lady processing my app said everything looked fine. She said I was eligible since they passed the new law last September.

My file is still in legal review.

[almostfree]

Did they call it deferred adjudication, or was it regular conviction and straight probation that was "set aside" when you completed it? If you did receive deferred adjudication, then I suppose that would mean that successful completion of deferred adjudication (after which the charges are dismissed and there never was a finding of guilt) would no longer be considered a conviction for CHL purposes.

I went ahead and emailed DPS and asked them to clarify this.

[casingpoint]

New Jersey calls it pre-trial release. I know this because it happened to me in 1986. The charge was possession of a handgun without a license. I was from another state and involved in interstate transportation of commercial goods at the time. It was the perfect Second Amendment test case, and would have required incorporation via the Fourteenth Amendment instead of this foot shuffle game going on after Heller. Unfortunately, I was not keen on litigation at the time. These days, I'd bust their state and federal heads. I will forever think of it as Paradise Lost...