Deferred adjudication on a domestic violence case is practically a conviction! One of the biggest myths in the criminal justice system is that deferred adjudication is amazing because the case “doesn’t go on your record”. That is only a partial truth, and the attorneys that are telling that to their clients on domestic violence cases are borderline committing malpractice.
Here is the truth why a deferred on a domestic violence case is essentially a conviction:
- IT CAN NEVER BE SEALED, NON-DISCLOSED, EXPUNGED FROM YOUR RECORD
Deferred pleas can be great on some cases, because when the deferred is terminated the case can be non-disclosed. When the case is non-disclosed, it is hidden from public records (while still visible to law enforcement and governmental agencies). This protects some people from having potential employers find out.
But under Texas Government Code section 411.074 it is clear that, “A person is not entitled to petition the court for an order of nondisclosure under this subchapter if…the person has been on deferred adjudication for…any offense involving family violence”.
The fact that a person pled guilty and was given a deferred probation is going to be visible on their record FOREVER.
- IT SERVES AS A CRIMINAL ENHANCEMENT
It does not matter that there is no conviction after a domestic violence deferred, the State can still use the case against the defendant in any future cases. Take the example of someone who gets a 2nd DWI dismissed. When they get arrested a third time, it is not a felony DWI – 3rd offender, it is once again a 2nd DWI because the previous was dismissed and thus cannot be used as an enhancement.
Now take for example an individual who has no conviction because they successfully completed an Assault-Family Member misdemeanor deferred adjudication. Like the DWI example above, this person also has no conviction, but if they get arrested for another domestic violence case their case is automatically enhanced to a 3rd degree felony. It doesn’t matter if the accusation is a simple push, or a pinch of the arm, that person is looking at 2-10 years in prison because of the previous deferred.
- PEOPLE WILL HOLD THE DEFERRED AGAINST THE DEFENDANT
A person can scream until they are blue in the face that they have no convictions and that their record is clean, but that HR representative is still going to see a big red mark on that background check.
Anyone that knows anything about the law (including most individuals in charge of hiring), are going to know that a deferred means the person pled guilty. Legal arguments can be made, but the hiring manager is going to know the truth of what happened in the case.
If a person with a clean record applies for a job, and another person with a domestic violence deferred applies for a job, I will give you one guess on who that company is picking. Hint, it is not going to be the person who pled guilty on an allegation of family violence. While on paper deferred adjudication seems ok, in the real world….it’s not.
The only thing that a person can say if they complete a deferred adjudication probation is that they have no conviction, but in the real world all the negatives of a conviction will still follow them. There is no point to take deferred adjudication on a domestic violence case that is defensible. Assuming the court is a good venue where probation is the likely outcome in the result of a loss, it is better to take your chance at trial. Unfortunately there will always be attorneys who do not know the law, or who are looking for a quick way out, but for the foregoing reasons….deferred adjudication on a domestic violence case is practically a conviction.
Eric Benavides is a Houston Criminal Defense Attorney. He is the founder of Benavides Law Group. He is a graduate of the prestigious Texas Criminal Defense Lawyers Trial College and is a proven trial lawyer. He has been named a Texas Super Lawyers Rising Star and has been recognized as one of the best criminal lawyers in Houston by Houstonia and H-Texas magazines.