What is a Conviction?
In Texas, a conviction is a finding of guilt. Until recently they were permanent marks on your criminal record that basically tattooed on your forehead the word, “criminal” really specifically. In fact, it would say you were arrested, charged, and found guilty of whatever specific crime had been leveled against you: prostitution, resisting arrest, possession of marijuana, etc.
There are a few ways to wind up with a conviction. You could fight your charge in a trial and lose. That would result in a conviction and a sentence of either jail or prison time, a fine, some combination of the two, or probation. You could also plead guilty and be found guilty right then and there by the judge. The judge could sentence you to confinement (jail or prison), a fine, nothing at all (a plea we call, “time-served.”) or probation. Probation where the judge finds you guilty right away practitioners commonly call, “straight probation.”
Another way of putting it is the only way you don’t have a conviction if you were charged with a crime is if: 1) your case was dismissed, 2) you went to trial and won, or 3) you received a special kind of probation called “deferred adjudication” learn more.
One important final note about convictions: different states and different agencies of the federal government have their own legal definitions of, “conviction.” So, for example, under federal immigration law, even a dismissal may be considered a “conviction” under certain circumstances.*
What is Nondisclosure?
It hides all records of a particular arrest, charge, and now conviction from most people. That includes colleges, private employers, apartment complexes and others. You don’t even have to state that you’ve been “subject to any criminal proceeding” in any application for “employment, information, or licensing.”* Pretty cool, right?
It’s not perfect though. It does not hide the records from:
1) “criminal justice agencies for criminal justice or regulatory licensing purposes”* ;
3) most administrative agencies in Texas* and
4) a few really specific types of employers –basically banks and jobs involving hazardous materials
If you think you may be eligible for nondisclosure of a criminal record, please call our office at (713) 529-3900. We are happy to review your record and, if you’re eligible, start you right away on a path toward clearing up your criminal record.
* Tex. Gov’t Code Ann. Sec. 411.0765.
* (1) the State Board for Educator Certification;
(2) a school district, charter school, private school, regional education service center, commercial transportation company, or education shared service arrangement;
(3) the Texas Medical Board;
(4) the Texas School for the Blind and Visually Impaired;
(5) the Board of Law Examiners;
(6) the State Bar of Texas;
(7) a district court regarding a petition for name change under Subchapter B, Chapter 45, Family Code;
(8) the Texas School for the Deaf;
(9) the Department of Family and Protective Services;
(10) the Texas Juvenile Justice Department;
(11) the Department of Assistive and Rehabilitative Services;
(12) the Department of State Health Services, a local mental health service, a local intellectual and developmental disability authority, or a community center providing services to persons with mental illness or intellectual or developmental disabilities;
(13) the Texas Private Security Board;
(14) a municipal or volunteer fire department;
(15) the Texas Board of Nursing;
(16) a safe house providing shelter to children in harmful situations;
(17) a public or nonprofit hospital or hospital district, or a facility as defined by Section 250.001, Health and Safety Code;
(18) the securities commissioner, the banking commissioner, the savings and mortgage lending commissioner, the consumer credit commissioner, or the credit union commissioner;
(19) the Texas State Board of Public Accountancy;
(20) the Texas Department of Licensing and Regulation;
(21) the Health and Human Services Commission;
(22) the Department of Aging and Disability Services;
What is Deferred Adjudication?
Like many legal phrases, deferred adjudication is best understood if you break the words down into their independent meanings: Deferred—to wait; Adjudication—to find guilty. So deferred adjudication is when the judge waits to find an accused person guilty.
Deferred adjudication is a plea deal agreed to between the accused person and the prosecution. The accused person pleads guilty to the judge. The judge, enforcing the bargain, places the accused on probation (called, “community supervision”) that looks and feels just like any other probation. There are conditions: community service, fees, fines, classes, an offender identification card, etc. But, unlike what practitioners commonly call, “straight probation,” the judge doesn’t find the accused person guilty right then and there. The judge literally defers a finding of guilty. And in fact, as long as the new probationer follows all of the rules of probation, they’ll never be found guilty! At the end of a successful deferred adjudication probation, the case is dismissed.
Deferred adjudication is only available as a plea agreement. In other words, an accused person can’t receive it as a punishment from a judge or jury after he has been convicted at trial. By definition the adjudication can’t be deferred because it’s already happened.
Generally speaking, there are two benefits to the bargain: 1) the probationer isn’t convicted; and 2) the probationer might one day qualify for a special sealing of their criminal record called, “nondisclosure.”
Still, deferred adjudication doesn’t protect a criminal record perfectly. It can leave serious scars. Immediately after the case is dismissed, it will still show up on a background search as an arrest, a charge, a plea of guilty, and a deferred adjudication probation that was successfully completed. In most circumstances, after a waiting period (two years for misdemeanors, five years for felonies), the probationer can then apply for a sealing of the record called nondisclosure [link]. But that doesn’t apply to certain offenses (consult your lawyer before you plea to find out whether your offense may eventually be eligible for nondisclosure). And nondisclosure isn’t perfect. It can still be seen by lots of entities including law enforcement and licensing agencies. [Read more about nondisclosure here]
Also, what happens if the probationer doesn’t follow all of the rules? The question of whether-or-not the probationer committed the underlying crime was settled when he pleaded guilty. The state can allege that the probationer broke just one rule. And as long as the state can prove that one violation by a preponderance of the evidence (the same standard of proof used in civil cases where people are arguing over money), the judge can revoke the probation and adjudicate the probationer guilty (in other words, give the probationer a conviction [link]). After that, the entire range of punishment for the offense is available to the judge. He can put the probationer back on a new probation with a conviction, sentence him to jail or prison for some amount of time within the range, and tack on a fine within the punishment range.
If you or a loved one are considering accepting a plea agreement for deferred adjudication, it is very important that you consult a qualified criminal attorney. For a consultation, feel free to call our office at (713) 529-3900.