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The Texas Post-Conviction Two Step: Early Discharge and Nondisclosure Orders

Thumbnail image for Thumbnail image for AdobeStock_80814322.jpegDuring plea negotiations, prosecutors often recommend deferred adjudication probation, especially if the defendant has no criminal record. In other cases, judges may be willing to grant deferred adjudication after an open plea. In open plea matters, defendants literally throw themselves on the mercy of the court. They plead guilty without working out an agreement with prosecutors. This approach is very risky, but it is a good idea in some situations.

From a practical standpoint, deferred probation is just like regular probation. But from a legal standpoint, there is a big difference. The judge accepts the defendant's guilty plea, but does not find the defendant guilty. If the defendant successfully completes probation, the judge dismisses the case.

Deferred adjudication also has some risks. If the defendant violates probation, the judge could sentence the defendant to anything up to the maximum allowed by law. So, in some cases, a defendant could spit on the sidewalk and serve a very long prison sentence.

However, if you qualify and if your Weatherford criminal defense attorney feels like these risks are worthwhile, the rewards are quite significant.

Early Discharge from Probation

Texas law allows defendants to petition for early release from deferred adjudication probation at any time. That's a big deal. As long as the defendant remains under court supervision, there's a chance of violating probation. When that supervision ends, there is obviously no more risk.

Many judges have unwritten procedural rules in this area. Some judges require the defendant to complete at least a year before they entertain motions for early discharge. A good rule of thumb is to observe the procedure in regular probation early discharge matters. These defendants must complete at least a third of the term.

Additionally, all defendants, whether they are on regular or deferred probation, must complete all probation requirements before asking for early discharge. That includes things like paying fines, attending required classes, and completing community service.

The judge can grant the early discharge petition if doing so would serve the best interests of the defendant and of society. Some specific factors include:

  • Severity of the offense,

  • Defendant's criminal record,

  • How early discharge would benefit the defendant or the defendant's family, and

  • Defendant's record while on probation.

That last factor may be the most critical one. If the probation officer endorses the petition, the judge will probably sign the order.

If the probation officer does not endorse the petition but does not oppose it, the judge must see additional evidence. If the probation officer opposes the petition, there's almost no chance the judge will approve it.

Nondisclosure Order

If the judge grants early discharge from deferred adjudication probation, the defendant is eligible for a non disclosure orders. These orders are not quite as good as expungement, but they are close. Non disclosure orders basically keep criminal records private. Employers, colleges, and most other such organizations will not be able to see them.

Legally, if anyone asks if the defendant has a criminal history, the defendant can say "no" if there is a nondisclosure order on file.

Early discharge and nondisclosure are available in many criminal cases. For a free consultation with an experienced criminal defense attorney in Weatherford, contact Herreth Law. We routinely handle matters in Parker County and nearby jurisdictions.

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