and
"No Contest" Pleas
in Texas
The following information is provided free of charge. Due to the ridiculously large number of people who have called me for more free legal advice on this subject, there is now a $100 consultation fee to talk with me on the telephone or in person about it. Please be prepared to give me a credit card number when you call.
I charge $1,000 for each motion for non-disclosure in Harris County. That includes investigation to confirm that you are entitled to the non-disclosure, a full hearing (with witnesses) if the state contests the non-disclosure, an appeal and re-filing if the non-disclosure is denied, and follow-up with the court, the district clerk, and the DPS to make sure that the law is followed. The $100 initial consultation fee will apply toward the fee for the motion.
If your deferred adjudication was in the Dallas area instead of the Houston area, please contact Kim Tucker.
Thanks to the hard work and grassroots organization of good citizens (Valente Gonzalez of deferredadjudication.org and Rob Sandifer of www.wipetheslateclean.com are two that stand out), the law concerning the sealing of deferred adjudication records will change effective September 1, 2003. This is an inspirational example of what concerned citizens can do to improve the law. Before they changed the law, a deferred adjudication probation remained on a defendant's record and accessible to the public forever.
As of September 1, 2003, a person who has successfully completed a deferred adjudication probation for a class B misdemeanor, a class A misdemeanor, or a felony, may (depending on the offense committed) be able to ask the judge of the court that put him on deferred to sign an "order of nondisclosure" barring governmental agencies from disclosing the existence of the deferred to the general public.
There is a laundry list of entities that will still be able to discover the existence of the deferred -- broadly, any state agency that issues licenses or certifications; and any private entity that is responsible for the safety of children or the elderly, as well as some private entities that hire people for security-sensitive positions.
For most misdemeanors, the defendant can petition for the order of nondisclosure immediately after his deferred adjudication is discharged and his case is dismissed.
For some misdemeanors, a defendant must wait five years after his deferred adjudication is discharged and his case is dismissed to file for an order of nondisclosure. These misdemeanors are violations under the following chapters of the Texas Code of Criminal Procedure:
20 [kidnapping, unlawful restraint, unlawful transport]
21 [sexual offenses -- homosexual conduct, public lewdness, indecent exposure]
22 [assaultive offenses -- assault; coercing, soliciting, or inducing gang membership; deadly conduct; terroristic threat]
25 [offenses against the family -- bigamy, enticing a child, harboring a runaway child, advertising for placement of child]
42 [disorderly conduct, riot, obstructing highway, disrupting meeting or procession, false alarm or report, silent or abusive calls to 9-1-1, harassment, abuse of corpse, cruelty to animals, dog fighting, destruction of flag, discharge of firearm in city limits] and
46 [weapons offenses -- unlawfully carrying weapons, unlawful transfer of certain weapons, hoax bombs, making a firearm accessible to a child]).
For felonies, he must wait ten years after his deferred adjudication is discharged case is dismissed to file for an order of nondisclosure.
Some offenses cannot be sealed with an order of nondisclosure:
Any offense requiring sex offender registration;
Aggravated kidnapping;
Murder;
Capital murder;
Injury to a child, elderly individual, or disabled individual;
Abandoning or endangering a child;
Violation of a protective order;
Stalking; and
Other family violence offenses (family violence is violence or the threat of violence against a relative, a current or former housemate, or a person with whom the defendant was in a dating relationship).
There is a $28 filing fee for an order of nondisclosure. After a judge has ordered nondisclosure, the defendant may deny the occurrence of the arrest and prosecution unless the information is being used against him in a subsequent criminal proceeding.
WARNING: an arrest covered by a nondisclosure order may still be used against you in federal court.
The above information is provided free of charge. Due to the ridiculously large volume of calls I have received on this subject, there is now a $100 consultation fee to talk with me on the telephone or in person about it. Please be prepared to give me a credit card number when you call.
I charge between $500 and $1,000 for each motion for non-disclosure, and the $250 initial consultation fee will apply toward the fee for the motion.
There are two types of probation that might be available to a person who has committed a crime in Texas. They are "straight" probation and deferred adjudication probation.
The differences are:
If you receive straight probation, a limit is set on your sentence before you receive probation, so that your violation can result, at most, in that limit. If you receive deferred adjudication and violate your probation, you might be sentenced to the maximum punishment for the offense. For example, a typical straight probation sentence is "five years, probated for five." If you violate probation, you can go to prison for up to five years. On the other hand, if you are on deferred for five years for a second-degree felony (a 2-20 year offense) and you violate your probation, you can go to prison for 20 years.
If you receive straight probation and your probation is revoked, you can appeal the revocation of your probation. If you received deferred adjudication and your probation is revoked, you cannot appeal the revocation.
If you receive straight probation, you are convicted of the crime with which you are charged. If you receive deferred adjudication probation, you are not convicted (for purposes of Texas criminal law) unless you violate your probation.
Deferred adjudication is not permitted for DWI. The judge cannot give straight probation for so-called 3g (aggravated) offenses (but the jury can, if the sentence is 10 years or less).
In Houston, some apartment landlords and employers send investigators to the courthouse to investigate potential tenants or employees. These landlords and employers generally treat a deferred adjudication the same as a conviction. That means that people are often unable to rent apartments or get jobs because of deferred adjudication on their records.
In addition, for purposes of federal law, a deferred adjudication is the same as a conviction. So punishment for a subsequent federal crime can be enhanced by virtue of the deferred. A person who is not a citizen can be deported for taking a deferred.
Even state law treats a deferred as a conviction for purposes of determining who is eligible to receive or renew some types of licenses. A person who received a deferred may find himself in a nasty spot when he goes to renew a license issued by the state.
Some defendants prefer to plead "no contest" instead of guilty. According to the law, there is little difference between the two pleas. You can be convicted on either; your criminal record will appear the same either way. The only difference is that a "no contest" plea cannot be used against you in a civil suit involving the same conduct. For example, if you have an accident, are prosecuted for DWI and plead "no contest," victims of the accident can't use your plea to prove in civil court that you were DWI. If you plead "guilty," they can.
Homepage