Barry Green, a Wise County criminal defense lawyer recently left a comment on my recent post about deferred prosecution:

Isn’t "deferred prosecution" the same thing as "pretrial diversion" or, technically, a "pretrial intervention program" under Article 102.012 of the Code of Criminal Procedure? I was just curious since you said it "was not available by statute."

He asks a good question, and I could have been more precise. Actually, in Travis County, we have a PreTrial Diversion program as well as the occasional opportunity for dismissal by way of deferred prosecution. So in Austin, they are two different things.

PreTrial Diversion programs are indeed authorized and covered by statutes, including among others CCP Article 102.012 and Government Code Section 76.011. And limits on administrative fees for these programs are covered by Government Code 76.015.

The basic difference between the two (at least, in Travis County) is that one of them – PreTrial Diversion – is run by the Probation Department. It is not, however, a reporting probation – just a program run by the department.

Deferred Prosecution is similar, in that it is an agreement between the defendant and prosecutor to dismiss the case if certain conditions are met, but it has nothing to do with the Probation or Community Supervision Department.

I think most Texas Counties probably don’t have both options. Some probably have neither.

Another distinction between the two, albeit a non-legal one, is the reasons for which they are potentially granted in negotiations. In Austin, entry into the PreTrial Diversion program is sometimes granted for first time offenses, most often Theft, Possession of Marijuana and several other misdemeanor charges. Assault, whether Family Violence or not, and DWI are not even considered for PreTrial Diversion.

The reason it is given occasionally is for equitable reasons(i.e. the conviction itself is overly punitive), not substantive ones(i.e., my client didn’t do it, or the State may have difficulty proving my client guilty). For example, denial of guilt in a

Deferred Prosecutions are sometimes offered for equitable reasons, but in my experience in Austin, it’s more often for substantive problems with the State’s case. These are, perhaps, even less formal agreements, at least in the sense that the Probation Department has nothing to do with them. And they are completely non-statutory.

For some more interesting legal reading on the subject of PreTrial Diversion programs, also see Attorney General Greg Abbott’s response to Guadalupe County Auditor Kristen Klein’s inquiry about assessing fees for these programs. 

One last note: similar to my comments about some Municipal Court prosecutors referring to deferred disposition as “deferred adjudication”, the semantic distinctions above hold true in Austin and Travis County, but not necessarily in other jurisdictions. The law, of course, is the same, but my point is that different prosecuting/criminal defense cultures refer to similar programs with different terms, and different programs with similar terms.

  • jason franke

    I was talking with a friend and was wondering if I might have to go back jail to do the rest of my time. if so, I’m looking at 60 days. charges are misdemeanor family violenece