From an email:

If you have the time, and don’t mind, may I have your perspective on Article 42.12 – the specified portion:

If the judge discharges the defendant under this section, the judge may set aside the verdict or permit the defendant to withdraw his plea, and shall dismiss the accusation, complaint, information or indictment against the defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted or to which he has pleaded guilty,

Does this mean there is no longer a conviction on an individual’s record after the judge "sets aside the verdict". May I interpret this as meaning there is NOT a verdict (or case) if the judge has set it aside? How about the original conviction popping up on One’s background check?

Thanks for your insight – I remember reading the case of Cuellar v. State. And one final thing, might a person qualify for the 55.01 since the case has technically been dismissed – or worded as such?  Again Sir, thank you for your time and attention.

My Answer:

The section of 42.12 (which is unbelievably complicated) that you quote is actually from the early termination part of the statute, which may be what you are referring to in your individual case.  

But there’s also similar (or should I say similarly deceptive?) language in the portions of the probation statute about successful completion of deferred adjudication probation. I’m not sure in your case whether you’re talking about the fact that you were released from probation early or simply completed a deferred.

Either way, Houston criminal defense lawyer Mark Bennett just addressed this issue, and unfortunately the law is clear: as far as Chapter 55 expunctions go, you are not eligible for one.

And as Mark’s post makes clear, chances are better than 50/50 that you got some not-the-whole-truth advice from your original lawyer.

If your case was a successfully completed deferred, you may be eligible for a Motion for Non Disclosure, which may be of some help to you. It’s surely no substitute for the correct legal advice from the start, but it may be something…

  • Steve

    Sorry, but I had to make a comment on this. Getting Deferred Adjudication equates to “Congratulations, You are Screwed!”

    I cannot understand how the State of Texas can continue to offer this as a real conclusion for certain crimes when they understand at the time that the defendant will never see the final outcome as promised by the Courts, DA, and the defendant’s legal team. If the State does not want to offer this as an alternative, they should disqualify certain illegal activity from getting or being eligible for Deferred.

  • Joe Damian

    Unfortunately a motion to seal DA is not the same as wiping it clean. As far as I know , The State of Texas did not keep their part of the bargain in regards to Deferred Adjudication. Even the Texas Dept of Public Safety Concealed Handgun Division treats felony grade Deferred Adjudication as a Conviction, Even though it isnt a conviction at all.

  • Bonnie Reynolds

    I am on Felony Deferred Adjudication, how do I fill out a job application when it asks if I have ever been convicted of a Felony?

  • Liberty and justice 4 all

    I had a one time offense 13 years ago-a Class A misdemeanor charge deferred with 10 months probation. I am a law abiding citizen wishing to make the world a better place, and made one mistake in my younger years.I was told by my attorney that if I accepted the deferred with probation-since this was a first offense-I could have the entire record expunged after 7 years.I waited that time- and when I went to file for an expunction-was told that since I had been on probation,and the degree ‘Class A’ of the offense-I didn’t qualify.I have gotten an Order of Nondisclosure,but it doesn’t do much for me-since many professional licensing agencies,volunteer centers,school boards have access to my DISMISSED and NOT GUILTY offense.They view it with judgement-and I was even denied the ability to volunteer for my son’s kindergarten class years ago!!People-write your state legislators expressing how this has affected you.We must bring this to their attention,and have the expunction laws changed to help those of us who only committed a one time offense,and were lied to by the law.Please- do not give up-they meet in January,2009 for the next session, and we need to VOICE(peaceably) our concerns with this injustice.But-there is power in numbers,so WRITE your petition letters to them.Your future depends on it.

  • Lino Leos

    I was charged with DWI/with a child under 15. On October 22, 2006 I was on my way home from my favorite restaurant, Chilli’s. I was with my girlfriend and my little sister who is very close to me . On our way home, on a very dark road, 2 cars pulled out in front of me without their headlights. I hit the 2nd car. The drivers of these two cars were teenagers under the influence. Since I had a few drinks at Chilli’s I willingly submitted a blood sample and came out over the legal limit. Now I’m under DA. My lawyer told me I would have clean record after probation. Not so. I don’t have any priors and now I can’t get a job. I can’t pay my bills and will soon file for bankruptcy. I know I broke the law and have payed the consequences and feel I deserve a second chance to be a productive member of society. I guess in Texas its one strike and your out. No second chances.I pray that in Jan of 2009, the state will allow me to expunge my record so that I can support my family with pride and honor for I feel that I am not a criminal. I ask those who can change the current law to do so. There are thousands of citizens who deserve a second chance. Punishing someone for the rest of their lives is inhumane and lawyers lying to their client about DA should be illegal. I would have never agreed to DA If I knew I would still have a record.

  • gail

    wow – wait till i tell my daughter who has been on 4yrs probation for dwi child endangerment and has outstanding mental issues. Guess I will have to support her all my life.

  • LL

    what if your offense was at 17yrs old and that was 16 years ago? How far back does a background check go?

  • Laura

    My brother was convicted of 2003-08-05 POSS WIT DEL C/S 400GM GAMMA HYD 2005-08-09 TARRANT 0910333D 9999-99-99
    2005-02-26 POSS W/I DEL C/S HYDROXYBUTYRATE 2006-06-23 TARRANT 0968381D 15-00-00

    This is GHB which was made illegal Feb 2000. It is was a drug used by body builders because it mimick the effects of alcohol without the physical effects of alcohol such as weight gain. However, it was recently termed as “illegal” my brother didn’t realize the serious impact of possessing such a drug. He is now very remorseful for his actions. But it is too late.

    The Fort Worth judge gave my brother deferred adjudication for his first offense. As you can see above, he was again accused of obsession of illegal substances and so she gave him a life sentence. It took a total of 15 minutes. He was shocked. He didn’t realize that the judge could give a sentence so severe. We hired an attorney but the representation was very poor. I only wish that it had been explained to him and his family, he signed away his life. Someone should have told us….told him! that he would lose all his rights to a trial, to a court reporter, etc …..a menu of our fundamental rights. Because of his signing away his rights, we do not even have a record of the trail. In my opinion deferred adjudication is a way to trap people. Any court that can take away the rights of a citizen should be reviewed. People are valuable and should be treated as so.

  • jessica m
  • BlessedDiva

    I received deferred Adjudication for 4 years for repayment to the housing authority, now I don’t have a problem paying this back, but I can’t get a job anymore because of what is now on my background. What do you do to keep yourself sane? I have two kids and bills. Not to mention this is my first offense. I’m in school, lost my job behind the offense and have struggled since. What can I do about this, when the four years are over is the felony lifted and I am then able to get a job? Please answer???

  • Clarence Kelly

    I was put on deferred adjudciation back in 1995 and I completed it in 2002. I have never been in trouble with the law. Right before I was in court for this I made it for Austin PD now my life is screwed up. I still am able to get a good jod that pays my bills however my goal was to follow my famliy and become a policeman. Will this ever happen for me are do I need to forget about my dream?

  • Luke Halvorson

    I got a possesion charge in Jan 2009. I have just completed 2 years deferred probation for the felony charge to be “dismissed”. However I got screwed by the system! The charge is still alive and well on my record and I cannot get a good job anymore! “DEFERRED” is another way for saying you can PAY US AND GET A CONVICTION! My whole life is screwed because of this decision and there is no way out. I cant even legally own a handgun.

  • Bo

    I accepted DA in 1994 for felony burglary of a building. The charge was actually too severe because burglary carries intent to commit a felony, theft or assault. I had no intent to do any of that. I was just a 17 year old dumb kid who thought it’d be fun to break into a building. The Dist Attorney even told me the charge should have been lessoned but considering I had already spent a month in county jail at 17 I was ready to do anything to just get home.

    But I knew nothing about the law and my court appointed attorney told me if I accepted DA my record would be clean and I’ve have no conviction. Well that was BS because you’re still treated like a convicted felon at every turn.

    I was recently denied entry into a college nursing program as a result. And I’m certain my job opportunities have been limited by it. Professional license is extremely difficult if not impossible. What I have accomplished was only after having to fight tooth and nail. In today’s background crazed world it’s a constant issue hanging over my head and when people find out it’s like they see you so differently. When is enough, enough?!?!?

  • Wally

    My girl got probation with deferred ×2 . Saying that she’ll be on probation till fines are payed. Only she only went back to town for court. They said she needed to go to probation, she didn’t she had to head back what do we do? will she have to go to jail? Been 7 mouthso and I’m worried. .

  • Wally

    My girl got probation with deferred ×2 . Saying that she’ll be on probation till fines are payed. Only she only went back to town for court. They said she needed to go to probation, she didn’t she had to head back what do we do? will she have to go to jail? Been 7 mouthso and I’m worried. .