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.

I was involved in an email exchange today with someone who asked me what the collateral consequences of accepting a plea bargain that would result in a regular conviction probation with no jail time for possession of marijuana in Texas. (He was considering accepting an offer from a prosecutor in a county where he was allowed to represent himself pro se – a topic for another post, another day.)

I emailed him back three possible collateral consequences of his plea bargain that I could come up with off the top of my head (there are others, and sometimes they are case by case or fact-specific):

Driver’s license suspension for 180 days – turns out the prosecutor had told him about this one. This is standard in the criminal court, because most Texas County Court judges know this, they will actually include this in the sentencing paperwork. No one will probably help the defendant seek an occupational license though, which would keep him “street legal” for all the places he needs to go (not for all of the fun places, of course, but still, unless you want to become Amish, you need some sort of a drivers license to be able to go about your daily business nowadays).

Denial of Student Aid for Certain Periods of Time – the prosecutor hadn’t mentioned this one. I think it’s very likely that the prosecutor didn’t know or didn’t care about this, but anyrate, under current Texas law, no one is required to tell a defendant about this. Not even the judge in admonishing an unrepresented defendant. I previously posted about the statute and the relevant ineligibility for federal aid time periods.

Non U.S. citizens subject to deportation – (if charging instrument alleges possession of more than 30 grams) – this also didn’t apply to the fellow who emailed me, but it’s really one of my pet peeves about the current state of marijuana laws in Texas. Texas criminalizes possession of any usable amount less than two ounces (approximately 56 grams) of marijuana as a Class B misdemeanor. The charging instrument is an information (not an indictment) for this level of offense. Even if a foreign national possessed merely 1 gram of usable marijuana, if he pleads to the offense as charged, he subjects himself to being deported, based on the accusation of “less than two ounces”, because that amount could be more than 30 grams, which triggers the federal deportation element.

I’ll end by adding that these are just some of the possible draconian consequences of conviction of marijuana offenses in Texas. Fortunately, in Austin, the prosecutors often accept pre-trial diversion applications for first time marijuana offenders. Williamson County has set up a pre-trial diversion program as well too. More Texas counties need to follow suit.

Julie Ross writes a piece in the SMU Daily Campus paper today entitled “Smoke Pot, Get Caught, Lose College Funding”:

This ban unjustly continues to penalize students with drug convictions. Under this ban even a single, minor drug charge or violation (including possession of drug paraphernalia) will prevent a student from receiving financial aid for college. In other words, that funky Phish bong you picked up at Pipe Dream could cost you more than just retail.

She quotes Brandon Conaway writing for the student newspaper for the University of Northern Iowa’s reaction to this:

It may seem justified that breaking the law can result in a loss of federal aid. However, the law only applies to drug convictions. This means that a convicted murderer or rapist can still get financial aid, while someone convicted of misdemeanor possession of marijuana cannot. There is also no conclusive proof that the provision deters drug use – the major reason the provision was implemented in the first place.

They are both right, of course, to protest this onerous “collateral consequence” of what might otherwise be a “minor” drug conviction. This is just one of the reasons I try to steer my University of Texas at Austin clients arrested for marijuana offenses into the Travis County Pre-Trial Diversion program, which when successfully completed leads to a dismissal and eligibility for an expunction.

Even misdemeanor drug offenses needed to be handled carefully. The consequences often go well beyond whatever conditions the judge orders, even if it’s “just probation”.