Monday, July 16, 2007

Minimum Length of Time for Deferred Adjudication

Issue:

In an aggravated assault case in which the defendant has received deferred adjudication, is there a minimum length of time which the defendant must serve?

Short Answer:

No. Only article 42.12, section 5 of the Code of Criminal Procedure (“section 5”) governs the term of deferred adjudication a person must serve. Unless it expressly mandates otherwise, section 5 imposes no minimum length of time a person must serve on deferred adjudication. Section 5 does not expressly mandate that a person who receives deferred adjudication for aggravated assault must serve a minimum length of time.

Discussion:

The length of time defendants who receive community supervision—including deferred adjudication, regular community supervision, shock supervision, boot camp, and state-jail-felony supervision—must serve is within the trial court’s discretion with few limitations. See generally Tex. Code Crim. Proc. Ann. art. 42.12 (Vernon 2006). One limitation is that when a defendant receives deferred adjudication for pleading to a felony offense, the term of deferred adjudication cannot exceed ten years. Id. at art. 42.12 § 5(a). But unless section 5 expressly mandates it, there is no minimum term of deferred adjudication a defendant must serve. State v. Juvrud, 187 S.W.3d 492, 496 (Tex. Crim. App. 2006). And section 5 only mandates those who receive deferred adjudication for indecency with a child, Tex. Pen. Code Ann. § 21.11 (Vernon 2003), sexual assault, Id. at § 22.011, aggravated sexual assault, Id. at § 22.021, indecent exposure, Id. at 21.08, prohibited sexual conduct, Id. at 25.02, aggravated kidnapping—if the defendant intended to sexually abuse the victim, Id. at 20.04(a)(4), burglary—if the defendant intended to commit one of the aforementioned offenses, Id. at 30.02, sexual performance by a child, Id. at 43.25, and employment harmful to children, Id. at 43.26. Tex. Code Crim. Proc. Ann. art. 42.12 § 5(a).

Recently, the Texas Court of Criminal Appeals emphasized that a defendant who receives deferred adjudication does not need to serve a minimum length of time. In State v. Juvrud, Juvrud pleaded guilty to misapplication of fiduciary property and was placed on deferred adjudication for ten years. 187 S.W.3d at 493. After four months, Juvrud moved to dismiss and discharge the case against him, and the court granted his motion. Id. The State claimed the trial court did not have authority to terminate Juvrud’s deferred adjudication early because section 20 of article 42.12 of the Code of Criminal Procedure (“section 20”) required Juvrud to serve a minimum of two years. Juvrud, 187 S.W.3d at 493; see also Tex. Code Crim. Proc. Ann. art. 42.12 § 20. The Court of Criminal Appeals rejected the State’s argument, holding section 20 does not govern deferred adjudication and the term of deferred adjudication a person must serve is governed solely by section 5. Juvrud, 187 S.W.3d at 496. And because misapplication of fiduciary property is not one of the offenses for which section 5 requires a minimum term of deferred adjudication, the trial court did have authority to terminate Juvrud’s deferred adjudication early. Id.

Like misapplication of fiduciary property, aggravated assault, Tex. Pen. Code Ann. § 22.02, is not listed in section 5 as an offense for which a minimum term of deferred adjudication must be served. See Tex. Code Crim. Proc. art. 42.12 § 5(a). Therefore, like Juvrud, a person who is placed on deferred adjudication for aggravated assault does not need to serve a minimum length of time on deferred adjudication.

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About Me

I have been hired by the Smith County Bar Foundation to assist the nine contract attorneys defending indigent defendants in Smith County, Texas.