Also Heard at the Courthouse

I’ve had many potential clients tell me that they had taken deferred adjudication probation because their lawyers (and, in some cases, judges) had told them that deferred adjudication would not appear on their records. I’ve long ascribed this to miscommunication — to criminal-defense lawyers telling the literal but misleading truth about deferred adjudication (that it is not a conviction) and clients hearing what they desperately want to hear (that it won’t be on their records).

But a few weeks ago I heard it, clear as a bell, from a lawyer talking to his client in the hallway in the courthouse:

This is a five-year deferred adjudication probation, which will keep it off your record.

This is such bad legal advice that I’m using it as a model for Bennett’s Taxonomy of Bad Legal Advice (not that I want my name forever associated with “bad legal advice” but a good taxonomy needs a name:

  • Bad Legal Advice is incorrect.
  • Really Bad Legal Advice is incorrect and relevant.
  • Terrible Legal Advice is incorrect, relevant, and irreversible.

This lawyer’s advice was incorrect: a deferred adjudication probation remains on the defendant’s record forever. If the defendant successfully completes the deferred adjudication probation, he may qualify for an order of nondisclosure, which (theoretically, at least) removes the record from public view, but until that is accomplished (it may not be possible in some cases, and in most felony cases it is not possible until five years after the probation ends) those who care about a person’s criminal history — I typically cite landlords and employers — will find out about the deferred adjudication and treat it the same as a conviction. So while it is the literal truth that a deferred adjudication is not a conviction for purposes of Texas state criminal law, the rest of the story is that deferred adjudication is treated as a conviction by many people whose opinions on the question matter, including federal judges (a deferred adjudication counts as a previous conviction in federal sentencing) and immigration authorities.

His advice was relevant: a client deciding whether to take the prosecutor’s proffered deferred adjudication probation would do well to consider what the effect on his record, both public and governmental, would be. In fact, the creation of a persistent criminal record is a dealbreaker for many people accused of crimes.

This advice, incorrect and relevant, might have the redeeming quality of being reversible: the lawyer might realize his error, confess error to his client, and reopen the case if the client wants him to by confessing error to the court. But short of the lawyer falling on his imaginary sword, this Really Bad Legal Advice is irreversible. While misinformation concerning a matter about which a defendant is not constitutionally or statutorily entitled to be informed (such as most non-punitive consequences of a plea) may render a guilty plea involuntary if the defendant shows that his guilty plea was actually induced by the misinformation, a defendant’s claim he was misinformed by counsel, standing alone, is not enough for a court to hold that his plea was involuntary.

That is, if the record doesn’t show that the lawyer gave the client this bad advice, the client’s not going to be able to take back his plea. And since I don’t know who the lawyer was, the only way the record is going to show that the lawyer gave Really Bad Legal Advice is if the lawyer admits it. And if he doesn’t admit it?


0 responses to “Also Heard at the Courthouse”

  1. I hear the same thing everyday. I tell my clients that this is also not automatic. In our jurisdiction once you complete your probationary period you must file a motion to have the matter expunged. I remind my clients that this is not as mere formality but in most cases requires hiring an attorney and shelling out about $500.00.
    In most cases, it doesnt matter because 64% of my clients violate in the first year and in my jurisdiction the standard probation rec consists of three (3) years of reporting probation. Talk about a cash cow forthe government.

  2. Back when I did Immigration Law I cleaned up (as best I could) from a lot of similar “advice”. We spent months (and a lot of client’s money) trying to find a way to move heaven and earth to keep a guy who had taken such “advice” from a criminal defense attorney from getting sent back to Iran. What with him having uncles who had been part of an anti-Khomeni coup attempt, he felt it was rather unhealthy for him to return to the land of his birth.

    Perhaps the worst such advice I remember hearing about was given to lots of defendants back in the late 70s and throughout the 80s. Criminal Defendants from Vietnam (and Cambodia) were apparently told by their Defense Attorney “Go ahead and take the plea. It’s OK because they can’t deport you…we don’t have diplomatic relations with Vietnam.”

    So the Defendant would take the plea, the attorney would pocket the fee, and the INS would enter an order of deportation…and then promptly relase the Defendant on parole, as there was no way to deport him as the USA and Vietnam did not have diplomatic relations. (They couldn’t just hold the guy in jail forever, at least not back then.)

    All was fine and good for several years, till on July 11, 1995 – President William J. Clinton announces “normalization of relations” with Vietnam, and the INS goes back to all those old Deportation Orders, dusts them off, and starts picking people up for things they did almost 20 years ago.

    Considering that these were often people, or the children of people, who had fled Vietnam because they had helped us during the war, and therefore had a very good reason to fear returning to Vietnam, this was not a good thing…

  3. My former (and since disbarred) attorney fed me the whole “you won’t have a felony conviction on your record” line. At some point during my probation term it dawned on me that even if the felony conviction wouldn’t be on my record – the arrest, charge/indictment, and sentence would probably remain…

    Looking back, even if I’d known the whole truth – I would still have accepted the deferred sentence. Losing my right to vote, own a gun, etc. was/is the bigger issue for me personally.

  4. Hello,

    My question is. As part of Cuellar v State of Texas, quotes the Art 42.12 in Criminal Code as “..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..”

    So in this regard, how exactly can ANY items be tacked on after the fact. In that case for example,. the gentleman was attempting to get a CHL, but was denied due to a previous Deferred Adjudication. The Court of Criminal Appeals found that the Fourth Courts decision of the defendant not being found guilty as not erred. This being the case, how exactly can the State enact the Sex Offender registry on those that received and completed DA’s if in fact the law states that all penalties and disabilities will be removed if they are due to the original charge.

    No attorney will answer this for me, and I have sort of hit a wall on finding any answers on this.


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