What is the longest deferred adjudication probation term for a third-degree felony in Texas?

Plain-English summary

The Hood County District Attorney asked the AG to resolve an apparent conflict between two community-supervision statutes. Community supervision (commonly called probation) is regulated by chapter 42A of the Code of Criminal Procedure. Article 42A.053, governing regular community supervision, sets a five-year maximum for specified third-degree felonies, including a third-degree felony under Title 7 of the Penal Code (offenses against property) or under Chapter 481 of the Health and Safety Code (the Texas Controlled Substances Act). Article 42A.103, governing deferred adjudication, says the period of deferred adjudication community supervision in a felony case may not exceed ten years. The DA asked whether the five-year cap conflicts with the ten-year cap for those third-degree felonies.

The AG explained that the definition of community supervision (article 42A.001(1)) sets up two primary kinds: regular community supervision, where a sentence is assessed but its imposition is suspended after a conviction, and deferred adjudication, where the judge defers further proceedings without entering an adjudication of guilt after a guilty or no-contest plea. Courts have long treated these as distinct forms, each with its own limitations and requirements, and a defendant may be eligible for one but not another (State v. Juvrud; Rodriguez v. State). Deferred adjudication requires a plea of guilty or nolo contendere, and as a practical matter the defendant waives a jury trial to get it (Metts v. State); once the case is adjudicated, deferred adjudication is no longer available.

Because article 42A.053 (regular supervision) and article 42A.103 (deferred adjudication) sit in different subchapters, neither refers to the other, and they govern different statutory schemes, the AG concluded they do not conflict. Citing the rule that the special provisions for deferred adjudication prevail over the provisions for regular probation (State v. Juvrud), the AG held that the five-year cap in article 42A.053 applies only to regular community supervision and does not limit deferred adjudication. Article 42A.103 sets a ten-year maximum for all felonies without carving out particular offenses. So the maximum allowable period of deferred adjudication community supervision for a felony, including a third-degree felony under Title 7 of the Penal Code or Chapter 481 of the Health and Safety Code, is ten years.

What this means for you

This describes what the opinion holds. It is the AG's 2021 reading; statutes can change, so confirm current law before relying on it.

Prosecutors and defense attorneys

The opinion treats the five-year cap in article 42A.053 as limited to regular community supervision. For deferred adjudication on a third-degree felony under Title 7 or Chapter 481, the AG identifies the ten-year cap in article 42A.103 as the governing maximum.

Judges and probation staff

The opinion frames the two statutes as governing separate forms of supervision that do not cross-limit each other, with the special deferred-adjudication rules prevailing over the regular-probation rules.

Defendants weighing a plea

The opinion notes that deferred adjudication follows a guilty or no-contest plea and, as a practical matter, a waiver of a jury trial, and that its maximum length for a felony is ten years. This is a description of the statutory limits, not advice on whether to seek deferred adjudication.

Common questions

Q: What's the longest a deferred adjudication can last for a third-degree felony?
A: Ten years, per the AG, under Code of Criminal Procedure article 42A.103, which caps deferred adjudication for all felonies at ten years without exceptions for particular offenses.

Q: Doesn't another statute say five years?
A: Article 42A.053 sets a five-year cap, but the AG concluded it applies only to regular community supervision, not deferred adjudication, so the two do not conflict.

Q: What's the difference between regular community supervision and deferred adjudication?
A: Regular community supervision follows a conviction, with the sentence assessed but suspended. Deferred adjudication follows a guilty or no-contest plea, with proceedings deferred and no adjudication of guilt entered.

Q: Why do the deferred-adjudication rules control?
A: The AG cited Texas case law holding that the special provisions for deferred adjudication prevail over the provisions for regular probation, so deferred adjudication is governed by its own ten-year cap.

Background and statutory framework

Chapter 42A of the Code of Criminal Procedure governs community supervision (article 42A.001(1) defines it), replacing former article 42.12 in a 2015 nonsubstantive revision. Regular community supervision is placed under article 42A.053 (subchapter B), which sets offense-specific maximums including a five-year cap for specified third-degree felonies under Title 7 of the Penal Code and Chapter 481 of the Health and Safety Code. Deferred adjudication is governed by subchapter C: article 42A.101(a) authorizes it after a plea of guilty or nolo contendere, and article 42A.103(a) caps it at ten years for felonies.

The AG relied on cases treating the forms of community supervision as distinct (State v. Juvrud; Rodriguez v. State; Wright v. State), the practical waiver of a jury trial for deferred adjudication (Metts v. State), the interchangeability of "community supervision" and "probation" (Hongpathoum v. State), and the two-kinds framework (In re R.B.). Because neither statute references the other and the special deferred-adjudication provisions prevail, the AG concluded the ten-year cap controls deferred adjudication for these felonies.

Citations and references

Statutes:

• Tex. Code Crim. Proc. art. 42A.103 (ten-year maximum deferred adjudication for felonies)
• Tex. Code Crim. Proc. arts. 42A.001(1), 42A.053, 42A.101 (definition; regular supervision; placement on deferred adjudication)
• Tex. Penal Code §§ 28.01–35A.02 (Title 7, Offenses Against Property)
• Tex. Health & Safety Code §§ 481.001–.354 (Chapter 481, Texas Controlled Substances Act)

Key cases:

• State v. Juvrud, 187 S.W.3d 492 (Tex. Crim. App. 2006) (special deferred-adjudication provisions prevail over regular probation)
• Rodriguez v. State, 939 S.W.2d 211 (Tex. App.—Austin 1997, no pet.) (forms of community supervision are independent)
• Metts v. State, 510 S.W.3d 1 (Tex. Crim. App. 2016) (deferred adjudication follows a plea; practical jury-trial waiver)
• Hongpathoum v. State, 578 S.W.3d 213 (Tex. App.—Fort Worth 2019, no pet.) ("community supervision" and "probation" are synonymous)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0383
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2021/kp-0383.pdf

Original opinion text

August 30, 2021

The Honorable Ryan Sinclair
Hood County District Attorney
1200 West Pearl Street
Granbury, Texas 76048

Opinion No. KP-0383

Re: Maximum allowable period of deferred adjudication community supervision for a third degree felony under either Title 7 of the Penal Code or Chapter 481 of the Health and Safety Code (RQ-0398-KP)

Dear Mr. Sinclair:

You ask about the maximum allowable period of deferred adjudication community supervision for a third degree felony under either Title 7 of the Penal Code or Chapter 481 of the Health and Safety Code.¹

Background

Chapter 42A of the Code of Criminal Procedure regulates community supervision, also known as probation, that a court may order in different circumstances.² See TEX. CODE CRIM. PROC. arts. 42A.001–.757; see also Hongpathoum v. State, 578 S.W.3d 213, 214 n.1 (Tex. App.—Fort Worth 2019, no pet.) ("'Community supervision' and 'probation' are synonymous and generally used interchangeably.'"). Your question concerns two statutes in the chapter, article 42A.053 ("Judge-Ordered Community Supervision") and article 42A.103 ("Period of Deferred Adjudication Community Supervision"). Request Letter at 3. Article 42A.053 authorizes a judge to place a defendant on community supervision in specific circumstances. TEX. CODE CRIM. PROC. art. 42A.053(a). The statute provides for minimum and maximum periods of community supervision for various offenses, and states that "the maximum period of community supervision is . . . five years, for any of the following third degree felonies: (i) a third degree felony under Title 7, Penal Code;³ and (ii) a third degree felony under Chapter 481, Health and Safety Code."⁴ Id. art. 42A.053(d)(2)(B). Article 42A.103, on the other hand, provides that "[i]n a felony case, the period of deferred adjudication community supervision may not exceed 10 years." Id. art. 42A.103(a). You ask specifically whether the five-year maximum period under article 42A.053 conflicts with the ten-year period under article 42A.103 with respect to establishing the maximum allowable period of deferred community supervision for one of the third degree felonies specified in article 42A.053. Request Letter at 3.

¹ See Letter from Honorable Ryan Sinclair, Hood Cnty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Feb. 22, 2021), https://www2.texasattorneygeneral.gov/opinions/opinions/51paxton/rq/2021/pdf/RQ0398KP.pdf ("Request Letter").

² Previously the community-supervision statutes were located in former article 42.12 of the Code of Criminal Procedure. In 2015, the Legislature repealed article 42.12 and enacted Chapter 42A in a nonsubstantive revision of the community-supervision laws. See Act of May 26, 2015, 84th Leg., R.S., ch. 770, §§ 1.01, 3.01, 4.01–.02, 2015 Tex. Gen. Laws 2321, 2321–95 (codified at TEX. CODE CRIM. PROC. arts. 42A.001–.757).

Overview of Community Supervision

Chapter 42A defines community supervision as

the placement of a defendant by a court under a continuum of programs and sanctions, with conditions imposed by the court for a specified period during which:

(A) criminal proceedings are deferred without an adjudication of guilt; or

(B) a sentence of imprisonment or confinement, imprisonment and fine, or confinement and fine, is probated and the imposition of sentence is suspended in whole or in part.

TEX. CODE CRIM. PROC. art. 42A.001(1). Thus, the definition establishes two primary kinds of community supervision—regular community supervision in subsection (1)(B) and deferred adjudication in subsection (1)(A). In re R.B., 361 S.W.3d 184, 189 n.5 (Tex. App.—El Paso 2012, pet. denied) (discussing predecessor statute). This general definition encompasses several specific forms of community supervision for various circumstances and offenses addressed in chapter 42A—"such as regular (or 'straight'), deferred-adjudication, shock, boot-camp, and state-jail-felony." State v. Juvrud, 187 S.W.3d 492, 493 (Tex. Crim. App. 2006) (footnote and citation omitted). "Each form has its own limitations and requirements. Each is independent of the other in the sense that a defendant may be eligible for one or two forms of community supervision, but not another." Rodriguez v. State, 939 S.W.2d 211, 221 (Tex. App.—Austin 1997, no pet.) (addressing predecessor statute).

Regular Community Supervision

Article 42A.053, located in subchapter B ("Placement on Community Supervision"), provides for regular community supervision. See TEX. CODE CRIM. PROC. art. 42A.053; Wright v. State, 506 S.W.3d 478, 481 (Tex. Crim. App. 2016) (citing predecessor statute). The article authorizes a judge to order community supervision "after conviction or a plea of guilty or nolo contendere." TEX. CODE CRIM. PROC. art. 42A.053(a). In doing so, the judge may "suspend the imposition of the sentence and place the defendant on community supervision."⁵ Id. art. 42A.053(a)(1) (emphasis added). Thus, for regular community supervision under article 42A.053, the defendant "is convicted of the offense charged and the punishment is assessed by judge or jury. The imposition of the sentence is suspended and the defendant is placed on regular community supervision." Rodriguez, 939 S.W.2d at 221. Article 42A.053 provides different maximum periods according to the offense, including the five-year maximum period for specified third degree felonies. TEX. CODE CRIM. PROC. art. 42A.053(d)(2)(A), (B), (e), (f).

³ See TEX. PENAL CODE §§ 28.01–35A.02 (Title 7, "Offenses Against Property").

⁴ See TEX. HEALTH & SAFETY CODE §§ 481.001–.354 (chapter 481, "Texas Controlled Substances Act").

Deferred Adjudication Community Supervision

While article 42A.053 is located in subchapter B ("Placement on Community Supervision"), article 42A.101 is located in subchapter C, which governs deferred adjudication community supervision. See id. arts. 42A.101–.111 ("Deferred Adjudication Community Supervision"). Under subchapter C, "the judge may, after receiving a plea of guilty or nolo contendere, hearing the evidence, and finding that it substantiates the defendant's guilt, defer further proceedings without entering an adjudication of guilt and place the defendant on deferred adjudication community supervision." Id. art. 42A.101(a) (emphasis added). A court may order deferred adjudication community supervision only after it receives the defendant's plea of guilty or nolo contendere, and "[a]s a practical matter, a defendant must waive his right to a jury trial in order to obtain the benefit of deferred adjudication community supervision." Metts v. State, 510 S.W.3d 1, 7 n.9 (Tex. Crim. App. 2016). Once the criminal case has been adjudicated, the defendant is no longer eligible for deferred adjudication community supervision. See Rodriguez, 939 S.W.2d at 221–22. Article 42A.103 specifies the maximum period of deferred adjudication community supervision for felonies is ten years without making exceptions for particular felonies. TEX. CODE CRIM. PROC. art. 42A.103(a).

Neither article 42A.053 nor article 42A.103 refers to the other either expressly or implicitly. Thus, regular community supervision, in which a sentence is assessed but not implemented, and deferred adjudication community supervision, in which all proceedings are deferred without an adjudication, are subject to different limitations and requirements according to different statutory schemes. See Rodriguez, 939 S.W.2d at 221–22. "The rules and requirements of deferred-adjudication community supervision are distinct and separate from those applying to other types of community supervision." Juvrud, 187 S.W.3d at 494.

Because "the special provisions for deferred adjudication . . . prevail over provisions for regular probation," id. at 493 (discussing predecessor statute), the five-year maximum period of community supervision under article 42A.053 does not apply to deferred adjudication community supervision under article 42A.103, and, therefore, the statutes do not conflict. In article 42A.103, the maximum period of deferred adjudication community supervision is ten years for all felonies without regard to the specific offense. TEX. CODE CRIM. PROC. art. 42A.103(a). Accordingly, the maximum allowable period of deferred adjudication community supervision for a felony, including a third degree felony under either Title 7 of the Penal Code or Chapter 481 of the Health and Safety Code, is ten years. Id.

⁵ A judge may also impose a fine and place the defendant on community supervision. TEX. CODE CRIM. PROC. art. 42A.053(a)(2).

S U M M A R Y

Under article 42A.053 of the Code of Criminal Procedure, the maximum period of regular community supervision for a third degree felony under either Title 7, Penal Code or Chapter 481, Health and Safety Code is five years.

Under article 42A.103, the maximum period of deferred adjudication community supervision for all felonies is ten years.

Articles 42A.053 and 42A.103 do not conflict. The maximum allowable period of deferred adjudication community supervision for a felony, including a third degree felony under either Title 7 of the Penal Code or Chapter 481 of the Health and Safety Code, is ten years.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

MURTAZA F. SUTARWALLA
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee