With the recent changes to bail law in Texas from Senate Bill 6, questions about bail bonds in Texas are front and center. Senate Bill 6 eliminated personal bonds for 21 enumerated offenses in Texas, as well as certain circumstances in which a person is charged for an offense while they already have pending charges.

Distinct from this consideration though is one’s entitlement to a bond when charged with a motion to revoke or motion to adjudicate. In the former, a defendant can be held on no bond, while in the latter, a defendant is entitled to a bond amount being set. This doesn’t mean a personal bond, or even a bond amount the defendant can afford. It just means the defendant is entitled to set a bond amount on the case.

Deferred Adjudication versus Regular (or Straight) Probation

There are many significant differences between these two forms of probation. It is a question we receive often in our office, and worthy of thorough conversation. Failure to understand could have significant impact on your life.

To understand some of the differences, it is important to understand procedurally what is happening when a court sentences someone to a deferred adjudication instead of a regular probation.

When a defendant is sentenced to a regular probation, the court imposes a sentence that is within the range of punishment (but no more than 10 years for a felony and 1 year for a misdemeanor) but then suspends the imposition of the sentence for a period of months or years. This can be up to 10 years in a 1st, 2nd or 3rd degree felony case, up to 5 years in a State Jail Felony case, or up to 2 years in a misdemeanor case. You will often see this expressed as 10/10 or 5/10 or 4/4, with all of these numbers being negotiable. The first number is the actual sentence, and the second number ifs the length of time the sentence is suspended. If one successfully completes the probation, the the actual period of incarceration is never imposed. Since the defendant was actually sentenced to the jail term or term of imprisonment, they are “convicted” of the offense. Accordingly, you will often hear regular probation described as a conviction. As with any probation, at any point during the probation, violation of the probation terms can result in a warrant being issued, and the defendant facing revocation of the probation. If the probation is revoked, the judge can sentence the person to any number in the range of punishment, up to that first number in the original probation sentence. So, for example, a 4/10 probation on a 3rd degree felony (2-10 years in prison punishment range) could result in the person being revoked for a minimum of 2 years and a maximum of 4.

In a deferred adjudication, there is no sentence. The process of finding the defendant guilty (the adjudication) is deferred for a period of time. The deferral period can be as long or as short as the possible probationary periods mentioned earlier. During the deferral period, the defendant is subject to probation conditions, and failure to abide by the conditions can result in the court proceeding to the adjudication of guilt and sentencing the defendant to prison.

Unlike regular probation, because the court never proceeded to adjudication before, the court can assess punishment anywhere in the range of punishment. The court is not limited to a particular sentence that was probated, as is the case in a regular probation.

Because the case was never adjudicated, the defendant cannot be “convicted” of the offense. This is the most favorable aspect of a deferred adjudication to one charged with a crime, that they are not actually convicted of the offense charged. This does not mean the evidence of the charge and subsequent probation is not on the person’s criminal history.

So where does it say I am entitled to a bond on a deferred?

Since the defendant was not convicted on a deferred adjudication, they are entitled to a bond amount being set while they are waiting on the court’s determination of whether to proceed to an adjudication of guilt.

This decision is found in case law interpretation of the Texas constitution. The court said in Ex Parte Laday that the Texas Constitution provides that: “All prisoners shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident” and that “a verdict followed by a judgment renders the conviction complete”. Since a deferred adjudication does not make a formal adjudication of guilt, the “Logical conclusion” is that the defendant “has not yet been ‘convicted’”. Therefore, “Such a defendant is entitled to bail pending an adjudication hearing.”