What Is A Deferred Prosecution Agreement?

Under Texas law, there are a couple of ways in which a case can be disposed. A case can always be dismissed, reduced to a lesser charge when pled to, or proceed all the way to trial. A person could be placed on deferred adjudication probation, probation with a conviction, or placed in jail. If they are placed in jail, they could be sentenced to a weekend alternative program. These are solutions that the legislature has allowed for, but that are sometimes not sufficient for defense attorneys and prosecutors to resolve cases. If a case is unique, then prosecutors and defense attorneys may have different opinions as to which alternative tool should be used.

One such alternative tool is what is called a deferred prosecution agreement, which is a non-legislative solution. In Travis County, it is seven-page contractual agreement between the defendant and the state of Texas which states that the defendant committed the offense that they are alleged to have committed and that they agree to plead no contest. Rather than a plea, however, this is an agreement to plead in the future. The agreement also states that the defendant agrees to the terms of the agreement, which typically last one to two years. In rare circumstances, I have seen a three-year deferred prosecution. During that period, the defendant agrees to abide by the conditions and any special rules set forth by the agreement. Special conditions could include community service, an agreement to complete classes, an agreement to stay away from a victim or a certain location, an agreement to maintain an ignition interlock (or similar) monitoring device, and any other condition agreed upon by the prosecutor and defense attorney.

Recently, a case was dismissed outright through a deferred prosecution agreement with an understanding in the agreement that the defendant would take specific steps towards enrolling in the military within the following year. Deferred prosecution agreements are about coming up with solutions to unique situations in which all other options on the table aren’t warranted. Perhaps the prosecutors don’t want to dismiss a case outright, but they understand that it should ultimately be dismissed. Deferred prosecution allows defendants to have charges expunged or wholly erased from the record. This means that even if a defendant is on some type of informal probation that doesn’t require a probation officer, they are still eligible to get their charge fully erased and to have all of the records destroyed, including the deferred prosecution agreement itself.

The downside of these agreements is that if they are violated, then the prosecutors can bring the case back and waive the defendant’s speedy trial objections and some other rights. I think of a deferred prosecution agreement as a golden goose—a golden goose that I don’t want to kill because I need it for my clients in certain circumstances. However, I’m obligated in the interest of my clients to attack an agreement if it becomes necessary to do so. Thumbing one’s nose at the prosecutors is infrequently an effective strategy for the defendant or for me going forward, but just because a defendant has failed to comply with all aspects of a deferred prosecution agreement does not necessarily mean that they are going to get convicted. If you were previously placed on a deferred prosecution that the State has chosen to refile, it is important to speak with an attorney who will explore all of your options, not just the option of agreeing to plead guilty and be convicted.

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