Fort Worth is not Dallas. Oklahoma is not Texas. Saccharine is not sugar. A Camero is not a Trans Am. A hamburger is not a steak. A Hyundai is not a Honda. Star Trek is not Star Wars. And as every good Texan knows, Mr. Pibb is not Dr. Pepper.

Similarly, “deferred adjudication”¹ is not “deferred disposition.”² (More on this in a second).

It has been alleged by non-Texans (hereafter referred to as foreigners) that, when ordering soft drinks, Texans have the habit of referring to everything as a “Coke” (regardless if it is Royal Crown Cola, Pepsi Cola, or even – gasp – Tab Cola). As every person who has ordered a “Coke” only to receive a cold, effervescent glass of Tab Cola can attest, such idiosyncrasies may not matter in the cosmic scheme of things, but they can nevertheless leave a bad taste in your mouth.

The same is true when people inadvertently or unknowingly misuse similar or related terms (see first paragraph). Things can be similar but nonetheless different.

This brings us to our topic. Though similar in the sense that they are both forms of probation and are both contained in the Code of Criminal Procedure, “deferred adjudication” (Article 42.12) is not “deferred disposition” (Article 45.051). In commemoration of the end of the academic year and in response to the numerous evaluations of judges, prosecutors, and clerks who have silently balked at their peers’ perpetual misapplication of the two terms, I commend thee and dedicate this article to your noble sentiment.

Certainly to some readers, the topic of this article may seem like a futile exercise in semantics. Other readers may wonder why it even matters if judges, prosecutors, and clerks use the terms synonymously? While it inevitably sounds a tad pedantic, it matters for two reasons. First, words have meaning. This is especially true in the legal system where judges and lawyers are expected to critically and skillfully apply terms of law in their intended manner.³ Second (and please excuse the infomercial reference), people, especially our peers, judge us based on the words we use. In other words, proper use of legal terminology denotes an education and understanding of the law, while a misapplication of legal terms implies a lack of knowledge and understanding.

If you’ve been misapplying the two terms, you are in good company. Respected publishers, scholars, jurists, and state agencies unfamiliar with the specifics of municipal and justice courts have misused the two terms for years. Thus, it is not surprising that over the years many municipal judges, attorneys, and key personnel have confused the terms.

During the last three years, we have received numerous requests from court personnel asking that the TMCEC distinguish between the two statutes for readers who do not know the difference. While not complete, deferred adjudication should be distinguished from deferred disposition for the following key observations.

1. The Code Construction Act – Chapter 311 of the Government Code provides rules for understanding statutes. Utilizing the Code Construction Act, judges and attorneys are required to distinguish deferred adjudication and deferred disposition for the following reasons:

A. Legislative Intent – Under Texas law, there is a statutory presumption against redundancy in the law. In other words, though two statutes may be related or similar (such as in the case of deferred adjudication and deferred disposition) readers are legally required to give independent effect to each statute if reasonably possible.⁴ In 1979, the Adult Misdemeanor and Probation Law, which created deferred adjudication, expressly limited probation authority to courts of record (in effect, denying probation authority to all justice of the peace courts and most municipal courts.)⁵ In response, the 67th Legislature enacted deferred disposition as part of Senate Bill 914.⁶ The Bill Analysis prepared for S.B. 914 acknowledges that “the Code of Criminal Procedure did not provide for deferred prosecution of Class C misdemeanors in justice and corporation courts, and the proposed legislation was intended to give this power to these courts.”⁷

B. Plain Meaning and the Rule of the Specific - When a statute provides a clear mandate, courts are constitutionally required to comply with the plain meaning of the law.⁸ Criminal proceedings in municipal and justice courts must be conducted in compliance with Chapter 45 of the Code of Criminal Procedure.⁹ Only if Chapter 45 does not provide a rule of procedure may a judge apply a general rule provided elsewhere in the Code of Criminal Procedure. Because deferred disposition is specifically contained in Chapter 45, judges are consequentially prohibited from utilizing the deferred adjudication provisions of Chapter 42, regardless of whether the municipal court is a court of record. The corollary is also true. Neither a county nor a district court may utilize deferred disposition in adjudicating fine-only offenses.¹⁰

II. Notable Structural Differences – For some readers, merely knowing that the law prohibits municipal courts from using deferred adjudication may sufficiently delineate the two laws. However, short of their similar functions, they are distinctly different. Consider the following:

A. Brevity – Many people who erroneously use the term “deferred adjudication” have likely never read Article 42.12. When you put the two statutes side by side, it is really hard to confuse the two distinct laws. The lean, user-friendly, deferred disposition is one page in length and contains exactly 395 words. In contrast, its beleaguered cousin, deferred adjudication is 32 pages long and contains exactly 16,691 words. Comparing deferred disposition to deferred adjudication is tantamount to comparing a family outing of miniature golf to 18 holes of golf at Augusta against Tiger Woods. The differences in structure are so remarkable that they have been the subjects of an Attorney General Opinion.¹¹

B. Disposition vs. Adjudication – The distinction between “disposition” and “adjudication” is a likely culprit for confusion. Deferred disposition denotes that on a plea of guilty or nolo contendere the court delays further proceedings without entering a judgment.¹² Deferred adjudication, on the other hand, denotes that after conviction or upon a plea of guilty or nolo contendere the court suspends the imposition of the sentence (subsequent to making certain findings).¹³ Unlike deferred disposition, in deferred adjudication there is a judgment, the court merely suspends the sentence (i.e., punishment). In contrast, with deferred disposition, proceedings can be delayed prior to judgment.¹⁴ It is for this reason that deferred disposition has been characterized as a statutory form of deferred prosecution.¹⁵ Not surprisingly, even the most learned legal scholars or jurists could find this distinction perplexing. Such confusion is understandable. First, as drafted by the Legislature, the terms “disposition” and “adjudication” have debatably been interchanged.¹⁶ This has likely contributed to the inconsistent use of the terms in both legal literature and in case law. Secondly, especially in the context of municipal and justice courts, there is a long history of confusion in regard to what constitutes the “sentence” and what constitutes the “judgment.” While the language of Article 42.01, Code of Criminal Procedure suggests that the “judgment” is the formal determination of guilt or innocence and that the “sentence” is the consequence or penalty derived from the finding of guilt in the judgment, case law has caused these terms to have problematic application in municipal courts. In Ex parte Hayden,¹⁷ the Court of Criminal Appeals held that judgment and sentence are not the same thing, though in a misdemeanor case, a verdict of guilty is itself a judgment of conviction and no formal sentence is required. Thirty years later, the dissent in Ex parte Minjares¹⁸ claimed that the majority left the impression that there was no difference in the two terms. What the dissent in Minjares did not note, however, was that Hayden was addressing the concepts of judgment and sentence in a different context (namely, whether non-courts of record had probation authority and whether a final judgment was required). Minjares, in contrast, dealt with the issues of jail credit and indigence. Thus, while the two terms are not synonymous, Chapter 45 of the Code of Criminal Procedure does little to delineate the two terms. In fact, in Article 45.041, Code of Criminal Procedure, the terms appear to be used collectively.

C. Community Supervision – “Deferred adjudication,” formerly called probation, is a type of community supervision.¹⁹ Community supervision entails probation officers. At its conception, there was no apparent need for individuals charged with fine-only offenses to be subject to community supervision. Consequently, deferred disposition contains no similar provisions nor does it provide revocation procedures.²⁰ Presumably this is due to the assumption that in deferred disposition no one is supervising whether or not the defendant is complying with court imposed terms of probation. This presumption is questionable. Some cities, such as Fort Worth, have court personnel that monitor compliance with deferred disposition orders. Additionally, in 2001 the Legislature passed legislation authorizing municipal and justice courts to hire juvenile case managers.²¹ Thus, in limited instances, there appears to be an emerging trend comparable to community supervision in Texas local trial courts of limited jurisdiction. Despite similar functional equivalents, community supervision differentiates deferred adjudication from deferred disposition.

D. Expunction – One final and important distinction between deferred disposition and deferred adjudication entails the possibility of expunging records. Records pertaining to a complaint dismissed upon successful completion of deferred disposition may be expunged under Article 55.01, Code of Criminal Procedure.²² Article 55.01 requires a defendant in municipal court to file a petition in the district court in the county in which the defendant was arrested.²³ When a county or district court, even in cases in which the offense has been plea-bargained down to a Class C misdemeanor, imposes deferred adjudication it is done so pursuant to the rules contained in Article 42.12, Code of Criminal Procedure. Section 5 of Article 42.12 specifically governs deferred adjudication in county and district courts, and nowhere in the section is there a provision comparable to that found in Article 45.051(e).²⁴ This difference is logical and consistent with the legislative scheme in Article 55.01(a)(2)(B), which excludes cases from consideration for expunction where community supervision is granted. Simply stated, in contrast to deferred disposition, individuals in county and district court receiving deferred adjudication, regardless if it’s a Class C misdemeanor or a felony, are not entitled to expunction.

Conclusion

Other differences exist (unlike deferred disposition, deferred adjudication often entails a presentence investigation; unlike deferred adjudication, juries do not have the option of recommending deferred disposition). Alas, despite their similarities they are distinct. Granted, out of shear necessity municipal courts may at times have to look to case law to interpret deferred adjudication in construing deferred disposition. Nevertheless, be careful to not go too far in making comparisons. The laws are simply different. Accordingly, beginning with calling the terms by their respective names, such differences should be acknowledged. Just think, by abandoning the incorrect use of the term “deferred adjudication,” we may collectively also end the use of the fictional yet highly humorous term “deferred adjudification.” Then and only then, as a result of such a collective effort in municipal courts, will those who cringe upon hearing the improper use of both two terms cringe no more.

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¹ Article 42.12, Code of CriminalProcedure.

² Article 45.051, Code of Criminal Procedure.

³ Texas history is filled with instances where a single word (or in one famous instance a semicolon) was the determining factor in a legal action. Ex parte Rodriquez, 39 Tex. 705 (1873), the infamous semicolon decision by the Supreme Court of Texas that invalidated a statewide election during the reconstruction era. “The Semicolon Court of Texas,” George E. Shelley, The Southwestern Historical Quarterly, Vol. XLVIII, No. 4, April, 1945.

⁴ State v. Hardy, 963 S.W.2d 516 (Tex.Crim.App. 1997).

⁵ Thomas E. Baker, Charles P. Bubany, “Probation for Class C Misdemeanors: To Fine or Not to Fine is Now the Question” 22 South Texas Law Journal 2 (1982).

⁶ Acts 1981, 67th Legislature, Chapter 318, at 894.

⁷ Senate Comm. on Jurisprudence, Bill Analysis for S.B. No. 914, 67th Leg. (1981). The bill analysis and the title to the bill indicate the Legislature’s understanding that “justice” refers to a justice of the peace and a municipal judge. Texas Attorney General Opinion JM-526 (1986).

⁸ Ex parte Jones, 957 S.W.2d 849 (Tex.Crim.App. 1997).

⁹ Article 45.002, Code of Criminal Procedure.

¹⁰ Carmona v. State, 1988 WL 71701 (Tex. App-Hous. (1 Dist.) – 1988).

¹¹ In Texas Attorney General Opinion JM-307 (1985), it was noted that deferred disposition, in contrast to deferred adjudication, includes no purpose clause or any other provision stating the goals of its procedures for suspending sentences.

¹² Article 45.051(a), Code of Criminal Procedure.

¹³ Article 42.12(a), Code of Criminal Procedure.

¹⁴ Alternatively, deferred disposition may also be imposed upon finding of guilt of a fine-only offense. Article 45.051(a), Code of Criminal Procedure.

¹⁵ Senate Comm. on Jurisprudence, Bill Analysis for S.B. No. 914, 67th Leg. (1981); Texas Attorney General Opinion JM-526 (1986).

¹⁶ Black’s Law Dictionary (6th Edition) states that in the context of criminal law, “disposition” denotes the sentencing or other final settlement of a criminal case. “Adjudication” on the other hand denotes the formal pronouncement of a judgment.

¹⁷ 215 S.W.2d 620 (Tex.Crim.App. 1948).

¹⁸ 582 S.W.2d 105 (Tex.Crim.App. 1978).

¹⁹ Davis v. State, 968 S.W.2d 368 (Tex.Crim.App. 1998).

²⁰ In fact, Article 45.051, Code of Criminal Procedure, only expressly addresses court action “at the conclusion of the deferral period.”

²¹ Article 45.054, Code of Criminal Procedure.

²² Article 45.051(c), Code of Criminal Procedure.

²³ Texas Attorney General Opinion JM-912 (1988). The exception being where specific expunction provisions are contained in Chapter 45 of the Code of Criminal Procedure. Such expunction provisions for certain offenses were added to Chapter 45 by the Legislature in 2001.

²⁴ Pickett v. State, WL 202466 (Tex. App- Dallas 2002) (unpublished opinion).