17 year old gets Deferred Adjudication for Burg of Hab. Pays off $120,000 in restitution and completes all conditions of supervision within one- third of his term of supervision. He is granted an early termination. The Judge's order granted the early termination, stated the cause is dismissed, and stated the defendant is discharged from any further penalties and disabilities resulting from the offense per 42.12 CCP. DPS is saying his charge is considered a conviction to them because the charge was not set aside. Does anyone know what they are talking about? What is supposed to be set aside as it was a deferred adjudication that was dismissed? Set aside portion is in section 20 of 42.12, but section 5(c) is what applies and it doesn't say anything about setting anything aside as it is a dismissal with no conviction.

You are correct on the law. Deferred, dismissed, not a conviction. Set-aside law n/a to deferred adjudications b/c there is nothing to set aside.

What is not clear to me from your question is what you mean by "DPS is saying ...."? Do you mean they won't accept the code or the criminal disposition record you are submitting? I don't get it, so I don't think I can help resolve your ultimate issue until that is clearer.

D.P.S. v. Jones, 460 S.W.3d 258 (Tex.Crim.App.-Amarillo 2015)

When I was on the "dark side" I would occasionally hear attorneys fail to fully described the consequences of a deferred adjudication; To include (stolen from Shawshank Redemption) "it's like a fart in the wind." Deferreds however actually tend to linger into subsequent punishment hearings and all sorts of administrative proceedings.

Art. 42.12, Sec. 5(c) (deferred adjudication) contains a provision similar to that in Art. 42.12, Sec. 20 (straight probation). In pertinent part, "...the judge shall dismiss the proceedings against the defendant and discharge him." This may be what DPS is talking about. In Collin Co., the court's in the past did not always enter a discharge order, and defense supplied orders are often the wrong type or don't contain the discharge language.

In the original poster's case, it looks like the correct order was entered for a deferred. The Jones case has DPS arguing that at 42.12, Sec. 20 type of order wasn't right for a deferred, but they lost that argument. Hmmm.

This message has been edited. Last edited by: JohnR,

I suspect the former probationer from the original post is seeking a license to carry a handgun and DPS has said they are disqualified based on:
Gov.Code Sec. 411.171. DEFINITIONS. In this subchapter:
(4) "Convicted" means . . . an order of deferred adjudication entered against a person by a court of competent jurisdiction whether or not the imposition of the sentence is subsequently probated and the person is discharged from community supervision. The term does not include . . . an order of deferred adjudication that has been subsequently: . . . otherwise vacated, set aside, annulled, invalidated, voided, or sealed under any state or federal law.

I see many with deferred adjudications attempting to get CHL and getting a nondisclosure during that process. The pending CHL shows up when we check them for criminal history during deferred and any applicable waiting period.