Approximately twelve years ago, I received deferred adjudication for the offense of assault with a deadly weapon (ADW) and, as a result, was placed on 5 years of community supervision (probation). I successfully completed the period of probation and, by all standards, have been a law-abiding, taxpaying citizen ever since.
Recently, I completed a Texas concealed handgun licensing course and applied for a Texas Concealed Handgun License (CHL). My application for a CHL was denied, due to the presence on my criminal history record of the deferred adjudication for the ADW offense.
Will a deferred adjudication for a felony offense constitute a permanent bar to being issued a CHL?
There seems to be much confusion regarding the legal effect and consequences of Texas deferred adjudications, as evidenced by the number and frequency of inquiries on this subject. Casual Internet research also suggests there is much false information on this issue which is circulating online.
A hypothetical, but common case involves a young adult, say under 25 years of age or so, who had a momentary lapse or absence of good-judgment and, as a result, ended up being charged with a felony offense. During pretrial negotiations, this young adult, who may or may not have been relying on the assistance and advice of counsel, accepted a settlement offer from the prosecuting attorney which involved a plea of “guilty” or “no contest” to the offense, in exchange for a period of deferred adjudication. Our hypothetical young offender may even have been told that, after successful completion of the term of deferred adjudication, the offender would be “discharged.”
Our hypothetical young offender then turned over the proverbial “new leaf,” successfully completed the period of deferred adjudication, was “discharged,” and then went on to lead a law-abiding and productive life.
Over the many years that pass, our hypothetical and once youthful-offender turned law-abiding citizen discovers that the deferred adjudication may have been an obstacle to professional licensing and employment, and, last but not least, is and has been a bar to the lawful ownership and use of firearms. In fact, our hypothetical, now law-abiding citizen may even have applied for a CHL, only to be reminded, upon receipt of a letter denying issuance of a CHL, of the continuing consequences of the (now) long-ago deferred adjudication.
Let us take a look at the relevant law.
Federal law provides that it is unlawful for a person convicted of a felony offense to possess firearms. 18 U.S.C. § 922. Texas law also criminalizes the possession of firearms by persons who have been convicted of a felony offense. Texas Penal Code § 46.04. To the extent that state law is less restrictive than federal law, federal law will control. U.S. Constitution, Article VI, clause 2.
For purposes of federal law, a criminal “conviction” which renders a defendant ineligible to lawfully possess firearms is to be determined “in accordance with the law of the jurisdiction in which the proceedings were held.” 18 U.S.C. § 922(a)(20).
Thus, because federal law looks to state law to determine what constitutes a felony conviction for the purposes of firearms, we must turn to Texas state law to answer the following questions:
1. Whether “deferred adjudication” for a Texas felony is considered a felony “conviction” which results in a corresponding loss of firearms-related rights.
2. Assuming an affirmative answer to the first question, whether a “discharge” following successful completion of the period of deferred adjudication results in a restoration of a defendant’s firearms-related rights.
Texas appellate courts, over the course of main appeals which have spanned many years, have consistently held that a disposition of deferred adjudication constitutes a conviction. In reaching this conclusion, the Texas courts have looked to, and interpreted, § 20(a) of Article 42.12 of the Texas Code of Criminal Procedure as creating two types of relief, one mandatory and the other discretionary. Mandatory relief has been described by Texas appellate courts as the usual – most common – disposition, which merely consists of a “discharge” from community supervision. The second – and least common – form of relief has been described by Texas appellate courts as “judicial clemency,” which consists of a dismissal of criminal charges and a release “from all penalties and disabilities” that resulted from the offense.
Section 20(a) of Article 42.12 states in relevant part:
If the judge discharges the defendant under this section, the judge may set aside the verdict or permit the defendant to withdraw the defendant's plea, and shall dismiss the accusation, complaint, information or indictment against the defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which the defendant has been convicted or to which the defendant has pleaded guilty. . . . Texas Code of Criminal Procedure, Article 42.12, § 20(a).
Because, as the Texas appellate courts have explained, the “usual” disposition of deferred adjudication cases is a mere “discharge” from community supervision – without a dismissal of charges and a releases from all penalties and disabilities that result from the offense – Texas law views most deferred adjudications to be no different, in any meaningful way, from convictions.
There is, however, a judicially-recognized method of changing the status of a deferred adjudication from that of a “conviction,” where nothing but the defendant’s discharge from community supervision (e.g., probation) is deferred, to that of a true deferred adjudication – a dismissal – with a release from all penalties and disabilities following successful completion of probation.
The timing related to seeking “a release from all penalties and disabilities” has also been the subject of much Texas litigation.
For those who would like to have their civil rights restored after completing a period of deferred adjudication, the best time to start preparing to make the request is before agreeing to be placed on deferred adjudication. The next-best time is during, but before the expiration of the period of deferred adjudication. And, as readers might have already guessed, the least-preferred time to start preparing to make the request is after the period of deferred adjudication has concluded.
One final – but important – note: As explained above, unless and until a person who has been placed on deferred adjudication for a felony offense receives a release from all penalties and disabilities which resulted therefrom, that person will be considered to be a convicted felon for purposes of possessing firearms. As such, not only will the deferred adjudication create a permanent bar to being issued a Texas concealed handgun license (CHL), the seemingly simple act of applying for a CHL could be used as a basis for a new criminal prosecution, one which would allege the unlawful possession of a firearm by a felon, as successful completion of the CHL course necessarily requires a student to physically possess and demonstrate proficiency with a handgun.
For more information on this topic, click here to: Contact Lapin Law Offices
Attorney Dallas TX 75244
Lapin Law Offices, P.C.
5001 Spring Valley Road, Suite 400 East
Dallas, Texas 75244
Disclaimer: The information contained in this publication is provided by Lapin Law Offices, P.C., for informational purposes only and, shall not constitute legal advice or create an attorney-client relationship. The laws and interpretation of laws discussed herein may not accurately reflect the law in the reader’s jurisdiction. Do not rely on the information contained in this publication for any purpose. If you have a specific legal question, please consult with an attorney in your jurisdiction who is competent to assist you.