Deferred Adjudication Eligibility in Texas: Barred Offenses and DWI

Deferred adjudication eligibility in Texas is set by statute, and most criminal charges qualify. The exceptions are specific: Texas Code of Criminal Procedure Article 42A.102 bars certain intoxication crimes, human trafficking, several sexual offenses, and repeat drug-free zone violations, while Article 42A.054 goes further and blocks all community supervision for the most serious violent and sexual offenses.¹² Whether your charge is on one of those lists is what determines eligibility.

How the Option Reaches You

Deferred adjudication is a form of community supervision where the judge delays a finding of guilt after you plead guilty or no contest. Complete the conditions, and the charge is dismissed. Only a judge can grant it. Article 42A.101 gives the judge discretion to defer proceedings “if in the judge’s opinion the best interest of society and the defendant will be served.”³ A jury cannot offer it. That means your route runs through either a negotiated plea with the prosecutor or a direct request to the judge at a plea hearing, and you have to enter your plea and present evidence substantiating guilt before the judge will consider deferring adjudication.

Offenses Barred Under Article 42A.102

Article 42A.102 identifies the offenses that cannot receive deferred adjudication. Some bars are absolute; others depend on your prior record.

Intoxication Offenses

Several intoxication crimes are permanently off the table, first offense or not:

Intoxication assault (Penal Code Section 49.07) and intoxication manslaughter (Section 49.08)
DWI with a child passenger (Section 49.045)
Flying while intoxicated (Section 49.05)
Boating while intoxicated with a child passenger (Section 49.061)
Operating an amusement ride while intoxicated (Section 49.065)

A repeat DWI or boating-while-intoxicated charge enhanced under Section 49.09 is also barred.⁴ If your punishment can be increased because of a prior intoxication conviction, deferred adjudication is unavailable. First-time DWI has its own rules, covered below.

Human Trafficking

Trafficking of persons (Section 20A.02) and continuous trafficking of persons (Section 20A.03) are permanently barred.⁴ These offenses also appear on the Article 42A.054 list, so no form of community supervision is available after conviction.

Sexual Offenses

Continuous sexual abuse of a young child or disabled individual under Section 21.02 carries a mandatory bar with no exceptions. Aggravated sexual assault under the enhanced sentencing provisions in Section 22.021(f) is likewise barred outright.⁴

Other serious sex offenses carry a conditional bar. If you are charged with indecency with a child (Section 21.11), sexual assault (Section 22.011), aggravated sexual assault (Section 22.021), aggravated promotion of prostitution (Section 43.04), or compelling prostitution (Section 43.05), you are ineligible if you have previously been placed on community supervision for any of those same offenses. A first charge may still qualify; a second cannot.

Drug-Free Zone Repeat Offenses

A controlled substance offense with punishment enhanced under Health and Safety Code Section 481.134 for occurring in a drug-free zone is barred if you have a prior conviction that was also enhanced under that section.⁵ Drug-free zones include areas near schools, playgrounds, and youth centers. A first offense in a zone can still receive deferred adjudication; a second cannot.

Murder, with a Narrow Exception

Murder under Section 19.02 is generally barred, but Article 42A.102 carves out a narrow exception. A judge may grant deferred adjudication if the court determines the defendant did not cause the victim’s death, did not intend to kill anyone, and did not anticipate that a life would be taken.⁴ The exception applies mainly to defendants charged under the law of parties theory who played a peripheral role.

Offenses Barred from All Community Supervision

Article 42A.054 prohibits the judge from ordering any form of community supervision for the most serious offenses in the Penal Code. Since deferred adjudication is itself a form of community supervision, everything on this list is automatically ineligible:²

Murder (Section 19.02) and capital murder (Section 19.03)
Aggravated kidnapping (Section 20.04)
Trafficking of persons (Section 20A.02) and continuous trafficking (Section 20A.03)
Continuous sexual abuse (Section 21.03)
Indecency with a child (Section 21.11)
Sexual assault (Section 22.011) and aggravated sexual assault (Section 22.021)
Aggravated robbery (Section 29.03)
Stalking (Section 42.072)
Sexual performance by a child (Section 43.25) and child pornography (Section 43.26)
Aggravated promotion of prostitution (Section 43.04) and compelling prostitution (Section 43.05)
First-degree criminal solicitation (Section 15.03)
First-degree injury to a child (Section 22.04(a)(1))

Any felony where a deadly weapon was used or exhibited during the offense or the immediate flight from it is also barred, even if the underlying charge would otherwise qualify.² That applies whether you personally used the weapon or were a party who knew one would be used. A deadly weapon finding on an otherwise routine felony can eliminate deferred adjudication on its own.

First-Time DWI: Eligible with Conditions

First-time DWI under Section 49.04 and first-time boating while intoxicated under Section 49.06 can receive deferred adjudication, but two facts at the time of the offense make you ineligible even as a first offender:

You held a commercial driver’s license or commercial learner’s permit
Your blood alcohol concentration was 0.15 or higher

If neither applies, the judge must order an ignition interlock device on the vehicle you own or drive most regularly as a condition of supervision.⁴ The interlock is mandatory. A judge may waive it only after a substance abuse evaluation and a finding on the record that the interlock is not necessary for the safety of the community. Not owning a car is not, on its own, grounds for waiver under the statute.

Commercial driver’s license holders face an added layer. Federal regulations under 49 CFR Section 384.226 prohibit states from masking or deferring convictions for CDL holders on traffic control violations, which means deferred disposition is generally unavailable to CDL holders even for lesser traffic offenses in municipal court. For a CDL holder, a DWI charge realistically ends in either a conviction or a dismissal, with no middle ground.

What Eligibility Does Not Guarantee

Two limits are worth knowing before you weigh a deferred adjudication offer, because eligibility alone can create a false sense of a clean outcome.

First, completing deferred adjudication produces a dismissal, but the arrest and plea stay on your record unless you obtain an order of nondisclosure afterward, and certain offenses, including any with an affirmative finding of family violence and any requiring sex offender registration, are permanently barred from nondisclosure under Government Code Section 411.074.⁶ Deferred adjudication on a family violence assault gives you the dismissal but no way to seal it.

Second, federal immigration law treats Texas deferred adjudication as a conviction. The Immigration and Nationality Act defines a conviction as any case where a person pleaded guilty or no contest and the judge ordered some form of punishment or restraint on liberty, and USCIS has stated that when adjudication is deferred, the plea and imposition of conditions are “sufficient to establish a conviction for immigration purposes.”⁷⁸ A later Texas dismissal or nondisclosure order does not undo that for federal purposes. For a non-citizen, deferred adjudication on a charge that qualifies as an aggravated felony or a crime involving moral turpitude carries the same immigration risk as a straight guilty plea.

1
State of Texas. Texas Code of Criminal Procedure Chapter 42A – Community Supervision
2
State of Texas. Texas Code of Criminal Procedure Article 42A.054 – Limitation on Judge-Ordered Community Supervision
3
Texas Legislature Online. Texas Code of Criminal Procedure Chapter 42A – Community Supervision – Section: Subchapter C. Deferred Adjudication Community Supervision
4
State of Texas. Texas Code of Criminal Procedure Chapter 42A – Community Supervision – Section: Art. 42A.102
5
State of Texas. Texas Health and Safety Code Section 481.134 – Drug-Free Zones
6
Texas Office of Court Administration. Overview of Orders of Nondisclosure
7
Office of the Law Revision Counsel. 8 USC 1101 – Definitions
8
U.S. Citizenship and Immigration Services. Citizenship and Naturalization – Good Moral Character – Adjudicative Factors