Texas Pretrial Diversions and Deferred Prosecutions

By | March 25, 2011

In Travis County, what are the similarities and difference between pretrial diversion and deferred prosecution?

The similarity is simple: if the accused complies with his agreement on either one, his case gets dismissed. Generally, if you are offered one, you should accept. Either way, it’s not a bad deal. Neither of these are offered with regard to felonies.

The differences are simple, too.

Here is how pretrial diversion works. The Travis County Attorney, to mete out justice as fairly and efficiently as it can, offers pretrial diversion to certain offenders who have very little or no criminal record. For example, if a college freshman is caught with a very minor amount of marijuana, the County Attorney will consider offering to place him on pretrial diversion.

The applicant for pretrial diversion need not admit his guilt. The County Attorney usually makes his decision as to whether to grant pretrial diversion before a case is filed against the defendant. Usually the pretrial diversion applicant must promise to not break any law more serious than a speeding ticket for 6 or 12 months. If he does, then the original case will be filed, but the County Attorney starts from square one.

Here is how deferred prosecution works. Depending on the circumstances, a misdemeanor prosecutor might choose to offer a deferred prosecution after a case has been filed against the defendant. Some of the circumstances that affect this decision include: difficulty in proving the case, the defendant’s lack of criminal history, and if there is a victim, what the victim’s input is.

With a deferred prosecution agreement, the defendant must admit his guilt, waive the same constitutional rights as he would if he were pleading guilty before a judge, agree to specific written terms of the agreement (including counseling, community service hours, etc.) and promise not to break any law more serious than a speeding ticket. If the defendant breaks this agreement, the County Attorney does not start from square one. Just the opposite. Here, the County Attorney can refile the original case and already has the defendant’s confession in his refiled case.