Diversion Programs in Texas

Posted on December 17, 2021 by Michael Lowe.

In Texas, both the state and federal systems of criminal justice offer opportunities for individuals to be “diverted” from the standard route of conviction, sentencing, and imprisonment into any one of a number of alternatives. Collectively, these are called “diversion programs.” They are voluntary: the state cannot force anyone to participate in them.

What is a Diversion Program?

Essentially, a diversion program is an alternative to the usual pattern of formal sentencing and incarceration after being convicted of a crime. It may be available to either a juvenile or an adult. The number and scope of diversion programs vary from county to county (state law) and district to district (federal system).

For instance, there are “juvenile diversion programs” targeting youth who would otherwise be placed in the juvenile justice system. Minors viewed as being susceptible to rehabilitation may be allowed to avoid the punishments provided for minors under Texas law, where statutes provide for juvenile offenders to be sentenced for as much as thirty (30) years behind bars upon conviction for first-degree felony offenses against persons.

Another example is the “pretrial diversion program” where a defendant avoids entering a plea of guilty or nolo contendere. Here, the prosecution agrees the individual has a likelihood of rehabilitation and re-routes the individual accordingly. These may also be known as “pretrial intervention” programs or agreements for “deferred prosecution.”

Why Offer Diversion?

The Texas Department of Criminal Justice explains diversion may be an option for the accused for one of three reasons:

providing sentencing alternatives at the time of conviction;
providing sanctioning alternatives to revocation; and
reducing the future likelihood of recidivism.

According to the Department of Justice, the goals of diversion from a federal perspective seek:

to prevent future criminal activity among certain offenders by diverting them from traditional processing into community supervision and services;
to save prosecutive and judicial resources for concentration on major cases; and
to provide, where appropriate, a vehicle for restitution to communities and victims of crime.

Diversion after Federal Arrest in Texas

In the federal system, diversion removes the accused from the usual criminal justice procedures and routes the individual into a “pre-trial diversion” program that is overseen and operated by the United States Probation Service. As a general rule, the determination to divert takes place before formal charges before the federal judge.

Under federal diversion, success will allow the accused to avoid criminal charges ever being filed against them. If criminal charges have been filed, successful completion of the federal diversion program will mean that the federal charges are dismissed by the judge.

In federal matters, it is up to the AUSA of the appropriate Office of the United States Attorney General to allow a federal defendant to be re-routed into the federal diversion program. In the Dallas-Fort Worth metroplex, federal cases will be prosecuted and diversion programs overseen within the Northern District of Texas. This federal district includes the following divisions:

According to the Department of Justice, eligibility for federal pre-trial diversion involves an individual against whom a prosecutable case exists and who is not:

Accused of an offense which, under existing Department guidelines, should be diverted to the State for prosecution;
A person with two or more prior felony convictions;
A public official or former public official accused of an offense arising out of an alleged violation of a public trust; or
Accused of an offense related to national security or foreign affairs.

See, Department of Justice Office of the Attorney General Manual §§ 9-22.010, 9-22.100.

Diversion after Arrest on Texas Penal Code Violations

Anyone who is arrested for violating state criminal statutes will proceed through the Texas criminal justice system. The federal system operates independently of the state system. Upon arrest on Texas Penal Code violations, the defendant may be eligible for diversion programs as they are offered under the jurisdiction where the arrest was made and the prosecution will proceed.

As a general rule, state diversion programs will require things like:

First-time offender;
No record of failing to complete a prior diversion; and
No gang membership.

Defendants who meet the criteria for the applicable diversion program must file an application for consideration by the prosecutor and the court. Working with their criminal defense attorney, they will have to provide details that support their likelihood of success, such as school records with grade transcripts and extracurricular activities (e.g., member of football team) and personal character references. Essays may be required to be written and filed. This will be followed by an interview process.

Example 1: Intercept Diversion Program – Dallas Criminal Court 11

One local example of a criminal diversion program is the “Intercepted” program offered to those who find themselves before the bench of Dallas Criminal Court 11.

The court defines this diversion program as a “… nine month pre-trial diversion program for adults charged with a misdemeanor Assault case.” Successful completion of the court’s program results in a dismissal of the charges.

To qualify, the defendant:

Must be under the age of 25;
Have an unadjudicated (pre-plea) misdemeanor assault charge;
Must not have any prior convictions for assault or any violent charges in their history, i.e., robbery, harassment, murder, etc.;
Must not have any prior felony convictions, pending charges, or currently on probation; and
Must want to make a change in their life.

Example 2: DIVERT Court — Dallas County

Another local example of a state diversion program is the long-established DIVERT Court of Dallas County. Residents of Dallas County who have been arrested on drug charges may be eligible to participate in the local program entitled Diversion and Expedited Rehabilitation and Treatment (“DIVERT”). Successful completion of this program results in both the original charge and related misdemeanor charges being dismissed.

The goal of the DIVERT program is to “enhance public safety by providing a judicially supervised regimen of treatment and innovative case management to substance abuse offenders with the goal of returning sober, law-abiding citizens to the community and thereby closing the “revolving door” to the criminal justice system.”

To qualify, the defendant:

must be assessed and diagnosed with a substance abuse problem that requires treatment which may include inpatient or outpatient treatment;
non-violent first felony arrest; and
First time Felony drug offender with no prior felony criminal history.

Example 3: A.I.M. – Dallas County

Another Dallas County diversion program is the Achieve, Inspire, Motivate (A.I.M.) diversion program overseen by Judge Brandon Birmingham. The goal of A.I.M. is to “provide effective treatment for non-violent Felony offenders who qualify for diversion, and thus need support in many areas, including but not limited to mental and physical health, employment/education, life skills, and/or substance abuse.”

To qualify, the defendant must:

Have an un-adjudicated (pre-plea) non-violent felony charge;
No prior felony history, including felony conviction, regular probation, deferred adjudication, or pre-diversion program;
Be 17-24 years old; and
Want to make a change in their life.

Example 4: Pre-Trial Diversion – Denton County

For those facing prosecution in Denton County, the Denton County Criminal District Attorney’s Office offers a diversion program for low-risk, first-time offenders. Pre-Trial Diversion (PTD) in Denton County usually involves non-violent misdemeanors and low-level felony cases, such as Possession of Marijuana; Theft; Criminal Mischief; Criminal Trespass; and Evading Arrests. Successful completion of the Denton Diversion program results in dismissal of the case.

To qualify, the defendant must “be a true first offender meaning they cannot have had PTD, deferred adjudication, nor any other type of disposition as an adult offender.”

Diversion and Expunction of Criminal Record

Both defendants who are participating in Texas diversion and their loved ones must understand the limitations of successful completion of the particular diversion program. Dismissal of the charges sounds wonderful, doesn’t it?

Dismissal is a great accomplishment for the individual who has achieved completion of a state diversion program. However, this does not mean that his or her future is free of the impact of the arrest and charge. A criminal record will still be available in the public record after the charges are dismissed.

In order to erase the entire event from the person’s life and allow them to move forward freely, there needs to be a separate action undertaken to remove the information of the charge contained in the indictment, and its dismissal, via the diversion program from the official record. This is done via “expunction” of the criminal record as authorized by Article 55.01 of the Texas Code of Criminal Procedure (TCCP). Texas law allows expunction for certain diversion programs before the statute of limitations period expires. See TCCP Art. 55.01(a)(2)(A)(ii).

If the person’s record is not expunged, then the pretrial diversion will pop up in any future background check. However, expungement is not complicated. Many people choose to undertake the process of expunging their criminal record all on their own.

For more on expungement, read:

Diversion Is Not the Same as Probation

In Texas, plea negotiations between the defense lawyer and the ADA may result in an agreement that the defendant will enter a plea of guilty before the judge and then be placed on probation. Here, the judge makes a finding of guilt on the record. There is a specific amount of time established as the probationary period by the court.

While on probation, the defendant must be law-abiding, report to a probation officer, pay probation fees, and do other things (like take classes or participate in community service). Upon successful completion of probation, the judge enters an order dismissing the individual from the probation itself.

As a general rule, pretrial diversion programs work to avoid any entry of a plea on the record and there is no finding of guilt by the judge. By definition, these are “pretrial” procedures. Charges are avoided in pretrial diversion, as long as the individual successfully finishes the program, and there is much less involvement in the criminal courtroom than in the probationary process.

Should You Agree to Enter a Texas Diversion Program?

Before agreeing to entry into a pretrial diversion program, each individual must carefully consider whether or not it is in his or her best interests to do so. An experienced Texas criminal defense attorney will go into the aspects of the person’s individual circumstances as well as delving into the ADA’s evidence file.

Conferencing with the client will include weighing things like:

1. The Possibility of Being Found Innocent by the Judge or a Jury

After an analysis of the state’s case as well as the defense’s own investigation into the matter, the probability that the prosecution has a viable case to present in court must be considered. If there are strong evidentiary problems, for instance, then the case may be dismissed on constitutional grounds (such as illegal search and seizure).

An examining trial or probable cause hearing may omit the need for any diversion program. For more, read:

2. Positive Life Impact

With pretrial diversion, the accused skirts criminal charges on their record and spending time behind bars. Entry into the diversion program may not only allow the person to stay free, to keep their job, and to maintain their personal relationships (like seeing their kids), but it also gives that person a real ability to make change in their life.

Diversion programs may offer training, counseling, and personal support that may have not been available to the accused before the arrest was made.

Also see: 2017 Dallas Right Program: Mentally Ill Avoid Bail And Jail.

3. Prosecution in the Wings

The reality of pretrial diversion is that the ADA has put the individual’s file on hold, but the charges sit there until they are dismissed. The accused must live each day with the possibility of the state viewing something as a failure in the diversion program that warrants resuming the prosecution against the defendant.