“I don’t know”

In my years of criminal law practice in Texas, I’ve never seen or heard of anyone using Texas Code of Criminal Procedure Article 12.45 during sentencing after an adjudication of guilt following revocation of deferred adjudication community supervision. However, I’ve been thinking about whether this could work, and I believe it might. Here’s my analysis.

First, let’s look at the sequence of events in an adjudication proceeding. Under Article 42A.108(b), when there’s an alleged violation of deferred adjudication community supervision, the defendant is entitled to “a hearing limited to a determination by the court of whether the court will proceed with an adjudication of guilt on the original charge.” The statute’s language is explicit – this hearing is limited to that single determination.

This is where timing becomes crucial. Article 12.45 allows a defendant to admit guilt to an unadjudicated offense and have it taken into account during sentencing of another offense. After considering the unadjudicated offense in sentencing, that offense is then barred from future prosecution. But could this be done during an adjudication proceeding?

The adjudication hearing under 42A.108(b) is strictly limited to determining whether to proceed with adjudication. You couldn’t use 12.45 during this phase because the hearing’s scope is explicitly restricted by statute. However, if the court decides to proceed with adjudication, what follows is a different “hearing” (essentially a normal sentencing proceeding) where the court assesses punishment within the range allowed by law.

At this subsequent sentencing phase, all the normal sentencing procedures and options should be available to the court – including consideration of unadjudicated offenses under Article 12.45. After all, once the court has decided to proceed with adjudication, it’s no different from any other sentencing hearing, right?

Has anyone tried this approach? Have you seen courts handle 12.45 offenses during post-adjudication sentencing?