You can call it what you will, but it's still illegal

You may remember Ruben Trejo, he's the former HPD sergeant who collided with a school bus on his way to work -- with an alcohol concentration of .176. On Friday, Mr. Trejo pleaded guilty to driving while intoxicated, paid a $500 fine and was placed into the Harris County District Attorney Office's pretrial intervention program (DIVERT).

Trejo, who has retired from the department, was allowed to the Harris County District Attorney's pretrial intervention program in which defendants plead guilty to DWI, but the verdict is deferred for a year. If the defendant completes all the requirements in the program, there is no conviction but the initial arrest remains on record.

What's wrong with this picture, you ask?

When a defendant opts for deferred adjudication in a criminal case, she enters a plea of guilty before the court, the judge then states that he finds enough evidence to find her guilty but that he will withhold a finding of guilt for a period of time (the length of the probation). Once the defendant completes her probation the criminal case will be dismissed and she will be eligible to file a petition for nondisclosure.

The problem is that deferred adjudication is not available for anyone charged with driving while intoxicated in Texas - even though it is available to a person charged with murder. The Houston Chronicle article points out, in plain English, why the DIVERT program is illegal.

Calling it pretrial intervention doesn't change that fact. Once the defendant enters a plea of guilty on a DWI case, there is nothing the judge can do (legally) other than record it as a conviction and sentence accordingly. As soon as the judge states she is deferring a finding of guilt, we're talking about deferred adjudication.