What is Section 12.44?: A Two Part Series
This is a two part series on Texas Penal Code Section 12.44. As 12.44 is itself divided into two parts – (a) and (b) - I will discuss (a) in this article and (b) next week.
Here is the actual statute:
Sec. 12.44. REDUCTION OF STATE JAIL FELONY PUNISHMENT TO MISDEMEANOR PUNISHMENT. (a) A court may punish a defendant who is convicted of a state jail felony by imposing the confinement permissible as punishment for a Class A misdemeanor if, after considering the gravity and circumstances of the felony committed and the history, character, and rehabilitative needs of the defendant, the court finds that such punishment would best serve the ends of justice.
What does this mean?
This means that if you are charged originally with a state jail felony, in which the punishment is a minimum of six months in the state jail institution with a maximum of up to two years in the state jail, you can plead to and be convicted of that state jail felony and yet be allowed to be punished with time in the county of jurisdiction’s jail instead of the state jail.
It also means the state could move to reduce a higher level felony to a state jail and then punish it with time in the county jail, but that is more rare. The more serious the felony is and the more it involves violence the less likely it is that the charge will be reduced to a state jail felony anyway, and to be punished under 12.44(a) you have to be convicted of a state jail felony.
What do you need to know?
YOU WILL STILL HAVE A FELONY CONVICTION ON YOUR RECORD. Although under 12.44(a) you will be punished as if it’s a misdemeanor, you are still being convicted of a state jail felony and your record will reflect that.
YOU ARE NOT ENTITLED TO A 12.44(A). Even if you are originally charged with a state jail felony and have never been charged with a felony before, you are not entitled to a 12.44(a). Its not like an “everyone gets one 12.44(a)” type thing.
Under 12.44(a) you may be offered “back time” – ie time served—using the time you were in the jail when you were arrested. However, you may be asked to do more time. The range of punishment under 12.44(a) is the same as a Class A – up to one year.
It is common in Travis County for possession of controlled substance less than 1 gram and third time thefts of under $1500 to be punished by 12.44(a). But you shouldn’t count on it. Every case is different and every prosecutor is different. Every judge is different.
Also, 12.44(a) may sound like a good deal – no time in the state jail and no probation always sounds good, especially if you are already incarcerated and are being offered time served under 12.44(a). However, if you have no felony convictions, it may be more wise to hold out for a real misdemeanor conviction or a straight dismissal in order to preserve your record.
I’m always willing to talk to people charged with felonies about the possibility of a 12.44 (a) or even better.