Section 12.44(a) and (b) for Dummies

For accused persons facing prosecution for certain low-level felony offenses, Texas Penal Code Section 12.44 is like the Holy Grail of plea deals. Clients continuously ask “what is a 12.44(a)” . . . “can I get a 12.44(a)” . . . and “how does 12.44(a) work?” They ask the same questions about Section 12.44(b).

So here’s the basics (and as always, if you have a particular legal question about YOUR CASE, talk to your lawyer . . . this post is for general info and should not be considered legal advice):

Section 12.44 of the Penal Code allows the trial court to either send you to your local county jail to serve time on a State Jail Felony Conviction (that’s Section 12.44(a)), or, with permission from the prosecutor, reduce your State Jail felony case to a misdemeanor conviction and have you serve your time in a county jail facility (that’s Section 12.44(b)).

There are big potential advantages to pleading your State Jail felony offense to a misdemeanor. If you plead in accordance with 12.44(b), the offense cannot be used later for purposes of enhancing another felony charge. You also avoid a felony conviction on your record. Under both 12.44(a) and 12.44(b), you get to serve out your time at a county jail facility and can benefit from whatever the county’s time credit policy is. For example, in Montgomery County, the sheriff often authorizes inmates to receive 2 days’ credit for each day they are incarcerated. So you can get your sentence over with relatively quickly (unlike the day-for-day credit you receive at an actual State Jail facility).

Contrary to popular belief – at least popular inside many county jails — Section 12.44 does NOT apply to 3rd degree felonies or any other higher-level felony offense. Clients often get frustrated when I tell them this because they’ve been repeatedly misinformed by other “experts” (i.e. ex-con cellmates and family members) that pretty much any felony can be solved with “a 12.44 plea.” The truth is, the Texas Legislature was careful to limit the application of Section 12.44 to offenders facing only State Jail time.

Further, 12.44 requires the trial court to consider the gravity and circumstances of the felony and to assess the “history, character, and rehabilitative needs” of the defendant before allowing him or her to take advantage of the statute. And the prosecutor must explicitly agree before the court reduces the felony to a misdemeanor under 12.44(b). In reality, the Court rarely makes these assessments. If the prosecutor offers a plea bargain under 12.44, the courts tend to go along with deal just to move the case. Just be aware that, technically, the court is supposed to make this front-end assessment.

And just in case you’re not familiar with the term “State Jail Felony,” here’s a little more background information:

The Texas Legislature added “State Jail Felonies” to the Penal Code in 1993 to address prison overcrowding due to a large increase in low-level, non-violent felony convictions for drug offenses.

The “normal” State Jail punishment range is 180 days to 2 years incarceration in a separate State Jail facility. State Jails are weird – you serve your time in a separate facility and do not mix with felons convicted of higher-level felonies. And, unlike a first, second, or third degree felony, you have to serve your State Jail time day-for-day. That’s a big deal, since when you are serving a 2-year sentence on a third-degree felony, for example, you’ll quickly amass “good conduct time” and probably be parole eligible and back on the streets before you hit the half-way mark. Meanwhile, the guy serving out a two-year State Fail Felony offense has to log in each day with no off-setting good conduct time.

Make sure to ask your attorney about the specific type of offense you are charged with and whether Section 12.44 applies to your case.