A Tale of Two “Felonies”: 12.44(a) and 12.44(b)

Where felony charges are concerned, two specific provisions of the Texas Penal Code often come up: 12.44(a) and 12.44(b). The title of 12.44 explains the effect of prosecution under such provisions—“Reduction of State Jail Felony Punishment to Misdemeanor Punishment.” Both provisions permit punishment for a state jail felony to be reduced to Class A misdemeanor level, but they have very different effects.

 

12.44(a): A State Jail Felony Punished As a Class A Misdemeanor

Under 12.44(a) a person charged with a state jail felony can be punished by the term of confinement for a Class A misdemeanor. To be clear, the person has been convicted of a felony, but the punishment for the state jail felony conviction—normally 180 days to 2 years in a state jail prison facility and a fine not exceed $10,000.00—instead must be decided within the range permitted for a Class A misdemeanor: not more than 365 days in the county jail and/or a fine not to exceed $4,000.00.

 

This reduction to Class A misdemeanor punishment is significant. First, it means the person can serve his time in the county jail, not a state jail facility (a state jail facility is a prison in Texas where only persons convicted of state jail felonies are housed). This prevents the person from being transferred away from friends and family to one of Texas’ many state jail facilities. Second, punishment under 12.44(a) means that a person can receive good time (trustee) credit on his sentence. Whereas state jail time runs day-for-day (setting aside mention of “diligent participation” or the 80/20 rule), county time can be credited at 2 days credit for every actual day, or even three days credit (or more) for every actual day. This means a sentence of 180 days under 12.44(a) could be served in as little as 60 days (or even less.)

 

On the down side, a person sentenced under 12.44(a) for a state jail felony has a felony conviction, which can be used to enhance the person down the road, and can make the person ineligible for probation in the future.

 

12.44(b): A State Jail Felony Reduced and Prosecuted As a Class A Misdemeanor

Receiving punishment under 12.44(a) can be a good option. However, being prosecuted under 12.44(b) is clearly a better option in most cases. 12.44(b) permits the State (with permission of the Court) to prosecute a state jail felony as a Class A misdemeanor. Note that this is different from 12.44(a) which permits the Court to punish a person convicted of a state jail felony within the Class A misdemeanor range of punishment. Put simply, under 12.44(a), a person is convicted of a state jail felony, but is permitted to serve the sentence as though it were a Class A misdemeanor; under 12.44(b) the person is convicted of Class A misdemeanor. This is a major difference. (And this is why “felonies” appears in quotes above; a conviction under 12.44(b) is not a felony conviction.)

 

Importantly, once prosecution has been approved by the Court under 12.44(b), and a defendant has plead under 12.44(b), the charge can never again be raised to a state jail felony. This is true even if probation for an offense prosecuted under 12.44(b) is revoked.  Also, because a person convicted under 12.44(b) has not been convicted of a felony, the person can be eligible for probation in the future (for offenses where probation is an option.)