For individuals facing state jail felony charges in Texas, the prospect of a conviction can be terrifying, carrying the potential for significant time in a state jail facility. However, the Texas Legislature provides judges and prosecutors with two distinct tools to reduce the severity of these punishments: Texas Penal Code Sections 12.44(a) and 12.44(b).
While both statutes aim to mitigate the impact of a state jail felony, they operate in fundamentally different ways, with profound consequences for the defendant. One reduces the punishment, but the other changes the very nature of the conviction itself.
Understanding the difference between 12.44(a) and 12.44(b) is not just a legal technicality—it can mean the difference between walking out of the courtroom or being taken into custody, and it has a lasting impact on your permanent criminal record.
A scale of justice with a gavel, symbolizing the judicial discretion in sentencing under Texas law.
A judge has the discretion to reduce certain felony charges under Texas Penal Code Section 12.44.
What is a State Jail Felony?
Before diving into the differences between 12.44(a) and 12.44(b), it’s important to understand what is at stake. State jail felonies are the lowest category of felonies in Texas, but they still carry severe penalties.
The standard punishment range for a state jail felony is:
- 180 days to 2 years in a state jail facility
- A fine of up to $10,000
Examples of state jail felonies include certain thefts, burglaries, possession of a controlled substance (PG1 under 1 gram), and forgery of a check under a specific amount. The goal of 12.44 is to provide flexibility for less serious offenses or defendants who are good candidates for rehabilitation.
Texas Penal Code § 12.44(b): Reduction to a Misdemeanor
Texas Penal Code Section 12.44(b) is often considered the more favorable option for a defendant. This statute allows a judge to treat a state jail felony as a misdemeanor for all purposes.
How it works: The statute authorizes the court to punish a defendant convicted of a state jail felony by imposing the confinement and fine allowed for a Class A misdemeanor.
- Class A Misdemeanor Punishment: Up to 1 year in a county jail and a fine of up to $4,000.
- The Key Benefit: Most importantly, a conviction under 12.44(b) is classified as a misdemeanor on your permanent record. This is a critical distinction that affects future employment, housing, professional licensing, and your right to own a firearm.
Texas Penal Code § 12.44(a): Imposing a Misdemeanor Punishment
Texas Penal Code Section 12.44(a) functions differently. It allows a judge to impose the punishment for a Class A misdemeanor, but the conviction remains a state jail felony on your criminal record.
How it works: The statute authorizes the court, with the consent of the prosecution, to punish a defendant convicted of a state jail felony by imposing the confinement and fine allowed for a Class A misdemeanor.
- The Punishment: The defendant receives the same sentence as they would under 12.44(b): up to 1 year in county jail and a fine of up to $4,000.
- The Major Drawback: Despite receiving a misdemeanor-level punishment, the conviction is still considered a state jail felony for all purposes on your permanent record. You will have a felony conviction.
12.44(a) vs. 12.44(b): A Side-by-Side Comparison
| Feature | § 12.44(a) | § 12.44(b) |
| Type of Conviction | Remains a State Jail FelonyYou can also receive deferred probation and/or a conviction straight probation and/or jail | Classified as a MisdemeanorYou can also receive deferred probation and/or straight probation and/or jail |
| Maximum Jail Time | 1 year (county jail) | 1 year (county jail) |
| Maximum Fine | $4,000 | $4,000 |
| Prosecutor Consent | Required | Not Required |
| Criminal Record | Permanent Felony Record(Depends on the plea offer – you could receive probation / ie. deferred which is not a conviction and/or straight probation, which is a felony conviction) | Permanent Misdemeanor Record(Depends on the plea offer – you could receive probation / ie. deferred which is not a conviction and/or straight probation, which is a felony conviction) |
| Firearm Rights | Lost (if convicted either via straight probation and/or jail) | Preserved (upon completion of sentence) |
| Future Employment | Must disclose felony conviction, if your attorney did not obtain deferred probation | May only need to disclose misdemeanor if you did not receive deferred probation |
As the table illustrates, the practical outcome in terms of jail time and fines can be identical. The life-altering difference lies in the classification of the conviction on your criminal history.
Why Would a Prosecutor Choose 12.44(a)?
This is a common question. If 12.44(b) seems better for the defendant, why would a prosecutor ever agree to 12.44(a)? The answer often lies in negotiation and collateral consequences.
A prosecutor may insist on a 12.44(a) resolution to ensure the defendant still receives a felony conviction, which carries more significant long-term consequences. They might agree to it in exchange for a guilty plea, avoiding the time and expense of a trial. For a defendant, accepting a 12.44(a) deal may seem attractive because it avoids the risk of a longer state jail sentence, but it is crucial to understand that you are still pleading guilty to a felony.
How to Get a 12.44(b) Reduction
A 12.44(b) reduction is at the discretion of the judge. To maximize the chances of this outcome, your attorney must present a compelling case that you are worthy of this second chance. Factors a judge will consider include:
- The nature and circumstances of the offense.
- Your lack of a significant prior criminal history.
- Your ties to the community and family responsibilities.
- Evidence of rehabilitation efforts, such as seeking employment or completing counseling.
- The prosecutor’s position on the matter.
An experienced criminal defense attorney will know how to gather and present this evidence effectively to argue for a true misdemeanor reduction under 12.44(b).
Texas Penal Code 12.44: FAQs
Can a judge reduce any state jail felony to a misdemeanor?
No. The law prohibits using 12.44(b) for certain violent offenses or offenses with specific enhanced punishments listed in the statute. Your attorney can advise if your specific charge is eligible.
Do I need a lawyer to get a 12.44 reduction?
Absolutely. Navigating this process without an experienced attorney is extremely risky. Prosecutors are unlikely to offer the best option voluntarily, and a judge will need to be persuaded. A skilled lawyer is essential to fight for a 12.44(b) reduction or, at the very least, ensure you fully understand the consequences of a 12.44(a) offer.
What is the biggest mistake people make with 12.44(a)?
The biggest mistake is accepting a 12.44(a) plea deal without understanding that they will still have a felony conviction. However, on many occasions, Starr Law can obtain you deferred probation, which does not result in a felony conviction, which will be with you the reset of your life. They focus on the shorter jail time and fail to grasp the lifelong collateral consequences of a felony record.
Plano State Jail Felony Defense Attorney
The decision between pleading under 12.44(a) or fighting for a 12.44(b) reduction is one of the most critical choices in a state jail felony case. The wrong choice has permanent, life-altering repercussions.
At Starr Law, P.C., we don’t just process plea deals. We fight for the best possible outcome for your future. With over 28 years of experience in Collin County courts, we understand how to persuasively argue for a true misdemeanor classification under 12.44(b). We will meticulously prepare your case, highlight your strengths to the court, and aggressively negotiate with prosecutors to avoid the lifelong burden of a felony conviction.
Don’t risk your future by accepting a deal you don’t fully understand. Your career, your rights, and your reputation are on the line.
Contact us today for a free and confidential consultation to discuss your case and how we can fight for a true second chance. Call Starr Law, P.C. at 214-982-1408.
References
- Texas Penal Code, Section 12.44. Reduction of State Jail Felony Punishment to Misdemeanor Punishment
- Varghese Summersett
- PLLC: Legal Resources on Texas Law
