Is 12.44(a) an Option for My Case?
What exactly is 12.44(a)?
One of the most common questions I get from people who have been arrested and are in county custody is: Can you get me 12.44(a) time? Unfortunately for most people, the answer is no because 12.44(a) and 12.44(b) are very limited and specific in their application. Both are defined in the Texas Penal Code and are as follows:
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.
(b) At the request of the prosecuting attorney, the court may authorize the prosecuting attorney to prosecute a state jail felony as a Class A misdemeanor.
What does this mean for my case?
First, your charge must be a State Jail Felony to qualify. Most often, we see State Jail Felonies that are drug possession offenses (less than one gram of a Penalty Group 1 drug, such as cocaine, meth, or heroin). If your charge is a First, Second, or Third Degree felony, 12.44(a) and 12.44(b) will not be an option.
Second, if your charge is a State Jail Felony, the prosecutor must agree to offer 12.44(a) or (b). A State Jail Felony carries a possible sentence of 180 days to 2 years in a state jail facility and up to a $10,000 fine or both. 12.44(a) allows for a State Jail Felony conviction to be punished as a Class A Misdemeanor. Class A misdemeanors carry a sentence range of up to 1 year in jail and a fine up to $4,000 or both. So, it is possible to get a conviction for possession of less than a gram of cocaine and have a jail sentence of less than 180 days. However...
In a plea bargain, the prosecutor must agree to offer 12.44(a) AND the judge must also agree to accept the plea bargain with 12.44(a) included. This doesn't happen often for a variety of reasons. If you have prior possession charges or a criminal history 12.44(a) is not likely to be offered.
If you are facing your first State Jail Felony or don’t have an extensive criminal history, you might be a good candidate for 12.44(a) if you are seeking a plea bargain with the State. Remember though, 12.44(a) WILL result in a felony conviction on your record. 12.44(a) only affects how the felony is punished.