If you are charged with a State Jail Felony in Texas, you might have been advised to “ask for a 12.44,” which refers to a section of the Texas Penal Code. In the Houston area, defendants are regularly granted 12.44(a) and 12.44(b). But what do these statutes really say? What is the difference between a 12.44(a) and 12.44(b) and how might they help to reduce a sentence or reduce the impact of a criminal case?
What is 12.44(a)?
Texas Penal Code 12.44(a) permits a person charged with a State Jail Felony, with a sentencing range of 180 days to 2 years, to be subject to the lower sentencing range for a Class “A” misdemeanor, which is up to a year in jail. According to the statute:
- 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.
In short, 12.44(a) means misdemeanor punishment but felony conviction. The main advantage of 12.44(a) is that it can reduce a jail sentence but would still lead to a permanent felony conviction that can never be expunged or sealed.
What is 12.44(b)?
Texas Penal Code 12.44(b) permits a prosecutor to reduce a State Jail Felony to a Class “A” misdemeanor. 12.44(b) is better than 12.44(a) because it reduces the sentencing range and also avoids a felony conviction:
- 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.
Because it avoids a felony conviction, 12.44(b) is often harder to get but it is definitely the better of the two. It is even possible to be put on a deferred adjudication probation under 12.44(b), which if completed successfully, may entitle you to get your records sealed (this depends on the type of charge you are facing as some offenses are not eligible for a deferred adjudication in Texas).
What offenses are eligible for 12.44(a) or 12.44(b)?
To be eligible for either 12.44(a) or 12.44(b), you must be facing a State Jail Felony. Other felonies are not eligible for either 12.44(a) or 12.44(b). Some examples of State Jail Felonies in Texas that are sometimes granted 12.44(a) or 12.44(b) include:
- Solicitation of prostitution
- Evading arrest with a motor vehicle
- Possession of controlled substance under 1 gram (Penalty Groups 1, 1-B, 2)
- Possession of marijuana between 4 ounces and 5 pounds
- Theft between $2500 and $30,000
If you are unsure of the punishment level of an offense, an experienced criminal defense lawyer will be able to tell you.
How do I get a 12.44(a) or 12.44(b)?
To be granted either 12.44(a) or 12.44(b), your criminal defense attorney must negotiate for it with the prosecutor. A criminal defense lawyer cannot force a prosecutor to offer either 12.44(a) or 12.44(b) as prosecutors generally have complete discretion to make or revoke plea offers.
12.44 is one of many tools available to a criminal defense lawyer. If you are charged with any criminal offense, it is critical to hire experienced counsel who can use every tool at his disposal to maximize your chances of an excellent result in a criminal case. If you are charged with any criminal offense in the Houston area, call Ceja Law Firm today.
