What Is a 12.44
If you’re charged with a felony, there’s a good chance you’ve heard of “a 12.44” and probably want to know more about it and how you may be able to get it.
Section 12.44 of the Texas Penal Code has 2 sections. They allow a state jail felony to be prosecuted as a misdemeanor or punished as a misdemeanor.
12.44(a)
The first section, 12.44a, allows a judge to punish a state jail felony as a misdemeanor. A state jail facility is a prison facility for people convicted of crimes that are a higher level than a misdemeanor, but less than a 3rd degree felony. There are 17 state jail facilities located in Texas. If a judge grants you a 12.44, you would serve your time at the County Jail, just like someone who serves time on a misdemeanor. Even though you would be punished as if it were a misdemeanor, you would still be convicted of a felony.
12.44(b)
The second section, 12.44b, allows the prosecutor to prosecute a case as if it’s a Class A Misdemeanor. Under this section, not only would you be punished as if it were a misdemeanor, it would actually be a misdemeanor conviction.
Who Qualifies
There are two big misconceptions about 12.44s. The first is that any felony qualifies. To qualify for either 12.44, you must be charged with a state jail felony. If you’re charged with a 3rd degree felony or anything higher, you do not qualify.
The second misconception is that you have the right to a 12.44. The only way to get a 12.44 is through a plea agreement with the prosecutor or to convince a judge to grant it despite the prosecutor not agreeing to it. From a practical standpoint, if the prosecutor doesn’t agree to it, it’s going to be a hard to convince the judge to grant it.
Why Do You Want It
You want a 12.44 to try and avoid a felony conviction and because you will serve less time in a county jail. If you get a 12.44 through an agreement with the prosecutor, you can avoid a felony conviction. This could mean that you may still be able to own firearms and it could prevent this conviction from being used to enhance a later charge.
You will also probably serve less time. In a state jail facility, you will serve time day for day. This means that if you’re sentenced to a year in a state jail facility, you will servce 365 days. In a county facility, you will often eanr 2 or even 3 days credit for every day that your in jail. This means that if you’re sentenced to a year in the county jail, you may only serve 4-6 months before being released.
How Can You Get It
The most likely way to get a 12.44 is through a plea with the prosecutor. Judges rarely grant them if the state does not agree to it. Most prosecutors will look at the facts of the case, your criminal history, and the nature of the charge when deciding whether or not to agree to it. Prosecutors also vary widely on how they evaluate cases, so the same case may get a 12.44 from one prosecutor, but not another.
If there is no agreement, you can still ask the judge to grant you a 12.44. When deciding whether or not to grant it, they should consider the gravity and circumstances of the case, and your history, character, and rehabilitative needs.
A 12.44 could be a huge benefit if you’re being charged with a state jail felony, but they’re not as common as many people believe. You’ve got a much better chance of getting it if you don’t have much or any criminal history, you’re being charged with drug possession or some other non-violent charge, and if you can get a prosecutor to agree to it.
If you’re wondering if your case may qualify for a 12.44 or if you have any questions about it, call me or click below to set up a consultation.
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.
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