State Jail Felony Punishment – Texas Penal Code § 12.35
What is a State Jail Felony?
For many years Texas had only four classifications for felonies (1) capital felonies; (2) felonies of the first degree; (3) felonies of the second degree; and (4) felonies of the third degree. In 1993, the Texas Legislature created a lower felony charge called “State Jail Felony.”State Jail Felonies aregenerally based on the punishment range: 180 days to 2 years (up to $10,000 fine) in the State Jail Division of the Texas Department of Criminal Justice (TDCJ). Texas created this lower level felony to address the overcrowding in prisons caused by extensive prosecution of drug-related crimes.
So,what does State Jail Felony mean?It means the charge is the lowest level felony in Texas and has special rules that apply to punishment and release. These include rules about probation, the length of sentence, “good-time,” use against a person later, and the facility of imprisonment.
Sentences
Most people found guilty of aState Jail Felonyare facing a sentence of180 days to 2 yearsin a Texas State Jail facility. Along with the state jail imprisonment, a person can be fined up to$10,000(the standard fine maximum for felonies). Unlike the other level of felonies in Texas, parole does not apply to State Jail charges. So, we commonly say these sentences are served “day for day.” There is a program called “Diligent Participation Credit” that can reduce a state jail sentence, but it is not automatic. Your criminal defense attorney should be able to explain: 1. How Diligent Participation Credit works; and 2. If the judge in your case usually gives that credit. Aside from the normal State Jail Punishment range, there are harsher sentences depending on “enhancements” the government may be able to file in your case.
The punishment for a State Jail Felony is set out in the Texas Penal Code Chapter 12.
| Current State Jail | Criminal History | Punishment |
|---|---|---|
| Ordinary State Jail | No Criminal History | 180 days to 2 years State Jail Up to $10,000 fine |
| Possession of Controlled Substance | No Criminal History | Mandatory Probation Up to $10,000 fine |
| Deadly Weapon Used | No Criminal History | 2 to 10 years TDC Up to $10,000 fine |
| Ordinary State Jail | Prior 3g Felony Conviction | 2 to 10 years TDC Up to $10,000 fine |
| Ordinary State Jail | Prior Continuous Trafficking Conviction | 2 to 10 years TDC Up to $10,000 fine |
| Ordinary State Jail | Prior Continuous Sexual Abuse Conviction | 2 to 10 years TDC Up to $10,000 fine |
| Ordinary State Jail | Prior Deadly Weapon Finding | 2 to 10 years TDC Up to $10,000 fine |
| Ordinary State Jail | Two Prior State Jail Convictions | 2 to 10 years TDC Up to $10,000 fine |
| State Jail with Deadly Weapon | One Prior Felony Conviction (Non State Jail) | 2 to 20 years TDC Up to $10,000 fine |
*As you can see, State Jail Punishment becomes complicated – Consult a Defense Lawyer for a better explanation.
So, theTexas State Jail Felony punishmentcan be drastically different based on criminal history and specific circ*mstances. Do not make the mistake of waiting to speak with a criminal defense attorney about your charge.
Enhanced State Jail Punishment
Prior criminal history or other circ*mstances can cause a State Jail Felony to be punished just like a Third Degree Felony.
- If a person has been convicted of a State Jail Felony before the new charge;
- If a person uses or exhibits a deadly weapon during the commission of the State Jail Felony;
- If a person uses or exhibits a deadly weapon during immediate flight following the commission of a State Jail Felony;
- If a person is a “party” to a State Jail Felony offense and knew that a deadly weapon would be used or exhibited;
- If a person has been finally convicted of Continuous Trafficking of Persons;
- If a person has been finally convicted of Continuous Sexual Abuse of a Child; or
- If a person has been convicted of what is known as a 3g Offense.
What is a 12.44 reduction of a State Jail Felony to a Misdemeanor?
If you are facing criminal charges in Texas, you may have heard about getting a “12.44.” This refers to the Texas Penal Code Section 12.44 that allows State Jail Felony charges to be punished or reduced to Class A misdemeanor (up to 1-year Tarrant County Jail)
Texas Penal Code 12.44 (A)
Instead of sending someone to TDCJ – State Jail Division (prison), a criminal court can sentence someone charged with a State Jail Felonyto county jail just like for aClass A Misdemeanor. For the court to this, the judge must decide if “the gravity and circ*mstances of the felony committed and the history, character, and rehabilitative needs of the defendant, the criminal court finds that such punishment would best serve the ends of justice.”
Reduction under 12.44 (a) does not require the prosecuting attorney to agree. This means the judge can decide to do this at sentencing, and it’s not limited to only plea bargains.
Unfortunately, even if thepunishment is reduced, a State Jail Felony punished under 12.44 (a) is stillfelony conviction, which means:
- You cannot get the record expunged
- You are not eligible for probation from a jury if you are charged with another felony;
- You cannot own or possess a firearm under federal law; and
- You have other legal “disabilities” associated with a felony conviction (i.e. voting, jury service).
The upside is, instead of serving six months to two years in a State Jail facility (day-for-day), you can be sentenced to: (1) serve up to a year in county jail; or (2) two years of probation. On the jail sentence you may get whatever “good time credit” the sheriff running the jail allows.
Texas Penal Code 12.44 (B)
Section B requires the prosecutor to agree to the reduction. So, the prosecutor can request (through plea bargain or at sentencing) that the judge reduce a State Jail Felony to a Class A Misdemeanor. While 12.44 (b) has the same two possible sentences, it does not result in a felony conviction. A conviction under 12.44 (b) is a misdemeanor conviction. An offense that is prosecuted under 12.44 (b) cannot later be used to enhance other felony offenses. This is a much better, but rarer, option.
Good Time or Diligent Participation
State Jail Felony offenses in Texas are punishable by 180 days to 24 months in a state jail facility. Generally, a state jail sentence is served “day-for-day.” Unlike a sentence in county jail an inmate does not receive “2 for one” for “good time credit” or “trustee credit.” Unlike a prison sentence (1st, 2nd, or 3rd Degree Felony) in the Texas Department of Criminal Justice – Institutional Division, an inmate does not get paroled for “good time credit.” While this may sound discouraging to anyone facing aState Jail Felony, there is a program that can help state jail offenders serve less time. This is known as Diligent Participation Credit.
Since September 1, 2011, a person sentenced to State Jail is eligible for the Diligent Participation Credit program. Under Diligent Participation, a person can receive time credit for their participation in state jail programs such as education, work, and substance abuse treatment. The inmate’s participation must be diligent, meaning the person must successfully complete the program or make meaningful progression toward completion that was only interrupted by something outside the inmate’s control.
The Texas Department of Criminal Justice must report the number of days an inmate diligently participated in one of the programs to the person’s district court sentencing judge not later than 30 days before the offender has served 80 % of his sentence. For the date the report must be submitted, multiple the number of days you are sentenced by 0.8 and then subtract 30. This is the day TDCJ must send the report to you judge. The State Jail will report a day of diligent participation for every day in custody once the inmate arrives at the state jail facility. Back time or back credit is also possible. The sentencing judge can give an inmate up to 20% credit off the person’s sentence through this program.
There are a few exceptions to theDiligent Participation Creditprogram however. Inmates who are found guilty in custody of disciplinary actions such as refusing to work; refusing to attend school or complete school work; or refusing a required treatment program are not eligible to receive credit for diligent participation. Inmates subject to solitary confinement or administrative segregation are also ineligible to receive credit for those days.
On September 1, 2015, a new option became available for inmates. At the time of sentencing, the sentencing judge can determine that the offender is presumptively entitled to receive the diligent participation credit for a State Jail Felony sentence. The credit is awarded to the inmate as long as he does diligently participate. The inmate will then be awarded time credit on the 45th day before 80% of his sentence is served. However, if disciplinary action is taken in custody against an inmate presumptively assumed entitled, the time credit will not be given. The program is designed to encourage inmates to work toward rehabilitation and serves as a security measure.
Contact us to talk about your State Jail Felony charge. Our lawyers are experienced and skilledFort Worth criminal defense attorneysthat have handled cases in Tarrant County and surrounding counties. Our office is located in downtown Ft Worth, TX.
