If you’re charged with a State Jail Felony, you may have heard about a “12.44(a)” and how good it is. Well, let’s talk about that. First of all, “12.44″ refers to a section in the Texas Penal Code. Section 12.44(a) says that

“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 the court finds that such punishment would best serve the ends of justice.”

In other words, if you get a 12.44(a), you still get convicted of a State Jail Felony, but you serve misdemeanor time in a county jail instead of a State Jail.

The difference between county jail time and state jail time is a big one.

Suppose you don’t get a 12.44(a) and the agreed upon amount of time is 180 days in the State Jail facility. Unlike county time, which is often served at “two for one,” State Jail time is served on a “day for day” basis.

A day is calculated this way. After the sun comes up in the morning and goes down in the evening, you have credit for 1 (and only 1) day. After 179 more of those days go by, you can get out of the State Jail.

County jail time, on the other hand, is usually served at two days of credit for every one day served, when the time is served as “straight” time, rather than jail time served as a condition of probation.

Here’s an example of how county jail time is served. If you receive a sentence of 180 days in the Travis County Jail, you would probably only serve no more than 90 of those days, exactly half. That is because you would receive two days of jail time credit for each day actually served.

Likewise, if you received a sentence of 50 days in jail, you would serve 25 days, and so on, assuming the jailers don’t think you’re breaking any jail rules.

You may have heard that some people get “trustee” status and so get 3 days of credit for one day served. With this example, on a 90 day sentence, you would only serve 30 days. Getting trustee status is difficult because it is reserved for inmates who have longer sentences, such as 270 days or a full year.

A 12.44(b) is much better for the defense, but much, much harder to get. In fact, it’s often impossible.

Section 12.44(b) says that

“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.”

In other words, a misdemeanor conviction punished as a Class A misdemeanor, which might or might not include incarceration.

The bottom line:

  • 12.44(a) means a felony conviction punished by county jail time, not probation.
  • 12.44(b) means a Class A Misdemeanor conviction that could be punished by county jail time or probation.

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