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Felony in Texas
What is the punishment for a felony in Texas?
These are the punishment ranges for what are considered ordinary felonies in Texas. This means the punishment range can be different depending on the specific circumstances of the case and the person’s criminal history. Further, if a person does not have any felony criminal history they may be eligible for probation. In some cases, a State Jail Felony drug charges is mandatory probation. This page is a handy guide, but felony sentencing laws in Texas can be complex. So, you need to talk to a criminal defense attorney that can fully explain the range of punishment and the possibility of probation.
Felony Punishment under the Texas Penal Code:
- § 12.31. Capital Felony
- § 12.32. First Degree Felony Punishment
- § 12.33. Second Degree Felony Punishment
- § 12.34. Third Degree Felony Punishment
- § 12.35. State Jail Felony Punishment
- What does Felony mean in Texas?
- Felony in Federal Court
- Felony vs. Misdemeanor
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 Felony definition is generally based on the punishment rage: 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 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.
Most people found guilty of a State Jail Felony are facing a sentence of 180 days to 2 years in 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, 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, the Texas State Jail Felony punishment can be drastically different based on criminal history and specific circumstances. Do not make the mistake of waiting to speak with a criminal defense attorney about your charge.
Enhanced State Jail Punishment
- 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 charge with a State Jail Felony to county jail just like for a Class A Misdemeanor. For the court to this, the judge must decide if “the gravity and circumstances 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 the punishment is reduced, a State Jail Felony punished under 12.44 (a) is still felony conviction, which means:
- You cannot get the record expunged
- You are not eligible for probation from a jury if you are charge 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 a State 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 the Diligent Participation Credit program 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.
Attorney James Luster can speak with you about your State Jail Felony charge. He is an experienced and skilled Fort Worth criminal defense attorney that has handled cases in Tarrant County and surrounding counties. His office is located in downtown Ft Worth, TX.
Third Degree Felony Punishment – Texas Penal Code § 12.34
If a person is found guilty of a 3rd Degree Felony in Texas, then the person can be sent to prison (Texas Department of Criminal Justice - Institutional Division) for 2 years to 10 years. The person can also be fined up to $10,000. Depending on a person's criminal history and the circumstances of the charge, someone can also get community supervision (probation) or deferred adjudication. The length of probation for a 3rd Degree Felony is usually 2 to 10 years. For the specifics of possible penalties in your case, you need to find a Fort Worth criminal defense attorney.
Second Degree Felony Punishment – Texas Penal Code § 12.33
A Second Degree Felony is punishable by a minimum of two years in prison and a maximum of 20 years in prison. “Prison” means confinement in the Texas Department of Criminal Justice – Institutional Division. In addition to prison, a person may also be fined $10,000.
Depending on a person’s criminal history, probation (Community Supervision) or deferred adjudication may be an option for a 2nd Degree Felony in Texas. The length of probation may be from 2 years to 10 years.
If someone is sentencing to prison on a Second Degree Felony in Texas, then the applicable parole law depends on the charge and the person’s criminal history. If someone is sentenced to prison for 4 years or more on an “Aggravated Charge,” “3g Charge,” or a charge involving a deadly weapon, then the earliest a person may be eligible is when their actual time of confinement when added with their “good conduct” time equals the length of their entire sentence. If a person is sentenced to 4 years or less for an Agg, 3g, or deadly weapon Second Degree Felony, then the person must serve a minimum of 2 years before being eligible for parole.
The punishment for a 2nd Degree Felony may be greater depending on a person’s criminal history. Specifically, the penalty may increase to a 1st Degree Felony if the person is a “Repeat Felony Offender,” and the penalty may increase to a minimum of 25 years in prison to 99 years or Life in prison if the person is a “Habitual Felony Offender.” Texas sentencing laws can be complicated. So, if you or a loved one has a Second Degree Felony charge, then you need to talk with a criminal defense attorney.
First Degree Felony Punishment – Texas Penal Code § 12.32
If someone is convicted of a 1st Degree Felony, then that person can be sent to prison (TDCJ Institutional Division) for 99 years or Life and a minimum term prison term of 5 years. The person can also be fined up to $10,000. Fewer First Degree Felonies are eligible for probation than other levels of charges, but some 1st Degree charges can get probation or deferred adjudication.
- Minimum 5 years
- Maximum 99 years or Life
- Up to $10,000
- More in some drug cases
- Probation or Deferred Adjudication term:
- Minimum 2 years
- Maximum 10 years
Capital Felony – Texas Penal Code § 12.31
If someone is found guilty of a Capital Felony in a case in which the state has filed a notice to seek the death penalty then the person convicted will be punished by imprisonment in the Texas Department of Criminal Justice for life without parole or by death. An individual adjudged guilty of a capital felony in a case in which the state does not seek the death penalty shall be punished by imprisonment in the Texas Department of Criminal Justice for:
- life if the convicted person was a juvenile; or
- life without parole.
In death penalty cases, prospective jurors will be told that a sentence of life imprisonment without parole or death is mandatory on conviction of a capital felony. In a capital felony trial in which the state does not seek the death penalty, prospective jurors shall be informed that the state is not seeking the death penalty and that a life sentence is mandatory.
Attorney for Felony Charges in Texas
James Luster has defended and prosecuted 1st, 2nd, and 3rd Degree Felony charges. Before he became a defense lawyer, James was a prosecutor in Lubbock and Tarrant counties. Regardless of what felony charge you are facing, James wants to help.
There are two situations people find themselves in if they are arrested on criminal charges in Texas?
- I am innocent. I am wrongfully accused, and I want to clear my name.
- I made a bad decision. How do I fix this and make it go away?
James helps people in both situations. That’s what he does and that’s what he loves. He fights to protect you in a criminal justice system that wants a conviction and wants cases closed. Regardless of your guilt or innocence, he fights to beat your case.
What does “felony” mean in Texas?
A felony in Texas is a crime that is punishable by more than one year. Also, with a few exceptions, a felony prison sentence is served in the Texas Department of Criminal Justice (Institutional Division or State Jail Division). Texas divides felonies into five classifications: State Jail Felony; Third Degree Felony; Second Degree Felony; First Degree Felony; and Capital Felony. What makes a crime a felony is determined by the Texas legislature (the people in Austin making the laws). Each time the legislature meets they amend the criminal law by adding new crimes, deleting some crimes, or changing existing crimes. Something can be a misdemeanor today but changed to a felony charge by the State.
How some crimes become Felonies
An example of how misdemeanors may change to felonies over time the law against Evading Arrest in a Vehicle. Until 2001, evading arrest using a vehicle was a Class A Misdemeanor (punishable by up to 1 year in county jail and $4000 fine) then the Texas Legislature passed a bill that increased it to a State Jail Felony (punishable by 180 days to 2 years in State Jail Prison and up to $10,000 fine). Then in 2011, the Legislature increased the seriousness again increasing evading arrest in a vehicle to a Third Degree Felony (2 to 10 years in prison and up to a $10,000 fine), for a first offense. Don’t worry, if you are charged with a misdemeanor today, the law cannot make that already filed charge into a felony. That would violate what is known as the Ex Post Facto Clause.
An ex post facto is a phrase that translates roughly to “out of the aftermath.” An ex post facto law is a law that retroactively (changes things in the past) changes the legal consequences before the law even became law of the law. It seems unfair, right? In criminal law, it sometimes makes your action a crime even though your action were legal when you did it. Sometimes, it makes existing crimes more serious (like the Evading Arrest example above). More serious meaning it may: move a crime to a more severe category than it was in when it was committed; change the legal punishment for a crime, by adding new penalties or extending sentences.
Since this is unfair, it is illegal for the government to do it in the United State and Texas. The U.S. Constitution says Congress cannot pass an ex post facto law under Article 1 Section 9. Also, the states (including Texas) cannot pass ex post facto law under Article I, Section 10.
What does “felony” mean in Federal Court?
Specific laws identify whether a federal crime is a felony, but there are general rules as to what constitutes a felony based on the maximum length of possible imprisonment. The cut-off between federal felonies and misdemeanors is whether the maximum prison sentence is more than one year. Federal felonies are divided into five classes: A, B, C, D, and E (A being the most serious). Any federal charge is serious. Before speaking with any investigators or police call a federal criminal defense attorney that practices in your federal district.
Felony vs. Misdemeanor
What is the difference between a felony and misdemeanor? A felony is more serious charge than a misdemeanor. Not only is the possible sentence harsher but also the consequences after a sentence is served are more serious. The Texas and Federal law is very specific about the different punishments and ramifications. To get a better understanding of the law in your particular case you need to meet with a criminal defense lawyer. However, below is an example of how misdemeanor and felonies fit together in the Texas criminal justice system. We use the Texas Theft Laws as an example of how the law differentiates between felony and misdemeanor. Here are some general rules about why something is charged as a felony versus misdemeanor:
Example: Theft – Value of Property
As the value of property lost increases the seriousness of the crime increases. As of September 1, 2015, the “standard value ladder” for theft in Texas is:
- Under $100 is a Class C Misdemeanor
- $100 or more, but less than $750 is a Class B Misdemeanor
- $750 or more, but less than $2,500 is a Class A Misdemeanor
- $2,500 or more, but less than $30,000 is a State Jail Felony
- $30,000 or more, but less than $150,000 is a Third Degree Felony
- $150,000 or more, but less than $300,000 is a Second Degree Felony
- More than $300,000 is a First Degree Felony
Example: Theft – Nature of Property
For some charges the value of property is not the more important issue. Instead, a crime is more serious because of the nature or kind of property stolen.
- Regardless of Value – theft of another person’s driver’s license is a Class B Misdemeanor
- Regardless of Value – theft of a firearm is a State Jail Felony
- Any value stolen less than $20,000 and what was stolen is: copper; brass; aluminum; or bronze – the charge is a State Jail Felony
- Cattle rustling or even one or two standard cows is a Third Degree Felony
- Stealing money from an Automated Teller Machine (ATM) of any amount less than $300,000 is a Second Degree Felony
Example: Theft – Special Victim
Aside from the value and the nature of the property stolen, sometimes a charge is more serious (becomes a felony) because of the “victim” involved.
- A theft is increased to the next higher level is the “victim” is an elderly person. So, if someone steals a bird fountain (not made of brass, copper, bronze, or aluminum) that is worth $2,500 from an elderly person’s yard, the charge would be a State Jail Felony instead of a Class A Misdemeanor.
- A theft is increased to the next higher level if the property stolen belongs to a nonprofit organization. So, if someone steals a seesaw (not made of brass, copper, bronze, or aluminum) that is worth $2,500 from an outside of Ronald McDonald House, the charge would be a State Jail Felony instead of a Class A Misdemeanor.
Example: Theft – Special Conduct
The conduct of a person committing theft can increase the seriousness of the charge.
- If someone steals a candy bar from a gas station and doesn’t come into contact with anyone, then the charge is a Class C Misdemeanor (ticket).
- If someone steals a candy bar that a gas station worker is holding in their hand, and doesn’t threaten or hurt the worker, then the charge is a State Jail Felony (Theft from Person).
- If someone steals a candy bar from a gas station and pushes a worker into the counter on the way out (causing some pain), then the charge is a Second Degree Felony (Robbery).
- If someone steals a candy bar from a gas station and is carrying a pistol, then the charge is a First Degree Felony (Aggravated Robbery).
Example: Theft – Criminal History
Someone’s criminal history can be the difference between a misdemeanor and felony.
- If someone steals a candy bar from a gas station (Class C Misdemeanor), but has been convicted ONE TIME of theft then the charge is a Class A Misdemeanor (up to a year in jail and $4000 fine).
- If someone steals a candy bar from a gas station (Class C Misdemeanor), but has been convicted TWO TIMES of theft then the charge is a State Jail Felony (up 2 years in prison and $10,000 fine).
- If someone steals a candy bar from a gas station (Class C Misdemeanor), but has been convicted TWO TIMES of theft and been convicted and sentenced to State Jail ONCE for Possession of a Controlled Substance (cocaine) Under 1 Gram then the charge is a Third Degree Felony (2 to 10 years in prison and $10,000 fine).