Houston · Harris County · Galveston · Fort Bend · Federal — Southern District of TexasHouston · Harris County · Galveston

Section 12.44 is one of the most useful tools in Texas criminal law for someone charged with a state jail felony. It allows a state jail felony — the lowest level of felony — to be punished, or even prosecuted, as a Class A misdemeanor. For a first-time drug possession, theft, or forgery case, the difference between a felony record and a misdemeanor record for the rest of your life often comes down to this one section.

The Text of Texas Penal Code § 12.44

(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.

12.44(a) vs. 12.44(b): The Difference That Matters

12.44(a)12.44(b)
Who decidesThe judge, at sentencingThe prosecutor must request it; the judge authorizes
What you are convicted ofA state jail felonyA Class A misdemeanor
Maximum sentenceUp to 1 year in county jail, up to $4,000 fineUp to 1 year in county jail, up to $4,000 fine
Probation availableYes — up to 2 years misdemeanor probationYes — up to 2 years misdemeanor probation
Felony on your recordYesNo
Firearm rightsLost (felony conviction)Kept (unless family violence)
Enhances a future state jail felony to 3rd degreeYesNo
Nondisclosure eligibleGenerally noOften yes, after the waiting period

A 12.44(a) is a sentencing break. A 12.44(b) is a record-saving outcome. When we negotiate a state jail case in Harris County, the goal is a dismissal or pretrial diversion first, a 12.44(b) second, and a 12.44(a) only if the facts leave no better option.

Which Charges Are State Jail Felonies?

Section 12.44 applies only to state jail felonies (punishable by 180 days to 2 years in a state jail facility). The most common in Harris County:

How a 12.44 Fits with Probation and Deferred Adjudication

Section 12.44 is a punishment provision, so it applies at conviction. It is not the same thing as deferred adjudication, which avoids a conviction entirely if probation is completed. In practice a state jail case in Harris County usually resolves one of four ways: (1) dismissal, including through pretrial intervention or drug court; (2) deferred adjudication on the felony, with the possibility of nondisclosure later; (3) a 12.44(b) misdemeanor conviction, often with time served or short probation; or (4) a 12.44(a) felony conviction with misdemeanor jail time. Which one is best depends on the client's record, immigration status, professional license, and the strength of the State's case — a felony deferred can be better than a 12.44(b) for some clients and worse for others, and we walk through the consequences of each before any decision.

Arguing for a 12.44

Prosecutors in Harris County generally consider a 12.44(b) on a first-time state jail case when the amount is small, restitution is paid, the defendant has completed a drug evaluation or treatment, and there is no violence or weapon involved. The judge's 12.44(a) findings — "the gravity and circumstances of the felony" and "the history, character, and rehabilitative needs of the defendant" — are the framework we build the mitigation package around: employment, family responsibilities, treatment, education, and letters of support.

Related Sections

Charged with a State Jail Felony in Harris County?

Brian Foley is Board Certified in Criminal Law and a former Harris County Felony Chief Prosecutor; Luis Baez is a former Trial Bureau Chief. They negotiated hundreds of 12.44 dispositions from the prosecution side and know exactly what the State needs to see. Call or text (713) 703-1718 for a free, confidential consultation.

Frequently Asked Questions


What is the difference between 12.44(a) and 12.44(b)?
Under 12.44(a) the judge convicts you of the state jail felony but punishes it as a Class A misdemeanor — the conviction is still a felony on your record, but the sentence is capped at a year in county jail. Under 12.44(b) the prosecutor consents to prosecuting the case as a Class A misdemeanor, so the conviction itself is a misdemeanor, not a felony. A 12.44(b) is far better for your record.
Is a 12.44(a) a felony conviction?
Yes. A 12.44(a) reduces only the punishment. You are still convicted of a felony, lose the rights that go with a felony conviction (firearms, voting until the sentence is complete, some licenses), and the conviction can be used to enhance a future charge. Only 12.44(b) results in a misdemeanor conviction.
Which offenses can be reduced under 12.44?
Any state jail felony — possession of a controlled substance under one gram (POSS CS PG 1/1-B <1G), theft of $2,500 to $30,000, credit or debit card abuse, forgery, burglary of a building, unauthorized use of a motor vehicle, evading in a vehicle, and DWI with a child passenger, among others. Third-degree felonies and above cannot be reduced under 12.44.
Can I get probation with a 12.44?
Yes. A 12.44 sentence can be probated like any Class A misdemeanor (up to two years of community supervision), or the person can take a short county-jail sentence — often time already served — and be done. Many defendants choose a 12.44 with time served to avoid years of felony probation.
Does a 12.44(b) misdemeanor count as a prior for enhancement?
It counts as a Class A misdemeanor conviction, not a felony. So it cannot be used to make a later state jail felony a third-degree felony, and it does not trigger the felony habitual-offender provisions. That is one of the main reasons defense lawyers push for 12.44(b) rather than 12.44(a).
How do I get a 12.44 in Harris County?
12.44(b) requires the prosecutor's written consent, so it is negotiated — usually on a first offense with a low weight or low dollar amount, where the defendant has completed classes, treatment, or restitution. 12.44(a) is within the judge's discretion at sentencing and can be argued for even over the prosecutor's objection. Both are common outcomes in the Harris County felony courts for first-time state jail cases.

Speak With a Houston Criminal Defense Attorney Today


Free, confidential consultation with Board Certified criminal defense attorneys and former prosecutors.

(713) 703-1718