My first job out of law school was as a public defender in Wichita Falls. Inmates often lack a technical understanding of the law, but they have a very pragmatic understanding of what it takes to get out now. I was asked often about 12.44(a) and (b) deals to help these indigent defendants get out of jail. Most people are not familiar with these provisions, but they are important to anyone considering a plea offer.
First, a drug war rant. Texas has some of the worst drug laws in the nation. We have a special state jail unit that was invented to warehouse small time (less than one gram) drug users. State jail has no parole possibility, so no one wants to go there, and it’s super expensive to warehouse them once they get there.
Guess what? Drugs won the drug war, and in spite of our state’s drug laws people still use meth and coke and heroin etc. So we have some laws in place to somewhat correct this horrible policy failure and provide a way to keep from sending even more people to state jail and wasting more tax dollars. 12.44(a) and (b) serve that purpose.
Point of information 1- all drug offenses besides weed and some pills are state jail. So any amount of meth, coke, heroin etc is at least a state jail felony.
Point of information 2- 12.44 is not limited to drug cases, but those are the most common 12.44 pleas.
§ 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.
What’s that mean?
Basically if you plea pursuant to a 12.44(a) agreement you are still going to be a convicted felon, but you can only be punished like the case is a misdemeanor. Example- you could take deferred probation on a state jail felony meth case, and if you messed up, you could only a get a year in county jail, but they could still adjudicate you and make you a convicted felon.
How does a 12.44(a) agreement work? One way this is used is for time served deals on the jail chain.
Point of information- The jail chain is where inmates who can make bail are brought to court to “plea bargain”. But in reality inmates will take almost any deal that gets them out of jail. So all the leverage is for the State to get what they want from jail chain defendants on state jail cases. It’s one reason innocent people plead guilty, because we set bail so high that the poor can’t get out.
Here’s a typical scenario. You have a client named Bob on the jail chain for state jail meth possession (less than one gram). Bob has been in jail for 60 days. Bob’s bail is $5,000 and he can’t afford it and no one has the money to bail him out. Bob wants one thing right, to get out of the county jail. The prosecutor offers a “great deal” for 12.44(a) time served. Bob’s sentence would be 40 days and his 60 days of time would pay of all fines and court costs.
So Bob can leave jail today if he takes the deal, but he will be a convicted felon. Even if Bob is innocent, or the police violated his rights, or there is no way the State could prove the case at trial Bob will probably take the deal. And you would to. Jail sucks. People do whatever it takes to get out.
What’s a 12.44(b)
To the penal code!
(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.
It’s just like a 12.44(a) but better, the state jail charge is magically transformed into a misdemeanor. So even if you are convicted, it’s not a felony.
To summarize- 12.44(a) means misdemeanor punishment but felony conviction. 12.44(b) means misdemeanor punishment and misdemeanor conviction.