STATE JAIL DRUG POSSESSION CHARGES | RANGE OF PUNISHMENT | PROBATION ELIGIBILITY IN TEXAS

If you have been arrested on a state jail drug possession charge (the most common type of felony drug charge in Texas), then it’s important to know that probation is the preferred outcome under the law.  Even when you have criminal history and may have been arrested in the past for a felony drug charge, as long as you were never convicted, then the Court HAS to give you probation under the law (see below, Section 42A, Texas Code of Criminal Procedure).

STATE JAIL FELONY PUNISHMENT RANGES

6 MONTHS TO 2 YEARS STATE JAIL | UP TO A $10,000 FINE

If you are arrested for a state jail felony drug charge, then the normal range of punishment is a minimum of 6 months and a maximum of 2 years in the State Jail and up to a $10,000 fine. You many also be eligible for community supervision (probation), which requires a minimum 2 year and a maximum 5 year probation sentence.

12.44A:

A 12.44a is a state jail conviction where the State agrees to reduce the punishment range down to a misdemeanor. For example, you get arrested on a possession of a controlled substance under 1 gram (methamphetamine).  You plead guilty to the charge and the State agrees to give you 30 days in Tarrant County Jail instead of the normal minimum for a state jail offense (6 months).  The only requirement to be eligible for a 12.44a is that the offense must be a state jail felony.  A 12.44a still results in a felony conviction and can be used against you in the future for potential enhancement purposes.

12.44B:

A 12.44b is a misdemeanor conviction where the State agrees to reduce the charge down to a misdemeanor and agrees to reduce the punishment range down to a misdemeanor. For example, you get arrested on a possession of a controlled substance under 1 gram (methamphetamine).  You plead guilty to the charge and the State agrees to give you 30 days in Tarrant County Jail instead of the normal minimum for a state jail offense (6 months).  Under a 12.44b, you would not have a felony conviction. It would be a misdemeanor conviction.

COMMUNITY SUPERVISION (PROBATION):

Article 42A of the Texas Code of Criminal Procedure provides the law governing community supervision (probation) in the State of Texas.  Specifically, Art. 42A.551 governs state jail felony drug possession charges.  If you have never been convicted of a felony before, then Texas law mandates that the Judge must give you probation. In addition, even if you have been arrested of a felony drug charge before and even if you have a previous 12.44a, the Judge still must give you probation even if the State does not want to agree.  See below for more information on state jail community supervision:

Art. 42A.551. PLACEMENT ON COMMUNITY SUPERVISION; EXECUTION OF SENTENCE. (a) Except as otherwise provided by Subsection (b) or (c), on conviction of a state jail felony under Section 481.115(b), 481.1151(b)(1), 481.116(b), 481.1161(b)(3), 481.121(b)(3), or 481.129(g)(1), Health and Safety Code, that is punished under Section 12.35(a), Penal Code, the judge shall suspend the imposition of the sentence and place the defendant on community supervision.

(b) If the defendant has been previously convicted of a felony, other than a felony punished under Section 12.44(a), Penal Code, or if the conviction resulted from an adjudication of the guilt of a defendant previously placed on deferred adjudication community supervision for the offense, the judge may:

(1) suspend the imposition of the sentence and place the defendant on community supervision; or

(2) order the sentence to be executed.

(c) Subsection (a) does not apply to a defendant who:

(1) under Section 481.1151(b)(1), Health and Safety Code, possessed more than five abuse units of the controlled substance;

(2) under Section 481.1161(b)(3), Health and Safety Code, possessed more than one pound, by aggregate weight, including adulterants or dilutants, of the controlled substance; or

(3) under Section 481.121(b)(3), Health and Safety Code, possessed more than one pound of marihuana.

(d) On conviction of a state jail felony punished under Section 12.35(a), Penal Code, other than a state jail felony listed in Subsection (a), subject to Subsection (e), the judge may:

(1) suspend the imposition of the sentence and place the defendant on community supervision; or

(2) order the sentence to be executed:

(A) in whole; or

(B) in part, with a period of community supervision to begin immediately on release of the defendant from confinement.

(e) In any case in which the jury assesses punishment, the judge must follow the recommendations of the jury in suspending the imposition of a sentence or ordering a sentence to be executed. If a jury assessing punishment does not recommend community supervision, the judge must order the sentence to be executed in whole.

(f) A defendant is considered to be finally convicted if the judge orders the sentence to be executed under Subsection (d)(2), regardless of whether the judge orders the sentence to be executed in whole or only in part.

(g) The judge may suspend in whole or in part the imposition of any fine imposed on conviction.