What Are the Degrees of Felonies in Texas?

Texas law has five degrees of felony charges: capital felonies, the most serious; felonies of the first degree; felonies of the second degree; felonies of the third degree; and state jail felonies. An offense termed a felony in the Texas Penal Code without specification is a felony that lacks a certain degree. Such a felony is classified as a state jail felony.

Generally, a felony is a criminal offense for which a person may be incarcerated for more than one year. A misdemeanor is a criminal offense for which a person may be incarcerated up to one year.

Penalties for felony crimes in the state of Texas range from the death penalty for a capital felony, the highest degree felony in Texas, to a term of incarceration for between two years and 20 years and a fine up to $10,000 for a second degree felony.

Felonies in Texas range from murder of a law enforcement officer, a capital felony, to check forgery, a state jail felony.

A capital felony can be punished by the death penalty or life imprisonment. The Texas Department of Criminal Justice determines which of these two penalties it will seek.

The Department seeks a term of life if the defendant committed the offense when they were younger than 18, and life without parole if the individual committed the offense when they were 18 or older.

According to Texas Penal Code Section 12.42, a defendant tried and convicted of a third degree felony who was previously convicted of a felony other than a state jail felony, will be punished for a second degree felony.

A defendant tried and convicted of a second degree felony, who was previously convicted of a felony other than a state jail felony, will be punished for a first degree felony.

A defendant tried and convicted of a first degree felony, who was previously convicted of a felony other than a state jail felony, will be punished by incarceration for life or for any term not more than 99 years or less than 15 years. In addition to imprisonment, the defendant may be punished by a fine not to exceed $10,000.

In certain cases, when the defendant has a criminal record, a state jail felony may be treated and sentenced as a third degree felony or a second degree felony.

When a defendant is being tried for an offense under which punishment may be enhanced under Texas Penal Code Section 12.35(c), the section covers offenses that involve a deadly weapon being used or exhibited during the commission of the offense or during immediate flight following the commission of the offense.

It also covers situations when the individual uses or exhibits a deadly weapon or is involved in the offense knowing a deadly weapon would be used or exhibited.

Additionally, an individual who previously had been convicted of any felony under Texas Penal Code Section 20A.03 or 21.02 or listed in Article 42.054(a) of the Texas Code of Criminal Procedure or for which the judgment contains an affirmative finding under Article 42A.054(c) or (d) of the Texas Code of Criminal Procedure, can have their jail sentence enhanced.

Texas Penal Code Section 20A.03 concerns continuous trafficking of persons, meaning engaging in conduct of trafficking over a period of 30 days or more of one or more victims.

Texas Penal Code Section 21.02 concerns continuous sexual abuse of a young child or disabled individual, meaning committing two or more acts of sexual abuse over a period of 30 days or one or more victims.

Texas Code of Criminal Procedure Section 42.054(c) concerns cases in which there is an affirmative finding regarding the use or exhibition of a deadly weapon. Texas Code of Criminal Procedure Section 42.054(d) concerns a case in which there is an affirmative finding regarding the use or exhibition of a deadly weapon and that weapon is a firearm.

A state jail felony can be treated and sentenced as a Class A misdemeanor if the court determines this is proper after considering the gravity and circumstances of the offense and the history, character and rehabilitative needs of the defendant.

The court will provide that such punishment would best serve the ends of justice. The penalty for a Class A misdemeanor is incarceration up to one year of jail time and a fine up to $4,000.

The Texas Penal Code uses the language “previously been finally convicted” when referring to prior offenses. The term “finally convicted” means that the case is closed. Certain situations are not considered final convictions:

• Conviction on appeal.
• Deferred adjudication.
  
• Prosecution, indictment or other criminal procedures leading up to, but not resulting in, a final felony conviction.

A judge can suspend the imposition or execution of a sentence. Suspending imposition involves entering the conviction on the defendant’s criminal record but not imposing the sentence. Typically, the judge places the defendant on community supervision for the term of the sentence.

Community supervision involves completing a term of supervised probation, participating in a specialty court such as drug court, or serving a term at a substance abuse facility. If the defendant violates a condition of community supervision, the judge can revoke the suspension and order the defendant to serve the remainder of their term in prison.

A judge may also suspend the execution of a sentence with “shock probation.” This gives the judge authority to order the incarceration of the defendant for up to 180 days. During the period of shock probation, the judge can suspend the rest of the defendant’s sentence and place the defendant on community supervision.

A judge also can order community supervision as part of a suspended sentence for a state jail felony or a felony in which the defendant’s sentence of incarceration is 10 years or less. Defendants convicted of certain serious offenses, like those involving a dangerous weapon, are not eligible for suspended sentences.

Deferred adjudication involves the completion of a term of community service; not abusing substances for a set period; payment of a fine; and abiding by certain conditions, such as payment of restitution (monies owed for damages) to victims and undergoing drug screens. In exchange, the defendant will be not convicted of a criminal offense.

A case involving deferred adjudication remains open until the defendant completes the terms successfully. If unsuccessful as to one of the terms, the offender returns to court to be convicted.

In a felony case, the period of deferred adjudication community supervision may not exceed 10 years.

For a defendant charged with a felony under Texas Penal Code Section 21.11, indecency with a child; Section 22.011, sexual assault; or Section 22.021, aggravated sexual assault or a felony described by Texas Code of Criminal Procedure as involving a child safety zone (restriction on where offenders involving children can go), the period of deferred adjudication community supervision may not be less than five years.

In a misdemeanor case, the period of deferred adjudication community supervision may not exceed two years.

A defendant who has successfully completed deferred adjudication community supervision can petition the court for an order of nondisclosure. This is different from an expunction. An order of nondisclosure prohibits criminal justice agencies from disclosing a person’s criminal history record information related to an offense to the public.

Even after a person has gotten an order of nondisclosure, a criminal justice agency like a sheriff’s office can release criminal history record information to other criminal justice agencies, authorized noncriminal justice agencies, and the person who is the subject of the criminal history record information.

In Texas, parole is administered by the Texas Board of Pardons and Paroles for an offender with a prison sentence. Supervised probation is administered by the county in which the offender lives. Both parole and probation involve paying the cost of supervision and abiding by the terms of the supervision, such as submitting to regular drug tests.

An offender on parole or probation who does not comply with the terms of supervision may face a hearing regarding the violation. If they lose the hearing, they can be ordered to serve the remainder of their term in prison or jail.

In Texas, the offense of driving while intoxicated (DWI) is the proper term for such a crime when it involves an adult 21 or over. A first DWI is a Class B misdemeanor. A second DWI is a Class A misdemeanor, and a third or subsequent DWI is a third degree felony.

The penalty for a third or subsequent DWI includes incarceration between two years and 10 years, a fine up to $10,000 and a driver’s license suspension up to two years.

In Texas, having a felony conviction on one’s record prevents a person from:

• Owning a firearm.
• Voting until they have completed their punishment (including parole or probation).
• Holding public office.
• Serving on a state jury.
• Federal employment.
  

Generally, an individual cannot seek expunction of an offense higher than a Class C misdemeanor, meaning that they cannot seek to expunge any level of felony.

A person convicted of a first-time felony that was drug-related and who seeks an expunction of their offense should consult a criminal defense attorney to see if they are eligible for expunction. Special provisions for first-time felony drug offenders with no prior convictions in Texas may apply.

An individual can get a copy of their criminal record from the criminal defense attorney who represented them or from the Texas Department of Public Safety. Having their record can help the person determine whether they are eligible for expunction or a pardon. A person’s criminal record is not automatically sealed.

There is a process called automatic sealing for juvenile records. This process eliminates the requirements to file an application of petition to seal records and mandates the juvenile court to order sealing of records if the juvenile meets statutory criteria.