Texas' first-time offender felony charge act is found in Texas Penal Code Section 12.44, which allows for the reduction of a state jail felony punishment to a Class A misdemeanor punishment. The statute provides that a court may punish a defendant convicted of a state jail felony by imposing the term of incarceration permissible for a Class A misdemeanor.
This occurs after the court has considered the gravity and circumstances of the felony committed and the history, character and rehabilitative needs of the defendant, and finds such punishment best serves the ends of justice.
The penalty for a state jail felony offense is 180 days to 2 years' incarceration in a state jail and a fine up to $10,000. The penalty for a Class A misdemeanor is incarceration up to one year of jail time and a fine up to $4,000.
Understanding Felonies and Misdemeanors
A felony is commonly defined as a criminal offense for which one can be incarcerated for over one year. A misdemeanor is commonly defined as an offense for which one can be incarcerated up to one year. A person who has been convicted of a felony, even a first-time felony charge, will lose the right to:
- Hold public office.
- Own a firearm.
- Vote, until they have completed their sentence, parole or probation and paid all fines and costs. Costs include restitution, or compensation, for damages to the victim.
There is no “first-time felony waiver” that applies to all first-time felonies in Texas.
Eligibility for Pretrial Diversion Programs
There is no single “first-time offenders program” in Texas. A person who has been charged with certain first-time felony or misdemeanor offenses may be eligible for pretrial diversion, or pretrial intervention (PTI), programs in their county.
A program usually involves completing community service hours, abiding by certain conditions, such as not using intoxicating substances, and paying a fine. Each county has its own programs with different criteria for each.
A first-time offender of a one-time, nonviolent misdemeanor may be eligible to ask a judge to seal their criminal record from the public through an order of nondisclosure.
Houston’s DWI Court Program
A county determines what pretrial diversion programs it will offer. Harris County, home to the city of Houston, offers a Driving While Intoxicated (DWI) court program called Saving Ourselves by Education and Recovery (S.O.B.E.R.).
In order to be eligible for this program, a person must have committed a subsequent (second or additional) misdemeanor DWI offense within two years of the first offense, while the person was either between the ages of 17 and 24 and high risk, or the person is any age, on community supervision (supervised probation) for a subsequent DWI, and is high risk.
Being high risk is indicated by one or more factors, including:
- Use of alcohol or drugs while on community supervision.
- Having a history of substance abuse.
- Having a high blood alcohol content on their second DWI.
- Having a high risk of reoffending.
The person must also live or work in Harris County, Texas; be on community supervision for a case originally filed as a misdemeanor; and agree to a two-year community supervision term or extension of the term to two years.
Several Diversion Programs in Dallas
Dallas offers a number of pretrial diversion programs, including:
- SET program for people with mental health issues.
- Intercept Diversion program, a nine-month program for adults charged with a misdemeanor assault case.
- AIM court for first-time felony offenders ages 17 to 24.
Dallas has other diversion programs, including Homeless Diversion Court (HDC); STOP, a class for individuals charged with procuring the services of a prostitute; HOPE, a class for women charged with prostitution; and Misd PDI, a misdemeanor pretrial diversion agreement. Each program has its own eligibility requirements and terms for completion.
“Second Chance” Expunction Bill of 2017
In 2017, the Texas Senate approved House Bill 3016, which allows a person of a first nonviolent misdemeanor to request that the court make the record of their offense inaccessible to the public through an order of nondisclosure.
The legislation applies to Class C misdemeanors, which carry a maximum penalty of a fine of $500, and the offense of driving while intoxicated (typically a Class B misdemeanor) with a blood alcohol level below 0.15 percent. An order of nondisclosure prohibits courts, clerks of the court, law enforcement and prosecutorial offices from disclosing certain criminal records that a person has requested.
Effect of Orders of Nondisclosure
Criminal justice agencies, such as sheriffs’ offices and police departments, can still see these criminal records. A person who has obtained an order of nondisclosure does not have to disclose information related to an offense that is the subject of an order of nondisclosure.
For example, if the person has requested that a first offense criminal conviction for trespassing be subject to an order of nondisclosure, they would not have to disclose on a job application that they had been convicted of the crime.
An order of nondisclosure applies to a particular offense, but not to all offenses on a person’s criminal record. A person may obtain multiple orders for multiple offenses.
Types of Orders of Nondisclosure
There are different types of orders of nondisclosure. A person must fill out a distinct form for each type of order.
For example, the petition (request for a court’s order of nondisclosure) and order under Texas Government Code Section 411.0725, which regards deferred adjudication community supervision for felonies and certain misdemeanors, differs from the petition and order under Texas Government Code Section 411.0726.
The latter statute regards deferred adjudication community supervision for certain DWI and Boating While Intoxicated (BWI) misdemeanors. A person should read the Texas Court’s guide to orders of nondisclosure to determine which petition to file.
Frequently Asked Questions
Let's look at a few frequently asked questions about first-time felonies in Texas.
Do first-time felony offenders go to jail under Texas law?
Each case is unique. The answer depends on the sentence for a defendant’s criminal charges. A first-time felony offender can be incarcerated even if they see the sentence for their felony conviction reduced to a misdemeanor. An offender who participates in a pretrial diversion program is unlikely to be incarcerated unless they violate the terms of the program.
What happens to first-time offenders in Texas?
The plea deal or result for each first-time offender in Texas is unique. A sentence for a first-time offense in Texas depends on the crime the person has committed and on their criminal record.
- Texas Penal Code: Title 3, Punishments, Chapter 12, Punishments
- Texas Legislature: House Bill No. 3016 (2017)
- Texas Courts: An Overview of Orders of Nondisclosure
- Texas Judicial Branch: Orders of Nondisclosure
- Dallas County, Texas: Intercepted Diversion Program
- Dallas County, Texas: SET Program
- Dallas County, Texas: Diversion Programs
- Dallas County, Texas: AIM Court
- Harris County Criminal Courts at Law: DWI Court Program
- Harris County Criminal Courts at Law: Eligibility for S.O.B.E.R.
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.