Understanding Jail Time: A Guide for Texans (February 2024)
Getting arrested can be really stressful. Not knowing what's going to happen next can keep you up at night. That's why I wrote this guide—to help you make sense of how jail sentences work in Texas.
But before we dive in, there are two important things to remember:
First, you need to understand that every case is different, which is why it's crucial for you to talk to an attorney early in the process. Whether you already have one or need to find one, they can help you understand your situation better. If you're unsure where to start, I offer free consultations to discuss your case and explore your options. Contact me by clicking here.
Second, not everyone who gets arrested gets sentenced to jail. Many cases are resolved through alternatives like pretrial diversion programs or probation. This is why it’s important for you to explore all of your options with the guidance of a lawyer.
Alright, having said all that, let’s start understanding how jail sentences work in Texas.
Here's what this guide covers:
1. How are charges filed and why there could be errors?
2. What are the standard ranges of punishment for various offenses in Texas?
3. What are the most common exceptions to the standard ranges of punishment?
4. How does your criminal history impact your range of punishment?
5. How are jail sentences carried out?
1. How are charges filed and why there could be errors?
To fully understand your charges, it's crucial for you to grasp two things:
You need to understand how the authorities generate essential documents in your case.
You need to understand how and why mistakes are common in legal proceedings.
1.1 What are the charging documents and how are they generated?
Let’s begin by discussing the charging process and the documents provided to you.
If you’re facing a misdemeanor charge, you or your attorney will typically receive copies of three crucial documents: (1) the complaint, (2) the probable cause affidavit, and (3) an information. The arresting officer fills out the complaint, which is just a document that states the offense he believes you committed. Attached to the complaint is the “probable cause affidavit,” which presents the officer’s sworn account of the events he believed happened. The district attorney’s office will review the officer’s complaint and the officer’s probable cause affidavit and generate an “information,” which is the document that formally charges you with a misdemeanor level offense.
If you're facing a felony charge, you or your attorney will typically receive a copy of an indictment.
Here's how the charging process for a felony level offense works:
The arresting officer will submit his police report and copies of any evidence he collected to the district attorney's office. A prosecutor will then present this information to a grand jury, composed of 14 citizens (12 grand jurors and 2 alternates). The grand jury listens to the prosecutor's presentation regarding your case. If at least 9 of the 12 grand jurors listening to the presentation believe that an offense has been committed, they will vote to "true bill" the case, resulting in the issuance of an “indictment,” which is the document that formally charges you with a felony level offense.
If 9 of the 12 grand jurors decide there’s insufficient evidence or believe no offense occurred, they will vote to “no bill” the case, resulting in a dismissal of the charges against you. In some jurisdictions, you and your defense attorney may have the opportunity to present to the grand jury (see why it’s important for you to waste no time in consulting with your attorney).
To see what you’re being formally charged with, you’ll need to review the language contained in either your information or your indictment.
1.2 Why are mistakes common?
Simply put, the law is very complex and this leads to a lot of mistakes occurring when law enforcement and prosecutors are trying to determine what charges to bring against you. Sometimes, they might overcharge you, while other times, they might undercharge you. These mistakes often occur because:
It's impossible for them to be familiar with every scenario covered in the Penal Code.
They might lack crucial information when making charging decisions.
Let’s break it down with some examples:
People often ask, “What level of offense is burglary?” The answer is, “It depends.” For instance:
Burglarizing a vehicle is a Class A Misdemeanor.
Burglarizing a stand-alone storage shed is a State Jail Felony.
Burglarizing a pharmacy is a 3rd Degree Felony.
Burglarizing a home is a 2nd Degree Felony.
However, if you enter the home intending to commit another felony, then the burglary becomes a 1st Degree Felony.
Notice how these offense levels rely heavily on very specific facts? It's easy to see how an inexperienced police officer, who has only handled a few burglary cases, may wrongfully assume that all burglary offenses are State Jail Felonies or worse, wrongfully assume that all burglary cases are 1st Degree Felonies. The first type of mistake might benefit you. However, if they believe it's a more serious offense level than it actually is, that's bad news for you because when people google your name, they’re going to see your mugshot next to some pretty serious accusations. Of course, you’ll eventually be able to get this corrected in court, but the damage on internet will be done and take a lot longer to fix.
Now that we've seen how the Penal Code presents various scenarios that could confuse inexperienced law enforcement officers, let's consider a situation where the authorities may lack a crucial piece of information and how this could result in an error. Let’s examine the offense of theft. The offense level associated with theft will depend on the value of the object that was allegedly stolen.
Generally, the value ladder is structured as follows:
| Value | Level |
|---|---|
| Under $100 | Class C Misdemeanor |
| $100 or more, but less than $750 | Class B Misdemeanor |
| $750 or more, but less than $2,500 | Class A Misdemeanor |
| $2,500 or more, but less $30,000 | State Jail Felony |
| $30,000 or more, but less than $150,000 | Third Degree Felony |
| $150,000 or more, but less than $300,000 | Second Degree Felony |
| $300,000 or more | First Degree Felony |
The table above is applicable to various theft and property crimes, such as theft of service, forgery, graffiti, insurance fraud, and more.
Imagine this: you're being accused of taking someone's new MacBook Pro. Now, there are two versions of the 14-inch laptop: one with 18 GB of memory, priced at about $2,399.00, and another with 36 GB of memory, priced at about $3,199.00. What do you think the person who lost their laptop will tell the police? Will they say it was the cheaper one or the pricier one? And do you think the police will take the time to check this detail? Probably not. The cops will likely move forward with the case as if you stole the more expensive model, assuming someone at the district attorney’s office will eventually sort it out.
Your case file will then be sent to a prosecutor at the district attorney’s intake division. The prosecutor's job is to double check the police officer's work. They might contact the victim and ask for a receipt. If the victim says, "I have to look for it. I’ll get it to you later," what happens next? Well, the prosecutor can't wait forever to decide whether to accept or reject the case. Most likely, he’ll just accept it as it is, thinking the victim will eventually produce the receipt.
What happens if your attorney fails to catch this mistake? Instead of being charged with a Class A Misdemeanor, you’re now being charged with a State Jail Felony!
So, what's the overall takeaway?
The language found in the information or the indictment will tell you what your formal charges are.
However, it's crucial for you to consult with a lawyer promptly. Together, you can assess the accuracy of the charges and identify any potential errors. If a charging mistake benefits you, it's essential to act swiftly to resolve the case before the prosecution corrects it. Conversely, if the error works against you, your lawyer must work to reduce the charge to the appropriate level before moving forward with talks of any plea or trial.
Furthermore, some jurisdictions permit you and your lawyer to present to the grand jury, potentially resulting in the dismissal of your case. If you're interested in this option, meeting with your attorney as soon as possible is crucial, as the majority of these presentations typically occur—with or without your participation—approximately 1 to 3 months after your arrest, which doesn’t give you and your attorney a lot of time to prepare.
2. What are the standard ranges of punishment for various offenses in Texas?
Keeping in mind that what you’ve been charged with could be wrong, it’s still a good idea to look up the standard range of punishment for the offense level you’ve been charged with. This will allow you to better ballpark your worst case scenario.
Below, you’ll find a chart detailing the standard punishment range associated with each offense level.
| Class C Misdemeanor | Fine Only | |
| Class B Misdemeanor | Up to 180 days in the County Jail |
|
| Class A Misdemeanor | Up to 1 year in the County Jail | |
| State Jail Felony | 180 days to 2 years in State Jail | |
| 3rd Degree Felony | 2 to 10 years in TDCJ | |
| 2nd Degree Felony | 2 to 20 years in TDCJ | |
| 1st Degree Felony | Life or 5 to 99 years in TDCJ | |
| Capital Felony | Life without parole |
By now, you might be thinking, "So, all I need to do is find out my offense level and refer to the chart above in order to calculate my worst-case scenario?"
I wish it were that simple! Unfortunately, something as complex as the law is always going to have some exceptions here and there.
3. What are the most common exceptions to the standard ranges of punishment?
One of the exceptions you need to be on the lookout for is something called a “special confinement range.”
A special confinement range is simply an offense with provisions in the penal code that call for punishment which deviates from the general confinement ranges.
The two most common types of special confinement ranges are:
(1) mandatory minimums; and,
(2) independent ranges of punishment.
3.1 What are mandatory minimum sentences?
Mandatory minimums are set by the legislature, apply to specific offenses, and basically force the Judge or the Jury to begin your sentence at a specific number.
Let me give you an example. Let’s say you’re arrested and charged with the Continuous Sexual Abuse of a Child or Disabled Individual, which is found in Section 21.02 of the Texas Penal Code.
If you look at paragraph H of Section 21.02, you’ll see that the offense of Continuous Sexual Abuse of a Child or Disabled Individual is described as a 1st Degree Felony.
According to Section 12.32 of the Texas Penal Code, the punishment range for a 1st Degree Felony is either life or 5 to 99 years in jail (see the chart above).
But this offense is a mandatory minimum offense.
If you read the entirety of paragraph H of Section 21.02 of the Texas Penal Code, you’ll see that the mandatory minimum for this offense is 25 years in jail.
So, what does this mean?
Let’s say you think you have a strong case and are considering going to trial. If you lose at trial and are sentenced to jail time, the mandatory minimum makes it impossible for you to receive anything less than 25 years!
3.2 Which offenses have mandatory minimum sentences?
Mandatory minimums are mostly found in: (1) sexual abuse of a child cases, (2) drug possession cases; and, (3) driving while intoxicated cases.
(1) Sexual Abuse of a Child Cases.
As already mentioned, the Continuous Sexual Abuse of a Child or Disabled Individual is charged as a 1st Degree Felony, but it has a mandatory minimum of 25 years in jail.
(2) Drug Possession Cases.
In order to determine if a mandatory minimum applies to your drug case, you’re going to need three pieces of information.
First, you need to know if they’re charging you with “possession” of the drug or with the “manufacturing or delivery” of the drug. Generally speaking, the punishment range is worse for those that “manufacture or deliver” the drug (when compared to those that simply possess it).
You’ll also need to know what penalty group the drug is in (Texas classifies all drugs into nine penalty groups and each class has different punishment ranges).
Lastly, you’re going to need to know the quantity being alleged (the amount of grams, pounds, abuse units, etc. that the cops are saying you had).
Once you have those three pieces of information, you’ll be able to see if a mandatory minimum applies to your drug case.
For example, Fentanyl has been on the legislature’s radar lately. If you’re being charged with the manufacture or delivery of 400 or more grams of Fentanyl (which is in Penalty Group 1-B), you’ll be charged with a 1st Degree Felony, but you’re looking at a mandatory minimum of 20 years in jail!
By the way, if you google “What penalty group is Fentanyl in Texas?” you’re going to find a few articles, many of them supposedly written by lawyers, which will tell you that Fentanyl is in Penalty Group 1. This is an example of outdated information. Those articles haven’t been updated to reflect how the 87th Legislature created Penalty Group 1-B in 2021 solely for the purpose of dealing with the Fentanyl crisis. Some of the articles that correctly identify Fentanyl as being in Penalty Group 1-B make the mistake of saying that it is the only drug in Penalty Group 1-B. That was true back in 2021 when Penalty Group 1-B was first created, but in 2023 the 88th Legislature amended the law, and Penalty Group 1-B now includes a whole bunch of other drugs (here’s a link to the list of which drugs are in Penalty Group 1-B). Eventually, google searches will get it right. But there’s just no substitute for meeting with an attorney and going over the specific circumstances of your case.
Also, be wary of attorneys who believe they already know everything due to past experience with cases similar to yours. A skilled attorney will always dedicate time to researching the specific laws applicable to your case, either confirming their existing knowledge or discovering new insights. The last thing you want is to do is waste time and money because your attorney is relying on outdated knowledge.
(3) Driving While Intoxicated Cases.
If you’re being charged with your first Driving While Intoxicated case and you had a blood alcohol concentration of 0.15 or more, you’ll be charged with a Class A Misdemeanor, but you’re looking at a mandatory minimum of 30 days in jail.
Similarly, if you’re being charged with Driving While Intoxicated Second Offense, you’ll also be subjected to the mandatory minimum of 30 days in jail.
30 days doesn’t sound like a lot, but not knowing about these mandatory minimums could complicate things for you.
For example, suppose your lawyer visits you in jail and you both decide to aim for a time-served plea deal. However, if your lawyer isn't aware of or fails to inform you about the mandatory minimums associated with your case, you might end up posting bond early and leaving the jail with fewer than 30 days of jail credit. If either you or your lawyer had known about these mandatory minimums, you would likely have remained in jail until completing the required 30 days. Instead, you've essentially wasted your money on posting bond, which you will now have to surrender in order to qualify for a time-served deal.
Or let's say you and your lawyer believe you have a strong case and have decided to take it to trial. Wouldn't you want to know ahead of time that if you lose and receive a jail sentence, you can't be sentenced to fewer than 30 days behind bars?
Obviously, the examples listed above represent just some of the most common offenses with mandatory minimums. If you’re facing accusations of any of these types of crimes, it's crucial to meet with a lawyer to assess your actual exposure to jail time.
Besides mandatory minimums, another exception to the standard ranges of punishment is something called "independent ranges."
3.3 What are independent ranges and which offenses have independent ranges?
Independent ranges are punishment ranges that are completely different from the standard ranges of punishment found in the penal code.
These are usually going to be attached to offenses related to traffic law.
For example, let’s say you’re charged with Reckless Driving, which is an offense found in Section 545.401 of the Transportation Code.
If you read paragraph (a)(2), you’ll see that you run the risk of being confined to the county jail for up to 30 days.
This means that the punishment for this offense falls somewhere above a Class C Misdemeanor and below a Class B Misdemeanor. It doesn’t really fall into one or the other neatly, and that’s what makes it an “independent range” offense.
If you’re being charged with an offense that originates in the transportation code, you need to be on the lookout for independent ranges.
Now that we’ve discussed some of the exceptions to the standard ranges of punishment, let’s take a look at how your criminal history can impact your situation.
4. How does your criminal history impact your range of punishment?
In Texas, the law will classify some people accused of a crime as being either a “repeater” or a “habitual” offender, and this will increase the punishment range for that individual’s charges.
The topic of what is a repeater and what is a habitual offender is complex, which is why you should visit with an attorney. But here’s a quick rundown of how to think about these two concepts.
4.1 What is a repeater offender?
A repeater is someone with at least one final conviction on his record that resulted in a jail sentence at The Texas Department of Criminal Justice (TDCJ).
If you are found to be a repeater, the punishment range for your offense could be increased by one level.
Let me give you an example.
Let’s say you convince a few of your friends to do a burglary (2nd Degree Felony) with you, and you all end up getting caught. The prosecutor looks at your file and offers you what you think is a sweet deal. In exchange for you pleading guilty and agreeing to do 2 years in jail, he’ll dismiss the cases against your friends. You feel guilty because the burglary was your idea, so you decide to take the deal and help your friends out.
Now, fast forward a few years. You’re out of jail, but you’re having trouble finding work because of your criminal record. You hear a rumor about a guy who owns an expensive painting, and you decide you’re going to break into his house at night while he’s away on vacation and steal that painting, so you commit another burglary (2nd Degree Felony). Let’s assume the cops catch you.
This time, the prosecutor looks at your file and notices that you already have a prior qualifying conviction. What does this mean for you? This means that you’re now labeled a “repeater” and the punishment range could potentially be increase by one level. In other words, you were looking at a 2nd Degree Felony for the burglary of the painting, which normally carries a jail sentence range of 2 to 20 years in jail. But because of your prior conviction, you could now be facing a punishment range as if it were a 1st Degree Felony. In other words, instead of looking at 2 to 20 years in jail for the burglary of the painting, you’re now looking at life or 5 to 99 in jail (which is the punishment associated with a 1st Degree Felony offense).
Simply put, if you are a “repeater” and you are being charged with a 3rd Degree Felony, you are now looking at the punishment range of a 2nd Degree Felony. In other words, instead of looking at 2-10 years in jail, you’re now looking at 2-20 years in jail.
If you are a “repeater” and you are being charged with a 2nd Degree Felony, you are now looking at a punishment range of a 1st Degree Felony. In other words, instead of looking at 2-20 years in jail, you’re now looking at life or 5-99 years in jail).
If you are a “repeater” and you are being charged with a 1st Degree Felony, you are now looking at a punishment range that starts with a minimum of 15 years. In other words, instead of looking at life or 5-99 year in jail, you’re now looking at life or 15-99 years in jail.
4.2 What is a habitual offender?
A habitual offender is someone with at least two final convictions on his record that resulted in a jail sentence at The Texas Department of Criminal Justice (TDCJ).
If you are a habitual offender, the punishment range on your new felony level offense will be 25 to 99 years in jail or life.
It doesn’t matter if your new offense is a 3rd Degree Felony, a 2nd Degree Felony, or a 1st Degree Felony. Your habitual offender status has the potential to enhance the range of your punishment to a minimum of 25 years in jail.
5. How are jail sentences carried out?
Another thing you need to worry about is how these jail sentences are ordered to be carried out. Generally speaking, these sentences can be either: concurrent or cumulative.
In order to better understand these concepts, let’s imagine you have two cases, and you’re sentenced to 5 years in case one and 10 years in case two.
5.1 What does it mean if the sentence is ordered to be served “concurrent”?
Concurrent means the sentence in one case will run together with the sentence of another case.
In our example, that means you really only have to serve the 10 years in case two (the sentence in case two will take care of the 5 year sentence ordered in case one).
5.2 What does it mean if the sentence is ordered to be served “cumulative”?
Cumulative means you need to finish serving one sentence before you can begin to serve the other sentence.
In our example, you’d have to finish out the 5 years ordered in case one before you could start serving the 10 years ordered in case two (for a total of 15 years).
There are all sort of unique exceptions and scenarios that arise when discussing concurrent vs cumulative.
For example, what if you have two cases in two different jurisdictions? Let’s say you have a case in Dallas and one in Fort Worth. The case in Dallas calls for the sentence to run concurrent with the case in Fort Worth. However, the case in Fort Worth says the sentence should run cumulative with the case in Dallas. Who wins? In this scenario, the Fort Worth case will win out, and the sentences will be run cumulative as opposed to concurrent. That’s why it’s important for you and your attorney to verify the details of both deals before moving forward because it’s essential that all parties be in agreement on the topic of concurrent vs cumulative.
Also, keep in mind that there are certain offenses which come with mandatory cumulative sentences. The most common of these are new offenses that occur while you’re serving time in prison.
See how complicated this can get? It all hinges on the specific facts of your case, your individual jurisdiction, and your criminal history. That's why meeting with an attorney early on is extremely important. Consulting with a criminal defense attorney isn't just about understanding your charges or spotting any potential errors; it's also about crafting a strategic plan to move forward with. If you're unsure where to begin, I offer free consultations. Get in touch by clicking here, and we can discuss the details of your situation and address your concerns.