What is the difference between a misdemeanor and a felony in Texas?
A misdemeanor is punished by a fine, county jail, or both, with a ceiling of one year. A felony is punished by confinement in a state jail or in the Texas Department of Criminal Justice, starting at 180 days and running to life. Texas has three classes of misdemeanor and five degrees of felony, and each one has its own range set by statute.
- Class C is a fine of up to $500 with no jail. Class B is up to 180 days. Class A is up to one year.
- A state jail felony is 180 days to 2 years. Third degree is 2 to 10 years, second degree 2 to 20, first degree 5 to 99 or life.
- Every felony except a capital case can carry a fine of up to $10,000 on top.
- A deadly weapon finding turns a state jail felony into a third degree felony.
- Prior convictions move the range up, and two prior sequential felonies make the floor 25 years.
The class or degree of the charge decides almost everything that follows: which court hears it, whether there is a jail term at the end, what bail looks like, and whether probation is on the table. This page sets out the ranges exactly as the Penal Code writes them. Peter M. Barrett has been licensed in Texas since 1994, has tried more than 150 jury trials, and is a Past President of the Dallas Criminal Defense Lawyers Association (2005).
The three misdemeanor classes
- Class A misdemeanor (§12.21): a fine of up to $4,000, confinement in jail for up to one year, or both. Assault causing bodily injury and a second DWI usually sit here.
- Class B misdemeanor (§12.22): a fine of up to $2,000, confinement in jail for up to 180 days, or both. A first DWI sits here.
- Class C misdemeanor (§12.23): a fine of up to $500. There is no jail term for a Class C.
Misdemeanor confinement is served in the county jail, not in prison. A Class C is tried in a justice or municipal court, and although it carries no jail, it still leaves a record that a background check will show.
The five felony degrees
- State jail felony (§12.35): 180 days to 2 years in a state jail, and a fine of up to $10,000.
- Third degree felony (§12.34): 2 to 10 years in prison, and a fine of up to $10,000.
- Second degree felony (§12.33): 2 to 20 years in prison, and a fine of up to $10,000.
- First degree felony (§12.32): 5 to 99 years or life in prison, and a fine of up to $10,000.
- Capital felony (§12.31): where the State seeks the death penalty, the punishment is life without parole or death. Where it does not, the punishment is life without parole for a person who was 18 or older at the time, and life for a person who was younger than 18.
Two details matter here. A state jail term is served day for day in a state jail facility rather than in a Texas Department of Criminal Justice prison, which changes how the time actually runs. And under §12.35(c), a state jail felony is punished as a third degree felony if a deadly weapon was used or exhibited during the offense or in immediate flight from it, or if the person has certain prior convictions. That single finding moves a 2 year ceiling to a 10 year one.
How prior convictions move the range
Section 12.42 is the part people are least prepared for. The charge on the indictment is not always the range the jury is told about.
- One prior felony. A third degree felony is punished as a second degree felony (§12.42(a)). A second degree felony is punished as a first degree felony (§12.42(b)).
- A first degree felony with one prior. The range becomes 15 to 99 years or life (§12.42(c)(1)).
- Two prior felonies, in sequence. Where the second prior offense happened after the first conviction became final, the range becomes 25 to 99 years or life (§12.42(d)). This is the habitual offender provision, and it is the reason an apparently ordinary third case can carry a 25 year floor.
A prior state jail felony punished under §12.35(a) cannot be used to enhance under §12.42(d). Which prior convictions count, whether they are final, and whether the sequence is right are all questions worth litigating, because the answer can be the difference between a 2 year floor and a 25 year one.
What changes besides the number
- Where the case is heard. Felonies go to a district court, misdemeanors to a county court at law, and Class C cases to a justice or municipal court.
- Whether probation is available. Some offenses and some findings take judge ordered community supervision off the table. See community supervision explained.
- Bail. The degree drives the starting point, along with the record and the facts. See how bail is decided.
- Rights afterwards. A felony conviction affects firearm possession, some licences, and jury service. A Class A family violence misdemeanor carries its own firearm bar.
- Federal exposure. A Texas conviction can become the predicate for a federal gun charge years later.
Common questions
How much jail time is a Class A misdemeanor in Texas?
Up to one year in county jail, a fine of up to $4,000, or both, under Texas Penal Code section 12.21. It is the most serious misdemeanor class in Texas.
How long is a state jail felony sentence?
180 days to 2 years in a state jail, plus a fine of up to $10,000, under section 12.35. If a deadly weapon was used or exhibited during the offense or in immediate flight from it, section 12.35(c) says the offense is punished as a third degree felony instead, which is 2 to 10 years.
What is the punishment for a first degree felony in Texas?
Life, or any term of not more than 99 years and not less than 5 years, plus a fine of up to $10,000, under section 12.32. With one qualifying prior felony conviction the floor moves to 15 years under section 12.42(c)(1).
What makes someone a habitual offender in Texas?
Section 12.42(d) applies where a person on trial for a felony has two previous final felony convictions and the second offense happened after the first conviction became final. The punishment range becomes 25 to 99 years or life. A prior state jail felony punished under section 12.35(a) cannot be used for this enhancement.
Can a misdemeanor become a felony in Texas?
Yes, in two ways. Some offenses are written so that a prior conviction raises the grade, which is how a third DWI becomes a felony. And some findings raise the grade within the charge itself, such as the deadly weapon finding in section 12.35(c).
The law this article describes, at the source. Every figure above can be checked against it.
- Tex. Penal Code §12.21: Class A misdemeanor
- Tex. Penal Code §12.22: Class B misdemeanor
- Tex. Penal Code §12.23: Class C misdemeanor
- Tex. Penal Code §12.31: capital felony
- Tex. Penal Code §12.32: first degree felony punishment
- Tex. Penal Code §12.33: second degree felony punishment
- Tex. Penal Code §12.34: third degree felony punishment
- Tex. Penal Code §12.35: state jail felony punishment
- Tex. Penal Code §12.42: penalties for repeat and habitual felony offenders
This article is general legal information about Texas law, not legal advice about your case. Reading it does not create an attorney-client relationship. Laws change, so confirm the current rule with a licensed criminal defense attorney about your specific facts. Request a free, confidential case review.