I have always been under the impression that when you do a 12.44(a) reduction, the defendant is subject to the full Class A misdemeanor range of punishment (confinement and/or fine). I have been told by two judges now that you can't assess a fine on a 12.44(a) reduction. They hang their hat on the following language contained in 12.44(a) , "......by imposing the confinement permissible as punishment for a Class A misdemeanor....". They say that the statute does not say anything about a fine but just confiement.

It would seem instead that since the 12.44(a) statute speaks only to modifying the jail sentence permitted under Sec. 12.35(a), and is silent as to the fine, you could potentially argue that the full range of *state jail* fines should apply (it is, after all, still a state jail conviction; and I'm not saying you'd give a $10,000 fine on someone you'd just reduced their jail sentence on, of course). Sec. 12.35(b) authorizes an additional fine. However, I believe older versions of Sec. 12.44 did specifically mention the fine, so if anyone knows what the legislative intent in removing those references was, whether it was to completely remove the fine or to leave the fine at the full SJF range, I am curious to know the answer.

Effective Sept. 1 1994, the statute read: A court may punish a defendant who is convicted of a third degree felony by imposing the confinement permissible as punishment for a Class A misdemeanor, a fine not to exceed $10,000, or both such fine and confinement, or may punish a defendant who is convicted of a state jail felony by imposing the confinement permissible as punishment for a Class B misdemeanor, a fine not to exceed $10,000, or both such fine and confinement if, after considering the gravity and circumstances of the felony committed and the history, character, and rehabilitative needs of the defendant, the court finds that such punishment would best serve the ends of justice.

Effective Sept. 1 1995, this was changed to: A court may punish a defendant who is convicted of a state jail felony by imposing the confinement permissible as punishment for a Class A misdemeanor if [blah blah blah].

The annotations don't make it clear, but since the $10,000 fine language was in it before and removed, there is a good argument that the intention was not to allow the fine to be assessed. One could also argue that the Leg found the fine language to be superfluous, since the normal penalty for state jail felonies already included the possibility of a fine, but Code Construction suggests that any change made to a statue is presumptively substantive, so I would not want to fight the fine issue on appeal.

I know the heading is generally not considered in construing the statute, but it does say "Reduction of State Jail Felony Punishment to Misdemeanor Punishment". At least a few cases seem to approve assessment of punishment "as a Class A misdemeanor." Bergin, 2006 Tex.App.LEXIS 7571; Fite, 60 S.W.3d at 319. Also, since subsection (b) says the offense may be prosecuted (fined) as a Class A, why would (a) not follow suit? The judges to whom you refer are being too literal. Also, if the defendant is agreeing to pay a fine, why would the judge refuse to order one except to prohibit resolution of the case? There must be hundreds of 12.44(a) judgments out there in which a fine was assessed and no one has raised the question. Doesn't that count for something? It is hard to know why the "fine language" in 12.44(a) as originally enacted on May 29, 1993 was removed, but it seems very doubtful the reason was to completely eliminate any fines. Also, construed in this fashion, misdemeanor probation is not available, since the statute says the confinement must be imposed. See Contreras, 2006 Tex.App.LEXIS 3251 ("section 12.44[(a)] does not apply to an offense for which the defendant was not incarcerated.")

Maybe the Senate Journal entries for CSSB 15 from 1995 would shed some light. There does not appear to be much of an explanation in the Bill Analysis.

[This message was edited by Martin Peterson on 04-21-07 at .]