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Felony Charges under Texas and Federal Law: Criminal Defense Overview

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No action, or failure to act, is a crime for which someone can be arrested in Texas unless the government has defined it to be an illegal act.  This is the freedom at the core of our constitutional rights.  Crimes have to be defined by either state or federal law.  If the crime isn’t on the books, then any arrest or confinement is illegal and unconstitutional.

It is job of lawmakers to decide what is, and what is not, a crime.  Sometimes, they are challenged to keep up with the times.  For instance, consider the Texas Legislature’s efforts to keep up with synthetic drugs as chemical compounds defined as illegal drugs in the criminal statutes.  Until the synthetic drug was encompassed by a state criminal statute, it was not illegal to possess it.  See, Is Flakka Legal in Texas? What Dallas Needs to Know About Flakka.

Any definition of a crime has two components under either state or federal law.  Alongside defining an act to be illegal and a criminal act, there will be the corresponding punishment for its violation.

First, there is the judicial determination that the individual did the illegal act; this is the “conviction” that the illegal act occurred.  Thereafter, the individual receives a “sentence” under the crime’s defined range of punishment.

The more serious criminal activities are given the more severe punishments.  These are called “felonies” by both the federal government and the State of Texas.  The more serious the felony charge that forms the basis of a conviction, the more serious the punishment that the individual faces from the government.

For example, the crime of Capital Murder (Texas Penal Code §19.03) is defined as a capital felony and comes with the possible death sentence.  Meanwhile, the lesser homicide of Murder (Texas Penal Code §19.02) comes with the possibility of life imprisonment as a punishment (but no death penalty) as a First Degree Felony.

While individual crimes (like murder) provide their defined punishment, the individual criminal statutes do not give sentencing details.  Instead, in both the state and federal jurisdictions a separate set of laws has been created as statutory cross-references that go into detail on the punishments to be applied in the situation.

These laws define the various types of felonies as they apply to all sorts of illegal acts.  The State of Texas has five (5) defined types of felonies.  Federal law has five (5) felony categories (A-E).

As an added complication, these things can change with time.  Consider that effective September 1, 2021, anyone arrested in the State of Texas for buying sex faces a state jail felony charge, while johns arrested under state law prior to that date are under the prior statute with its misdemeanor punishment.  For details, read Buying Sex in Texas: Texas is First State in USA to Make Solicitation of Prostitution a Felony Offense.

Felony Crimes Under Texas Law

The Texas Legislature has created five (5) different types of felonies as defined by state statute.  According to Texas Penal Code §12.04, these Texas felonies are classified according to the relative seriousness of the offense, with the five different categories of felony crimes ranging in severity from the lowest, known as a “state jail felony,” to a capital offense which can result in the death penalty and execution by the state.

Specifically, Texas state felonies are defined by statute as either:

(1)  capital felonies;

(2)  felonies of the first degree;

(3)  felonies of the second degree;

(4)  felonies of the third degree; or

(5)  state jail felonies.

Any criminal offense designated as a felony in the state criminal code is considered by default to be a state jail felony unless otherwise given a more serious felony categorization. Texas Penal Code §12.04(b).

Texas Penal Code §12.31: Capital Felony

The most serious felony an accused can be charged with under state law is a capital felony.  Here, pursuant to Texas Penal Code §12.31, those convicted of a capital felony face sentencing to life imprisonment or the death penalty, if capital punishment is sought by the prosecuting district attorney.

Seeking the death penalty is up to the state.  If the prosecutor does not seek the death penalty in a capital felony case, then sentencing upon conviction involves imprisonment in the Texas Department of Criminal Justice for either:

(1)  life, if the individual committed the offense when younger than 18 years of age; or

(2)  life without parole, if the individual committed the offense when 18 years of age or older.

Texas Penal Code §12.32:  First Degree Felony

Those convicted in Texas of a Felony of the First Degree face sentencing under Texas Penal Code §12.32 of life imprisonment in the Texas Department of Criminal Justice or for any term of not more than 99 years or less than 5 years.  The individual can also be punished with a monetary fine of up to $10,000.00.

Texas Penal Code §12.33: Second Degree Felony

Conviction for a state Felony of the Second Degree carries punishment involving imprisonment in the Texas Department of Criminal Justice for any term of 2 years (minimum) to 20 years (maximum).  A fine can also be imposed as punishment not to exceed $10,000.00.

Texas Penal Code §12.34: Third Degree Felony

Punishment upon conviction for a Texas 3rd Degree Felony charge involves incarceration in the Texas Department of Criminal Justice for a minimum of 2 years and a maximum of 10 years, with a possible monetary fine not to exceed $10,000.

Texas Penal Code §12.35: State Jail Felony

As a general rule, those who are convicted of a state jail felony in Texas face a sentence of confinement in a state jail for a minimum of six months (180 days) and a maximum of two (2) years and a possible monetary fine not to exceed $10,000.  However, there is a statutory exception to this general rule, where a state jail felony carries the same punishment as a 3rd Degree felony if the following is proven at trial that either:

(1)  a deadly weapon was used or exhibited during the commission of the offense or during immediate flight following the commission of the offense, and that the individual used or exhibited the deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited; or

(2)  the individual has previously been finally convicted of any felony: (A)  under Section 20A.03 or 21.02 or listed in Article 42A.054(a), Code of Criminal Procedure; or (B)  for which the judgment contains an affirmative finding under Article 42A.054(c) or (d), Code of Criminal Procedure.

Enhanced Felonies Under Texas Law

Texas is known as an “enhancement state.”  See, e.g., Lautenbaugh, Scott A. “Guilty Pleas and Sentence Enhancement: State v. Oliver.” Creighton L. Rev. 23 (1989): 385.

This means that the Texas Legislature, while defining felony crimes and their punishment ranges, has also enacted laws that allow for the “enhancing” of the punishment for certain individuals convicted of felony crimes. Texas Penal Code §12.42.  For those who are deemed to be repeat or habitual offenders, Texas law allows the trial judge to increase the sentence as defined under the Texas statutes.  Other criminal statutes also provide for enhancement in specific circumstances, as for example when the vulnerable have been victims of crime.

The specific range of enhancement is found within the specific statute that defines the crime.  As an example of enhancement of a sentence, see our earlier discussion in “Misapplication of Fiduciary Property by Trustees, Guardians, Executors, Administrators, Managers in Texas: Fiduciary Criminal Charge,” where the sentence upon conviction can be increased to the next higher level of punishment if the beneficiary was an elderly person, defined in Texas Penal Code §22.04 as an individual age 65 years or older.

What is the Texas Three-Strike Rule?

A controversial aspect of the enhancement statute, Texas Penal Code §12.42, is what is known as the “habitual offender law” or Texas’ Three Strike Rule.  Read, “Serving Life for Stealing a Sandwich,” written by Alex Hannaford and published by the Texas Observer on October 13, 2016.

The rationale behind the passage of the Texas Three Strike Rule is to protect the general public from individuals who have been convicted of multiple crimes and as “habitual offenders” are more than likely to continue committing illegal acts if allowed their freedom.

If certain crimes, defined within the Texas Penal Code as involving serious or violent acts, are involved in the convictions, then the judge may impose a sentence according to the Three Strike Rule. These crimes include things like arson, rape, and child molestation, as well as burglary and robbery.

If the Three Strike Rule applies in the case, then the judge can impose a very harsh sentence with consideration of prior convictions as well as the current felony conviction.  For instance, two prior first-degree felony convictions on a record of someone facing sentencing after a third 1st Degree felony conviction will invite the imposition of the Three Strike Rule with life imprisonment.  Texas Penal Code §12.42.

Felony Crimes Under Federal Law

Pursuant to 18 U.S. Code § 3559, federal law consists of felonies that are defined as being within five (5) different categories: A, B, C, D, and E.  The most severe is a Class A Felony; the least involves a Class E Felony.

From 18 U.S. Code § 3559(a):

  • Class A Felony: life imprisonment or death penalty;
  • Class B Felony: 25 or more years’ imprisonment;
  • Class C Felony: 10 or more but less than 25 years’ imprisonment;
  • Class D Felony: 5 or more but less than 10 years’ imprisonment; and
  • Class E Felony: more than 1 year but less than 5 years’ imprisonment.

Enhancement for Federal Felonies

Federal law, like the State of Texas, also provides for enhancement of punishment in some situations.  Under 18 U.S. Code § 3559(c)(1), regardless of any other law, if someone is convicted in federal court of a “serious violent felony,” then they face life imprisonment as a punishment if two things can be shown by the AUSA:

Mandatory Minimum Sentences for Federal Felonies

Congress has also passed statutes that require some convictions to be given specific punishments regardless of the mitigating circumstances of a particular case.  These are federal laws that instruct federal judges overseeing criminal proceedings to order a mandatory minimum number of years imprisonment in certain matters.  A great many federal crimes today are accompanied by federal mandatory minimums, among them federal drug crimes and federal weapons charges.  To read through the lengthy list of federal mandatory minimums as defined by federal statute as of November 2015, see the online chart provided by FAMM (Families Against Mandatory Minimums).

In 2020, according to the United States Sentencing Commission, 25.2% of all cases carried a mandatory minimum penalty; within these sentences:

  • 1% were drug trafficking;
  • 2% were firearms;
  • 3% were child pornography;
  • 2% were sexual abuse; and
  • 8% were fraud.

For more on mandatory minimums and how they work, read our discussion in: Mandatory Minimum Penalties in Federal Sentencing.

United States Sentencing Guidelines and Federal Felonies

Federal sentencing has its own reference manual that is used by judges and prosecutors throughout the United States, called the United States Sentencing Guidelines (“USSG”).  The rationale behind the USSG is to encourage fairness in federal sentencing across the country, no matter the state or region where the accused has been convicted.

We have gone into detail about the USSG and its applications in earlier discussions; to learn more, read:

Texas Criminal Defense Considerations: Felony Charges

An experienced and zealous criminal defense lawyer may be able to help those facing the most serious of felony charges in a limitation or reduction of the possible felony sentence (if not dismissal of the charges as a whole).  Even when facing mandatory minimum sentences as defined by federal law, criminal defense advocacy may be able to achieve a sentence that is lower than the mandatory punishment.

The United States Sentencing Commission, for instance, reports that in 2020, almost half (44.1%) of federal offenders convicted of an offense carrying a mandatory minimum were relieved of the penalty because:

  • 5% received relief through the safety valve provision;
  • 1% provided the government with substantial assistance;
  • 5% received relief through both.

For more, read our discussions in:

Felony charges under state or federal law must be given a strong and thorough review of both the facts presented by the government to support the allegations as well as the proposed prosecutorial legal bases for the charges that have been made.  Can legal challenges be made to lessen or dismiss the case? For more, read:

An experienced Texas criminal defense lawyer will undertake an independent analysis of the law and the facts to consider mitigating factors in the felony case, as well.  Are there arguments to be made regarding the accused’s past history or extenuating circumstances that in all fairness should result in a lesser sentence?    See, for instance, Fort Worth Federal Judge John McBryde Child Porn Downward Departure Sentence.

Felony charges, upon conviction, are life-changing events for the accused as well as their loved ones.  Serious felonies in Texas can result in life imprisonment or even the death penalty.  Anyone who even suspects they are a target of a state or federal investigation into potential felony charges is well-served to enlist the support of an experienced criminal defense advocate as soon as possible.


For more information, check out our web resources, read Michael Lowe’s Case Results, and read “Top 5 Mistakes in Defending a Texas Criminal Case.”




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