Do You Usually Have To Go To Jail For a First Time Misdemeanor in Texas?

I suppose I can really only to speak to criminal defense in and around Austin, but the general answer to this question is going to be “No”. We need to dig a little deeper though.

Assuming, as the question does, that the person has never been arrested before, and is charged with a first time offense of DWI, Possession of Marijuana, Theft, or some other non assaultive offense, most judges will grant the defendant probation, even if they go to jury trial and lose. And most cases, fewer than five percent, end up going to jury trial; most criminal cases are wrapped up in some form of plea bargain, whether it involves being convicted, deferred probation, a reduction of charges, or even an agreed dismissal.

Unfortunately, there are too many attorneys who speak with potential clients in a manner that implies that jail is a likely outcome, if they do not accept the prosecutor’s offer of a conviction and probated (no jail) sentence. While it’s occasionally true that severe aggravating circumstances might make jail a likely scenario, my experience is that for first time offenders, that’s unusual.

Another thing I tell my clients in the initial meeting is that it’s the conviction itself that is often the real punishment, not the probation that a judge might give as a likely sentence. I’m not minimizing the time, effort, expense and hassle that probation may cause a person, but the truth is that most of my clients can stay out of trouble for a while, perform some community service, and if necessary, report once a month for a short visit with a probation officer.

But once the judge convicts you, that’s it. No Expunction, no destroying the records, no Motion for Non-Disclosure, no sealing the criminal history. And the conviction follows you around for the rest of your life. So while asking “Am I going to jail?” is a standard and reasonable question from someone facing the “criminal justice system” for the first time, perhaps “Is there anything I can do to get this off my record completely?” would be a more important one.

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Comments (10) Read through and enter the discussion with the form at the end
Ina Rios - May 17, 2008 4:24 AM

Okay, I am confused...you had emailed me that I could get with this attorney in Houston about a Motion for Non-Disclosure, but here, you are saying "...no Motion for Non-Disclosure,...the conviction follows you around for the rest of your life." For sure this Class B thing is about to make me want to just jump off a bridge, I can't even get a minimum wage job because of it. I have plans to enter a health care program in the fall, and this threatens that. My life is basically over because of this. I am broke and sick of it. There are people who actually should be "watched" for the safety of others...I am not such a person, regardless the charge with which I was saddled. This brings up another question which really upsets me. I keep running into questions on applications that ask if you have anything on your record "within the last 7 years". I don't have, my one and only strike is 13 or 14 years ago. If they are asking for 7, what is the hue and cry for something twice as long ago, a lone issue, at that? Is that legal? If they are going to fall over about something long long ago, and a single instance of non-violence, then why don't they ask if EVER you have been convicted...? It keeps biting me in the butt...I tell them up front I have an issue, and the application asked "in the last 7 years..." and then they tell me "Thank you for applying to _____. We have your application on hold because we have found something on your past record...." and there it goes.

I asked someone currently why they sent me such a letter when I had informed them before I even made an appointment to come in that I had something on my record, but that it was so long ago. The reply was that they were just "so much more careful" than other businesses...and wanted to let me know that even though they only ASKED for anything within the last 7 years, they HAD FOUND SOMETHING. What a jerk, it wasn't LOST, and it WAS voluntarily disclosed. It wasn't going to GO AWAY, and now I wonder why they even had me to come in, if this was/is the end result. This is why I need to know if I really can get a Motion for Non-Disclosure or not...and how does this actually change things?

Lue - May 30, 2009 1:29 PM

I am a 22 year old college student who has never been in trouble or arrested or convicted of anything. I was caught giving away merchandise and taking money from my former job. I know what I did was wrong and have confessed my wrong-doing to my former employer. They are pressing charges and I am terrified that I will be sentenced to jail. I wanted some legal advice on what you believe is going to happen and what I should do from here.

Thomas - June 25, 2009 5:58 PM

What would be the likely outcome, of me being arrested again on a theft or possession charge if I'm all ready three years into an 8 year Deferred Adjudication plea bargain?

rachel - October 1, 2009 10:23 AM

was caught with a person who was stealing didnt have any of the stores stuff on me she had everything in a basket that she pushed out of the store i was charged the same as her even though i had nothing to do with it.

rachel - October 1, 2009 10:25 AM

what do i have to look fwd to in court i have a public defender is jail a possibility first adult charge

norma - October 9, 2009 12:58 PM

my former employer (atty) file charges of theft on a client/was my niece she had pd me som monies to give to atty but i kept it until atty would give us an appt to see him my niece was set for court and was not communicating with her regarding her upcoming hearing knowing how this atty wks i advise atty's office to give us an appt but none was given a week before my niece hearing he file theft charges against me. i advised detective i would pay atty but detective advise me atty didnot wanted the money he wanted me arrested

kathy - July 8, 2011 10:42 PM

I was charged with class a mis . For theft 500-1500. I went to prison almost ten yrs ago.
My daughter was working for a dept store and asked me to come purchase some stuff for her and a few things for me. So I did and she deleted certain items and bagged them anyways....I didn't pay attention ...and honestly didn't know she was doing that .a month later I go to jail & her too .she confessed what she did. But told the police I didn't know what she doing. Now they act like I put her up to it because of my record. What to do...I have a court appointed atty who acts like she's on the prosecuting side. FYI yes I have done things when I was young but iam now a grandma and don't go to stores plotting to get free merchandise. Please let me know what you think I should do please .Kathy

kathy - July 8, 2011 10:43 PM

I was charged with class a mis . For theft 500-1500. I went to prison almost ten yrs ago.
My daughter was working for a dept store and asked me to come purchase some stuff for her and a few things for me. So I did and she deleted certain items and bagged them anyways....I didn't pay attention ...and honestly didn't know she was doing that .a month later I go to jail & her too .she confessed what she did. But told the police I didn't know what she doing. Now they act like I put her up to it because of my record. What to do...I have a court appointed atty who acts like she's on the prosecuting side. FYI yes I have done things when I was young but iam now a grandma and don't go to stores plotting to get free merchandise. Please let me know what you think I should do please .Kathy

Garret - December 19, 2011 10:06 PM

I was charged for theft at the age of 17. I agreed to a plea bargain with the DA and received a class a misdemeanor. I completed deffered adjudication by the age of 18. I'm 24 now and working on my masters degree. If I file a non-disclosure agreement, what are my chances of obtaining security clearances to work for the government? Also if it helps, I have not been in trouble with the law since the arrest in 2005. Also in Chapter 55 Expunction of criminal records, 2-C says if I have not been arrested and charged in 5 years I'am eligible for expunction. Am I interpreting this correct? or is non-disclosure my only hope.

Anonymous - July 14, 2012 10:00 AM

I got caught putting hours in at work that I did not actually work and I was interviewed by loss prevention who told me I would be better off owning up to what I did and writing a statement. So I did thinking I would not get fired but I did get fires and he told me this would be sent to the local authorities for prosecution. What should I do? I don't want this to stay on my record. The guy said I has been paid for a total of $700 worth of hours that I shouldn't have.

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