Q: Misdemeanor criminal mischief charge: time served issue during TDCJ incarceration.
I am facing a misdemeanor criminal mischief charge for throwing a rock at someone's windshield. I was arrested for this charge before being incarcerated in TDCJ for an unrelated matter. During the time of my court date for the criminal mischief charge, I was in TDCJ. However, the DA is claiming I will not receive time served for the misdemeanor because my incarceration doesn’t count as time served for this crime. I have not met with a lawyer yet. What can I do in this situation?
A: First, do not do anything until you speak with a lawyer. Time served is not a given, it's simply one of many things a lawyer can argue for in a negotiation with a prosecutor.
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A:
If you were already incarcerated in TDCJ for a different offense at the time your misdemeanor criminal mischief case was pending, the court is not required to give you credit for time served unless there is a legal link between the two cases. In Texas, time served is generally credited when the confinement is directly related to the charge. Since your incarceration was for an unrelated offense, the DA may argue that your jail time does not apply toward the misdemeanor charge.
That said, you do have the right to raise this issue in court, especially if your arrest for the misdemeanor happened before or around the same time as your TDCJ entry. If you were held in jail specifically on the misdemeanor before your TDCJ sentence began, or if there was a detainer placed on you for the misdemeanor during your incarceration, you may have a stronger case for receiving credit. You’ll want to gather any booking records, court documents, or jail logs that show dates of arrest and custody status.
Even without a lawyer right now, you can request a court-appointed attorney or seek one as soon as possible. This is the kind of situation where timing and documentation matter a lot, and someone needs to argue your side clearly in court. Don't give up—there may still be a way to get that time counted with the right legal support.
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