The Garza Law Group specializes in the following:

  • Domestic Violence
  • Drug Crimes: Possession, Sale and Distribution Charges
  • Traffic Crimes: DWI, Evading, Reckless Driving, Racing
  • Assaults: Intent to cause bodily harm, intent to cause serious harm
  • Interfering with the duties of a public servant
  • Theft: Fraud, welfare, by check, shoplifting
  • Theft of vehicle, burglary of a vehicle
  • Breaking and entering, burglary of a habitation
  • Arson
Domestic Violence

Texas recognizes three different crimes of domestic violence: domestic assault, aggravated domestic assault and continuous violence against the family. An act of violence constitutes domestic violence if it is committed against a family member, a household member or someone the offender is currently dating or dated in the past, including:

  • a current or former spouse
  • a child of a current or former spouse
  • a person with whom the offender has a child or children
  • a foster child or foster parent of the offender
  • a family member of the offender by blood, marriage, or adoption
  • someone with whom the offender lives, and
  • a person with whom the offender has or had an ongoing dating or romantic relationship.

Domestic Assault

A person is guilty of domestic assault in Texas if he commits an assault against a family member, household member, or a current or past dating partner. An assault consists of:

  • intentionally, knowingly or recklessly causing bodily injury to another person
  • intentionally or knowingly threatening another person with imminent bodily injury; or
  • intentionally or knowingly causing physical contact with another that the offender knows or reasonably should know the victim will find provocative or offensive. (Tex. Penal Code Ann. §22.01.)

Domestic assault is a Class A misdemeanor if the defendant has no prior domestic assault convictions. The crime is a third degree felony if the defendant has any prior domestic assault conviction.

Recklessness

A reckless act is one that is committed, not necessarily with intent to harm another, but without regard for the outcome. Pushing someone out of the way in a crowd so that you can get through, without intending to injure the person, could be an assault if the person falls and is injured.

Provocative or Offensive Contact

Assault by provocative or offensive contact refers to an act that does not cause physical injury or pain, but is upsetting or causes the victim to feel violated. This type of assault can include poking someone in the chest during an argument, “getting in someone’s space,” or brushing up against a person in a sexually suggestive manner.

Aggravated Domestic Assault

A person is guilty of aggravated domestic assault if he commits an aggravated assault against a spouse, family member, or romantic partner as listed above.

A person commits aggravated assault in Texas if he:

  • intentionally, knowingly or recklessly causes serious bodily injury to another person, or
  • uses or exhibits a deadly weapon in the course of committing any assault crime, including threatening another with bodily injury or engaging in conduct that the victim likely will find offensive. (Tex. Penal Code Ann. §22.02.)

If the defendant commits an aggravated domestic assault with a deadly weapon and causes serious bodily injury to the victim, the crime is a first degree felony. Any other aggravated domestic assault is a second degree felony.

Bodily Injury and Serious Bodily Injury

Serious bodily injury is a significant injury such as a broken bone, disfigurement, loss of a limb, a serious head injury, or an injury that requires surgery and/or hospitalization. Bodily injury is any less serious injury, including minor scrapes and bruises.

Deadly Weapon

Under Texas law, a deadly weapon is any object that is capable of causing death or serious bodily injury and that is used in a manner likely to cause that result. A firearm, large hunting knife, or brass knuckles are deadly weapons by definition. A rope used to strangle someone or a metal pipe or baseball bat used to strike or attempt to strike someone are all deadly weapons because of the manner in which they were used. A motor vehicle also could be a deadly weapon.

Continuous Violence Against the Family

In addition to assault crimes, a person in Texas can be convicted of the crime of continuous violence against the family if he commits two domestic assaults in twelve months. A defendant can be convicted of this crime without either assault having resulted in an arrest or conviction, and the two assaults need not have been committed against the same victim. This crime is a third degree felony.

Penalties for Domestic Violence Crimes

Domestic violence crimes are punishable in Texas as follows:

  • Class A misdemeanor – up to one year in jail or a fine up to $4,000, or both
  • 3rd degree felony – from 2 to 10 years in prison and a fine up to $10,000
  • 2nd degree felony – from 2 to 20 years in prison and a fine of up to $10,000, and
  • 1st degree felony — from 5 to 99 years in prison and a fine up to $10,000.

Restitution

A person convicted of simple assault in Texas can be required to pay restitution, which involves reimbursing the victim for any expenses resulting from the crime, such as the cost of medical treatment or counseling or repair or replacement of damaged property.

Deferred Adjudication and Community Supervision

Texas law provides certain alternatives to a jail or prison sentence for a person charged with or convicted of domestic assault.

Deferred Adjudication

If a defendant pleads guilty to a domestic assault charge, the court may grant a deferred adjudication. The court postpones sentencing for a period of time on the condition that the defendant successfully complies with probation and certain other requirements, such as no new arrests or criminal offenses during the conditional period, completing domestic violence offender treatment, paying restitution, or doing volunteer work in the community. If the defendant satisfies all the court’s requirements, the court will discharge the defendant and dismiss the case. The arrest, deferral and dismissal will be part of the defendant’s criminal record. If the defendant fails to satisfy the court’s requirements, the court will impose a sentence and enter a conviction. This alternative is most typically granted to first offenders and in domestic assault rather than aggravated domestic assault cases.

Community Supervision

If a defendant is convicted or pleads guilty, the court also can grant community supervision (probation) as an alternative to a jail or prison sentence for up to two years for a misdemeanor and up to ten years for a felony. The court can require the defendant to serve some time in jail or prison before beginning community supervision – 30 days for a misdemeanor and 180 days for a felony. The defendant must successfully complete probation and any other conditions the court imposes or the court can require him to complete the sentence in jail or prison.

A person on community supervision must meet with a probation officer, pay probation costs, and comply with conditions such as treatment, maintaining employment, curfews, drug tests, and avoiding any further criminal activity or arrests.

Drug Crimes: Possession, Sale and Distribution Charges

Drug laws and drug crimes have gotten lots of attention in the past decade. Laws in every state and at the federal level prohibit the possession, manufacture, and sale of certain controlled substances — including drugs like marijuana, methamphetamine, ecstasy, cocaine, and heroin. (For more on a related topic, see Substance Abuse Treatment for Defendants Facing Drug and Other Charges.)

Putting aside political arguments over the so-called “war on drugs,” it isn’t hard to see why controlled substances are the focus of so much attention from legislators and law enforcement. It’s estimated that drug and alcohol abuse costs society over $110 billion a year — through accidental death and injuries, health care, dependency treatment, criminal behavior, and more. (To read about a shift in the federal government’s approach to drug crime under President Obama, see the blog post Morally Mandatory.)

Illegal Drugs vs. Legal Drugs

The legality of a drug often depends on how it is being used — or what it is being used for. For example, amphetamines are used to treat attention deficit disorder, barbiturates help treat anxiety, and marijuana can help alleviate cancer-induced nausea. But unprescribed and unsupervised use of these substances (and many others) is thought to present a danger to individuals and to society in general. So, for decades, lawmakers have stepped in to regulate the use, abuse, manufacture, and sale of illegal drugs.

Federal, State, and Local Drug Laws

Though there is a longstanding federal strategy in place to combat the abuse and distribution of controlled substances, each state also has its own set of drug laws. One key difference between the two is that while the majority of federal drug convictions are obtained for trafficking, the majority of local and state arrests are made on charges of possession. Out of these state and local arrests, over half are for the possession of marijuana.

Another difference between federal and state drug laws is the severity of consequences after a conviction. Federal drug charges generally carry harsher punishments and longer sentences. State arrests for simple possession (i.e. possession without intent to distribute the drug) tend to be charged as misdemeanors and usually involve probation, a short term in a local jail, or a fine — depending on the criminal history and age of the person being charged.

Drug Crimes: Charges and Terminology

In both the federal and state criminal justice systems, most of the cases stem from charges of possession, manufacturing, or trafficking of controlled substances. Below you’ll find a brief overview of these offenses, as well as an explanation of some key terms related to drug crimes.

Controlled Substance

When a federal or state government classifies a certain substance as “controlled,” it generally means that the use and distribution of the substance is governed by law. Controlled substances are often classified at different levels or “schedules” under federal and state statutes. For example, under the federal Controlled Substances Act, marijuana is listed as a “Schedule I controlled substance,” cocaine is listed under Schedule II, anabolic steroids under Schedule III, and so on. The list includes a number of medications that are fairly common — you’ll find cough medicine containing low levels of codeine classified under Schedule V.

Distribution and Trafficking

As a drug charge, “distribution” usually means that a person is accused of selling, delivering, or providing controlled substances illegally. This charge is often used if someone tries to sell drugs to an undercover officer. Trafficking generally refers to the illegal sale and/or distribution of a controlled substance. Despite the name, trafficking has less to do with whether the drugs cross state lines, and more to do with the amount of drugs involved.

The consequences of a conviction for distribution and trafficking vary significantly depending on:

  • the type and amount of the controlled substances(s) involved
  • the location where the defendant was apprehended (for example, bringing an illegal substance into the country carries higher penalties, as does distributing drugs near a school or college), and
  • the defendant’s criminal history.

Sentences for distribution and trafficking generally range from 3 years and a significant fine to life in prison — with trafficking carrying higher sentences.

Manufacturing

Under federal and state drug laws, the government can charge a person for playing a part in the cultivation or manufacture of a controlled substance. Cultivation includes growing, possessing, or producing naturally occurring elements in order to make illegal controlled substances. These elements include cannabis seeds, marijuana plants, etc. A person can also be charged for producing or creating illegal controlled substances through chemical processes or in a laboratory. Substances created this way include LSD, cocaine, methamphetamine, etc.

Possession

The most common drug charge — especially in arrests made under local drug laws — involves possession of a controlled substance. Generally, for a possession conviction, the government (usually in the form of a district attorney) must prove that the accused person:

  • knowingly and intentionally possessed a controlled substance
  • without a valid prescription, and
  • in a quantity sufficient for personal use or sale.

A possession charge can be based on actual or “constructive” possession of a controlled substance. Constructive possession means that even if the defendant doesn’t actually have the drugs on their person (in a pocket, for example), a possession charge is still possible if the defendant had access to and control over the place where the drugs were found (a locker, for example). This is important to note because, unlike DUI/DWI laws, the government does not have to actually prove that someone is using a controlled substance in order to charge them with possession. The theory of constructive possession is often used when illegal drugs are found in a car during a traffic stop.

It is also usually illegal to possess paraphernalia associated with drug use, such as syringes, cocaine pipes, scales, etc. In fact, being found in possession of these objects — without any actual drugs — may be enough for a person to be charged with a misdemeanor or felony.

Drug charges often start with possession, but then overlap with other offenses. For example, if the police find marijuana plants in X’s storage room, X can be charged with possession of the marijuana and of cultivation equipment. If the amount of the plants is large enough, X can also face distribution, trafficking, or manufacturing charges.

Charges for simple possession are often less serious than charges for possession with an intent to distribute. The difference here does not necessarily turn on an actual intent to distribute, but on the amount of the substance found in the defendant’s possession (i.e. smaller amounts are usually charged as misdemeanors, while larger amounts can be used to suggest felony possession with an intent to distribute).

Diversion. Many states allow diversion for first-time offenders charged with simple possession of illegal drugs. Diversion allows offenders to maintain a clean criminal record by pleading guilty and then completing a prescribed substance abuse program and not committing additional offenses. At the conclusion of the diversionary period (18 months is common) the guilty please is vacated, the case is dismissed, and the offender can legally claim never to have been arrested or convicted of a crime.

“Search and Seizure” Laws

The most common defense to a drug charge — especially drug possession charges — is a claim that a police officer overstepped search and seizure laws in detaining a person and obtaining evidence. If a defendant in a criminal case (usually through a criminal defense attorney) can prove that the police violated the defendant’s Fourth Amendment rights in finding and seizing drug evidence, that evidence may not be admissible in a criminal case against the defendant. (To learn more about illegal search and seizure and your Fourth Amendment rights, see Nolo’s article Understanding Search and Seizure Law.)

Driving While Intoxicated "DWI"

Texas DWI Defined

In Texas, driving while intoxicated (DWI) means drunk driving, and the state uses your blood alcohol concentration (BAC) to determine whether you’re too intoxicated to operate a motor vehicle.

Below are the state’s BAC limits:

  • 21 years old or older: 0.08%
  • Commercial drivers: 0.04%
  • Younger than 21 years old: Any detectable amount.

Alcohol can affect you based on the number of drinks you’ve had, your body weight, and even your gender. Check out the TX blood alcohol percentage charts to learn more.

Additional Drug and Alcohol Crimes

Mostly, DWI crimes are related to your BAC when operating a motor vehicle and certain other circumstances (as you’ll see below). However, officers can arrest you for other alcohol-related crimes involving your vehicle.

For example, it’s illegal to have an open container of alcohol in the passenger area of your vehicle if you’re driving or parked on a public highway (Texas defines the “passenger area” as the area designed for people to sit in while traveling).

A simple open container violation results in a maximum $500 fine and a Class C misdemeanor. However, if you’re arrested for DWI and open container, you’ll get a Class B misdemeanor and a minimum of 6 days in jail.

For more information on other kinds of DWI laws, check out Title 10, Chapter 49 of the state’s penal code.

Understand Your DWI Penalties

TX DWI penalties are based on factors like age, license type, and other circumstances (such as having other passengers in the vehicle, or horrific events like death).

Common DWI penalties you can expect include:

  • Fines and surcharges (also tack on court costs and lawyer fees).
  • License suspension or revocation.
  • Community service.
  • Imprisonment (even for a first offense).
  • DWI education and intervention programs.
  • More expensive car insurance, depending on your provider.

DWI Penalties: Minors

TX DWI laws distinguish anyone younger than 21 years old as a minor.

Minors and Implied Consent

Driving on Texas roads implies you give law enforcement consent to check your breath or blood for the presence of alcohol or other drugs. The TX DMV will suspend your license if you refuse a breath or blood test.

  • First offense: 180 days
  • Second/subsequent offenses: 2 years

Don’t have a license yet? The DMV will delay your driving privileges the same number of days or years.

Minors and DWI

Like many states, Texas has a Zero Tolerance Law for minors and alcohol; this means drivers younger than 21 years old can’t operate motor vehicles with any amount of alcohol or drugs in their systems.

For a first offense, you face:

  • License suspension not to exceed 2 years. *
  • Up to a $500 fine.
  • An Alcohol Education Program at least 12 hours long (see below).
  • An additional 180 days of license suspension if you don’t complete the Alcohol Education program.
  • 90 days of license suspension if your judge gives you community service. This means you’ll also have an ignition interlock device (see below).

* Generally, a second DWI offense brings 120 days of license suspension, and a third offense gets you 180 days.

Expect to also pay fines, court costs, and legal fees, should your parents hire an attorney for you.

Minors and Other Alcohol Offenses

Pretty much any involvement you have with alcohol can affect your driving privileges in Texas―including non-driving alcohol offenses.

Examples of non-driving alcohol offenses include:

  • Purchasing or attempting to purchase alcohol.
  • Lying about your age in an attempt to obtain alcohol.
  • Presenting a falsified document stating that you’re 21 years old in an attempt to obtain alcohol.
  • Consuming alcohol.
  • Possessing alcohol.
  • Public intoxication.

Penalties for these offenses are as follows:

  • First offense: License suspension for 30 days.
  • Second offense: License suspension for 60 days.
  • Third offense: License suspension for 180 days.

Based on your situation (and possibly even your age), your judge also might order the Alcohol Education Program and community service.

DWI Penalties: Adults

Just like it does for minors, Texas assigns DWI penalties for drivers 21 years old or older according to the offense number and other situation-specific factors.

Offenses: DWI Alcohol or Drugs

First Offense

  • Up to a $2,000 fine.
  • Jail time between 3 days and 180 days.
  • License suspension for up to 2 years.
  • Annual surcharge up to $2,000 for 3 years to keep your license.
  • DWI intervention or education program (see below).
  • Possible ignition interlock device (see below).

Second Offense

  • Up to a $4,000 fine.
  • Jail time between 1 month and 1 year.
  • License suspension up to 2 years.
  • Annual surcharge of up to $2,000 for 3 years to keep your license.
  • DWI intervention or education program (see below).
  • Possible ignition interlock device (see below).

Third Offense

  • Up to a $10,000 fine.
  • State prison time between 2 years and 10 years.
  • License suspension up to 2 years.
  • Annual surcharge of up to $2,000 for 3 years to keep your license.
  • DWI intervention or education program (see below).
  • Possible ignition interlock device (see below).

DWI with a Child Passenger

If you’re drunk driving with a child younger than 15 years old in your vehicle, you face:

  • Up to a $10,000 fine.
  • Jail time up to 2 years.
  • License suspension for 180 days.

Extreme DWI Crimes

All DWI offenses are serious, but some are extremely grave, such as intoxication assault and intoxication manslaughter.

We’ve outlined some details about the serious crimes below; please refer to Chapter 10 of the Texas Drivers Handbook for more information specific to your situation.

Intoxication Assault

You can be charged with intoxication assault if, while drunk driving, you causeserious bodily injury to another person.

For these purposes, Texas considers serious bodily injury to be an injury that causes:

  • A significant risk of death.
  • Serious and permanent disfigurement or loss.
  • Damage that impairs function of a body part or organ.

If you’re convicted, you’ll have a 3rd degree felony.

Intoxication Manslaughter

As the name suggests, intoxication manslaughter involves killing another human being while you’re operating a motor vehicle under the influence.

If you’re convicted, you’ll have a 2nd degree felony.

Commercial Drivers and DWI

The Federal Motor Carrier Safety Administration (FMCSA) states that any commercial driver operating a commercial vehicle with a BAC of 0.04% or higher is considered to be driving under the influence.

If you’re a CDL holder and you either refuse a chemical test or take one and have a BAC of―

  • 0.04% in your commercial vehicle
  • 0.08% or higher in any vehicle

―your CDL is disqualified for 1 year. If you drive a commercial vehicle placarded for hazardous materials, the penalty is 3 years.

Visit the FMCSA’s Disqualification of Drivers for specific information.

Evading Arrest

In Texas Evading Arrest can be either a Third Degree Felony, a State Jail Felony or a Class A Misdemeanor. The determining factors include how the accused is charged with evading and if the accused has prior convictions for Evading Arrest.

A person commits an offense if he intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him. This is often done on foot. For example, a policeman attempts to detain a suspect walking away from the scene a burglary of a habitation. The suspect runs and the policeman chases and catches the suspect. If t has not prior convictions of Evading Arrest he would be charged with the Class A Misdemeanor of Evading Arrest. If the suspect has a prior conviction of Evading Arrest, the present Evading Arrest will be a State Jail Felony.

In another scenario, if a policeman attempts to pull over a suspect for speeding and the suspect flees (the suspect may have a warrant or drugs in the car and panics and flees) the charge would then be a State Jail Felony of Evading Arrest. If the suspect had a prior conviction of Evading Arrest then the suspect would be facing a Third Degree Felony.

If someone suffers serious bodily injury as a direct result of an attempt by the officer from whom the actor is fleeing to apprehend the actor while the actor is in flight the charge is then a Third Degree Felony of Evading Arrest. If someone dies as  a result of the Evading Arrest the charge is a Second Degree Felony.

Evading Arrest is found in the Penal Code Section 38.04 and reads as follows:

Sec. 38.04.  EVADING ARREST OR DETENTION. (a) A person commits an offense if he intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him.

(b)  An offense under this section is a Class A misdemeanor, except that the offense is:

(1)  a state jail felony if:

(A)  the actor has been previously convicted under this section; or

(B)  the actor uses a vehicle while the actor is in flight and the actor has not been previously convicted under this section;

(2)  a felony of the third degree if:

(A)  the actor uses a vehicle while the actor is in flight and the actor has been previously convicted under this section; or

(B)  another suffers serious bodily injury as a direct result of an attempt by the officer from whom the actor is fleeing to apprehend the actor while the actor is in flight; or

(3)  a felony of the second degree if another suffers death as a direct result of an attempt by the officer from whom the actor is fleeing to apprehend the actor while the actor is in flight.

(c)  In this section, “vehicle” has the meaning assigned by Section 541.201, Transportation Code.

(d)  A person who is subject to prosecution under both this section and another law may be prosecuted under either or both this section and the other law.

Reckless Driving

The Texas Transportation Code defines reckless driving broadly as operating a vehicle with “willful or wanton disregard for the safety of persons or property.”

That could mean driving too fast for conditions, or significantly over the speed limit, or weaving in and out of traffic and running red lights. A criminal charge of reckless driving usually requires that you performed more than one action that endangered other people or property.

You can be charged with reckless driving on a public road, or in a parking lot, garage, or other areas open to the public vehicle traffic.

Reckless driving is a traffic misdemeanor punishable by up to 30 days in jail and/or a fine of up to $200.

Racing

Texas drag racing charges

One of the most serious criminal traffic charges is “racing on highway,” which includes drag racing and tests of the “physical endurance of the operator of a vehicle.”

While it is a Class B misdemeanor on a first offense, a road racing charge becomes a ClassA if you have a previous conviction, were drinking while racing, or had an open container in the vehicle. If you’ve been convicted of racing on the highway twice before, the charge becomes a state jail felony, punishable by six months to two years in a state facility.

Drag racing is a third-degree felony – 2 to 10 years – if a person is hurt. It is a second-degree felony, punishable by up to 20 years if a person is seriously injured or killed.

Assaults: Intent to cause bodily harm, intent to cause serious harm

Assault

PENAL CODE


 

TITLE 5. OFFENSES AGAINST THE PERSON

 


CHAPTER 22. ASSAULTIVE OFFENSES


 

 

Sec. 22.01. ASSAULT. (a) A person commits an offense if the person:

 

(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse;

 

(2) intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse; or

 

(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.

 

(b) An offense under Subsection (a)(1) is a Class A misdemeanor, except that the offense is a felony of the third degree if the offense is committed against:

 

(1) a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant;

 

(2) a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code, if:

 

(A) it is shown on the trial of the offense that the defendant has been previously convicted of an offense under this chapter, Chapter 19, or Section 20.03, 20.04, 21.11, or 25.11 against a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code; or

 

(B) the offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth;

 

(3) a person who contracts with government to perform a service in a facility as defined by Section 1.07(a)(14), Penal Code, or Section 51.02(13) or (14), Family Code, or an employee of that person:

 

(A) while the person or employee is engaged in performing a service within the scope of the contract, if the actor knows the person or employee is authorized by government to provide the service; or

 

(B) in retaliation for or on account of the person’s or employee’s performance of a service within the scope of the contract;

 

(4) a person the actor knows is a security officer while the officer is performing a duty as a security officer; or

 

(5) a person the actor knows is emergency services personnel while the person is providing emergency services.

 

(b-1) Notwithstanding Subsection (b)(2), an offense under Subsection (a)(1) is a felony of the second degree if:

 

(1) the offense is committed against a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code;

 

(2) it is shown on the trial of the offense that the defendant has been previously convicted of an offense under this chapter, Chapter 19, or Section 20.03, 20.04, or 21.11 against a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code; and

 

(3) the offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth.

 

(c) An offense under Subsection (a)(2) or (3) is a Class C misdemeanor, except that the offense is:

 

(1) a Class A misdemeanor if the offense is committed under Subsection (a)(3) against an elderly individual or disabled individual, as those terms are defined by Section 22.04; or

 

(2) a Class B misdemeanor if the offense is committed by a person who is not a sports participant against a person the actor knows is a sports participant either:

 

(A) while the participant is performing duties or responsibilities in the participant’s capacity as a sports participant; or

 

(B) in retaliation for or on account of the participant’s performance of a duty or responsibility within the participant’s capacity as a sports participant.

 

(d) For purposes of Subsection (b), the actor is presumed to have known the person assaulted was a public servant, a security officer, or emergency services personnel if the person was wearing a distinctive uniform or badge indicating the person’s employment as a public servant or status as a security officer or emergency services personnel.

 

(e) In this section:

 

(1) “Emergency services personnel” includes firefighters, emergency medical services personnel as defined by Section 773.003, Health and Safety Code, emergency room personnel, and other individuals who, in the course and scope of employment or as a volunteer, provide services for the benefit of the general public during emergency situations.

 

(3) “Security officer” means a commissioned security officer as defined by Section 1702.002, Occupations Code, or a noncommissioned security officer registered under Section 1702.221, Occupations Code.

 

(4) “Sports participant” means a person who participates in any official capacity with respect to an interscholastic, intercollegiate, or other organized amateur or professional athletic competition and includes an athlete, referee, umpire, linesman, coach, instructor, administrator, or staff member.

 

(f) For the purposes of Subsections (b)(2)(A) and (b-1)(2):

 

(1) a defendant has been previously convicted of an offense listed in those subsections committed against a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code, if the defendant was adjudged guilty of the offense or entered a plea of guilty or nolo contendere in return for a grant of deferred adjudication, regardless of whether the sentence for the offense was ever imposed or whether the sentence was probated and the defendant was subsequently discharged from community supervision; and

 

(2) a conviction under the laws of another state for an offense containing elements that are substantially similar to the elements of an offense listed in those subsections is a conviction of the offense listed.

 

(g) If conduct constituting an offense under this section also constitutes an offense under another section of this code, the actor may be prosecuted under either section or both sections.

 

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1977, 65th Leg., 1st C.S., p. 55, ch. 2, Sec. 12, 13, eff. July 22, 1977; Acts 1979, 66th Leg., p. 260, ch. 135, Sec. 1, 2, eff. Aug. 27, 1979; Acts 1979, 66th Leg., p. 367, ch. 164, Sec. 2, eff. Sept. 1, 1979; Acts 1983, 68th Leg., p. 5311, ch. 977, Sec. 1, eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 1052, Sec. 2.08, eff. Sept. 1, 1987; Acts 1989, 71st Leg., ch. 739, Sec. 1 to 3, eff. Sept. 1, 1989; Acts 1991, 72nd Leg., ch. 14, Sec. 284(23) to (26), eff. Sept. 1, 1991; Acts 1991, 72nd Leg., ch. 334, Sec. 1, eff. Sept. 1, 1991; Acts 1991, 72nd Leg., ch. 366, Sec. 1, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1997, 75th Leg., ch. 165, Sec. 27.01, eff. Sept. 1, 1997; Acts 1995, 74th Leg., ch. 318, Sec. 5, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 659, Sec. 1, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 165, Sec. 27.01, 31.01(68), eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 62, Sec. 15.02(a), eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1158, Sec. 1, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 294, Sec. 1, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1019, Sec. 1, 2, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1028, Sec. 1, eff. Sept. 1, 2003.

 

Amended by:

 

Acts 2005, 79th Leg., Ch. 728 (H.B. 2018), Sec. 16.002, eff. September 1, 2005.

 

Acts 2005, 79th Leg., Ch. 788 (S.B. 91), Sec. 1, eff. September 1, 2005.

 

Acts 2005, 79th Leg., Ch. 788 (S.B. 91), Sec. 2, eff. September 1, 2005.

 

Acts 2005, 79th Leg., Ch. 788 (S.B. 91), Sec. 6, eff. September 1, 2005.

 

Acts 2007, 80th Leg., R.S., Ch. 623 (H.B. 495), Sec. 1, eff. September 1, 2007.

 

Acts 2007, 80th Leg., R.S., Ch. 623 (H.B. 495), Sec. 2, eff. September 1, 2007.

 

Acts 2009, 81st Leg., R.S., Ch. 427 (H.B. 2066), Sec. 1, eff. September 1, 2009.

 

Acts 2009, 81st Leg., R.S., Ch. 665 (H.B. 2240), Sec. 2, eff. September 1, 2009.

 

Acts 2013, 83rd Leg., R.S., Ch. 875 (H.B. 705), Sec. 1, eff. September 1, 2013.

 

 

Sec. 22.011. SEXUAL ASSAULT. (a) A person commits an offense if the person:

 

(1) intentionally or knowingly:

 

(A) causes the penetration of the anus or sexual organ of another person by any means, without that person’s consent;

 

(B) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person’s consent; or

 

(C) causes the sexual organ of another person, without that person’s consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; or

 

(2) intentionally or knowingly:

 

(A) causes the penetration of the anus or sexual organ of a child by any means;

 

(B) causes the penetration of the mouth of a child by the sexual organ of the actor;

 

(C) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;

 

(D) causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor; or

 

(E) causes the mouth of a child to contact the anus or sexual organ of another person, including the actor.

 

(b) A sexual assault under Subsection (a)(1) is without the consent of the other person if:

 

(1) the actor compels the other person to submit or participate by the use of physical force or violence;

 

(2) the actor compels the other person to submit or participate by threatening to use force or violence against the other person, and the other person believes that the actor has the present ability to execute the threat;

 

(3) the other person has not consented and the actor knows the other person is unconscious or physically unable to resist;

 

(4) the actor knows that as a result of mental disease or defect the other person is at the time of the sexual assault incapable either of appraising the nature of the act or of resisting it;

 

(5) the other person has not consented and the actor knows the other person is unaware that the sexual assault is occurring;

 

(6) the actor has intentionally impaired the other person’s power to appraise or control the other person’s conduct by administering any substance without the other person’s knowledge;

 

(7) the actor compels the other person to submit or participate by threatening to use force or violence against any person, and the other person believes that the actor has the ability to execute the threat;

 

(8) the actor is a public servant who coerces the other person to submit or participate;

 

(9) the actor is a mental health services provider or a health care services provider who causes the other person, who is a patient or former patient of the actor, to submit or participate by exploiting the other person’s emotional dependency on the actor;

 

(10) the actor is a clergyman who causes the other person to submit or participate by exploiting the other person’s emotional dependency on the clergyman in the clergyman’s professional character as spiritual adviser; or

 

(11) the actor is an employee of a facility where the other person is a resident, unless the employee and resident are formally or informally married to each other under Chapter 2, Family Code.

 

(c) In this section:

 

(1) “Child” means a person younger than 17 years of age.

 

(2) “Spouse” means a person who is legally married to another.

 

(3) “Health care services provider” means:

 

(A) a physician licensed under Subtitle B, Title 3, Occupations Code;

 

(B) a chiropractor licensed under Chapter 201, Occupations Code;

 

(C) a physical therapist licensed under Chapter 453, Occupations Code;

 

(D) a physician assistant licensed under Chapter 204, Occupations Code; or

 

(E) a registered nurse, a vocational nurse, or an advanced practice nurse licensed under Chapter 301, Occupations Code.

 

(4) “Mental health services provider” means an individual, licensed or unlicensed, who performs or purports to perform mental health services, including a:

 

(A) licensed social worker as defined by Section 505.002, Occupations Code;

 

(B) chemical dependency counselor as defined by Section 504.001, Occupations Code;

 

(C) licensed professional counselor as defined by Section 503.002, Occupations Code;

 

(D) licensed marriage and family therapist as defined by Section 502.002, Occupations Code;

 

(E) member of the clergy;

 

(F) psychologist offering psychological services as defined by Section 501.003, Occupations Code; or

 

(G) special officer for mental health assignment certified under Section 1701.404, Occupations Code.

 

(5) “Employee of a facility” means a person who is an employee of a facility defined by Section 250.001, Health and Safety Code, or any other person who provides services for a facility for compensation, including a contract laborer.

 

(d) It is a defense to prosecution under Subsection (a)(2) that the conduct consisted of medical care for the child and did not include any contact between the anus or sexual organ of the child and the mouth, anus, or sexual organ of the actor or a third party.

 

(e) It is an affirmative defense to prosecution under Subsection (a)(2):

 

(1) that the actor was the spouse of the child at the time of the offense; or

 

(2) that:

 

(A) the actor was not more than three years older than the victim and at the time of the offense:

 

(i) was not required under Chapter 62, Code of Criminal Procedure, to register for life as a sex offender; or

 

(ii) was not a person who under Chapter 62, Code of Criminal Procedure, had a reportable conviction or adjudication for an offense under this section; and

 

(B) the victim:

 

(i) was a child of 14 years of age or older; and

 

(ii) was not a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Section 25.01.

 

(f) An offense under this section is a felony of the second degree, except that an offense under this section is a felony of the first degree if the victim was a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Section 25.01.

 

Added by Acts 1983, 68th Leg., p. 5312, ch. 977, Sec. 3, eff. Sept. 1, 1983. Amended by Acts 1985, 69th Leg., ch. 557, Sec. 1, eff. Sept. 1, 1985; Acts 1987, 70th Leg., ch. 1029, Sec. 1, eff. Sept. 1, 1987; Acts 1991, 72nd Leg., ch. 662, Sec. 1, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1995, 74th Leg., ch. 273, Sec. 1, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 318, Sec. 6, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1031, Sec. 1, 2, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1286, Sec. 1, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1102, Sec. 3, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1415, Sec. 24, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1420, Sec. 14.829, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 155, Sec. 1, 2, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 528, Sec. 1, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 553, Sec. 2.017, eff. Feb. 1, 2004.

 

Amended by:

 

Acts 2005, 79th Leg., Ch. 268 (S.B. 6), Sec. 4.02, eff. September 1, 2005.

 

Acts 2009, 81st Leg., R.S., Ch. 260 (H.B. 549), Sec. 3, eff. September 1, 2009.

 

Acts 2009, 81st Leg., R.S., Ch. 260 (H.B. 549), Sec. 4, eff. September 1, 2009.

 

 

Sec. 22.02. AGGRAVATED ASSAULT. (a) A person commits an offense if the person commits assault as defined in Sec. 22.01 and the person:

 

(1) causes serious bodily injury to another, including the person’s spouse; or

 

(2) uses or exhibits a deadly weapon during the commission of the assault.

 

(b) An offense under this section is a felony of the second degree, except that the offense is a felony of the first degree if:

 

(1) the actor uses a deadly weapon during the commission of the assault and causes serious bodily injury to a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code;

 

(2) regardless of whether the offense is committed under Subsection (a)(1) or (a)(2), the offense is committed:

 

(A) by a public servant acting under color of the servant’s office or employment;

 

(B) against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant;

 

(C) in retaliation against or on account of the service of another as a witness, prospective witness, informant, or person who has reported the occurrence of a crime; or

 

(D) against a person the actor knows is a security officer while the officer is performing a duty as a security officer; or

 

(3) the actor is in a motor vehicle, as defined by Section 501.002, Transportation Code, and:

 

(A) knowingly discharges a firearm at or in the direction of a habitation, building, or vehicle;

 

(B) is reckless as to whether the habitation, building, or vehicle is occupied; and

 

(C) in discharging the firearm, causes serious bodily injury to any person.

 

(4) Expired.

 

(c) The actor is presumed to have known the person assaulted was a public servant or a security officer if the person was wearing a distinctive uniform or badge indicating the person’s employment as a public servant or status as a security officer.

 

(d) In this section, “security officer” means a commissioned security officer as defined by Section 1702.002, Occupations Code, or a noncommissioned security officer registered under Section 1702.221, Occupations Code.

 

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1979, 66th Leg., p. 367, ch. 164, Sec. 2, eff. Sept. 1, 1979; Acts 1979, 66th Leg., p. 1521, ch. 655, Sec. 2, eff. Sept. 1, 1979; Acts 1983, 68th Leg., p. 349, ch. 79, Sec. 1, eff. Sept. 1, 1983; Acts 1983, 68th Leg., p. 5311, ch. 977, Sec. 2, eff. Sept. 1, 1983; Acts 1985, 69th Leg., ch. 223, Sec. 1, eff. Sept. 1, 1985; Acts 1987, 70th Leg., ch. 18, Sec. 3, eff. April 14, 1987; Acts 1987, 70th Leg., ch. 1101, Sec. 12, eff. Sept. 1, 1987; Acts 1989, 71st Leg., ch. 939, Sec. 1 to 3, eff. Sept. 1, 1989; Acts 1991, 72nd Leg., ch. 334, Sec. 2, eff. Sept. 1, 1991; Acts 1991, 72nd Leg., ch. 903, Sec. 1, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 2003, 78th Leg., ch. 1019, Sec. 3, eff. Sept. 1, 2003.

 

Amended by:

 

Acts 2005, 79th Leg., Ch. 788 (S.B. 91), Sec. 3, eff. September 1, 2005.

 

Acts 2009, 81st Leg., R.S., Ch. 594 (H.B. 176), Sec. 2, eff. September 1, 2009.

 

 

This section was amended by the 84th Legislature. Pending publication of the current statutes, see H.B. 2589, 84th Legislature, Regular Session, for amendments affecting this section.

 


Sec. 22.021. AGGRAVATED SEXUAL ASSAULT. (a) A person commits an offense:

(1) if the person:

(A) intentionally or knowingly:

(i) causes the penetration of the anus or sexual organ of another person by any means, without that person’s consent;

(ii) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person’s consent; or

(iii) causes the sexual organ of another person, without that person’s consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; or

(B) intentionally or knowingly:

(i) causes the penetration of the anus or sexual organ of a child by any means;

(ii) causes the penetration of the mouth of a child by the sexual organ of the actor;

(iii) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;

(iv) causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor; or

(v) causes the mouth of a child to contact the anus or sexual organ of another person, including the actor; and

(2) if:

(A) the person:

(i) causes serious bodily injury or attempts to cause the death of the victim or another person in the course of the same criminal episode;

(ii) by acts or words places the victim in fear that any person will become the victim of an offense under Section 20A.02(a)(3), (4), (7), or (8) or that death, serious bodily injury, or kidnapping will be imminently inflicted on any person;

(iii) by acts or words occurring in the presence of the victim threatens to cause any person to become the victim of an offense under Section 20A.02(a)(3), (4), (7), or (8) or to cause the death, serious bodily injury, or kidnapping of any person;

(iv) uses or exhibits a deadly weapon in the course of the same criminal episode;

(v) acts in concert with another who engages in conduct described by Subdivision (1) directed toward the same victim and occurring during the course of the same criminal episode; or

(vi) administers or provides flunitrazepam, otherwise known as rohypnol, gamma hydroxybutyrate, or ketamine to the victim of the offense with the intent of facilitating the commission of the offense;

(B) the victim is younger than 14 years of age; or

(C) the victim is an elderly individual or a disabled individual.

(b) In this section:

(1) “Child” has the meaning assigned by Section 22.011(c).

(2) “Elderly individual” and “disabled individual” have the meanings assigned by Section 22.04(c).

(c) An aggravated sexual assault under this section is without the consent of the other person if the aggravated sexual assault occurs under the same circumstances listed in Section 22.011(b).

(d) The defense provided by Section 22.011(d) applies to this section.

(e) An offense under this section is a felony of the first degree.

(f) The minimum term of imprisonment for an offense under this section is increased to 25 years if:

(1) the victim of the offense is younger than six years of age at the time the offense is committed; or

(2) the victim of the offense is younger than 14 years of age at the time the offense is committed and the actor commits the offense in a manner described by Subsection (a)(2)(A).

Added by Acts 1983, 68th Leg., p. 5312, ch. 977, Sec. 3, eff. Sept. 1, 1983. Amended by Acts 1987, 70th Leg., ch. 573, Sec. 1, eff. Sept. 1, 1987; Acts 1987, 70th Leg., 2nd C.S., ch. 16, Sec. 1, eff. Sept. 1, 1987; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1995, 74th Leg., ch. 318, Sec. 7, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1286, Sec. 2, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 417, Sec. 1, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 459, Sec. 5, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 528, Sec. 2, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 896, Sec. 1, eff. Sept. 1, 2003.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 593 (H.B. 8), Sec. 1.18, eff. September 1, 2007.

Acts 2011, 82nd Leg., R.S., Ch. 1 (S.B. 24), Sec. 6.05, eff. September 1, 2011.

This section was amended by the 84th Legislature. Pending publication of the current statutes, see H.B. 1286, 84th Legislature, Regular Session, for amendments affecting this section.


 

Sec. 22.04. INJURY TO A CHILD, ELDERLY INDIVIDUAL, OR DISABLED INDIVIDUAL. (a) A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly by omission, causes to a child, elderly individual, or disabled individual:

 

(1) serious bodily injury;

 

(2) serious mental deficiency, impairment, or injury; or

 

(3) bodily injury.

 

(a-1) A person commits an offense if the person is an owner, operator, or employee of a group home, nursing facility, assisted living facility, intermediate care facility for persons with mental retardation, or other institutional care facility and the person intentionally, knowingly, recklessly, or with criminal negligence by omission causes to a child, elderly individual, or disabled individual who is a resident of that group home or facility:

 

(1) serious bodily injury;

 

(2) serious mental deficiency, impairment, or injury; or

 

(3) bodily injury.

 

(b) An omission that causes a condition described by Subsection (a)(1), (2), or (3) or (a-1)(1), (2), or (3) is conduct constituting an offense under this section if:

 

(1) the actor has a legal or statutory duty to act; or

 

(2) the actor has assumed care, custody, or control of a child, elderly individual, or disabled individual.

 

(c) In this section:

 

(1) “Child” means a person 14 years of age or younger.

 

(2) “Elderly individual” means a person 65 years of age or older.

 

(3) “Disabled individual” means a person older than 14 years of age who by reason of age or physical or mental disease, defect, or injury is substantially unable to protect himself from harm or to provide food, shelter, or medical care for himself.

 

(4) Repealed by Acts 2011, 82nd Leg., R.S., Ch. 620, Sec. 11, eff. September 1, 2011.

 

(d) For purposes of an omission that causes a condition described by Subsection (a)(1), (2), or (3), the actor has assumed care, custody, or control if he has by act, words, or course of conduct acted so as to cause a reasonable person to conclude that he has accepted responsibility for protection, food, shelter, and medical care for a child, elderly individual, or disabled individual. For purposes of an omission that causes a condition described by Subsection (a-1)(1), (2), or (3), the actor acting during the actor’s capacity as owner, operator, or employee of a group home or facility described by Subsection (a-1) is considered to have accepted responsibility for protection, food, shelter, and medical care for the child, elderly individual, or disabled individual who is a resident of the group home or facility.

 

(e) An offense under Subsection (a)(1) or (2) or (a-1)(1) or (2) is a felony of the first degree when the conduct is committed intentionally or knowingly. When the conduct is engaged in recklessly, the offense is a felony of the second degree.

 

(f) An offense under Subsection (a)(3) or (a-1)(3) is a felony of the third degree when the conduct is committed intentionally or knowingly, except that an offense under Subsection (a)(3) is a felony of the second degree when the conduct is committed intentionally or knowingly and the victim is a disabled individual residing in a center, as defined by Section 555.001, Health and Safety Code, or in a facility licensed under Chapter 252, Health and Safety Code, and the actor is an employee of the center or facility whose employment involved providing direct care for the victim. When the conduct is engaged in recklessly, the offense is a state jail felony.

 

(g) An offense under Subsection (a) is a state jail felony when the person acts with criminal negligence. An offense under Subsection (a-1) is a state jail felony when the person, with criminal negligence and by omission, causes a condition described by Subsection (a-1)(1), (2), or (3).

 

(h) A person who is subject to prosecution under both this section and another section of this code may be prosecuted under either or both sections. Section 3.04 does not apply to criminal episodes prosecuted under both this section and another section of this code. If a criminal episode is prosecuted under both this section and another section of this code and sentences are assessed for convictions under both sections, the sentences shall run concurrently.

 

(i) It is an affirmative defense to prosecution under Subsection (b)(2) that before the offense the actor:

 

(1) notified in person the child, elderly individual, or disabled individual that he would no longer provide any of the care described by Subsection (d); and

 

(2) notified in writing the parents or person other than himself acting in loco parentis to the child, elderly individual, or disabled individual that he would no longer provide any of the care described by Subsection (d); or

 

(3) notified in writing the Department of Protective and Regulatory Services that he would no longer provide any of the care set forth in Subsection (d).

 

(j) Written notification under Subsection (i)(2) or (i)(3) is not effective unless it contains the name and address of the actor, the name and address of the child, elderly individual, or disabled individual, the type of care provided by the actor, and the date the care was discontinued.

 

(k) It is a defense to prosecution under this section that the act or omission consisted of:

 

(1) reasonable medical care occurring under the direction of or by a licensed physician; or

 

(2) emergency medical care administered in good faith and with reasonable care by a person not licensed in the healing arts.

 

(l) It is an affirmative defense to prosecution under this section:

 

(1) that the act or omission was based on treatment in accordance with the tenets and practices of a recognized religious method of healing with a generally accepted record of efficacy;

 

(2) for a person charged with an act of omission causing to a child, elderly individual, or disabled individual a condition described by Subsection (a)(1), (2), or (3) that:

 

(A) there is no evidence that, on the date prior to the offense charged, the defendant was aware of an incident of injury to the child, elderly individual, or disabled individual and failed to report the incident; and

 

(B) the person:

 

(i) was a victim of family violence, as that term is defined by Section 71.004, Family Code, committed by a person who is also charged with an offense against the child, elderly individual, or disabled individual under this section or any other section of this title;

 

(ii) did not cause a condition described by Subsection (a)(1), (2), or (3); and

 

(iii) did not reasonably believe at the time of the omission that an effort to prevent the person also charged with an offense against the child, elderly individual, or disabled individual from committing the offense would have an effect; or

 

(3) that:

 

(A) the actor was not more than three years older than the victim at the time of the offense; and

 

(B) the victim was a child at the time of the offense.

 

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1977, 65th Leg., p. 2067, ch. 819, Sec. 1, eff. Aug. 29, 1977; Acts 1979, 66th Leg., p. 365, ch. 162, Sec. 1, eff. Aug. 27, 1979; Acts 1981, 67th Leg., p. 472, ch. 202, Sec. 4, eff. Sept. 1, 1981; Acts 1981, 67th Leg., p. 2397, ch. 604, Sec. 1, eff. Sept. 1, 1981; Acts 1989, 71st Leg., ch. 357, Sec. 1, eff. Sept. 1, 1989; Acts 1991, 72nd Leg., ch. 497, Sec. 1, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1995, 74th Leg., ch. 76, Sec. 8.139, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 62, Sec. 15.02(b), eff. Sept. 1, 1999.

 

Amended by:

 

Acts 2005, 79th Leg., Ch. 268 (S.B. 6), Sec. 1.125(a), eff. September 1, 2005.

 

Acts 2005, 79th Leg., Ch. 949 (H.B. 1575), Sec. 46, eff. September 1, 2005.

 

Acts 2009, 81st Leg., R.S., Ch. 284 (S.B. 643), Sec. 38, eff. June 11, 2009.

 

Acts 2011, 82nd Leg., R.S., Ch. 620 (S.B. 688), Sec. 5, eff. September 1, 2011.

 

Acts 2011, 82nd Leg., R.S., Ch. 620 (S.B. 688), Sec. 11, eff. September 1, 2011.

 

 

Sec. 22.041. ABANDONING OR ENDANGERING CHILD. (a) In this section, “abandon” means to leave a child in any place without providing reasonable and necessary care for the child, under circumstances under which no reasonable, similarly situated adult would leave a child of that age and ability.

 

(b) A person commits an offense if, having custody, care, or control of a child younger than 15 years, he intentionally abandons the child in any place under circumstances that expose the child to an unreasonable risk of harm.

 

(c) A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that places a child younger than 15 years in imminent danger of death, bodily injury, or physical or mental impairment.

 

(c-1) For purposes of Subsection (c), it is presumed that a person engaged in conduct that places a child in imminent danger of death, bodily injury, or physical or mental impairment if:

 

(1) the person manufactured, possessed, or in any way introduced into the body of any person the controlled substance methamphetamine in the presence of the child;

 

(2) the person’s conduct related to the proximity or accessibility of the controlled substance methamphetamine to the child and an analysis of a specimen of the child’s blood, urine, or other bodily substance indicates the presence of methamphetamine in the child’s body; or

 

(3) the person injected, ingested, inhaled, or otherwise introduced a controlled substance listed in Penalty Group 1, Section 481.102, Health and Safety Code, into the human body when the person was not in lawful possession of the substance as defined by Section 481.002(24) of that code.

 

(d) Except as provided by Subsection (e), an offense under Subsection (b) is:

 

(1) a state jail felony if the actor abandoned the child with intent to return for the child; or

 

(2) a felony of the third degree if the actor abandoned the child without intent to return for the child.

 

(e) An offense under Subsection (b) is a felony of the second degree if the actor abandons the child under circumstances that a reasonable person would believe would place the child in imminent danger of death, bodily injury, or physical or mental impairment.

 

(f) An offense under Subsection (c) is a state jail felony.

 

(g) It is a defense to prosecution under Subsection (c) that the act or omission enables the child to practice for or participate in an organized athletic event and that appropriate safety equipment and procedures are employed in the event.

 

(h) It is an exception to the application of this section that the actor voluntarily delivered the child to a designated emergency infant care provider under Section 262.302, Family Code.

 

Added by Acts 1985, 69th Leg., ch. 791, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1989, 71st Leg., ch. 904, Sec. 1, eff. Sept. 1, 1989; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1997, 75th Leg., ch. 687, Sec. 1, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1087, Sec. 3, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 809, Sec. 7, eff. Sept. 1, 2001.

 

Amended by:

 

Acts 2005, 79th Leg., Ch. 282 (H.B. 164), Sec. 10, eff. August 1, 2005.

 

Acts 2007, 80th Leg., R.S., Ch. 840 (H.B. 946), Sec. 2, eff. September 1, 2007.

 

 

Sec. 22.05. DEADLY CONDUCT. (a) A person commits an offense if he recklessly engages in conduct that places another in imminent danger of serious bodily injury.

 

(b) A person commits an offense if he knowingly discharges a firearm at or in the direction of:

 

(1) one or more individuals; or

 

(2) a habitation, building, or vehicle and is reckless as to whether the habitation, building, or vehicle is occupied.

 

(c) Recklessness and danger are presumed if the actor knowingly pointed a firearm at or in the direction of another whether or not the actor believed the firearm to be loaded.

 

(d) For purposes of this section, “building,” “habitation,” and “vehicle” have the meanings assigned those terms by Section 30.01.

 

(e) An offense under Subsection (a) is a Class A misdemeanor. An offense under Subsection (b) is a felony of the third degree.

 

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

 

 

Sec. 22.06. CONSENT AS DEFENSE TO ASSAULTIVE CONDUCT. (a) The victim’s effective consent or the actor’s reasonable belief that the victim consented to the actor’s conduct is a defense to prosecution under Section 22.01 (Assault), 22.02 (Aggravated Assault), or 22.05 (Deadly Conduct) if:

 

(1) the conduct did not threaten or inflict serious bodily injury; or

 

(2) the victim knew the conduct was a risk of:

 

(A) his occupation;

 

(B) recognized medical treatment; or

 

(C) a scientific experiment conducted by recognized methods.

 

(b) The defense to prosecution provided by Subsection (a) is not available to a defendant who commits an offense described by Subsection (a) as a condition of the defendant’s or the victim’s initiation or continued membership in a criminal street gang, as defined by Section 71.01.

 

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

 

Amended by:

 

Acts 2007, 80th Leg., R.S., Ch. 273 (H.B. 184), Sec. 1, eff. September 1, 2007.

 

 

Sec. 22.07. TERRORISTIC THREAT. (a) A person commits an offense if he threatens to commit any offense involving violence to any person or property with intent to:

 

(1) cause a reaction of any type to his threat by an official or volunteer agency organized to deal with emergencies;

 

(2) place any person in fear of imminent serious bodily injury;

 

(3) prevent or interrupt the occupation or use of a building, room, place of assembly, place to which the public has access, place of employment or occupation, aircraft, automobile, or other form of conveyance, or other public place;

 

(4) cause impairment or interruption of public communications, public transportation, public water, gas, or power supply or other public service;

 

(5) place the public or a substantial group of the public in fear of serious bodily injury; or

 

(6) influence the conduct or activities of a branch or agency of the federal government, the state, or a political subdivision of the state.

 

(b) An offense under Subsection (a)(1) is a Class B misdemeanor.

 

(c) An offense under Subsection (a)(2) is a Class B misdemeanor, except that the offense is a Class A misdemeanor if the offense:

 

(1) is committed against a member of the person’s family or household or otherwise constitutes family violence; or

 

(2) is committed against a public servant.

 

(d) An offense under Subsection (a)(3) is a Class A misdemeanor, unless the actor causes pecuniary loss of $1,500 or more to the owner of the building, room, place, or conveyance, in which event the offense is a state jail felony.

 

(e) An offense under Subsection (a)(4), (a)(5), or (a)(6) is a felony of the third degree.

 

(f) In this section:

 

(1) “Family” has the meaning assigned by Section 71.003, Family Code.

 

(2) “Family violence” has the meaning assigned by Section 71.004, Family Code.

 

(3) “Household” has the meaning assigned by Section 71.005, Family Code.

 

(g) For purposes of Subsection (d), the amount of pecuniary loss is the amount of economic loss suffered by the owner of the building, room, place, or conveyance as a result of the prevention or interruption of the occupation or use of the building, room, place, or conveyance.

 

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1979, 66th Leg., p. 1114, ch. 530, Sec. 2, eff. Aug. 27, 1979; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 2003, 78th Leg., ch. 139, Sec. 1, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 388, Sec. 2, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 446, Sec. 1, eff. Sept. 1, 2003.

 

Reenacted and amended by Acts 2005, 79th Leg., Ch. 728 (H.B. 2018), Sec. 16.003, eff. September 1, 2005.

 

 

Sec. 22.08. AIDING SUICIDE. (a) A person commits an offense if, with intent to promote or assist the commission of suicide by another, he aids or attempts to aid the other to commit or attempt to commit suicide.

 

(b) An offense under this section is a Class C misdemeanor unless the actor’s conduct causes suicide or attempted suicide that results in serious bodily injury, in which event the offense is a state jail felony.

 

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

 

 

Sec. 22.09. TAMPERING WITH CONSUMER PRODUCT. (a) In this section:

 

(1) “Consumer Product” means any product offered for sale to or for consumption by the public and includes “food” and “drugs” as those terms are defined in Section 431.002, Health and Safety Code.

 

(2) “Tamper” means to alter or add a foreign substance to a consumer product to make it probable that the consumer product will cause serious bodily injury.

 

(b) A person commits an offense if he knowingly or intentionally tampers with a consumer product knowing that the consumer product will be offered for sale to the public or as a gift to another.

 

(c) A person commits an offense if he knowingly or intentionally threatens to tamper with a consumer product with the intent to cause fear, to affect the sale of the consumer product, or to cause bodily injury to any person.

 

(d) An offense under Subsection (b) is a felony of the second degree unless a person suffers serious bodily injury, in which event it is a felony of the first degree. An offense under Subsection (c) is a felony of the third degree.

 

Added by Acts 1983, 68th Leg., p. 2812, ch. 481, Sec. 1, eff. Sept. 1, 1983. Amended by Acts 1989, 71st Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1989; Acts 1991, 72nd Leg., ch. 14, Sec. 284(32), eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

 

 

Sec. 22.10. LEAVING A CHILD IN A VEHICLE. (a) A person commits an offense if he intentionally or knowingly leaves a child in a motor vehicle for longer than five minutes, knowing that the child is:

 

(1) younger than seven years of age; and

 

(2) not attended by an individual in the vehicle who is 14 years of age or older.

 

(b) An offense under this section is a Class C misdemeanor.

 

Added by Acts 1984, 68th Leg., 2nd C.S., ch. 24, Sec. 1, eff. Oct. 2, 1984. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

 

 

This section was amended by the 84th Legislature. Pending publication of the current statutes, see H.B. 1549, 84th Legislature, Regular Session, for amendments affecting this section.

 


Sec. 22.11. HARASSMENT BY PERSONS IN CERTAIN CORRECTIONAL FACILITIES; HARASSMENT OF PUBLIC SERVANT. (a) A person commits an offense if, with the intent to assault, harass, or alarm, the person:

(1) while imprisoned or confined in a correctional or detention facility, causes another person to contact the blood, seminal fluid, vaginal fluid, saliva, urine, or feces of the actor, any other person, or an animal; or

(2) causes another person the actor knows to be a public servant to contact the blood, seminal fluid, vaginal fluid, saliva, urine, or feces of the actor, any other person, or an animal while the public servant is lawfully discharging an official duty or in retaliation or on account of an exercise of the public servant’s official power or performance of an official duty.

(b) An offense under this section is a felony of the third degree.

(c) If conduct constituting an offense under this section also constitutes an offense under another section of this code, the actor may be prosecuted under either section.

(d) In this section, “correctional or detention facility” means:

(1) a secure correctional facility; or

(2) a “secure correctional facility” or a “secure detention facility” as defined by Section 51.02, Family Code, operated by or under contract with a juvenile board or the Texas Youth Commission or any other facility operated by or under contract with that commission.

(e) For purposes of Subsection (a)(2), the actor is presumed to have known the person was a public servant if the person was wearing a distinctive uniform or badge indicating the person’s employment as a public servant.

Added by Acts 1999, 76th Leg., ch. 335, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 878, Sec. 1, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1006, Sec. 1, eff. Sept. 1, 2003.

Amended by:

Acts 2005, 79th Leg., Ch. 543 (H.B. 1095), Sec. 1, eff. September 1, 2005.

Acts 2005, 79th Leg., Ch. 543 (H.B. 1095), Sec. 2, eff. September 1, 2005.

Sec. 22.12. APPLICABILITY TO CERTAIN CONDUCT. This chapter does not apply to conduct charged as having been committed against an individual who is an unborn child if the conduct is:

(1) committed by the mother of the unborn child;

(2) a lawful medical procedure performed by a physician or other health care provider with the requisite consent;

(3) a lawful medical procedure performed by a physician or other licensed health care provider with the requisite consent as part of an assisted reproduction as defined by Section 160.102, Family Code; or

(4) the dispensation of a drug in accordance with law or administration of a drug prescribed in accordance with law.

Added by Acts 2003, 78th Leg., ch. 822, Sec. 2.04, eff. Sept. 1, 2003.



				
Interfering with the duties of a public servant

(a) A person commits an offense if the person with criminal negligence interrupts, disrupts, impedes, or otherwise interferes with:

 

(1) a peace officer while the peace officer is performing a duty or exercising authority imposed or granted by law;

 

(2) a person who is employed to provide emergency medical services including the transportation of ill or injured persons while the person is performing that duty;

 

(3) a fire fighter, while the fire fighter is fighting a fire or investigating the cause of a fire;

 

(4) an animal under the supervision of a peace officer, corrections officer, or jailer, if the person knows the animal is being used for law enforcement, corrections, prison or jail security, or investigative purposes;

 

(5) the transmission of a communication over a citizen’s band radio channel, the purpose of which communication is to inform or inquire about an emergency;

 

(6) an officer with responsibility for animal control in a county or municipality, while the officer is performing a duty or exercising authority imposed or granted under Chapter 821 or 822, Health and Safety Code; or

 

(7) a person who:

 

(A) has responsibility for assessing, enacting, or enforcing public health, environmental, radiation, or safety measures for the state or a county or municipality;

 

(B) is investigating a particular site as part of the person’s responsibilities under Paragraph (A);

 

(C) is acting in accordance with policies and procedures related to the safety and security of the site described by Paragraph (B); and

 

(D) is performing a duty or exercising authority imposed or granted under the Agriculture Code, Health and Safety Code, Occupations Code, or Water Code.

 

(b) An offense under this section is a Class B misdemeanor.

 

(c) It is a defense to prosecution under Subsection (a)(1) that the conduct engaged in by the defendant was intended to warn a person operating a motor vehicle of the presence of a peace officer who was enforcing Subtitle C, Title 7, Transportation Code.

 

(d) It is a defense to prosecution under this section that the interruption, disruption, impediment, or interference alleged consisted of speech only.

 

(e) In this section, “emergency” means a condition or circumstance in which an individual is or is reasonably believed by the person transmitting the communication to be in imminent danger of serious bodily injury or in which property is or is reasonably believed by the person transmitting the communication to be in imminent danger of damage or destruction.

 

 

Added by Acts 1989, 71st Leg., ch. 1162, Sec. 1, eff. Sept. 1, 1989. Renumbered from Penal Code Sec. 38.16 by Acts 1990, 71st Leg., 6th C.S., ch. 12, Sec. 2(26), eff. Sept. 6, 1990. Renumbered from Penal Code Sec. 38.18 and amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 30.241, eff. Sept. 1, 1997.

Theft: Fraud, welfare, by check, shoplifting

PENAL CODE

 


THEFT


 

 

Sec. 31.01. DEFINITIONS. In this chapter:

 

(1) “Deception” means:

 

(A) creating or confirming by words or conduct a false impression of law or fact that is likely to affect the judgment of another in the transaction, and that the actor does not believe to be true;

 

(B) failing to correct a false impression of law or fact that is likely to affect the judgment of another in the transaction, that the actor previously created or confirmed by words or conduct, and that the actor does not now believe to be true;

 

(C) preventing another from acquiring information likely to affect his judgment in the transaction;

 

(D) selling or otherwise transferring or encumbering property without disclosing a lien, security interest, adverse claim, or other legal impediment to the enjoyment of the property, whether the lien, security interest, claim, or impediment is or is not valid, or is or is not a matter of official record; or

 

(E) promising performance that is likely to affect the judgment of another in the transaction and that the actor does not intend to perform or knows will not be performed, except that failure to perform the promise in issue without other evidence of intent or knowledge is not sufficient proof that the actor did not intend to perform or knew the promise would not be performed.

 

(2) “Deprive” means:

 

(A) to withhold property from the owner permanently or for so extended a period of time that a major portion of the value or enjoyment of the property is lost to the owner;

 

(B) to restore property only upon payment of reward or other compensation; or

 

(C) to dispose of property in a manner that makes recovery of the property by the owner unlikely.

 

(3) “Effective consent” includes consent by a person legally authorized to act for the owner. Consent is not effective if:

 

(A) induced by deception or coercion;

 

(B) given by a person the actor knows is not legally authorized to act for the owner;

 

(C) given by a person who by reason of youth, mental disease or defect, or intoxication is known by the actor to be unable to make reasonable property dispositions;

 

(D) given solely to detect the commission of an offense; or

 

(E) given by a person who by reason of advanced age is known by the actor to have a diminished capacity to make informed and rational decisions about the reasonable disposition of property.

 

(4) “Appropriate” means:

 

(A) to bring about a transfer or purported transfer of title to or other nonpossessory interest in property, whether to the actor or another; or

 

(B) to acquire or otherwise exercise control over property other than real property.

 

(5) “Property” means:

 

(A) real property;

 

(B) tangible or intangible personal property including anything severed from land; or

 

(C) a document, including money, that represents or embodies anything of value.

 

(6) “Service” includes:

 

(A) labor and professional service;

 

(B) telecommunication, public utility, or transportation service;

 

(C) lodging, restaurant service, and entertainment; and

 

(D) the supply of a motor vehicle or other property for use.

 

(7) “Steal” means to acquire property or service by theft.

 

(8) “Certificate of title” has the meaning assigned by Section 501.002, Transportation Code.

 

(9) “Used or secondhand motor vehicle” means a used motor vehicle, as that term is defined by Section 501.002, Transportation Code.

 

(10) “Elderly individual” has the meaning assigned by Section 22.04(c).

 

(11) “Retail merchandise” means one or more items of tangible personal property displayed, held, stored, or offered for sale in a retail establishment.

 

(12) “Retail theft detector” means an electrical, mechanical, electronic, or magnetic device used to prevent or detect shoplifting and includes any article or component part essential to the proper operation of the device.

 

(13) “Shielding or deactivation instrument” means any item or tool designed, made, or adapted for the purpose of preventing the detection of stolen merchandise by a retail theft detector. The term includes a metal-lined or foil-lined shopping bag and any item used to remove a security tag affixed to retail merchandise.

 

(14) “Fire exit alarm” has the meaning assigned by Section 793.001, Health and Safety Code.

 

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1975, 64th Leg., p. 914, ch. 342, Sec. 9, eff. Sept. 1, 1975; Acts 1985, 69th Leg., ch. 901, Sec. 2, eff. Sept. 1, 1985; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1997, 75th Leg., ch. 165, Sec. 30.237, eff. Sept. 1, 1997; Acts 2003, 78th Leg., ch. 432, Sec. 1, eff. Sept. 1, 2003.

 

Amended by:

 

Acts 2011, 82nd Leg., R.S., Ch. 323 (H.B. 2482), Sec. 1, eff. September 1, 2011.

 

 

Sec. 31.02. CONSOLIDATION OF THEFT OFFENSES. Theft as defined in Section 31.03 constitutes a single offense superseding the separate offenses previously known as theft, theft by false pretext, conversion by a bailee, theft from the person, shoplifting, acquisition of property by threat, swindling, swindling by worthless check, embezzlement, extortion, receiving or concealing embezzled property, and receiving or concealing stolen property.

 

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

 

 

This section was amended by the 84th Legislature. Pending publication of the current statutes, see H.B. 1396, 84th Legislature, Regular Session, for amendments affecting this section.

 


Sec. 31.03. THEFT. (a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property.

(b) Appropriation of property is unlawful if:

(1) it is without the owner’s effective consent;

(2) the property is stolen and the actor appropriates the property knowing it was stolen by another; or

(3) property in the custody of any law enforcement agency was explicitly represented by any law enforcement agent to the actor as being stolen and the actor appropriates the property believing it was stolen by another.

(c) For purposes of Subsection (b):

(1) evidence that the actor has previously participated in recent transactions other than, but similar to, that which the prosecution is based is admissible for the purpose of showing knowledge or intent and the issues of knowledge or intent are raised by the actor’s plea of not guilty;

(2) the testimony of an accomplice shall be corroborated by proof that tends to connect the actor to the crime, but the actor’s knowledge or intent may be established by the uncorroborated testimony of the accomplice;

(3) an actor engaged in the business of buying and selling used or secondhand personal property, or lending money on the security of personal property deposited with the actor, is presumed to know upon receipt by the actor of stolen property (other than a motor vehicle subject to Chapter 501, Transportation Code) that the property has been previously stolen from another if the actor pays for or loans against the property $25 or more (or consideration of equivalent value) and the actor knowingly or recklessly:

(A) fails to record the name, address, and physical description or identification number of the seller or pledgor;

(B) fails to record a complete description of the property, including the serial number, if reasonably available, or other identifying characteristics; or

(C) fails to obtain a signed warranty from the seller or pledgor that the seller or pledgor has the right to possess the property. It is the express intent of this provision that the presumption arises unless the actor complies with each of the numbered requirements;

(4) for the purposes of Subdivision (3)(A), “identification number” means driver’s license number, military identification number, identification certificate, or other official number capable of identifying an individual;

(5) stolen property does not lose its character as stolen when recovered by any law enforcement agency;

(6) an actor engaged in the business of obtaining abandoned or wrecked motor vehicles or parts of an abandoned or wrecked motor vehicle for resale, disposal, scrap, repair, rebuilding, demolition, or other form of salvage is presumed to know on receipt by the actor of stolen property that the property has been previously stolen from another if the actor knowingly or recklessly:

(A) fails to maintain an accurate and legible inventory of each motor vehicle component part purchased by or delivered to the actor, including the date of purchase or delivery, the name, age, address, sex, and driver’s license number of the seller or person making the delivery, the license plate number of the motor vehicle in which the part was delivered, a complete description of the part, and the vehicle identification number of the motor vehicle from which the part was removed, or in lieu of maintaining an inventory, fails to record the name and certificate of inventory number of the person who dismantled the motor vehicle from which the part was obtained;

(B) fails on receipt of a motor vehicle to obtain a certificate of authority, sales receipt, or transfer document as required by Chapter 683, Transportation Code, or a certificate of title showing that the motor vehicle is not subject to a lien or that all recorded liens on the motor vehicle have been released; or

(C) fails on receipt of a motor vehicle to immediately remove an unexpired license plate from the motor vehicle, to keep the plate in a secure and locked place, or to maintain an inventory, on forms provided by the Texas Department of Motor Vehicles, of license plates kept under this paragraph, including for each plate or set of plates the license plate number and the make, motor number, and vehicle identification number of the motor vehicle from which the plate was removed;

(7) an actor who purchases or receives a used or secondhand motor vehicle is presumed to know on receipt by the actor of the motor vehicle that the motor vehicle has been previously stolen from another if the actor knowingly or recklessly:

(A) fails to report to the Texas Department of Motor Vehicles the failure of the person who sold or delivered the motor vehicle to the actor to deliver to the actor a properly executed certificate of title to the motor vehicle at the time the motor vehicle was delivered; or

(B) fails to file with the county tax assessor-collector of the county in which the actor received the motor vehicle, not later than the 20th day after the date the actor received the motor vehicle, the registration license receipt and certificate of title or evidence of title delivered to the actor in accordance with Subchapter D, Chapter 520, Transportation Code, at the time the motor vehicle was delivered;

(8) an actor who purchases or receives from any source other than a licensed retailer or distributor of pesticides a restricted-use pesticide or a state-limited-use pesticide or a compound, mixture, or preparation containing a restricted-use or state-limited-use pesticide is presumed to know on receipt by the actor of the pesticide or compound, mixture, or preparation that the pesticide or compound, mixture, or preparation has been previously stolen from another if the actor:

(A) fails to record the name, address, and physical description of the seller or pledgor;

(B) fails to record a complete description of the amount and type of pesticide or compound, mixture, or preparation purchased or received; and

(C) fails to obtain a signed warranty from the seller or pledgor that the seller or pledgor has the right to possess the property; and

(9) an actor who is subject to Section 409, Packers and Stockyards Act (7 U.S.C. Section 228b), that obtains livestock from a commission merchant by representing that the actor will make prompt payment is presumed to have induced the commission merchant’s consent by deception if the actor fails to make full payment in accordance with Section 409, Packers and Stockyards Act (7 U.S.C. Section 228b).

(d) It is not a defense to prosecution under this section that:

(1) the offense occurred as a result of a deception or strategy on the part of a law enforcement agency, including the use of an undercover operative or peace officer;

(2) the actor was provided by a law enforcement agency with a facility in which to commit the offense or an opportunity to engage in conduct constituting the offense; or

(3) the actor was solicited to commit the offense by a peace officer, and the solicitation was of a type that would encourage a person predisposed to commit the offense to actually commit the offense, but would not encourage a person not predisposed to commit the offense to actually commit the offense.

(e) Except as provided by Subsection (f), an offense under this section is:

(1) a Class C misdemeanor if the value of the property stolen is less than:

(A) $50; or

(B) $20 and the defendant obtained the property by issuing or passing a check or similar sight order in a manner described by Section 31.06;

(2) a Class B misdemeanor if:

(A) the value of the property stolen is:

(i) $50 or more but less than $500; or

(ii) $20 or more but less than $500 and the defendant obtained the property by issuing or passing a check or similar sight order in a manner described by Section 31.06;

(B) the value of the property stolen is less than:

(i) $50 and the defendant has previously been convicted of any grade of theft; or

(ii) $20, the defendant has previously been convicted of any grade of theft, and the defendant obtained the property by issuing or passing a check or similar sight order in a manner described by Section 31.06; or

(C) the property stolen is a driver’s license, commercial driver’s license, or personal identification certificate issued by this state or another state;

(3) a Class A misdemeanor if the value of the property stolen is $500 or more but less than $1,500;

(4) a state jail felony if:

(A) the value of the property stolen is $1,500 or more but less than $20,000, or the property is less than 10 head of sheep, swine, or goats or any part thereof under the value of $20,000;

(B) regardless of value, the property is stolen from the person of another or from a human corpse or grave, including property that is a military grave marker;

(C) the property stolen is a firearm, as defined by Section 46.01;

(D) the value of the property stolen is less than $1,500 and the defendant has been previously convicted two or more times of any grade of theft;

(E) the property stolen is an official ballot or official carrier envelope for an election; or

(F) the value of the property stolen is less than $20,000 and the property stolen is:

(i) aluminum;

(ii) bronze;

(iii) copper; or

(iv) brass;

(5) a felony of the third degree if the value of the property stolen is $20,000 or more but less than $100,000, or the property is:

(A) cattle, horses, or exotic livestock or exotic fowl as defined by Section 142.001, Agriculture Code, stolen during a single transaction and having an aggregate value of less than $100,000; or

(B) 10 or more head of sheep, swine, or goats stolen during a single transaction and having an aggregate value of less than $100,000;

(6) a felony of the second degree if:

(A) the value of the property stolen is $100,000 or more but less than $200,000; or

(B) the value of the property stolen is less than $200,000 and the property stolen is an automated teller machine or the contents or components of an automated teller machine; or

(7) a felony of the first degree if the value of the property stolen is $200,000 or more.

(f) An offense described for purposes of punishment by Subsections (e)(1)-(6) is increased to the next higher category of offense if it is shown on the trial of the offense that:

(1) the actor was a public servant at the time of the offense and the property appropriated came into the actor’s custody, possession, or control by virtue of his status as a public servant;

(2) the actor was in a contractual relationship with government at the time of the offense and the property appropriated came into the actor’s custody, possession, or control by virtue of the contractual relationship;

(3) the owner of the property appropriated was at the time of the offense:

(A) an elderly individual; or

(B) a nonprofit organization;

(4) the actor was a Medicare provider in a contractual relationship with the federal government at the time of the offense and the property appropriated came into the actor’s custody, possession, or control by virtue of the contractual relationship; or

(5) during the commission of the offense, the actor intentionally, knowingly, or recklessly:

(A) caused a fire exit alarm to sound or otherwise become activated;

(B) deactivated or otherwise prevented a fire exit alarm or retail theft detector from sounding; or

(C) used a shielding or deactivation instrument to prevent or attempt to prevent detection of the offense by a retail theft detector.

(g) For the purposes of Subsection (a), a person is the owner of exotic livestock or exotic fowl as defined by Section 142.001, Agriculture Code, only if the person qualifies to claim the animal under Section 142.0021, Agriculture Code, if the animal is an estray.

(h) In this section:

(1) “Restricted-use pesticide” means a pesticide classified as a restricted-use pesticide by the administrator of the Environmental Protection Agency under 7 U.S.C. Section 136a, as that law existed on January 1, 1995, and containing an active ingredient listed in the federal regulations adopted under that law (40 C.F.R. Section 152.175) and in effect on that date.

(2) “State-limited-use pesticide” means a pesticide classified as a state-limited-use pesticide by the Department of Agriculture under Section 76.003, Agriculture Code, as that section existed on January 1, 1995, and containing an active ingredient listed in the rules adopted under that section (4 TAC Section 7.24) as that section existed on that date.

(3) “Nonprofit organization” means an organization that is exempt from federal income taxation under Section 501(a), Internal Revenue Code of 1986, by being described as an exempt organization by Section 501(c)(3) of that code.

(4) “Automated teller machine” means an unstaffed electronic information processing device that, at the request of a user, performs a financial transaction through the direct transmission of electronic impulses to a financial institution or through the recording of electronic impulses or other indicia of a transaction for delayed transmission to a financial institution. The term includes an automated banking machine.

(i) For purposes of Subsection (c)(9), “livestock” and “commission merchant” have the meanings assigned by Section 147.001, Agriculture Code.

(j) With the consent of the appropriate local county or district attorney, the attorney general has concurrent jurisdiction with that consenting local prosecutor to prosecute an offense under this section that involves the state Medicaid program.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1975, 64th Leg., p. 914, ch. 342, Sec. 10, eff. Sept. 1, 1975; Acts 1977, 65th Leg., p. 937, ch. 349, Sec. 1, eff. Aug. 29, 1977; Acts 1981, 67th Leg., p. 849, ch. 298, Sec. 1, eff. Sept. 1, 1981; Acts 1981, 67th Leg., p. 2065, ch. 455, Sec. 1, eff. June 11, 1981; Acts 1983, 68th Leg., p. 2918, ch. 497, Sec. 3, eff. Sept. 1, 1983; Acts 1983, 68th Leg., p. 3244, ch. 558, Sec. 11, eff. Sept. 1, 1983; Acts 1983, 68th Leg., p. 4523, ch. 741, Sec. 1, eff. Sept. 1, 1983; Acts 1985, 69th Leg., ch. 599, Sec. 1, eff. Sept. 1, 1985; Acts 1985, 69th Leg., ch. 901, Sec. 1, eff. Sept. 1, 1985; Acts 1987, 70th Leg., ch. 167, Sec. 5.01(a)(45), eff. Sept. 1, 1987; Acts 1989, 71st Leg., ch. 245, Sec. 1, eff. Sept. 1, 1989; Acts 1989, 71st Leg., ch. 724, Sec. 2, 3, eff. Sept. 1, 1989; Acts 1991, 72nd Leg., ch. 14, Sec. 284(80), eff. Sept. 1, 1991; Acts 1991, 72nd Leg., ch. 565, Sec. 1, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 203, Sec. 4, 5, eff. Sept. 1, 1993; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1995, 74th Leg., ch. 318, Sec. 9, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 734, Sec. 1, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 843, Sec. 1, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 165, Sec. 30.238, 31.01(69), eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1153, Sec. 7.01, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 1276, Sec. 1, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 198, Sec. 2.136, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 257, Sec. 13, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 393, Sec. 20, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 432, Sec. 2, eff. Sept. 1, 2003.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 304 (H.B. 1766), Sec. 1, eff. September 1, 2007.

Acts 2009, 81st Leg., R.S., Ch. 70 (H.B. 1282), Sec. 1, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch. 105 (H.B. 1466), Sec. 1, eff. May 23, 2009.

Acts 2009, 81st Leg., R.S., Ch. 139 (S.B. 1163), Sec. 1, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch. 295 (H.B. 348), Sec. 1, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch. 903 (H.B. 671), Sec. 1, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch. 903 (H.B. 671), Sec. 2, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch. 933 (H.B. 3097), Sec. 3J.01, eff. September 1, 2009.

Acts 2011, 82nd Leg., R.S., Ch. 120 (S.B. 887), Sec. 1, eff. September 1, 2011.

Acts 2011, 82nd Leg., R.S., Ch. 120 (S.B. 887), Sec. 2, eff. September 1, 2011.

Acts 2011, 82nd Leg., R.S., Ch. 323 (H.B. 2482), Sec. 2, eff. September 1, 2011.

Acts 2011, 82nd Leg., R.S., Ch. 1234 (S.B. 694), Sec. 21, eff. September 1, 2011.

This section was amended by the 84th Legislature. Pending publication of the current statutes, see H.B. 1396, 84th Legislature, Regular Session, for amendments affecting this section.


 

Sec. 31.04. THEFT OF SERVICE. (a) A person commits theft of service if, with intent to avoid payment for service that the actor knows is provided only for compensation:

 

(1) the actor intentionally or knowingly secures performance of the service by deception, threat, or false token;

 

(2) having control over the disposition of services of another to which the actor is not entitled, the actor intentionally or knowingly diverts the other’s services to the actor’s own benefit or to the benefit of another not entitled to the services;

 

(3) having control of personal property under a written rental agreement, the actor holds the property beyond the expiration of the rental period without the effective consent of the owner of the property, thereby depriving the owner of the property of its use in further rentals; or

 

(4) the actor intentionally or knowingly secures the performance of the service by agreeing to provide compensation and, after the service is rendered, fails to make full payment after receiving notice demanding payment.

 

(b) For purposes of this section, intent to avoid payment is presumed if:

 

(1) the actor absconded without paying for the service or expressly refused to pay for the service in circumstances where payment is ordinarily made immediately upon rendering of the service, as in hotels, campgrounds, recreational vehicle parks, restaurants, and comparable establishments;

 

(2) the actor failed to make payment under a service agreement within 10 days after receiving notice demanding payment;

 

(3) the actor returns property held under a rental agreement after the expiration of the rental agreement and fails to pay the applicable rental charge for the property within 10 days after the date on which the actor received notice demanding payment; or

 

(4) the actor failed to return the property held under a rental agreement:

 

(A) within five days after receiving notice demanding return, if the property is valued at less than $1,500; or

 

(B) within three days after receiving notice demanding return, if the property is valued at $1,500 or more.

 

(c) For purposes of Subsections (a)(4), (b)(2), and (b)(4), notice shall be notice in writing, sent by registered or certified mail with return receipt requested or by telegram with report of delivery requested, and addressed to the actor at his address shown on the rental agreement or service agreement.

 

(d) If written notice is given in accordance with Subsection (c), it is presumed that the notice was received no later than five days after it was sent.

 

(d-1) For purposes of Subsection (a)(4):

 

(1) if the compensation is or was to be paid on a periodic basis, the intent to avoid payment for a service may be formed at any time during or before a pay period; and

 

(2) the partial payment of wages alone is not sufficient evidence to negate the actor’s intent to avoid payment for a service.

 

(e) An offense under this section is:

 

(1) a Class C misdemeanor if the value of the service stolen is less than $20;

 

(2) a Class B misdemeanor if the value of the service stolen is $20 or more but less than $500;

 

(3) a Class A misdemeanor if the value of the service stolen is $500 or more but less than $1,500;

 

(4) a state jail felony if the value of the service stolen is $1,500 or more but less than $20,000;

 

(5) a felony of the third degree if the value of the service stolen is $20,000 or more but less than $100,000;

 

(6) a felony of the second degree if the value of the service stolen is $100,000 or more but less than $200,000; or

 

(7) a felony of the first degree if the value of the service stolen is $200,000 or more.

 

(f) Notwithstanding any other provision of this code, any police or other report of stolen vehicles by a political subdivision of this state shall include on the report any rental vehicles whose renters have been shown to such reporting agency to be in violation of Subsection (b)(2) and shall indicate that the renting agency has complied with the notice requirements demanding return as provided in this section.

 

(g) It is a defense to prosecution under this section that:

 

(1) the defendant secured the performance of the service by giving a post-dated check or similar sight order to the person performing the service; and

 

(2) the person performing the service or any other person presented the check or sight order for payment before the date on the check or sight order.

 

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1977, 65th Leg., p. 1138, ch. 429, Sec. 1, eff. Aug. 29, 1977; Acts 1983, 68th Leg., p. 2920, ch. 497, Sec. 4, eff. Sept. 1, 1983; Acts 1991, 72nd Leg., ch. 565, Sec. 15, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1995, 74th Leg., ch. 479, Sec. 1, eff. Aug. 28, 1995; Acts 1999, 76th Leg., ch. 843, Sec. 1, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1245, Sec. 1, 2, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 419, Sec. 1, eff. Sept. 1, 2003.

 

Amended by:

 

Acts 2011, 82nd Leg., R.S., Ch. 141 (S.B. 1024), Sec. 1, eff. September 1, 2011.

 

 

Sec. 31.05. THEFT OF TRADE SECRETS. (a) For purposes of this section:

 

(1) “Article” means any object, material, device, or substance or any copy thereof, including a writing, recording, drawing, sample, specimen, prototype, model, photograph, microorganism, blueprint, or map.

 

(2) “Copy” means a facsimile, replica, photograph, or other reproduction of an article or a note, drawing, or sketch made of or from an article.

 

(3) “Representing” means describing, depicting, containing, constituting, reflecting, or recording.

 

(4) “Trade secret” means the whole or any part of any scientific or technical information, design, process, procedure, formula, or improvement that has value and that the owner has taken measures to prevent from becoming available to persons other than those selected by the owner to have access for limited purposes.

 

(b) A person commits an offense if, without the owner’s effective consent, he knowingly:

 

(1) steals a trade secret;

 

(2) makes a copy of an article representing a trade secret; or

 

(3) communicates or transmits a trade secret.

 

(c) An offense under this section is a felony of the third degree.

 

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

 

 

Sec. 31.06. PRESUMPTION FOR THEFT BY CHECK OR SIMILAR SIGHT ORDER. (a) If the actor obtained property or secured performance of service by issuing or passing a check or similar sight order for the payment of money, when the issuer did not have sufficient funds in or on deposit with the bank or other drawee for the payment in full of the check or order as well as all other checks or orders then outstanding, it is prima facie evidence of the issuer’s intent to deprive the owner of property under Section 31.03 (Theft) including a drawee or third-party holder in due course who negotiated the check or order or to avoid payment for service under Section 31.04 (Theft of Service) (except in the case of a postdated check or order) if:

 

(1) the issuer had no account with the bank or other drawee at the time the issuer issued the check or sight order; or

 

(2) payment was refused by the bank or other drawee for lack of funds or insufficient funds, on presentation within 30 days after issue, and the issuer failed to pay the holder in full within 10 days after receiving notice of that refusal.

 

(b) For purposes of Subsection (a)(2) or (f)(3), notice may be actual notice or notice in writing that:

 

(1) is sent by:

 

(A) first class mail, evidenced by an affidavit of service; or

 

(B) registered or certified mail with return receipt requested;

 

(2) is addressed to the issuer at the issuer’s address shown on:

 

(A) the check or order;

 

(B) the records of the bank or other drawee; or

 

(C) the records of the person to whom the check or order has been issued or passed; and

 

(3) contains the following statement:

 

“This is a demand for payment in full for a check or order not paid because of a lack of funds or insufficient funds. If you fail to make payment in full within 10 days after the date of receipt of this notice, the failure to pay creates a presumption for committing an offense, and this matter may be referred for criminal prosecution.”

 

(c) If written notice is given in accordance with Subsection (b), it is presumed that the notice was received no later than five days after it was sent.

 

(d) Nothing in this section prevents the prosecution from establishing the requisite intent by direct evidence.

 

(e) Partial restitution does not preclude the presumption of the requisite intent under this section.

 

(f) If the actor obtained property by issuing or passing a check or similar sight order for the payment of money, the actor’s intent to deprive the owner of the property under Section 31.03 (Theft) is presumed, except in the case of a postdated check or order, if:

 

(1) the actor ordered the bank or other drawee to stop payment on the check or order;

 

(2) the bank or drawee refused payment to the holder on presentation of the check or order within 30 days after issue;

 

(3) the owner gave the actor notice of the refusal of payment and made a demand to the actor for payment or return of the property; and

 

(4) the actor failed to:

 

(A) pay the holder within 10 days after receiving the demand for payment; or

 

(B) return the property to the owner within 10 days after receiving the demand for return of the property.

 

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1991, 72nd Leg., ch. 543, Sec. 2, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1995, 74th Leg., ch. 753, Sec. 1, eff. Sept. 1, 1995.

 

Amended by:

 

Acts 2007, 80th Leg., R.S., Ch. 976 (S.B. 548), Sec. 1, eff. September 1, 2007.

 

Acts 2013, 83rd Leg., R.S., Ch. 128 (S.B. 821), Sec. 1, eff. September 1, 2013.

 

Acts 2013, 83rd Leg., R.S., Ch. 128 (S.B. 821), Sec. 2, eff. September 1, 2013.

 

 

Sec. 31.07. UNAUTHORIZED USE OF A VEHICLE. (a) A person commits an offense if he intentionally or knowingly operates another’s boat, airplane, or motor-propelled vehicle without the effective consent of the owner.

 

(b) An offense under this section is a state jail felony.

 

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

 

 

This section was amended by the 84th Legislature. Pending publication of the current statutes, see H.B. 1396, 84th Legislature, Regular Session, for amendments affecting this section.

 


Sec. 31.08. VALUE. (a) Subject to the additional criteria of Subsections (b) and (c), value under this chapter is:

(1) the fair market value of the property or service at the time and place of the offense; or

(2) if the fair market value of the property cannot be ascertained, the cost of replacing the property within a reasonable time after the theft.

(b) The value of documents, other than those having a readily ascertainable market value, is:

(1) the amount due and collectible at maturity less that part which has been satisfied, if the document constitutes evidence of a debt; or

(2) the greatest amount of economic loss that the owner might reasonably suffer by virtue of loss of the document, if the document is other than evidence of a debt.

(c) If property or service has value that cannot be reasonably ascertained by the criteria set forth in Subsections (a) and (b), the property or service is deemed to have a value of $500 or more but less than $1,500.

(d) If the actor proves by a preponderance of the evidence that he gave consideration for or had a legal interest in the property or service stolen, the amount of the consideration or the value of the interest so proven shall be deducted from the value of the property or service ascertained under Subsection (a), (b), or (c) to determine value for purposes of this chapter.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1983, 68th Leg., p. 2920, ch. 497, Sec. 5, eff. Sept. 1, 1983; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 31.09. AGGREGATION OF AMOUNTS INVOLVED IN THEFT. When amounts are obtained in violation of this chapter pursuant to one scheme or continuing course of conduct, whether from the same or several sources, the conduct may be considered as one offense and the amounts aggregated in determining the grade of the offense.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 31.10. ACTOR’S INTEREST IN PROPERTY. It is no defense to prosecution under this chapter that the actor has an interest in the property or service stolen if another person has the right of exclusive possession of the property.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 31.11. TAMPERING WITH IDENTIFICATION NUMBERS. (a) A person commits an offense if the person:

(1) knowingly or intentionally removes, alters, or obliterates the serial number or other permanent identification marking on tangible personal property; or

(2) possesses, sells, or offers for sale tangible personal property and:

(A) the actor knows that the serial number or other permanent identification marking has been removed, altered, or obliterated; or

(B) a reasonable person in the position of the actor would have known that the serial number or other permanent identification marking has been removed, altered, or obliterated.

(b) It is an affirmative defense to prosecution under this section that the person was:

(1) the owner or acting with the effective consent of the owner of the property involved;

(2) a peace officer acting in the actual discharge of official duties; or

(3) acting with respect to a number assigned to a vehicle by the Texas Department of Transportation or the Texas Department of Motor Vehicles, as applicable, and the person was:

(A) in the actual discharge of official duties as an employee or agent of the department; or

(B) in full compliance with the rules of the department as an applicant for an assigned number approved by the department.

(c) Property involved in a violation of this section may be treated as stolen for purposes of custody and disposition of the property.

(d) An offense under this section is a Class A misdemeanor.

(e) In this section, “vehicle” has the meaning given by Section 541.201, Transportation Code.

Added by Acts 1979, 66th Leg., p. 417, ch. 191, Sec. 1, eff. Sept. 1, 1979. Amended by Acts 1983, 68th Leg., p. 4525, ch. 741, Sec. 2, eff. Sept. 1, 1983; Acts 1991, 72nd Leg., ch. 113, Sec. 1, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1997, 75th Leg., ch. 165, Sec. 30.239, eff. Sept. 1, 1997.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 933 (H.B. 3097), Sec. 3J.02, eff. September 1, 2009.

Sec. 31.12. THEFT OF OR TAMPERING WITH MULTICHANNEL VIDEO OR INFORMATION SERVICES. (a) A person commits an offense if, without the authorization of the multichannel video or information services provider, the person intentionally or knowingly:

(1) makes or maintains a connection, whether physically, electrically, electronically, or inductively, to:

(A) a cable, wire, or other component of or media attached to a multichannel video or information services system; or

(B) a television set, videotape recorder, or other receiver attached to a multichannel video or information system;

(2) attaches, causes to be attached, or maintains the attachment of a device to:

(A) a cable, wire, or other component of or media attached to a multichannel video or information services system; or

(B) a television set, videotape recorder, or other receiver attached to a multichannel video or information services system;

(3) tampers with, modifies, or maintains a modification to a device installed by a multichannel video or information services provider; or

(4) tampers with, modifies, or maintains a modification to an access device or uses that access device or any unauthorized access device to obtain services from a multichannel video or information services provider.

(b) In this section:

(1) “Access device,” “connection,” and “device” mean an access device, connection, or device wholly or partly designed to make intelligible an encrypted, encoded, scrambled, or other nonstandard signal carried by a multichannel video or information services provider.

(2) “Encrypted, encoded, scrambled, or other nonstandard signal” means any type of signal or transmission not intended to produce an intelligible program or service without the use of a device, signal, or information provided by a multichannel video or information services provider.

(3) “Multichannel video or information services provider” means a licensed cable television system, video dialtone system, multichannel multipoint distribution services system, direct broadcast satellite system, or other system providing video or information services that are distributed by cable, wire, radio frequency, or other media.

(c) This section does not prohibit the manufacture, distribution, sale, or use of satellite receiving antennas that are otherwise permitted by state or federal law.

(d) An offense under this section is a Class C misdemeanor unless it is shown on the trial of the offense that the actor:

(1) has been previously convicted one time of an offense under this section, in which event the offense is a Class B misdemeanor, or convicted two or more times of an offense under this section, in which event the offense is a Class A misdemeanor; or

(2) committed the offense for remuneration, in which event the offense is a Class A misdemeanor, unless it is also shown on the trial of the offense that the actor has been previously convicted two or more times of an offense under this section, in which event the offense is a Class A misdemeanor with a minimum fine of $2,000 and a minimum term of confinement of 180 days.

(e) For the purposes of this section, each connection, attachment, modification, or act of tampering is a separate offense.

Added by Acts 1995, 74th Leg., ch. 318, Sec. 10, eff. Sept. 1, 1995. Amended by Acts 1999, 76th Leg., ch. 858, Sec. 1, eff. Sept. 1, 1999.

Sec. 31.13. MANUFACTURE, DISTRIBUTION, OR ADVERTISEMENT OF MULTICHANNEL VIDEO OR INFORMATION SERVICES DEVICE. (a) A person commits an offense if the person for remuneration intentionally or knowingly manufactures, assembles, modifies, imports into the state, exports out of the state, distributes, advertises, or offers for sale, with an intent to aid in the commission of an offense under Section 31.12, a device, a kit or part for a device, or a plan for a system of components wholly or partly designed to make intelligible an encrypted, encoded, scrambled, or other nonstandard signal carried or caused by a multichannel video or information services provider.

(b) In this section, “device,” “encrypted, encoded, scrambled, or other nonstandard signal,” and “multichannel video or information services provider” have the meanings assigned by Section 31.12.

(c) This section does not prohibit the manufacture, distribution, advertisement, offer for sale, or use of satellite receiving antennas that are otherwise permitted by state or federal law.

(d) An offense under this section is a Class A misdemeanor.

Added by Acts 1995, 74th Leg., ch. 318, Sec. 10, eff. Sept. 1, 1995. Amended by Acts 1999, 76th Leg., ch. 858, Sec. 2, eff. Sept. 1, 1999.

Sec. 31.14. SALE OR LEASE OF MULTICHANNEL VIDEO OR INFORMATION SERVICES DEVICE. (a) A person commits an offense if the person intentionally or knowingly sells or leases, with an intent to aid in the commission of an offense under Section 31.12, a device, a kit or part for a device, or a plan for a system of components wholly or partly designed to make intelligible an encrypted, encoded, scrambled, or other nonstandard signal carried or caused by a multichannel video or information services provider.

(b) In this section, “device,” “encrypted, encoded, scrambled, or other nonstandard signal,” and “multichannel video or information services provider” have the meanings assigned by Section 31.12.

(c) This section does not prohibit the sale or lease of satellite receiving antennas that are otherwise permitted by state or federal law without providing notice to the comptroller.

(d) An offense under this section is a Class A misdemeanor.

Added by Acts 1999, 76th Leg., ch. 858, Sec. 3, eff. Sept. 1, 1999.

Sec. 31.15. POSSESSION, MANUFACTURE, OR DISTRIBUTION OF CERTAIN INSTRUMENTS USED TO COMMIT RETAIL THEFT. (a) Repealed by Acts 2011, 82nd Leg., R.S., Ch. 323, Sec. 4, eff. September 1, 2011.

(b) A person commits an offense if, with the intent to use the instrument to commit theft, the person:

(1) possesses a shielding or deactivation instrument; or

(2) knowingly manufactures, sells, offers for sale, or otherwise distributes a shielding or deactivation instrument.

(c) An offense under this section is a Class A misdemeanor.

Added by Acts 2001, 77th Leg., ch. 109, Sec. 1, eff. Sept. 1, 2001.

Amended by:

Acts 2011, 82nd Leg., R.S., Ch. 323 (H.B. 2482), Sec. 4, eff. September 1, 2011.

This section was amended by the 84th Legislature. Pending publication of the current statutes, see H.B. 1396, 84th Legislature, Regular Session, for amendments affecting this section.


 

Sec. 31.16. ORGANIZED RETAIL THEFT. (a) Repealed by Acts 2011, 82nd Leg., R.S., Ch. 323, Sec. 4, eff. September 1, 2011.

 

(b) A person commits an offense if the person intentionally conducts, promotes, or facilitates an activity in which the person receives, possesses, conceals, stores, barters, sells, or disposes of:

 

(1) stolen retail merchandise; or

 

(2) merchandise explicitly represented to the person as being stolen retail merchandise.

 

(c) An offense under this section is:

 

(1) a Class B misdemeanor if the total value of the merchandise involved in the activity is less than $50;

 

(2) a Class A misdemeanor if the total value of the merchandise involved in the activity is $50 or more but less than $500;

 

(3) a state jail felony if the total value of the merchandise involved in the activity is $500 or more but less than $1,500;

 

(4) a felony of the third degree if the total value of the merchandise involved in the activity is $1,500 or more but less than $20,000;

 

(5) a felony of the second degree if the total value of the merchandise involved in the activity is $20,000 or more but less than $100,000; or

 

(6) a felony of the first degree if the total value of the merchandise involved in the activity is $100,000 or more.

 

(d) An offense described for purposes of punishment by Subsections (c)(1)-(5) is increased to the next higher category of offense if it is shown on the trial of the offense that:

 

(1) the person organized, supervised, financed, or managed one or more other persons engaged in an activity described by Subsection (b); or

 

(2) during the commission of the offense, a person engaged in an activity described by Subsection (b) intentionally, knowingly, or recklessly:

 

(A) caused a fire exit alarm to sound or otherwise become activated;

 

(B) deactivated or otherwise prevented a fire exit alarm or retail theft detector from sounding; or

 

(C) used a shielding or deactivation instrument to prevent or attempt to prevent detection of the offense by a retail theft detector.

 

(e) Repealed by Acts 2011, 82nd Leg., R.S., Ch. 323, Sec. 4, eff. September 1, 2011.

 

Added by Acts 2007, 80th Leg., R.S., Ch. 1274 (H.B. 3584), Sec. 1, eff. September 1, 2007.

 

Amended by:

 

Acts 2011, 82nd Leg., R.S., Ch. 323 (H.B. 2482), Sec. 3, eff. September 1, 2011.

 

Acts 2011, 82nd Leg., R.S., Ch. 323 (H.B. 2482), Sec. 4, eff. September 1, 2011.

 

Sec. 31.17. UNAUTHORIZED ACQUISITION OR TRANSFER OF CERTAIN FINANCIAL INFORMATION. (a) In this section:

 

(1) “Check” has the meaning assigned by Section 3.104, Business & Commerce Code.

 

(2) “Credit card” and “debit card” have the meanings assigned by Section 32.31.

 

(3) “Financial sight order or payment card information” means financial information that is:

 

(A) contained on either side of a check or similar sight order, check card, debit card, or credit card; or

 

(B) encoded on the magnetic strip or stripe of a check card, debit card, or credit card.

 

(b) A person commits an offense if the person, knowing that the person is not entitled to obtain or possess that financial information:

 

(1) obtains the financial sight order or payment card information of another by use of an electronic, photographic, visual imaging, recording, or other device capable of accessing, reading, recording, capturing, copying, imaging, scanning, reproducing, or storing in any manner the financial sight order or payment card information; or

 

(2) transfers to a third party information obtained as described by Subdivision (1).

 

(c) An offense under Subsection (b)(1) is a Class B misdemeanor. An offense under Subsection (b)(2) is a Class A misdemeanor.

 

(d) If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section or the other law.

 

Added by Acts 2011, 82nd Leg., R.S., Ch. 260 (H.B. 1215), Sec. 1, eff. September 1, 2011.

 



				
Theft: Fraud, welfare, by check, shoplifting

Theft of vehicle, burglary of a vehicle

Texas law prohibits taking property that does not belong to you without the property owner’s consent and with the intent to deprive the owner of the property. People who take others’ property without the intent to return the property commit theft. For example, a fleeing criminal who “hotwires” a car in order to use it as a getaway car and then abandons it has committed theft. Receiving property, knowing that it is stolen, is also theft in Texas. Under Texas law, the buyer of a car that is transferred without a proper title is presumed to know that the car is stolen and can be convicted of theft. (Tex. Penal Code Ann. § 31.03.) For more general information on theft, see Texas Petty Theft and Other Theft Laws.

Classification of Theft

Thefts are classified under Texas law according to the value and nature of the property stolen. The more valuable the stolen property, the more severely the theft is punished. A prosecutor may rely on the fair market value of the property or its replacement value. (Tex. Penal Code Ann. § 31.08.)

Carjacking

Carjacking – taking a car from the owner or driver by force or threat of force – is a serious crime. In Texas, carjacking is prosecuted under the state’s robbery law.

Joyriding

Operating a vehicle without the owner’s consent is a crime, called unauthorized use of a vehicle or joyriding. In contrast to the thief, the joyrider intends to return the vehicle. (Tex. Penal Code Ann. § 31.07.) For example, a child who sneaks out at night using his mother’s car and returns home an hour later could be convicted of joyriding. For more information, see What is the Difference Between Joyriding and Stealing a Car?

Failing to Return a Rental Car

Failing to return a rental car could be prosecuted under Texas’s general theft statute.

Defenses

Consent. In theft and joyriding prosecutions, a defendant could claim that he or she had (or believed he or she had) the owner’s permission or consent to use the vehicle on the instance in question. If the defendant has the owner’s permission, there is no crime.

Intent. In theft cases, the defendant could alternately claim that he or she did not intend to deprive the owner of the vehicle, in which case the crime would be unauthorized use of a vehicle, not theft.

Punishment

The punishment for theft can range from a fine of up to $500 to life imprisonment. Most motor vehicle thefts will be punishable by 180 days to ten years in state jail and a fine of up to $10,000. Joyriding is a state jail felony, punishable by 180 days to two years in state jail and a fine of up to $10,000. For more information on sentencing, see Texas Misdemeanor Crimes by Class and Sentences and Texas Felony Crimes by Class and Sentences.

Obtaining Legal Assistance

A criminal conviction can have extremely serious consequences. In addition to time in state prison or jail and a substantial fine, a conviction can result in a criminal record, which can make it difficult to obtain or keep a job or a professional license. If you are charged with a crime, including theft or joyriding, the best way to avoid a conviction is to work with an experienced Texas criminal defense attorney. An attorney will be able to tell you what to expect in court and how to best protect your rights.

Breaking and entering, burglary of a habitation

Breaking and entering, burglary of a habitation

Each state has its own laws defining burglary, attempted burglary, home invasion (the burglary of a dwelling), and trespass. And penalties vary according to the circumstances of the crime, as described below.

Burglary

In Texas, burglary is defined as unlawfully entering or remaining in any structure (public or private) with the intent to commit a felony, theft, or assault inside. “Home invasion” is included in this definition, and refers specifically to a burglary that occurs within a habitation (any structure or vehicle that is adapted for the overnight accommodation of one or more people). (Tx. Stat. & Code Ann. § 30.02.)

Elements of burglary

The two parts of the definition—unlawful entry and intent to commit a felony, theft, or assault inside— are known as the “elements” of the crime, and to be convicted of burglary, both elements of the crime must be proved beyond a reasonable doubt (or admitted to by the defendant). That is, the prosecutor must prove that the defendant actually entered (or remained in) the building, and entered (or remained) with the intent to commit a felony, theft, or assault therein. Without sufficient proof of each element, the prosecutor may secure a conviction for some other crime (such as trespass or some other crime), but not burglary.

And notice too that the intended crime (such as theft from the building) need not be completed; proof of entry and of the intent to commit one of these crimes inside are the only requirements for a conviction.

Entering the building

The first element of the crime of burglary—entering—may be accomplished in two ways: by breaking into or entering property that you don’t have permission to enter in the first place, or by remaining on property after the time you are permitted to be there has expired.

An example of the second scenario includes legally entering a department store during business hours, but then hiding when the store closes to the public in order to steal merchandise after hours.

Entering with the intent to commit a felony, theft, or assault

The second element of burglary concerns the defendant’s state of mind at the time he or she entered the building. To be convicted of burglary, the defendant must have decided to commit a felony, theft, or assault, and then entered the building (or stayed beyond the permitted time) for that purpose.

Burglary Punishment

The punishment for a burglary conviction depends on the circumstances of the crime.

Burglary of a building that is not a habitation is a state jail felony, and occurs when a defendant unlawfully enters or remains in a public or private building (but not a habitation) with the intent to commit a felony, theft, or assault. (Tx. Stat. & Code Ann. § 30.02(c).)

Burglary of a habitation, or home invasion, is a second degree felony, and occurs when a defendant unlawfully enters or remains in a habitation with the intent to commit a felony theft or an assault therein. The crime increases to a first degree felony if the defendant entered the habitation with the intent to commit a felony other than felony theft therein. (Tx. Stat. & Code Ann. § 30.02(d).)

Burglary of a Vehicle

 Burglary of a vehicle is a class A misdemeanor, and occurs when a defendant breaks into or unlawfully enters a vehicle that is not used for habitation with the intent to commit a felony or theft therein.

The entry element is satisfied if the defendant inserted any body part or object connected to the body into the vehicle. For example, sticking a coat hanger through an open car window to extract and steal a purse from the car meets both entry and intent to commit a felony or theft elements.

Vehicles that are adapted for overnight accommodation (such as a house trailer, or even a car that a reasonable person would perceive as being used as a habitation) are considered a habitation for the purposes of punishment, described above in “Burglary of a habitation.”

Penalties increase for second and subsequent offenses, and if the vehicle was a rail car. (Tx. Stat. & Code Ann. § 30.04.)

Criminal Trespass

Similar to burglary, criminal trespass is defined as knowingly entering onto (or remaining on) private property without the consent of the owner. The property may include land or a building or other structure.

The difference between trespass and burglary is that trespass does not have the element of entering with the intent to commit a crime (the second element of burglary), as explained above. Instead, merely entering (or remaining) without consent qualifies as trespass.

Entry means the entire body, and lack of consent may be direct (an owner saying “you may not enter my property”), or inferred on property that has fencing, conspicuously-posted signs that are reasonably likely to come to the attention of intruders, or other indicators that the land or structure is private property.

Criminal trespass is a class B misdemeanor, unless it occurred on certain agricultural or residential lands near protected freshwater areas, in which case it is a class C misdemeanor. The crime increases to a class A misdemeanor if the offense was committed in a habitation, shelter center, or other specified locations, or if the defendant carried a deadly weapon during the offense. (Tx. Stat. & Code Ann. § 30.05.)

Talk to a Lawyer

If you have been charged with burglary, criminal trespass, or a related crime, or if you have questions about state laws, consult a qualified local criminal defense attorney. Only an attorney can review the unique facts of your situation, and advise you on how the law will apply to your case.

Arson

Arson

PENAL CODE


TITLE 7. OFFENSES AGAINST PROPERTY


CHAPTER 28. ARSON, CRIMINAL MISCHIEF, AND OTHER PROPERTY DAMAGE OR DESTRUCTION


Sec. 28.01. DEFINITIONS. In this chapter:

(1) “Habitation” means a structure or vehicle that is adapted for the overnight accommodation of persons and includes:

(A) each separately secured or occupied portion of the structure or vehicle; and

(B) each structure appurtenant to or connected with the structure or vehicle.

(2) “Building” means any structure or enclosure intended for use or occupation as a habitation or for some purpose of trade, manufacture, ornament, or use.

(3) “Property” means:

(A) real property;

(B) tangible or intangible personal property, including anything severed from land; or

(C) a document, including money, that represents or embodies anything of value.

(4) “Vehicle” includes any device in, on, or by which any person or property is or may be propelled, moved, or drawn in the normal course of commerce or transportation.

(5) “Open-space land” means real property that is undeveloped for the purpose of human habitation.

(6) “Controlled burning” means the burning of unwanted vegetation with the consent of the owner of the property on which the vegetation is located and in such a manner that the fire is controlled and limited to a designated area.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1979, 66th Leg., p. 1216, ch. 588, Sec. 1, eff. Sept. 1, 1979; Acts 1989, 71st Leg., ch. 31, Sec. 1, eff. Sept. 1, 1989; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 28.02. ARSON. (a) A person commits an offense if the person starts a fire, regardless of whether the fire continues after ignition, or causes an explosion with intent to destroy or damage:

(1) any vegetation, fence, or structure on open-space land; or

(2) any building, habitation, or vehicle:

(A) knowing that it is within the limits of an incorporated city or town;

(B) knowing that it is insured against damage or destruction;

(C) knowing that it is subject to a mortgage or other security interest;

(D) knowing that it is located on property belonging to another;

(E) knowing that it has located within it property belonging to another; or

(F) when the person is reckless about whether the burning or explosion will endanger the life of some individual or the safety of the property of another.

(a-1) A person commits an offense if the person recklessly starts a fire or causes an explosion while manufacturing or attempting to manufacture a controlled substance and the fire or explosion damages any building, habitation, or vehicle.

(a-2) A person commits an offense if the person intentionally starts a fire or causes an explosion and in so doing:

(1) recklessly damages or destroys a building belonging to another; or

(2) recklessly causes another person to suffer bodily injury or death.

(b) It is an exception to the application of Subsection (a)(1) that the fire or explosion was a part of the controlled burning of open-space land.

(c) It is a defense to prosecution under Subsection (a)(2)(A) that prior to starting the fire or causing the explosion, the actor obtained a permit or other written authorization granted in accordance with a city ordinance, if any, regulating fires and explosions.

(d) An offense under Subsection (a) is a felony of the second degree, except that the offense is a felony of the first degree if it is shown on the trial of the offense that:

(1) bodily injury or death was suffered by any person by reason of the commission of the offense; or

(2) the property intended to be damaged or destroyed by the actor was a habitation or a place of assembly or worship.

(e) An offense under Subsection (a-1) is a state jail felony, except that the offense is a felony of the third degree if it is shown on the trial of the offense that bodily injury or death was suffered by any person by reason of the commission of the offense.

(f) An offense under Subsection (a-2) is a state jail felony.

(g) If conduct that constitutes an offense under Subsection (a-1) or that constitutes an offense under Subsection (a-2) also constitutes an offense under another subsection of this section or another section of this code, the actor may be prosecuted under Subsection (a-1) or Subsection (a-2), under the other subsection of this section, or under the other section of this code.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1979, 66th Leg., p. 1216, ch. 588, Sec. 2, eff. Sept. 1, 1979; Acts 1981, 67th Leg., p. 1837, ch. 425, Sec. 1, eff. Sept. 1, 1981; Acts 1989, 71st Leg., ch. 31, Sec. 2, eff. Sept. 1, 1989; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1997, 75th Leg., ch. 1006, Sec. 1, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 976, Sec. 1, eff. Sept. 1, 2001.

Amended by:

Acts 2005, 79th Leg., Ch. 960 (H.B. 1634), Sec. 1, eff. September 1, 2005.

Acts 2009, 81st Leg., R.S., Ch. 1168 (H.B. 3224), Sec. 1, eff. September 1, 2009.

This section was amended by the 84th Legislature. Pending publication of the current statutes, see H.B. 1396, 84th Legislature, Regular Session, for amendments affecting this section.


Sec. 28.03. CRIMINAL MISCHIEF. (a) A person commits an offense if, without the effective consent of the owner:

(1) he intentionally or knowingly damages or destroys the tangible property of the owner;

(2) he intentionally or knowingly tampers with the tangible property of the owner and causes pecuniary loss or substantial inconvenience to the owner or a third person; or

(3) he intentionally or knowingly makes markings, including inscriptions, slogans, drawings, or paintings, on the tangible property of the owner.

(b) Except as provided by Subsections (f) and (h), an offense under this section is:

(1) a Class C misdemeanor if:

(A) the amount of pecuniary loss is less than $50; or

(B) except as provided in Subdivision (3)(A) or (3)(B), it causes substantial inconvenience to others;

(2) a Class B misdemeanor if the amount of pecuniary loss is $50 or more but less than $500;

(3) a Class A misdemeanor if:

(A) the amount of pecuniary loss is $500 or more but less than $1,500; or

(B) the actor causes in whole or in part impairment or interruption of any public water supply, or causes to be diverted in whole, in part, or in any manner, including installation or removal of any device for any such purpose, any public water supply, regardless of the amount of the pecuniary loss;

(4) a state jail felony if the amount of pecuniary loss is:

(A) $1,500 or more but less than $20,000;

(B) less than $1,500, if the property damaged or destroyed is a habitation and if the damage or destruction is caused by a firearm or explosive weapon;

(C) less than $1,500, if the property was a fence used for the production or containment of:

(i) cattle, bison, horses, sheep, swine, goats, exotic livestock, or exotic poultry; or

(ii) game animals as that term is defined by Section 63.001, Parks and Wildlife Code; or

(D) less than $20,000 and the actor causes wholly or partly impairment or interruption of public communications, public transportation, public gas or power supply, or other public service, or causes to be diverted wholly, partly, or in any manner, including installation or removal of any device for any such purpose, any public communications or public gas or power supply;

(5) a felony of the third degree if the amount of the pecuniary loss is $20,000 or more but less than $100,000;

(6) a felony of the second degree if the amount of pecuniary loss is $100,000 or more but less than $200,000; or

(7) a felony of the first degree if the amount of pecuniary loss is $200,000 or more.

(c) For the purposes of this section, it shall be presumed that a person who is receiving the economic benefit of public communications, public water, gas, or power supply, has knowingly tampered with the tangible property of the owner if the communication or supply has been:

(1) diverted from passing through a metering device; or

(2) prevented from being correctly registered by a metering device; or

(3) activated by any device installed to obtain public communications, public water, gas, or power supply without a metering device.

(d) The terms “public communication, public transportation, public gas or power supply, or other public service” and “public water supply” shall mean, refer to, and include any such services subject to regulation by the Public Utility Commission of Texas, the Railroad Commission of Texas, or the Texas Natural Resource Conservation Commission or any such services enfranchised by the State of Texas or any political subdivision thereof.

(e) When more than one item of tangible property, belonging to one or more owners, is damaged, destroyed, or tampered with in violation of this section pursuant to one scheme or continuing course of conduct, the conduct may be considered as one offense, and the amounts of pecuniary loss to property resulting from the damage to, destruction of, or tampering with the property may be aggregated in determining the grade of the offense.

(f) An offense under this section is a state jail felony if the damage or destruction is inflicted on a place of worship or human burial, a public monument, or a community center that provides medical, social, or educational programs and the amount of the pecuniary loss to real property or to tangible personal property is less than $20,000.

(g) In this section:

(1) “Explosive weapon” means any explosive or incendiary device that is designed, made, or adapted for the purpose of inflicting serious bodily injury, death, or substantial property damage, or for the principal purpose of causing such a loud report as to cause undue public alarm or terror, and includes:

(A) an explosive or incendiary bomb, grenade, rocket, and mine;

(B) a device designed, made, or adapted for delivering or shooting an explosive weapon; and

(C) a device designed, made, or adapted to start a fire in a time-delayed manner.

(2) “Firearm” has the meaning assigned by Section 46.01.

(3) “Institution of higher education” has the meaning assigned by Section 61.003, Education Code.

(4) “Aluminum wiring” means insulated or noninsulated wire or cable that consists of at least 50 percent aluminum, including any tubing or conduit attached to the wire or cable.

(5) “Bronze wiring” means insulated or noninsulated wire or cable that consists of at least 50 percent bronze, including any tubing or conduit attached to the wire or cable.

(6) “Copper wiring” means insulated or noninsulated wire or cable that consists of at least 50 percent copper, including any tubing or conduit attached to the wire or cable.

(7) “Transportation communications equipment” means:

(A) an official traffic-control device, railroad sign or signal, or traffic-control signal, as those terms are defined by Section 541.304, Transportation Code; or

(B) a sign, signal, or device erected by a railroad, public body, or public officer to direct the movement of a railroad train, as defined by Section 541.202, Transportation Code.

(8) “Transportation communications device” means any item attached to transportation communications equipment, including aluminum wiring, bronze wiring, and copper wiring.

(h) An offense under this section is a state jail felony if the amount of the pecuniary loss to real property or to tangible personal property is $1,500 or more but less than $20,000 and the damage or destruction is inflicted on a public or private elementary school, secondary school, or institution of higher education.

(i) Notwithstanding Subsection (b), an offense under this section is a felony of the first degree if the property is livestock and the damage is caused by introducing bovine spongiform encephalopathy, commonly known as mad cow disease, or a disease described by Section 161.041(a), Agriculture Code. In this subsection, “livestock” has the meaning assigned by Section 161.001, Agriculture Code.

(j) Notwithstanding Subsection (b), an offense under this section is a felony of the third degree if:

(1) the tangible property damaged, destroyed, or tampered with is transportation communications equipment or a transportation communications device; and

(2) the amount of the pecuniary loss to the tangible property is less than $100,000.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1981, 67th Leg., p. 66, ch. 29, Sec. 1, eff. Aug. 31, 1981; Acts 1983, 68th Leg., p. 2917, ch. 497, Sec. 1, eff. Sept. 1, 1983; Acts 1985, 69th Leg., ch. 352, Sec. 1, eff. Sept. 1, 1985; Acts 1989, 71st Leg., ch. 559, Sec. 1, eff. June 14, 1989; Acts 1989, 71st Leg., ch. 1253, Sec. 1, eff. Sept. 1, 1989; Acts 1989, 71st Leg., 1st C.S., ch. 42, Sec. 1, eff. Sept. 1, 1989; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1995, 74th Leg., ch. 76, Sec. 11.280, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1083, Sec. 1, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 686, Sec. 1, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 747, Sec. 1, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 976, Sec. 2, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 1280, Sec. 1, eff. Sept. 1, 2003.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 690 (H.B. 1767), Sec. 1, eff. September 1, 2007.

Acts 2007, 80th Leg., R.S., Ch. 690 (H.B. 1767), Sec. 2, eff. September 1, 2007.

Acts 2009, 81st Leg., R.S., Ch. 638 (H.B. 1614), Sec. 1, eff. September 1, 2009.

Sec. 28.04. RECKLESS DAMAGE OR DESTRUCTION. (a) A person commits an offense if, without the effective consent of the owner, he recklessly damages or destroys property of the owner.

(b) An offense under this section is a Class C misdemeanor.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 28.05. ACTOR’S INTEREST IN PROPERTY. It is no defense to prosecution under this chapter that the actor has an interest in the property damaged or destroyed if another person also has an interest that the actor is not entitled to infringe.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

This section was amended by the 84th Legislature. Pending publication of the current statutes, see H.B. 1396, 84th Legislature, Regular Session, for amendments affecting this section.


Sec. 28.06. AMOUNT OF PECUNIARY LOSS. (a) The amount of pecuniary loss under this chapter, if the property is destroyed, is:

(1) the fair market value of the property at the time and place of the destruction; or

(2) if the fair market value of the property cannot be ascertained, the cost of replacing the property within a reasonable time after the destruction.

(b) The amount of pecuniary loss under this chapter, if the property is damaged, is the cost of repairing or restoring the damaged property within a reasonable time after the damage occurred.

(c) The amount of pecuniary loss under this chapter for documents, other than those having a readily ascertainable market value, is:

(1) the amount due and collectible at maturity less any part that has been satisfied, if the document constitutes evidence of a debt; or

(2) the greatest amount of economic loss that the owner might reasonably suffer by virtue of the destruction or damage if the document is other than evidence of a debt.

(d) If the amount of pecuniary loss cannot be ascertained by the criteria set forth in Subsections (a) through (c), the amount of loss is deemed to be greater than $500 but less than $1,500.

(e) If the actor proves by a preponderance of the evidence that he gave consideration for or had a legal interest in the property involved, the value of the interest so proven shall be deducted from:

(1) the amount of pecuniary loss if the property is destroyed; or

(2) the amount of pecuniary loss to the extent of an amount equal to the ratio the value of the interest bears to the total value of the property, if the property is damaged.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1983, 68th Leg., p. 2918, ch. 497, Sec. 2, eff. Sept. 1, 1983; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

This section was amended by the 84th Legislature. Pending publication of the current statutes, see H.B. 1396, 84th Legislature, Regular Session, for amendments affecting this section.


Sec. 28.07. INTERFERENCE WITH RAILROAD PROPERTY. (a) In this section:

(1) “Railroad property” means:

(A) a train, locomotive, railroad car, caboose, work equipment, rolling stock, safety device, switch, or connection that is owned, leased, operated, or possessed by a railroad; or

(B) a railroad track, rail, bridge, trestle, or right-of-way owned or used by a railroad.

(2) “Tamper” means to move, alter, or interfere with railroad property.

(b) A person commits an offense if the person:

(1) throws an object or discharges a firearm or weapon at a train or rail-mounted work equipment; or

(2) without the effective consent of the owner:

(A) enters or remains on railroad property, knowing that it is railroad property;

(B) tampers with railroad property;

(C) places an obstruction on a railroad track or right-of-way; or

(D) causes in any manner the derailment of a train, railroad car, or other railroad property that moves on tracks.

(c) An offense under Subsection (b)(1) is a Class B misdemeanor unless the person causes bodily injury to another, in which event the offense is a felony of the third degree.

(d) An offense under Subsection (b)(2)(A) is a Class C misdemeanor.

(e) An offense under Subsection (b)(2)(B), (b)(2)(C), or (b)(2)(D) is a Class C misdemeanor unless the person causes pecuniary loss, in which event the offense is:

(1) a Class B misdemeanor if the amount of pecuniary loss is $20 or more but less than $500;

(2) a Class A misdemeanor if the amount of pecuniary loss is $500 or more but less than $1,500;

(3) a state jail felony if the amount of pecuniary loss is $1,500 or more but less than $20,000;

(4) a felony of the third degree if the amount of the pecuniary loss is $20,000 or more but less than $100,000;

(5) a felony of the second degree if the amount of pecuniary loss is $100,000 or more but less than $200,000; or

(6) a felony of the first degree if the amount of the pecuniary loss is $200,000 or more.

(f) The conduct described in Subsection (b)(2)(A) is not an offense under this section if it is undertaken by an employee of the railroad or by a representative of a labor organization which represents or is seeking to represent the employees of the railroad as long as the employee or representative has a right to engage in such conduct under the Railway Labor Act (45 U.S.C. Section 151 et seq.).

Added by Acts 1989, 71st Leg., ch. 908, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

This section was amended by the 84th Legislature. Pending publication of the current statutes, see H.B. 1396, 84th Legislature, Regular Session, for amendments affecting this section.


Sec. 28.08. GRAFFITI. (a) A person commits an offense if, without the effective consent of the owner, the person intentionally or knowingly makes markings, including inscriptions, slogans, drawings, or paintings, on the tangible property of the owner with:

(1) paint;

(2) an indelible marker; or

(3) an etching or engraving device.

(b) Except as provided by Subsection (d), an offense under this section is:

(1) a Class B misdemeanor if the amount of pecuniary loss is less than $500;

(2) a Class A misdemeanor if the amount of pecuniary loss is $500 or more but less than $1,500;

(3) a state jail felony if the amount of pecuniary loss is $1,500 or more but less than $20,000;

(4) a felony of the third degree if the amount of pecuniary loss is $20,000 or more but less than $100,000;

(5) a felony of the second degree if the amount of pecuniary loss is $100,000 or more but less than $200,000; or

(6) a felony of the first degree if the amount of pecuniary loss is $200,000 or more.

(c) When more than one item of tangible property, belonging to one or more owners, is marked in violation of this section pursuant to one scheme or continuing course of conduct, the conduct may be considered as one offense, and the amounts of pecuniary loss to property resulting from the marking of the property may be aggregated in determining the grade of the offense.

(d) An offense under this section is a state jail felony if:

(1) the marking is made on a school, an institution of higher education, a place of worship or human burial, a public monument, or a community center that provides medical, social, or educational programs; and

(2) the amount of the pecuniary loss to real property or to tangible personal property is less than $20,000.

(e) In this section:

(1) “Aerosol paint” means an aerosolized paint product.

(2) “Etching or engraving device” means a device that makes a delineation or impression on tangible property, regardless of the manufacturer’s intended use for that device.

(3) “Indelible marker” means a device that makes a mark with a paint or ink product that is specifically formulated to be more difficult to erase, wash out, or remove than ordinary paint or ink products.

(4) “Institution of higher education” has the meaning assigned by Section 481.134, Health and Safety Code.

(5) “School” means a private or public elementary or secondary school.

Added by Acts 1997, 75th Leg., ch. 593, Sec. 1, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 166, Sec. 1, 2, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 695, Sec. 1, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1420, Sec. 16.001, eff. Sept. 1, 2001.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 639 (H.B. 1633), Sec. 4, eff. September 1, 2009.



				
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