Arson: Texas Penal Code §28.02

The Texas Arson law makes it illegal to start a fire or cause an explosion under certain dangerous circumstances.

The Arson offense requires the state to prove the specific intent to cause damage unless the fire or explosion actually caused damage or injured a person. If the fire caused damage or injury, then the state only has to prove that you were reckless.

On the other hand, the state does not have to prove that you actually caused any damage so long as they can prove you had the intent to cause damage.

The Texas legislature codified this criminal offense in Texas Penal Code Section 28.02. The law was not updated in 2023. In fact, this law has not been amended since 2009.

The Penal Code classifies the Texas Arson law under Title 7 “Offenses Against Property,” Chapter 28 “Arson, Criminal Mischief, and Other Property Damage or Destruction.” Crimes under this chapter cover a wide range of offenses that focus on actions taken against property belong to other people. These offenses include both destructive actions and aesthetic changes. Learn more about the Texas offense of Arson below.

What is the current Texas law about Arson?

Texas law currently defines the offense of Arson in Penal Code Section §28.02 as follows:^[1]

(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.

Are there any defenses to prosecution?

Texas law provides a defense for any subsection (a)(2)(A) prosecution that prior to starting the fire or causing the explosion, you obtained a permit or other written authorization granted in accordance with a city ordinance, if any, regulating fires and explosions.^[2] In addition, subsection (a)(1) does not apply to controlled burning of open-space land.^[3]

How can I be charged with an Arson offense in Texas?

You can be charged with Arson in Texas if the state’s attorneys believe that each of the elements of 28.02(a) as described in the section above have been met.

However, there is an exception to a Subsection (a)(1) offense. In addition to proving the that there you intended to burn open-space land, the state also has to prove that the fire or explosion was not a part of the controlled burning of open-space land.^[4]

If you obtained a municipal permit to burn something, then you might still be subject to an Arson prosecution by state attorneys, but you can assert a defense at trial that prior to starting the fire or causing the explosion, you obtained a permit or other written authorization granted in accordance with a city ordinance regulating fires and explosions.^[5]

What is the statute of limitation for Arson in Texas?

Arson has a ten year limitations period under Texas law.^[6]

What is the penalty for a Texas Arson offense?

If the offense falls under subsection (a), then a conviction for Arson in Texas is punished as a second degree felony (with a maximum possible fine under Texas state law of up to $10,000 and prison time of up to 20 years), unless the fire caused any injury or the property was a home or place of worship, in which case the offense is punished as a first degree felony (with a maximum possible fine under Texas state law of up to $10,000 and up to life in prison).^[7]

If the offense falls under subsection (a) (related to manufacturing illegal drugs), then Arson convictions in Texas are punished as a state jail felony (with a maximum possible fine under Texas state law of up to $10,000 and jail time of up to 2 years), unless the fire causes serious bodily injury or death, in which case it is a third degree felony (with a maximum possible fine under Texas state law of up to $10,000 and prison time of up to 10 years).^[8]

If the state does not prove a specific intent and only obtains a conviction under the “reckless” subsection (a-2) offense, then a conviction is punished as a state jail felony.^[9]

Effective February 4, 2024, any violation of this offense punishable as a state jail felony can be enhanced to a third degree felony if the state can prove you committed the offense in the course of committing a Smuggling of Persons offense.^[10]

Can you get probation for Arson in Texas?

The Texas Code of Criminal Procedure allows both judges and juries to grant probation for Arson, and judges are also allowed to accept deferred adjudication plea deals.^[11]

Note, however, that no matter the offense, neither judges nor juries may recommend community supervision for any suspended sentence of over 10 years.^[12] Also, judges may not grant community supervision after a conviction if (1) the defendant used or exhibited a deadly weapon during the commission of the felony or immediate flight thereafter and (2) the defendant used or exhibited the deadly weapon himself or was a party to the offense and knew that a deadly weapon would be used or exhibited.^[13]

What level of crime is Arson in Texas?

The punishment classification for the Arson offense in the code ranges from a state jail felony to a first degree felony.

Learn more about the penalty range for this offense in the section above.

---

Legal References:

^1. Texas Penal Code §28.02. This law is current as of 2024.^2. Texas Penal Code §28.02(c)^3. Texas Penal Code §28.02(b)^4. Texas Penal Code §28.02(b)^5. Texas Penal Code §28.02(c)^6. Code of Criminal Procedure 12.01(2)(F)^7. Texas Penal Code §28.02(d)^8. Texas Penal Code §28.02(e)^9. Texas Penal Code §28.02(f)^10. Texas Penal Code §28.10, as enacted by SB 4, 88th Texas Legislature (SS3), Section 7^11. See Chapter 42, Texas Code of Criminal Procedure, Art. 42A.054, Art. 42A.056, Art. 42A.102^12 Art. 42A.053(c), Texas Code of Criminal Procedure^13. Art. 42A.054(b), Texas Code of Criminal Procedure