Damaging Critical Infrastructure Facility: Texas Penal Code §28.09

The Texas Damaging Critical Infrastructure Facility law gives police the right to arrest you if they believe you damaged the Texas power grid and cause a power outage.

Before this law passed in 2023, Texas law did not expressly and specifically penalize attacks on electric grid infrastructure – instead, any such acts would likely have been prosecuted under the Criminal Mischief statute.

The legislature created this law in 2023, and it went into effect on September 1, 2023. The law was codified at Section 28.09 of the Texas Penal code.

The Penal Code classifies the Texas Damaging Critical Infrastructure Facility 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 Damaging Critical Infrastructure Facility below.

What is the current Texas law about Damaging Critical Infrastructure Facility?

Texas law currently defines the offense of Damaging Critical Infrastructure Facility in Penal Code Section §28.09 as follows:^[1]

(b) A person commits an offense if, without the effective consent of the owner or operator of a critical infrastructure facility, the person:

(1) intentionally or knowingly damages, destroys, vandalizes, or impairs the function of any critical infrastructure facility; and

(2) as a result of the conduct described by Subdivision (1), causes an extended power outage.

This offense was created by the 88th Texas Legislature in 2023,^[2] effective September 1, 2023.^[3]

How can I be charged with a Damaging Critical Infrastructure Facility offense in Texas?

You can be charged with Damaging Critical Infrastructure Facility in Texas if the state’s attorneys believe that each of the elements of 28.09 as described in the section above have been met.

What is the statute of limitation for Damaging Critical Infrastructure Facility in Texas?

Damaging Critical Infrastructure Facility offenses have a three-year limitations period.^[4]

What is the penalty for a Texas Damaging Critical Infrastructure Facility offense?

Damaging Critical Infrastructure Facility in Texas is punished as either a first or second degree felony, depending on the circumstances. The penalty is ehanced to a first-degree felony if the amount of pecuniary damage to the facility is $100,000 or more or if the actor uses a firearm, drone, cyber attack, or explosive weapon in the commission of the offense.^[5]

Can you get probation for Damaging Critical Infrastructure Facility in Texas?

The Texas Code of Criminal Procedure allows both judges and juries to grant probation for Damaging Critical Infrastructure Facility, and judges are also allowed to accept deferred adjudication plea deals.^[6]

Note, however, that no matter the offense, neither judges nor juries may recommend community supervision for any suspended sentence of over 10 years.^[7] 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.^[8]

What level of crime is Damaging Critical Infrastructure Facility in Texas?

The Penal Code classifies the punishment for Damaging Critical Infrastructure Facility as a second or third degree felony, depending on the circumstances.

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

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Legal References:

^1. Texas Penal Code §28.09. This law is current as of 2024.^2. SB 947, 88th Texas Legislature (RS), Section 2^3. SB 947, 88th Texas Legislature (RS), Section 4^4. See Code of Criminal Procedure 12.01(9)^5. Texas Penal Code §28.09(c)^6. See Chapter 42, Texas Code of Criminal Procedure, Art. 42A.054, Art. 42A.056, Art. 42A.102^7. Art. 42A.053(c), Texas Code of Criminal Procedure^8. Art. 42A.054(b), Texas Code of Criminal Procedure