The Fraudulent Use or Possession of Identifying Information crime makes it illegal in the state of Texas to have someone else’s ID or other identification documents without that person’s permission, but only if you intended to cause some harm or commit fraud.

UPDATE: This law was updated slightly in the 86th Texas Legislative Session. Learn more about the change below

If the ID belonged to someone under 18 years old, then possession under the circumstances above is an offense regardless of whether the juvenile consented. Also, note that the government may accuse you of having a bad intent even if you didn’t really mean any harm. For example, the law says that the government may presume you intended to cause harm under certain circumstances, described in more detail below.

Fraudulent Use or Possession of Identifying Information is classified in the Texas Penal Code under Title 7 “Offenses Against Property,” Chapter 32 “Fraud.” Learn more detailed information about the Fraudulent Use or Possession of Identifying Information offense below.

What is the current Texas law about Fraudulent Use or Possession of Identifying Information?

The current Texas law defines the offense of Fraudulent Use or Possession of Identifying Information in Penal Code Section §32.51 as follows:^[1]

(b) A person commits an offense if the person, with the intent to harm or defraud another, obtains, possesses, transfers, or uses an item of:

(1) identifying information of another person without the other person’s consent or effective consent;

(2) information concerning a deceased natural person, including a stillborn infant or fetus, that would be identifying information of that person were that person alive, if the item of information is obtained, possessed, transferred, or used without legal authorization; or

(3) identifying information of a child younger than 18 years of age.

(b-1) For the purposes of Subsection (b), the actor is presumed to have the intent to harm or defraud another if the actor possesses:

(1) the identifying information of three or more other persons;

(2) information described by Subsection (b)(2) concerning three or more deceased persons; or

(3) information described by Subdivision (1) or (2) concerning three or more persons or deceased persons.

(b-2) The presumption established under Subsection (b-1) does not apply to a business or other commercial entity or a government agency that is engaged in a business activity or governmental function that does not violate a penal law of this state.

The “or effective consent” in subsection (b)(1) was added by the state legislature effective as of September 1, 2019.^[2]

How can I be charged with Fraudulent Use or Possession of Identifying Information?

You can be charged with Fraudulent Use or Possession of Identifying Information if the state’s attorneys believe that each of the elements of 32.51(b) as described in the section above have been met.

In addition, the it is presumed that you intended to cause harm if the you possessed identifying information of three or more different people.^[3] Presumptions are not the same things as conclusions, however. Presumptions are always rebuttable.

What is the punishment for Fraudulent Use or Possession of Identifying Information?

If the number of items obtained or used is 5 or less, then a conviction for Fraudulent Use or Possession of Identifying Information is punished as a State Jail Felony,^[4] with a maximum possible fine under Texas state law of up to $10,000 and jail time of up to two years.

If the number of items obtained or used is 5 or more but less than 10, then a conviction for Fraudulent Use or Possession of Identifying Information is punished as a Felony of the Third Degree,^[5] with a maximum possible fine under Texas state law of up to $10,000 and prison time of up to 10 years.

If the number of items obtained or used is 10 or more but less than 50 then a conviction for Fraudulent Use or Possession of Identifying Information is punished as a Felony of the Second Degree,^[6] with a maximum possible fine under Texas state law of up to $10,000 and prison time of up to 20 years.

If the number of items obtained or used is more than 50 then a conviction for Fraudulent Use or Possession of Identifying Information is punished as a Felony of the First Degree,^[7] with a maximum possible fine under Texas state law of up to $10,000 and prison time of up to 99 years. Learn about the differences between grades of felonies and misdemeanors

In addition, the punishment may be enhanced to the next higher category of offense if it was committed against an elderly person or in an attempt to avoid sex offender registration.^[8]

---

Legal References:

^1. Texas Penal Code §32.51^2. HB 2697, 86th Texas Legislature, Section 2^3. Texas Penal Code §32.51(b-1)^4. Texas Penal Code §32.51(c)(1)^5. Texas Penal Code §32.51(c)(2)^6. Texas Penal Code §32.51(c)(3)^7. Texas Penal Code §32.51(c)(4)^8. Texas Penal Code §32.51(c-1)