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Harassment

The Texas crime of Harassment is a misdemeanor offense that outlaws certain abusive behaviors made with the specific intent to “harass, annoy, alarm, abuse, torment, or embarrass” someone. There are seven specific abusive behaviors listed in the Texas Harassment statute, and these behaviors are discussed in detail below.

If the state’s attorneys want to convict you of Harassment, they will have to prove that you did one of those seven specific behaviors and that you had the specific intent to harass, annoy, alarm, abuse, torment, or embarrass. If the state alleges that you harassed someone on more than one occasion, the state might charge you with the more serious crime of Stalking under Texas law.

Have you been charged with Harassment? Call criminal defense lawyer Paul Saputo at (888) 239-9305.

The Harassment law was amended in 2017 with the passage of S.B. 179 in the 85th Texas Legislature. The law now covers additional forms of electronic communication, as described below, and there is another enhancement available when the victim is under 18 or the actor has had a previous violation of a protective order, also as described below. The new law takes effect September 1, 2017.1

What is the Harassment law?

The law describing the Texas crime of Harassment can be found in Section 42.07 of the Texas Penal Code:

(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person:

(1) initiates communication and in the course of the communication makes a comment, request, suggestion, or proposal that is obscene;

(2) threatens, in a manner reasonably likely to alarm the person receiving the threat, to inflict bodily injury on the person or to commit a felony against the person, a member of the person’s family or household, or the person’s property;

(3) conveys, in a manner reasonably likely to alarm the person receiving the report, a false report, which is known by the conveyor to be false, that another person has suffered death or serious bodily injury;

(4) causes the telephone of another to ring repeatedly or makes repeated telephone communications anonymously or in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another;

(5) makes a telephone call and intentionally fails to hang up or disengage the connection;

(6) knowingly permits a telephone under the person’s control to be used by another to commit an offense under this section; or

(7) sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.

A typical case of Harassment stems from phone callas, text messages or social media postings. But however the communication is made, the behaviors must be one of the seven listed above, such as making an “obscene” remark, a threat, a false report that someone was injured or died, sending repeated annoying messages or making repeated annoying phone calls. The classic “prank call” could be considered Harassment under the Texas Harassment law.

What are electronic communications

Electronic communications are defined as signs, signals, writings, images sounds, data or intelligence that are transmitted over a wire, radio, or other electronic, magnetic or optics system.2 Harassment, therefore, may occur through email, instant or text message, phone, or through voice-mail.

Can I be charged with Harassment even if I am just joking around with another person?

You could be charged with Harassment even if you believe you are just “joking.” People are frequently charged when the person receiving the communication does not see the communication in the same way as the person making the communication. While the state must prove you had the intent to “harass, annoy, alarm, abuse, torment, or embarrass” someone, the difference between being annoying and “just joking” is a fine line. Eventually, a jury may make a decision as to what they believe your mind state was at the time that you made the communication.

What constitutes as obscene under the Harassment statute?

Under the Texas Harassment law, obscene means a “patently offensive description of or a solicitation to commit an ultimate sex act.”3 Laws describing obscenity frequently use “patently” and other similar words to attempt to distinguish between protected free speech and something that goes beyond a “community standard.” The law’s use of the word “patently” here indicates that the description is something clearly offensive. This is not a perfect definition, however, as different people might see a line drawn at different places. Similarly, any two people might have a unique relationship that would make certain speech more appropriate than would be appropriate between two strangers.

Is a charge of Harassment the same as a charge for Sexual Harassment?

Harassment is not the same as Sexual Harassment. While the crime of Harassment includes a prohibition of certain sexually-charged messages, there is no “Sexual Harassment” offense under the Texas Penal Code.

However, the “Official Oppression”4 offense in the Texas Penal Code includes a prohibition against sexual harassment by public servants, and this statute does define Sexual Harassment as:

unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, submission to which is made a term or condition of a person’s exercise or enjoyment of any right, privilege, power, or immunity, either explicitly or implicitly.

Sexual Harassment is not a crime of its own in Texas, but sexual harassment may be a basis for a civil lawsuit by an employee against his or her employer as a violation of federal or state workplace laws.

What is the punishment for a charge of Harassment?

The punishment for Harassment becomes more severe after a previous conviction for Harassment. Prior to the update to the law in 2017, the first time you are convicted of Harassment, it is always punished as a Class B Misdemeanor. Second convictions for Harassment are punished as a Class A Misdemeanor. However, effective September 1, 2017, there is another way that you can get a Class A misdemeanor enhancement: if the offense was committed under Subsection (a)(7) and:5

(A) the offense was committed against a child under 18 years of age with the intent that the child:

(i) commit suicide; or

(ii) engage in conduct causing serious bodily injury to the child; or

(B) the actor has previously violated a temporary restraining order or injunction issued under Chapter 129A, Civil Practice and Remedies Code.

Keep in mind that the state’s attorneys could charge you with Stalking if they allege that you Harassed someone repeatedly. Stalking enhances the penalty to a Felony. Learn more about the differences between misdemeanors and felonies


Legal References:

1S.B. 179, Sections 16 & 18

2Texas Penal Code 42.07(b)(1), effective until September 1, 2017 – “Electronic communication” means a transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system. The term includes: (A) a communication initiated by electronic mail, instant message, network call, or facsimile machine; and (B) a communication made to a pager.

After September 1, 2017, pursuant to S.B. 179, Section 13 – “Electronic communication” means a transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system. The term includes: (A) a communication initiated through the use of by electronic mail, instant message, network call, a cellular or other type of telephone, a computer, a camera, text message, a social media platform or application, an Internet website, any other Internet-based communication tool, or facsimile machine; and (B) a communication made to a pager.”

3Texas Penal Code Section 42.07(b)(3) – “Obscene” means containing a patently offensive description of or a solicitation to commit an ultimate sex act, including sexual intercourse, masturbation, cunnilingus, fellatio, or anilingus, or a description of an excretory function.

4Texas Penal Code Section 39.03

5Texas Penal Code Section 42.07(c), as created by S.B. 179, Section 14, effective September 1, 2017.

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