Theft: Texas Penal Code §31.03

The Texas Theft law consolidates most of the original variations of theft offenses into one single and comprehensive criminal offense that broadly makes it illegal to “unlawfully appropriate” property with the intent to deprive the owner of property.

Unfortunately, this does not offer much in the way of explanation and simply reframes the issue in terms of whether an “appropriation” is “unlawful.” The statute is, however, helpful in distinguishing what makes “appropriation” “unlawful.” In this article we examine in more detail what makes appropriation unlawful under the statute.

The Texas legislature codified this criminal offense in Texas Penal Code Section 31.03. The legislature amended the Texas Theft law in 2015, 2017, and 2023. The 2015 changes increased the maximum value of stolen property for each misdemeanor and felony level of theft. The 2017 changes included a felony enhancement for theft of controlled substances. The legislature updated this law in 2023 to increase penalties for thefts of catalytic converters.

In addition, the statute provides numerous ways for the base Theft charge to be enhanced to a higher penalty level classification.

Historically, theft crimes were separated into different offenses under Texas law. Examples included: 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. Now all of these offenses are consolidated, but there are still some specialized theft offenses, including Theft of Service, Theft of Trade Secrets, Organized Retail Theft and Unauthorized Acquisition or Transfer of Certain Financial Information.

The Penal Code classifies the Texas Theft law under Title 7 “Offenses Against Property,” Chapter 31 “Theft.” Learn more about the Texas offense of Theft below.

What is the current Theft law in Texas?

Texas law currently defines the offense of Theft in Penal Code Section §31.03 as follows:^[1]

(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.

Unlawful appropriation is also defined in the Theft statute, and we explain it in the section below.

What is “unlawful appropriation“?

Appropriation is described in the theft statute as the bringing about “a transfer or purported transfer of title to or other nonpossessory interest in property, whether to the actor or another” or else the acquisition or other exercise of control over property other than real property.^[2] You might think about this as the taking of something that doesn’t currently belong to you. This isn’t necessarily wrong or illegal – for instance, you are taking something that doesn’t belong to you when you buy something from a store. As soon as you pay them money, you now own it legally, but the transfer is called “appropriation” for the purposes of the Theft law. So, since not all “appropriations” are unlawful, the next question is what appropriations are unlawful.

Section 31.03(b) of the Texas Penal Code describes three ways in which an “appropriation” is “unlawful”:

(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.

The term “effective consent” is broadly defined in the law:^[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.

In sum, effective consent generally means that the owner of the property agreed to the appropriation and was not tricked into the agreement.

How much jail time can I get for theft? What are the categories of theft? What is the penalty for theft?

Section 31.03(e) of the Texas Penal Code defines the penalties for Theft under Texas law. The penalties increase in severity as the value of the stolen property increases. The base penalty for any Theft crime may also be enhanced under certain circumstances.

Amendments effective in 2015

In 2015, the penalty scheme for the Theft law changed by increasing the the value thresholds for each each penalty grade.^[4]

For offenses that occurred on or after September 1, 2015, the base Theft offense is punished according to the following scheme:^[5]

• Theft under $100 is a Class C Misdemeanor (punishable by a fine up to $500).
• Theft between $100 and $750 is a Class B Misdemeanor (punishable by up to 180 days in jail and a $2000 fine). If the value of the stolen property is under $100, it is still a Class B Misdemeanor theft if you have been previously convicted of theft of if the property stolen was an identification card like a driver’s license.
• Theft between $750 and $2,500 is a Class A Misdemeanor, punishable by up to one year in jail and a $4000 fine.
• Theft between $2,500 and $30,000 is a state jail felony. Also punishable as a state jail felony is 1) theft of a firearm, 2) a third theft conviction (even if the value of the stolen property on the third case is less than $2,500), 3) any theft under $20,000 if the theft is a metal including aluminum, copper, brass and copper, 4) an official election ballot, 5) theft from a grave and 6) certain thefts of livestock.
• Theft between $30,000 and $150,000 is a third degree felony. Certain thefts of livestock are also thefts of the third degree.
• Theft between $150,000 and $300,000 is a second degree felony. Also, thefts of ATM machines are second degree felonies, even if the value is under $300,000.
• Any Theft over $300,000 is a first degree felony.

Amendments effective in 2017

Effective in 2017, theft of certain controlled substances is punished as a third degree felony.^[6]

Amendments effective in 2023

Effective May 29, 2023, theft of catalytic converters is punished as a state jail felony at a minimum, but it may be enhanced if you possessed a firearm during the commission of the offense.^[7]

How can a theft charge be enhanced?

The punishment for a Theft conviction can be enhanced under certain conditions. Among them:

• Theft by a public servant or public official who used his or her status as a public servant or official to accomplish the theft^[8]
• Theft from the government by a government contractor^[9]
• Theft from an elderly person or a nonprofit organization^[10]
• Theft from the government by a Medicare provider^[11]
• A theft committed when a person “(1) caused a fire exit alarm to sound or otherwise become activated; (2) deactivated or otherwise prevented a fire exit alarm or retail theft detector from sounding; or (3) used a shielding or deactivation instrument to prevent or attempt to prevent detection of the offense by a retail theft detector”^[12]
• Effective May 29, 2023, any theft of catalytic converters may be enhanced to the next higher degree of offense if you possessed a firearm during the commission of the offense.^[13]

What is theft of trade secrets?

The Texas Penal Code describes the offense of Theft of Trade Secrets in Penal Code Section 31.05.

What is the difference between theft and a breach of contract?

If you promise someone that you will perform a service, and you don’t ultimately do that service, can you be prosecuted for theft? Let’s say you are hired to fix a roof for a homeowner, and you ultimately do not fix the roof, can you be arrested for theft?

The answer to both of those questions is yes. Whether you are eventually found guilty of theft usually depends on whether the state can prove to a jury that you deceived the homeowner (or whoever paid for the service) in order to get their money.^[14]

How can the state prove this? They can prove this in many different ways, but one way, for example, is that the state can use the surrounding circumstances as evidence.^[15] However, failure to perform a promise without other evidence of criminal intent or knowledge is not sufficient proof that the actor did not intend to perform or knew the promise would not be performed.^[16]

One court held that if a contract is partially or substantially performed, then intent to commit theft through deception is not shown by the evidence.^[17] But another court found that criminal intent could be found in a pattern or scheme established by four similar transactions where a defendant accepted the complainants’ money, began construction, and later ceased work, leaving each complainant with an unfinished building.^[18]

So, when is a case a civil breach of contract lawsuit and when is a case a criminal theft case? It hinges on whether the state’s attorneys will allege that you intended to deceive the person who paid the money. Of course, most people who feel ripped off will complain that you intentionally misled them and never intended to do the work you promised to do. In reality, we know that many things can make performance of your end of the bargain difficult or even impossible, including disputes with customers and other unknown or unforseeable issues. Even if you decide to stop doing work after you initially agreed to it, it still does not make the case theft. But beware–there are other types of crimes out there that might apply under certain circumstances. And even if you don’t get prosecuted for Theft, there is always the possibility of being sued for fraud.

What are the special rules for pawn shops, purchases of motor vehicles, livestock, vehicle salvage or pesticide?

There are special rules for pawn shops, described in the statute as people “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”,^[19] vehicle salvage businesses, described as people “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”,^[20] purchasers of motor vehicles, described in the statute as “purchases or receives a used or secondhand motor vehicle”,^[21] purchasers of pesticide ^[22] and purchasers of livestock.^[23]

What is the statute of limitation for Theft in Texas?

Theft offenses have a five-year limitations period,^[24] except for thefts of any estate, real, personal or mixed, by an executor, administrator, guardian or trustee, with intent to defraud any creditor, heir, legatee, ward, distributee, beneficiary or settlor of a trust interested in such estate and any theft by a public servant of government property over which the public servant exercises control in the public servant’s official capacity.^[25]

Can you get probation for Theft in Texas?

The Texas Code of Criminal Procedure allows both judges and juries to grant probation for Theft, and judges are also allowed to accept deferred adjudication plea deals.^[26]

Note, however, that no matter the offense, neither judges nor juries may recommend community supervision for any suspended sentence of over 10 years.^[27] 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.^[28]

What level of crime is Theft in Texas?

The Penal Code classifies the punishment for Theft ranges from a Class C misdemeanor to a first degree felony, depending on the type and value of the stolen property.

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

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Legal References:

^1. Texas Penal Code §31.03. This law is current as of 2024.^2. Texas Penal Code §31.01(4)^3. Texas Penal Code §31.01(3)^4. HB 1396, 84th Legislature, Section 10^5. Texas Penal Code §31.03(e), as amended by HB 1396, 84th Legislature, Section 10^6. Texas Penal Code §31.03(e)(5)(C), as amended by HB 1178, 85th Legislature, Section 10^7. Texas Penal Code §31.03(e)(4)(G) and (f-1), as amended by SB 224, 88th Legislature, Section 2.02^8. Texas Penal Code §31.03(f)(1)^9. Texas Penal Code §31.03(f)(2)^10. Texas Penal Code §31.03(f)(3)^11. Texas Penal Code §31.03(f)(4)^12 Texas Penal Code §31.03(f)(5)^13. Texas Penal Code §31.03(f-1), as amended by SB 224, 88th Legislature, Section 2.02^14. “Consent” is not effective if it is induced by deception. See Texas Penal Code §31.01(3)(a). Deception means, among other things, promising performance “that the actor does not intend to perform or knows will not be performed.” Texas Penal Code §31.01(1)(E). See Jacobs v. State, 230 S.W.3d 225, 229 (Tex. App. Houston 14th Dist. 2006).^15. See Coronado v. State, 508 S.W.2d 373, 374 (Tex. Crim. App. 1974).^16. Texas Penal Code §31.01(1)(E); see also Phillips v. State, 640 S.W.2d 293, 294 (Tex. Crim. App. (Panel Op.) 1982). In Phillips, the defendant contracted with the complainants to build an addition to their house, and accepted $ 6,930.33 as a down payment. The money was paid voluntarily.^17. Baker v. State, 986 S.W.2d 271, 275 (Tex. App.–Texarkana 1998, pet. ref’d).^18. Riley v. State, 312 S.W.3d 673 (Tex. App. Houston 1st Dist. 2009, pet. ref’d). In Riley, the court held that the “jury could find evidence of appellant’s intent to commit theft through deception based on inferences from the surrounding circumstances.”^19. Texas Penal Code §31.03(c)(3)^20. Texas Penal Code §31.03(c)(6)^21. Texas Penal Code §31.03(c)(7)^22. Texas Penal Code §31.03(c)(8)^23. Texas Penal Code §31.03(c)(9)^24. See Code of Criminal Procedure 12.01(4)^25. See 12.01(2)(A) and (2)(B)^26. See Chapter 42, Texas Code of Criminal Procedure, Art. 42A.054, Art. 42A.056, Art. 42A.102^27. Art. 42A.053(c), Texas Code of Criminal Procedure^28. Art. 42A.054(b), Texas Code of Criminal Procedure