texas flags with Theft text overlay
texas flags with Theft text overlay

Texas Theft Crimes: Explained

Most theft crimes in Texas have been consolidated into a single offense in the Penal Code called, simply, Theft. Theft under Texas law, is described as the “unlawful appropriation of property with the intent to deprive the owner of that property.” This is a deceptively simple explanation, however, because it simply reorients the us to whether an “appropriation” is “unlawful.” Skip down to learn more about “unlawful appropriation”

Have you been charged with Theft in Texas? Call criminal defense lawyer Paul Saputo at (888) 239-9305 to discuss legal representation.

The Texas Theft law changed in legislative sessions in 2015 and 2017. 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. See the new punishment ranges

Historically, theft crimes have been 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.

What is the current Theft law in Texas?

Theft is a Texas offense described in Texas Penal Code Section 31.03(a)1 as follows:

A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property.

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.3

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

“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.4

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 outlines the penalties for theft under Texas law. The penalties are more severe as the value of the stolen property increases. In 2015, the penalty scheme for Theft changed by increasing the the value thresholds for each each penalty grade.5

For offenses that occurred on or after September 1, 2015, the Theft offense is punished according to the following scheme:6

  • 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. Also, effective as of 2017, certain thefts of controlled substances are also third degree felonies.
  • 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.

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 theft7
  • Theft from the government by a government contractor8
  • Theft from an elderly person or a nonprofit organization9
  • Theft from the government by a Medicare provider10
  • 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”11

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”,12 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”,13 purchasers of motor vehicles, described in the statute as “purchases or receives a used or secondhand motor vehicle”,14 purchasers of pesticide 15 and purchasers of livestock.16

What is theft of trade secrets?

The Texas Penal Code describes the offense of Theft of Trade Secrets as follows:17

A person commits an offense if, without the owner’s effective consent, he knowingly:

(1) steals a trade secret;

(2) makes a copy of an article representing a trade secret; or

(3) communicates or transmits a trade secret.

Effective consent is discussed above in the section about unlawful appropriation.
Jump to the discussion about effective consent

Theft of Trade Secrets is a third degree felony, punishable by a fine up to $10,000 and a prison sentence between 2 years and 10 years.18

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.19

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.20 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.21

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.22 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.23

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.


Legal References:

1 Texas Penal Code §31.03(a)

2 Texas Penal Code §31.01(4)

3 Texas Penal Code §31.03(b)

4 Texas Penal Code §31.01(3)

5 H.B. 1396, 84th Legislature, Section 10

6 Texas Penal Code §31.03(e)

7 Texas Penal Code §31.03(f)(1)

8 Texas Penal Code §31.03(f)(2)

9 Texas Penal Code §31.03(f)(3)

10 Texas Penal Code §31.03(f)(4)

11 Texas Penal Code §31.03(f)(5)

12 Texas Penal Code §31.03(c)(3)

13 Texas Penal Code §31.03(c)(6)

14 Texas Penal Code §31.03(c)(7)

15 Texas Penal Code §31.03(c)(8)

16 Texas Penal Code §31.03(c)(9)

17 Texas Penal Code §31.05(b)

18 Texas Penal Code §31.05(c)

19 “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).

20 See Coronado v. State, 508 S.W.2d 373, 374 (Tex. Crim. App. 1974).

21 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.

22 Baker v. State, 986 S.W.2d 271, 275 (Tex. App.–Texarkana 1998, pet. ref’d).

23 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.”

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