Theft crimes in Texas have, for the most part, been consolidated into a single “Theft” offense. “Theft,” under Texas law, is now described simply as the “unlawful appropriation of property with the intent to deprive the owner of that property.” This is deceptively simple, however. The challenge in understanding theft crimes is determining whether an “appropriation” is “unlawful.” What is “Unlawful Appropriation”?
The Texas Theft law changed in September 2015. The new law increased the maximum value of stolen property for each misdemeanor and felony level of theft. See the new value groups
THEFT CRIMES ATTORNEY FAQs
- What is the law on theft in Texas?
- What is “Unlawful Appropriation“?
- How much jail time can I get for theft? What are the categories of theft? What is the penalty for theft?
- How can a theft charge be enhanced?
- What is theft of service?
- What is theft of trade secrets?
- What is the difference between theft and a breach of contract?
- What are the special rules for pawn shops, purchases of motor vehicles, livestock, vehicle salvage or pesticide?
Have you been charged with Theft in Texas? Call criminal defense lawyer Paul Saputo at (888) 239-9305.
Theft crimes in the past used to be separated into different offenses under Texas law: 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 separate offenses for Theft of Service, Theft of Trade Secrets, Organized Retail Theft and the “Unauthorized Acquisition or Transfer of Certain Financial Information.”
Theft is a Texas offense described in Texas Penal Code Section 31.03(a):
A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property.
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 the acquisition or other exercise of control over property other than real property.
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.
Effective consent generally means that the owner of the property agreed to the appropriation or was presumed to agree to the transaction. The term “effective consent” is not defined in the Texas theft statute, but it is limited to certain things:
“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.
The definition of effective consent is found in Texas Penal Code §31.01(3).
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) outlines the penalties for theft under Texas law. The penalties are more severe as the value of the stolen property increases. Learn more about the range of punishment for classes of misdemeanors and felonies under Texas law
As of September 1, 2015,1 under H.B. 1396, the Theft offense is punished according to the following scheme:2
- 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.
Theft punishments 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 – Texas Penal Code § 31.03(f)(1)
- Theft from the government by a government contractor – Texas Penal Code § 31.03(f)(2)
- Theft from an elderly person or a nonprofit organization – Texas Penal Code § 31.03(f)(3)
- Theft from the government by a Medicare provider – Texas Penal Code § 31.03(f)(4)
- 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” – Texas Penal Code § 31.03(f)(5)
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” (Section 31.03(c)(3)), 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” (Section 31.03(c)(6)), purchasers of motor vehicles, described in the statute as “purchases or receives a used or secondhand motor vehicle” (Section 31.03(c)(7)), purchasers of pesticide (Section 31.03(c)(8)) and purchasers of livestock (Section 31.03(c)(9)).
Theft of Service is described in Texas Penal Code Section 31.04(a) as follows:
A person commits theft of service if, with intent to avoid payment for service that the actor knows is provided only for compensation:
(1) the actor intentionally or knowingly secures performance of the service by deception, threat, or false token;
(2) having control over the disposition of services of another to which the actor is not entitled, the actor intentionally or knowingly diverts the other’s services to the actor’s own benefit or to the benefit of another not entitled to the services;
(3) having control of personal property under a written rental agreement, the actor holds the property beyond the expiration of the rental period without the effective consent of the owner of the property, thereby depriving the owner of the property of its use in further rentals; or
(4) the actor intentionally or knowingly secures the performance of the service by agreeing to provide compensation and, after the service is rendered, fails to make full payment after receiving notice demanding payment.
Penalties for Theft of Service conviction follow a similar track as other Theft offenses. Theft of Services under $100 is a Class C Misdemeanor, between $100 and $750 is a Class B Misdemeanor, between $750 and $2,500 is a Class A Misdemeanor, between $2,500 and $30,000 is a state jail felony, between $30,000 and $150,000 is a third degree felony, between $150,000 and $300,000 is a second degree felony and over $300,000 is a first degree felony.3
Section 31.05(b) of the Texas Penal Code describes the offense of Theft of Trade Secrets:
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.
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.
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 this question is yes, and this kind of prosecution frequently happens. Whether you are legally 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.4 How can the state prove this? They can prove this in many different ways, but it is clear that the state can use the surrounding circumstances as evidence.5 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.6 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.7 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.8
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 disputes with customers and other unforseeable or intervening events can make performance of your end of the bargain difficult or even impossible. Even if you simply decide not to do the work later for a bad reason still does not make the case theft. But beware–there are other types of crimes out there that might apply, and there is always the possibility of being sued for fraud.
1H.B. 1396 Section 30
2See Texas Penal Code § 31.03(e)
3See Texas Penal Code § 31.04(e)
4“Consent” is not effective if it is induced by deception. See TEX. PENAL CODE ANN. § 31.01(3)(A) (Vernon Supp. 2005). Deception means, among other things, promising performance “that the actor does not intend to perform or knows will not be performed.” TEX. PENAL CODE ANN. § 31.01(1)(E) (Vernon Supp. 2005). See Jacobs v. State, 230 S.W.3d 225, 229 (Tex. App. Houston 14th Dist. 2006).
5See Coronado v. State, 508 S.W.2d 373, 374 (Tex. Crim. App. 1974).
6TEX. PENAL CODE ANN. § 31.01(1)(E) (Vernon Supp. 2005); 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.
7Baker v. State, 986 S.W.2d 271, 275 (Tex. App.–Texarkana 1998, pet. ref’d).
8Riley 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.”