Texas Theft Charges: The Difference between Misdemeanors and Felonies

By August 13, 2018February 1st, 2024Felonies, Misdemeanors, Theft Crimes

Theft Charges? How Does a Misdemeanor Theft Become A Felony In Texas? (2021)

UPDATED 8/18/2021, Original Post: August 13, 2018 FeloniesMisdemeanorsTheft Crimes

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Theft is the most prosecuted crime in Fort Worth criminal courts. Defined as the unlawful taking of another’s property, theft is an offense that can result in lengthy prison or probation sentences, as well as hefty fines.

An important distinction to make with Texas theft charges is whether the offense (or offenses) in question will be considered a misdemeanor or a felony. Felony theft charges are much more likely to result in jail time and make options such as diversion programs less attainable.

Below, we will cover Texas theft law, including enhancements and aggregations that can cause misdemeanor theft to be considered a felony.

How Texas Law Defines Theft

Texas law defines theft as being when an individual “unlawfully appropriates property with the intent to deprive the owner of the property.” Essentially, this means that you commit theft when you take something that doesn’t belong to you, with no consent or other justification for doing so, and at the time of the offense do not intend to return the stolen property to its owner.

Common types of theft include:

  • Shoplifting
  • Grand theft
  • Grand theft auto
  • Larceny

What’s the Definition of Unlawful Appropriation of Property?

There are times where taking belongings from someone isn’t theft. For there to be a case, an individual must prove that another person unlawfully appropriated their belongings. But what exactly does that mean, and how is an unlawful appropriation of property defined in court?

Appropriation occurs when someone transfers title or nonpossessory interest in a belonging other than real property. The person transferring title or nonpossessory interest can give themselves or another party the belongings. Yet not all appropriation is unlawful.

Any transaction which transfers ownership of belonging from one party to another is appropriation. When we go to the store and pay for belongings, the transfer of ownership is appropriation. The term describing the transfer of ownership is appropriation, even though you now own the belongings instead of the store. Here’s how you can determine whether property appropriation is unlawful, according to Texas law.

Unlawful appropriation of property defined.

Texas Penal Code describes unlawful appropriation of property in three events:

  • Event one, when the allocation of property occurs without the effective consent of an owner.
  • Even two, when an individual appropriates stolen property while knowing that someone else stole the belongings.
  • Event three, when a law enforcement agency has custody of stolen property, an actor appropriates the property, believing that another individual stole it.

But what’s “effective consent?”

If you looked closely at the first event, you might have noticed that unlawful appropriation, or theft, occurs whenever an owner does not give effective consent to transfer property ownership.

Fortunately, the law clearly describes effective consent for those who aren’t familiar with the legal term. For effective consent, the owner or someone legally authorized to act on the owner’s behalf must allow transfer of property ownership to another. However, this is different from standard consent because it must be:

  1. A decision an owner or someone legally authorized to act on their behalf comes to without deception or coercion.
  2. Directly from an individual, that can legally act for the owner, rather than someone the person knows is not acting on behalf of the property owner.
  3. Whenever property is given by someone too young, intoxicated, or with a mental condition, these situations make it impossible for an actor to give consent.
  4. From someone of sound mental capacity, who can make rational and informed decisions while providing ownership of property to another.

Overall, if a property owner for someone legally able to make decisions on their behalf agrees to appropriation without being tricked into the transfer, this is seen as effective consent.

Texas Theft Charges and Penalties

Texas theft charges and penalties depend upon the value of the property allegedly taken. Certain factors, such as prior criminal offenses or the capacity in which the defendant committed theft, may raise the penalty to a higher level.

Texas theft charges and penalties are as follows:

  • $100 or less: Class C misdemeanor punishable by a $500 fine and no jail time.
  • $100-$750: Class B misdemeanor punishable by 180 days in jail and a fine up to $2,000.
  • $750-$2,500: Class A misdemeanor punishable by one year of jail time and a fine of up to $4,000.
  • $2,500-$30,000: State jail felony punishable by 6 months – two years in state jail and a fine of up to $10,000.
  • $30,000-$150,000: Third-degree felony punishable by 2-10 years of incarceration and a fine of up to $10,000.
  • $150,000-$300,000: Second-degree felony punishable by 2-20 years of incarceration and a fine of up to $10,000.
  • $300,000 or more: First-degree felony punishable by 5 years to 99 years/life incarceration and a fine of up to $10,000.

If you have one prior conviction for any level of theft, your charges will be bumped up one bracket to a higher-level criminal offense. If you have two or more prior theft convictions, you could potentially be bumped up two brackets.

If you are a public servant, in contract with the government or are a Medicare provider and the theft was related to this capacity, the penalty may be bumped up to the next bracket.

How Misdemeanor Theft Becomes a Felony in Texas

How Misdemeanor Theft Becomes a Felony in Texas

The above bullet points draw a clear line between misdemeanor and felony theft: if the value was under $2,500, the offense is a misdemeanor, and if the value is over $2,500 the offense is a felony.

Seasoned thieves are well aware of this distinction, and will often commit multiple theft offenses that each include under $2,500 worth of property as opposed to one offense stealing a larger amount. The idea is to avoid a felony-level charge, if caught.

However, if you are caught for one offense, it’s likely that law enforcement will uncover your involvement in other offenses as well. Moreover, prosecutors will often pool multiple thefts into one offense, elevating multiple misdemeanor-level offenses to a single felony-level offense. This allows prosecutors to seek a greater penalty, and to negate repeat offenders’ attempts to avoid felony-level charges. A good example of this type of theft charge is organized retail theft.

How Texas Felony Theft Charges Affect Your Case

As illustrated above, felony-level theft has significantly higher penalties. Moreover, you are more likely to end up serving time behind bars, as community supervision programs are often not available for felony-level offenders. Also, as a convicted felon your personal freedoms will be restricted long after your sentence is complete.

If your misdemeanor-level charges are aggregated into a single felony-level charge, it’s also more likely that prosecutors will seek jail time. Combining charges will also affect plea bargaining – if you exhibit a pattern of repeated theft, prosecution is less likely to go easy on you. Options such as pretrial diversion programs are also less likely.

However, even when multiple theft charges are lumped together, each instance must be examined separately. For example, if the evidence for one theft offense is not sufficient, it may be possible to break up your charges, reducing your charge from a felony to a misdemeanor.

What’s the Definition of Unlawful Appropriation of Property?

There are times where taking belongings from someone isn’t theft. For there to be a case, an individual must prove that another person unlawfully appropriated their belongings. But what exactly does that mean, and how is an unlawful appropriation of property defined in court?

Appropriation occurs when someone transfers title or nonpossessory interest in a belonging other than real property. The person transferring title or nonpossessory interest can give themselves or another party the belongings. Yet not all appropriation is unlawful.

Any transaction which transfers ownership of belonging from one party to another is appropriation. When we go to the store and pay for belongings, the transfer of ownership is appropriation. The term describing the transfer of ownership is appropriation, even though you now own the belongings instead of the store. Here’s how you can determine whether property appropriation is unlawful, according to Texas law.

Unlawful appropriation of property defined.

Texas Penal Code describes unlawful appropriation of property in three events:

  • Event one, when the allocation of property occurs without the effective consent of an owner.
  • Even two, when an individual appropriates stolen property while knowing that someone else stole the belongings.
  • Event three, when a law enforcement agency has custody of stolen property, an actor appropriates the property, believing that another individual stole it.

But what’s “effective consent?”

If you looked closely at the first event, you might have noticed that unlawful appropriation, or theft, occurs whenever an owner does not give effective consent to transfer property ownership.

Fortunately, the law clearly describes effective consent for those who aren’t familiar with the legal term. For effective consent, the owner or someone legally authorized to act on the owner’s behalf must allow transfer of property ownership to another. However, this is different from standard consent because it must be:

  1. A decision an owner or someone legally authorized to act on their behalf comes to without deception or coercion.
  2. Directly from an individual, that can legally act for the owner, rather than someone the person knows is not acting on behalf of the property owner.
  3. Whenever property is given by someone too young, intoxicated, or with a mental condition, these situations make it impossible for an actor to give consent.
  4. From someone of sound mental capacity, who can make rational and informed decisions while providing ownership of property to another.

Overall, if a property owner for someone legally able to make decisions on their behalf agrees to appropriation without being tricked into the transfer, this is seen as effective consent.

Texas Theft Charge Defenses

If you are facing a theft charge in Texas, how can you defend your criminal charges in a way that avoids jail time and ensures you maintain a clear criminal record? Your criminal attorney must be experienced at developing effective defenses to ensure you receive the best result on your theft case. An example of a few defenses include:

  1. Can The Prosecutor Prove Value? As mentioned previously, the State of Texas must prove every element of the theft beyond a reasonable doubt. What if the alleged victim exaggerated the value of the item? What if they do not provide evidence of the value of the item, but your criminal attorney is able to provide evidence that the item was worth much less than previously claimed?Under these circumstances, an experienced and aggressive criminal defense attorney may be able to reduce your theft charges from a felony to a misdemeanor theft or negotiate a dismissal of the charges based upon value.
  2. No Intent To Permanently Deprive The Owner Of the Property – the best example of this defense is in the realm of shoplifting. A frequent scenario is when a client is shopping in Wal-Mart and has a basket full of items and they walk into the garden section and into the landscaping area with items in the cart they have not yet paid for. Sometimes, loss prevention officers will arrest the client prior to passing all points of sale.In this situation, the State of Texas will have a difficult time proving “intent” to permanently deprive the owner of the property. Merely possessing the property shows no intent that you were looking to permanently deprive the owner of the property. It is critical that your criminal attorney thoroughly examine your specific facts and determine if this element can be proven by the prosecutor.
  1. Property Was Abandoned – was the property abandoned? Did the property not have a clear owner and it was it uncertain as to whether the property was abandoned by the original owner? If so, this may provide a clear defense to obtain a dismissal of theft charges.
  2. No Knowledge The Property Was Stolen – was the property merely possessed but no evidence was provided that the property was taken from the owner? Possessing stolen property, by itself, does not provide sufficient evidence to establish that the individual charged with the crime committed the crime of theft. We see this frequently when a client is charged with theft after pawning stolen property at a pawn shop.Did the client know the property was stolen? Does this mean the person pawning the item was the same person who stole the item from the victim? Absolutely not! The State of Texas is required to prove these elements of theft beyond a reasonable doubt and a good criminal lawyer will be able to take advantage of the weaknesses of the prosecutor’s case to obtain a favorable result.

What does it all mean?

No matter how you look at it, theft is a serious offense with severe consequences. This is particularly true if you are facing aggregated or felony-level charges, though, and if you have a choice, dealing with a misdemeanor is far preferable.

How Fort Worth Texas Felony Theft Charges Affect Your Case

Luckily, there are a lot of moving parts in a theft case, and it may be possible to fight back and reduce or even beat your charges entirely, especially if there are weaknesses in the state’s evidence against you.

About the Author:

Brandon Fulgham has an in-depth understanding of both Texas law and Texans themselves. Before practicing law here, he received his undergraduate degree from TCU, and his law degree from South Texas College of Law in Houston. After graduation, he worked in District Attorneys’ offices as a prosecutor, building cases designed to put people behind bars. Now, he uses that knowledge to protect the rights of people in and around Fort Worth, making sure they receive the strongest possible defense when they find themselves on the wrong side of the law. He has been recognized for his work by The National Trial Lawyers, Fort Worth Magazine, and others.