Texas Penal Code 28.03 – Criminal Mischief

WHAT IS CRIMINAL MISCHIEF IN TEXAS?

The Texas law against criminal mischief prohibits intentionally or knowingly, without effective consent: (1) damaging or destroying another’s property; (2) tampering with property and causing pecuniary loss or substantial inconvenience; or (3) marking, painting, drawing on, or otherwise “tagging” another’s property.

WHAT IS THE CRIMINAL MISCHIEF LAW IN TEXAS?

Tex. Penal Code § 28.03. CRIMINAL MISCHIEF.

(a) A person commits an offense if, without the effective consent of the owner:

(1) he intentionally or knowingly damages or destroys the tangible property of the owner;

(2) he intentionally or knowingly tampers with the tangible property of the owner and causes pecuniary loss or substantial inconvenience to the owner or a third person; or

(3) he intentionally or knowingly makes markings, including inscriptions, slogans, drawings, or paintings, on the tangible property of the owner.

(b) Except as provided by Subsections (f) and (h), an offense under this section is:

(1) a Class C misdemeanor if:

(A) the amount of pecuniary loss is less than $100; or

(B) except as provided in Subdivision (3)(A) or (3)(B), it causes substantial inconvenience to others;

(2) a Class B misdemeanor if the amount of pecuniary loss is $100 or more but less than $750;

(3) a Class A misdemeanor if:

(A) the amount of pecuniary loss is $750 or more but less than $2,500; or

(B) the actor causes in whole or in part impairment or interruption of any public water supply, or causes to be diverted in whole, in part, or in any manner, including installation or removal of any device for any such purpose, any public water supply, regardless of the amount of the pecuniary loss;

(4) a state jail felony if the amount of pecuniary loss is:

(A) $2,500 or more but less than $30,000;

(B) less than $2,500, if the property damaged or destroyed is a habitation and if the damage or destruction is caused by a firearm or explosive weapon;

(C) less than $2,500, if the property was a fence used for the production or containment of:

(i) cattle, bison, horses, sheep, swine, goats, exotic livestock, or exotic poultry; or

(ii) game animals as that term is defined by Section 63.001, Parks and Wildlife Code; or

(D) less than $30,000 and the actor:

(i) causes wholly or partly impairment or interruption of property used for flood control purposes or a dam or of public communications, public transportation, public gas or power supply, or other public service; or

(ii) causes to be diverted wholly, partly, or in any manner, including installation or removal of any device for any such purpose, any public communications or public gas or power supply;

(5) a felony of the third degree if:

(A) the amount of the pecuniary loss is $30,000 or more but less than $150,000;

(B) the actor, by discharging a firearm or other weapon or by any other means, causes the death of one or more head of cattle or bison or one or more horses; or

(C) the actor causes wholly or partly impairment or interruption of access to an automated teller machine, regardless of the amount of the pecuniary loss;

(6) a felony of the second degree if the amount of pecuniary loss is $150,000 or more but less than $300,000; or

(7) a felony of the first degree if the amount of pecuniary loss is $300,000 or more.

. . .

(e) When more than one item of tangible property, belonging to one or more owners, is damaged, destroyed, or tampered with in violation of this section pursuant to one scheme or continuing course of conduct, the conduct may be considered as one offense, and the amounts of pecuniary loss to property resulting from the damage to, destruction of, or tampering with the property may be aggregated in determining the grade of the offense.

(f) An offense under this section is a state jail felony if the damage or destruction is inflicted on a place of worship or human burial, a public monument, or a community center that provides medical, social, or educational programs and the amount of the pecuniary loss to real property or to tangible personal property is $750 or more but less than $30,000.

. . .

(h) An offense under this section is a state jail felony if the amount of the pecuniary loss to real property or to tangible personal property is $750 or more but less than $30,000 and the damage or destruction is inflicted on a public or private elementary school, secondary school, or institution of higher education.

(i) Notwithstanding Subsection (b), an offense under this section is a felony of the first degree if the property is livestock and the damage is caused by introducing bovine spongiform encephalopathy, commonly known as mad cow disease, or a disease listed in rules adopted by the Texas Animal Health Commission under Section 161.041(a), Agriculture Code. In this subsection, “livestock” has the meaning assigned by Section 161.001, Agriculture Code.

(j) Notwithstanding Subsection (b), an offense under this section is a felony of the third degree if:

(1) the tangible property damaged, destroyed, or tampered with is transportation communications equipment or a transportation communications device; and

(2) the amount of the pecuniary loss to the tangible property is less than $150,000.

(k) Subsection (a)(1) or (2) does not apply if the tangible personal property of the owner was a head of cattle or bison killed, or a horse killed, in the course of the actor’s:

(1) actual discharge of official duties as a member of the United States armed forces or the state military forces as defined by Section 437.001, Government Code; or

(2) regular agricultural labor duties and practices.

Tex. Penal Code § 28.06. AMOUNT OF PECUNIARY LOSS.

(a) The amount of pecuniary loss under this chapter, if the property is destroyed, is:

(1) the fair market value of the property at the time and place of the destruction; or

(2) if the fair market value of the property cannot be ascertained, the cost of replacing the property within a reasonable time after the destruction.

(b) The amount of pecuniary loss under this chapter, if the property is damaged, is the cost of repairing or restoring the damaged property within a reasonable time after the damage occurred.

(c) The amount of pecuniary loss under this chapter for documents, other than those having a readily ascertainable market value, is:

(1) the amount due and collectible at maturity less any part that has been satisfied, if the document constitutes evidence of a debt; or

(2) the greatest amount of economic loss that the owner might reasonably suffer by virtue of the destruction or damage if the document is other than evidence of a debt.

(d) If the amount of pecuniary loss cannot be ascertained by the criteria set forth in Subsections (a) through (c), the amount of loss is deemed to be greater than $750 but less than $2,500.

(e) If the actor proves by a preponderance of the evidence that he gave consideration for or had a legal interest in the property involved, the value of the interest so proven shall be deducted from:

(1) the amount of pecuniary loss if the property is destroyed; or

(2) the amount of pecuniary loss to the extent of an amount equal to the ratio the value of the interest bears to the total value of the property, if the property is damaged.

WHAT IS THE PENALTY CLASS FOR CRIMINAL MISCHIEF IN TEXAS?

The penalty classification for criminal mischief depends on the amount of pecuniary loss caused by the damage. It is categorized as follows:

• Class C misdemeanor, punishable by a fine of up to $500, if:
  • the pecuniary loss is less than $100; or
  • the property tampering causes substantial inconvenience;
• Class B misdemeanor, punishable by up to 180 days in county jail, if:
  • the pecuniary loss is $100 to $749;
• Class A misdemeanor, punishable by up to one year in county jail, if:
  • the pecuniary loss is $750 to $2,499; or
  • the person impairs, interrupts, or diverts any public water supply;
• State jail felony, punishable by 180 days to two years in a state jail facility, if:
  • the pecuniary loss is $2,500 to $29,999; or
  • the person causes less than $2,500 worth of damage, to a:
    • habitation by using a firearm or explosive weapon; or
    • fence used for production or containment of cattle, bison, horses, sheep, swine, goats, exotic livestock, exotic poultry, or game animals;
  • the person causes less than $30,000 worth of damage or pecuniary loss, and impairs, interrupts, or diverts:
    • property used for flood control, or a dam;
    • public communications;
    • public transportation;
    • public gas or power supply; or
    • any other public service;
  • the person causes pecuniary loss between $7,500 and $29,999, and the property is a:
    • public or private elementary school, secondary school, or institution of higher education;
    • place of worship or human burial;
    • public monument;
    • community center that provides medical, social, or educational programs.
• Third degree felony, punishable by two to ten years in prison, if:
  • the pecuniary loss is $30,000 to $149,999; or
  • impairs or interrupts and automated teller machine (“ATM”); or
  • the person kills a horse, head of cattle, or bison; or
  • the person causes more than $150,000 in damage to transportation communications equipment or transportation communications devices;
• Second degree felony, punishable by two to 20 years in prison, if:
  • the pecuniary loss is $150,000 to $299,999;
• First degree felony, punishable by five to 99 years in prison, if:
  • the pecuniary loss is $300,000 or more; or
  • the person causes damage to livestock by introducing mad cow disease, or bovine spongiform encephalopathy.

Pursuant to Texas Penal Code Section 12.501, if the criminal mischief is committed against a public servant, a member of the public servant’s family or household, or property owned or controlled by a public servant, in retaliation for or on account of the public servant’s status, the penalty classification is increased to the next highest category. If the criminal mischief is classified as a Class A misdemeanor, the minimum punishment is increased to 180 days in jail rather than enhancing the offense to a felony.

WHAT IS THE PUNISHMENT RANGE FOR CRIMINAL MISCHIEF IN TEXAS?

The punishment range for criminal mischief increases depending on the character or value of the damaged property:

• Class C misdemeanor, if the pecuniary loss is less than $100:
  • maximum fine of $500, no jail time;
• Class B misdemeanor, if the pecuniary loss is $100 or more but less than $750:
  • up to 180 days in jail, maximum fine of $2,000;
• Class A misdemeanor, if the pecuniary loss is $750 or more but less than $2,500:
  • up to one year in jail, maximum fine of $4,000;
• State jail felony, if the pecuniary loss is $2,500 or more but less than $30,000, or is one of the listed property types qualifying as a state jail felony offense:
  • 180 days to two years in a state jail facility, maximum fine of $10,000;
• Third degree felony, if the pecuniary loss is $30,000 or more but less than $150,000, or the property damaged is livestock or an ATM:
  • two to ten years in prison, maximum fine of $10,000;
• Second degree felony, if the pecuniary loss is $150,000 or more but less than $300,000:
  • two to 20 years in prison, maximum fine of $10,000;
• First degree felony, if the pecuniary loss is $300,000 or more:
  • five to 99 years or life in prison, maximum fine of $10,000.

WHAT ARE THE PENALTIES FOR CRIMINAL MISCHIEF IN TEXAS?

A person charged with criminal mischief may be eligible for probation after a conviction, or deferred adjudication without a conviction.

• What is the maximum length of probation for criminal mischief in Texas? If a person is convicted of a Class C misdemeanor, the only punishment is a maximum fine of $500. A person may be placed on probation for up to two years if convicted of a Class A or Class B misdemeanor. For state jail felony and third degree felony criminal mischief charges, the probation term may range from two to five years, and may not exceed ten years for second degree and first degree felonies.

• What is the maximum length of deferred adjudication for criminal mischief in Texas? To avoid a conviction for criminal mischief, a person may plead guilty or nolo contendere (“no contest”) to a judge, and be placed on deferred adjudication. The period of deferred adjudication may not exceed 180 days for a Class C misdemeanor, or two years for a Class A or Class B misdemeanor.

  The deferred adjudication term for a state jail felony is between two and five years, with the possibility of extending supervision up to ten years. The deferred adjudication term may not exceed ten years for first degree, second degree, and third degree felonies.

WHAT ARE THE DEFENSES TO CRIMINAL MISCHIEF IN TEXAS?

The statute does not authorize specific defenses to criminal mischief. A person accused thereof may assert any defense in an attempt to negate at least one of the elements the State must prove at trial.

• How is the pecuniary loss of damaged or destroyed property determined? Pursuant to Texas Penal Code Section 28.06, if the property is destroyed, the amount of pecuniary loss is the fair market value of the property at the time and place of destruction. If the property is damaged, the pecuniary loss is the cost of repairing or restoring the damaged property within a reasonable time after the damage occurred.

  In Newsom v. State, the defendant was convicted of Class B misdemeanor criminal mischief, $100 or more but less than $750, after stabbing his ex-wife’s car tire twice. She immediately replaced the punctured tire, the list price of which was $97, but totaled $112 after taxes and fees.

  The appellate court reduced his conviction to a Class C misdemeanor. The State must first establish the fair market value could not be ascertained before relying on the cost of replacement as the basis for the offense level. Here, the evidence did not establish the used tire had a fair market value of at least $100, the threshold value for the Class B misdemeanor, at the time the defendant destroyed it.

WHAT IS THE STATUTE OF LIMITATIONS FOR CRIMINAL MISCHIEF IN TEXAS?

The limitation period for criminal mischief categorized as a misdemeanor is two years. If criminal mischief is a felony, the limitation period is three years.

CRIMINAL MISCHIEF IN TEXAS

A person commits criminal mischief by damaging or destroying another’s property without consent. The law specifically includes marking, drawing, or painting on the property without consent. Criminal mischief may also be committed by causing substantial inconvenience or pecuniary loss by tampering with another’s tangible property.

TEXAS CRIMINAL MISCHIEF COURT CASES

The case law regarding criminal mischief in Texas shows how various types of conduct may be charged under this statute.

• In Amberson v. State, the defendant attached a chain to his vehicle, affixed the other end to a car wash coin machine, and pulled it out of the wall with his car. He was convicted of state jail felony criminal mischief, causing a pecuniary loss of $2,500 or more but less than $30,000.

  The appellate court affirmed. The jury saw photos of the gaping hole in the car wash wall, heard testimony from the owner that his insurance paid him over $12,000 for the damages, and he used that money to repair the car wash.