Texas Penal Code 31.16 – Organized Retail Theft

WHAT IS ORGANIZED RETAIL THEFT IN TEXAS?

The Texas law against organized retail theft prohibits conduct that promotes or facilitates retail theft, including receiving, storing, and selling stolen retail merchandise.

WHAT IS THE ORGANIZED RETAIL THEFT LAW IN TEXAS?

Tex. Penal Code § 31.16. ORGANIZED RETAIL THEFT.

(b) A person commits an offense if the person intentionally conducts, promotes, or facilitates an activity in which the person receives, possesses, conceals, stores, barters, sells, or disposes of:

(1) stolen retail merchandise; or

(2) merchandise explicitly represented to the person as being stolen retail merchandise.

(c) An offense under this section is:

(1) a Class C misdemeanor if the total value of the merchandise involved in the activity is less than $100;

(2) a Class B misdemeanor if the total value of the merchandise involved in the activity is $100 or more but less than $750;

(3) a Class A misdemeanor if the total value of the merchandise involved in the activity is $750 or more but less than $2,500;

(4) a state jail felony if the total value of the merchandise involved in the activity is $2,500 or more but less than $30,000;

(5) a felony of the third degree if the total value of the merchandise involved in the activity is $30,000 or more but less than $150,000;

(6) a felony of the second degree if the total value of the merchandise involved in the activity is $150,000 or more but less than $300,000; or

(7) a felony of the first degree if the total value of the merchandise involved in the activity is $300,000 or more.

(d) An offense described for purposes of punishment by Subsections (c)(1)-(6) is increased to the next higher category of offense if it is shown on the trial of the offense that:

(1) the person organized, supervised, financed, or managed one or more other persons engaged in an activity described by Subsection (b); or

(2) during the commission of the offense, a person engaged in an activity described by Subsection (b) intentionally, knowingly, or recklessly:

(A) caused a fire exit alarm to sound or otherwise become activated;

(B) deactivated or otherwise prevented a fire exit alarm or retail theft detector from sounding; or

(C) used a shielding or deactivation instrument to prevent or attempt to prevent detection of the offense by a retail theft detector.

WHAT IS THE PENALTY CLASS FOR ORGANIZED RETAIL THEFT IN TEXAS?

The penalty classification for organized retail theft depends on the total value of the merchandise involved in the activity. Organized retail theft is a:

• Class C misdemeanor, punishable by a maximum $500 fine, if:
  • the total value is less than $100;
• Class B misdemeanor, punishable by up to 180 days in county jail, if:
  • the total value is $100 or more but less than $750;
• Class A misdemeanor, punishable by up to one year in county jail, if:
  • the total value is $750 or more but less than $2,500;
• State jail felony, punishable by 180 days to two years in a state jail facility, if:
  • the total value is $2,500 or more but less than $30,000;
• Third degree felony, punishable by two to ten years in prison, if:
  • the total value is $30,000 or more but less than $150,000;
• Second degree felony, punishable by two to 20 years in prison, if:
  • the total value is $150,000 or more but less than $300,000;
• First degree felony, punishable by five to 99 years or life in prison, if:
  • the total value is over $300,000.

Texas law further enhances organized retail theft penalties based on the person’s conduct. Organized retail theft is enhanced to the next highest penalty classification if:

• the person organized, supervised, financed, or managed the organized retail theft operation; or
• during the commission of the theft, the person:
  • activated a fire exit alarm;
  • deactivated or otherwise prevented a fire exit alarm or retail theft detector from sounding; or
  • used or attempted to use an instrument to shield or deactivate a retail theft detector.

WHAT IS THE PUNISHMENT RANGE FOR ORGANIZED RETAIL THEFT IN TEXAS?

The punishment range for organized retail theft increases with the total value of the stolen retail merchandise:

• Class C misdemeanor, if the value is less than $100:
  • maximum fine of $500, no jail time;
• Class B misdemeanor, if the value is $100 or more but less than $750:
  • up to 180 days in jail, maximum fine of $2,000;
• Class A misdemeanor, if the value 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 value is $2,500 or more but less than $30,000:
  • 180 days to two years in a state jail facility, maximum fine of $10,000;
• Third degree felony, if the value is $30,000 or more but less than $150,000:
  • two to ten years in prison, maximum fine of $10,000;
• Second degree felony, if the value 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 value is $300,000 or more:
  • five to 99 years or life in prison, maximum fine of $10,000.

WHAT ARE THE PENALTIES FOR ORGANIZED RETAIL THEFT IN TEXAS?

A person convicted of organized retail theft may be eligible for probation after a conviction, or deferred adjudication without a conviction. The period of community supervision depends on the offense category.

There is no community supervision required after a Class C misdemeanor conviction, but a person charged with a Class C misdemeanor organized retail theft may be placed on deferred adjudication for up to 180 days.

The period of community supervision for Class A or Class B misdemeanors may not exceed two years. A judge may also order up to 30 days in jail as a condition of community supervision on misdemeanor cases.

The period of community supervision for a state jail felony organized retail theft is from two to five years, with the possibility of extending supervision for up to ten years.

For a third degree felony organized retail theft charge, a person may be placed on deferred adjudication for up to ten years, or probation for a period between two and five years.

The period of community supervision for first degree felony and second degree felony organized retail theft charges may not exceed ten years. A judge may also order up to 180 days in jail as a condition of community supervision on felony cases.

WHAT ARE THE DEFENSES TO ORGANIZED RETAIL THEFT IN TEXAS?

The statute does not authorize specific defenses to organized retail theft. A person accused thereof may attempt to negate one of the elements the State must prove at trial.

• What are examples of organized retail theft? The Texas law against organized retail theft crimes targets professional crime rings involved in large-scale theft and transferring, repackaging, and reselling stolen retail merchandise. A conviction requires proof of some activity distinct from ordinary shoplifting by a single actor.

  In Young v. State, the defendant and four others would replace the universal product codes (“UPC”) on expensive items with inexpensive ones, then purchase the items for the lower price. The group would then return the products at a different Walmart store with the original, more expensive UPC code for a Walmart gift card.

  The defendant made 40 returns over nearly two years, and was convicted of organized retail theft. The appellate court affirmed, finding the defendant and others knowingly participated in an ongoing scheme involving large-scale retail theft.

WHAT IS THE STATUTE OF LIMITATIONS FOR ORGANIZED RETAIL THEFT IN TEXAS?

The limitation period for organized retail theft categorized as a felony is five years. Organized retail theft classified as a misdemeanor has a two-year limitation period.

ORGANIZED RETAIL THEFT IN TEXAS

Texas organized retail crime is distinct from petty shoplifting in that it involves professional theft rings that move quickly from community to community and across county lines to steal large amounts of merchandise.

This criminal activity involves thieves, also known as “boosters,” organized by a central figure—a “fence”—that pays the boosters pennies on the dollar, then repackages and resells the merchandise through alternate distribution channels to the general public.

TEXAS ORGANIZED RETAIL THEFT COURT CASES

The case law regarding organized retail theft in Texas explains the difference between ordinary theft and organized retail theft.

• In Lang v. State, the defendant was caught shoplifting $565.59 worth of items from HEB, an isolated incident in which she was acting alone. She was indicted for and convicted of organized retail theft, but the Court of Criminal Appeals held the evidence was insufficient to support her conviction. The State failed to show she did anything more than commit theft.

  On remand, the appellate court entered a judgment of acquittal because the indictment did not allege the owner of the stolen property, but the CCA in Lang II again reversed, holding the defendant could be convicted of ordinary theft.