Texas Penal Code 36.06 – Obstruction or Retaliation

WHAT IS OBSTRUCTION OR RETALIATION IN TEXAS?

A person commits obstruction or retaliation by intentionally or knowingly harming or threatening to harm another in retaliation for their service or status as a public servant, witness, prospective witness, or informant. Another way of committing retaliation is by posting the phone number or address of a public servant or the public servant’s family members on a publicly accessible website.

WHAT IS THE OBSTRUCTION OR RETALIATION LAW IN TEXAS?

Tex. Penal Code § 36.06. OBSTRUCTION OR RETALIATION.

(a) A person commits an offense if the person intentionally or knowingly harms or threatens to harm another by an unlawful act:

(1) in retaliation for or on account of the service or status of another as a:

(A) public servant, witness, prospective witness, or informant; or

(B) person who has reported or who the actor knows intends to report the occurrence of a crime; or

(2) to prevent or delay the service of another as a:

(A) public servant, witness, prospective witness, or informant; or

(B) person who has reported or who the actor knows intends to report the occurrence of a crime.

(a-1) A person commits an offense if the person posts on a publicly accessible website the residence address or telephone number of an individual the actor knows is a public servant or a member of a public servant’s family or household with the intent to cause harm or a threat of harm to the individual or a member of the individual’s family or household in retaliation for or on account of the service or status of the individual as a public servant.

(c) An offense under this section is a felony of the third degree, except that the offense is a felony of the second degree if:

(1) the victim of the offense was harmed or threatened because of the victim’s service or status as a juror; or

(2) the actor’s conduct is described by Subsection (a-1) and results in the bodily injury of a public servant or a member of a public servant’s family or household.

(d) For purposes of Subsection (a-1), it is prima facie evidence of the intent to cause harm or a threat of harm to an individual the person knows is a public servant or a member of a public servant’s family or household if the actor:

(1) receives a written demand from the individual to not disclose the address or telephone number for reasons of safety; and

(2) either:

(A) fails to remove the address or telephone number from the publicly accessible website within a period of 48 hours after receiving the demand; or

(B) reposts the address or telephone number on the same or a different publicly accessible website, or makes the information publicly available through another medium, within a period of four years after receiving the demand, regardless of whether the individual is no longer a public servant.

WHAT IS THE PENALTY CLASS FOR OBSTRUCTION OR RETALIATION IN TEXAS?

Obstruction or retaliation is typically a third degree felony, punishable by two to ten years in prison. It becomes a second degree felony, punishable by two to 20 years in prison, if a person harms or threatens to harm a juror, or a public servant is injured after the person posts the public servant’s phone number or address.

WHAT IS THE PUNISHMENT RANGE FOR OBSTRUCTION OR RETALIATION IN TEXAS?

Obstruction or retaliation charged as a third degree felony carries between two and ten years in prison, and a maximum fine of $10,000. If it is charged as a second degree felony, the punishment range is between two and 20 years in prison, and up to a $10,000 fine.

WHAT ARE THE PENALTIES FOR OBSTRUCTION OR RETALIATION IN TEXAS?

As an alternative to prison, a person charged with obstruction or retaliation is eligible for up to ten years of probation after a conviction, or up to ten years of deferred adjudication without a conviction.

WHAT ARE THE DEFENSES TO OBSTRUCTION OR RETALIATION IN TEXAS?

The action criminalized by the retaliation statute is the threat of harm with intent to inhibit public service by others. If the State does not prove the retributory element, a person cannot be convicted of retaliation. The most common defense, therefore, is negating the allegation that the threat was “for or on account of” the victim’s service or status as a public servant, witness, prospective witness, or informant.

• When is a threat “for or on account of” another’s service or status? The fact that a threat was made to a public servant while he or she was discharging his or her duties does not, by itself, mean the threat was “for or on account of” the public servant’s service or status. The State must show the person threatened to inflict harm by an unlawful act due to the person’s status. This requires the State to correctly allege the victim’s status as an informant, public servant, witness, or prospective witness.

  In Cada v. State, the Court of Criminal Appeals illustrated the distinction between an informant, a witness, and a prospective witness. The defendant was convicted of retaliation after telling a store clerk he was “going to pay” for calling the cops. The State’s indictment alleged the victim was a “witness,” but the Court of Criminal Appeals reversed the conviction, holding the victim was an informant. 334 S.W.3d 766 (Tex. Crim. App. 2011).

• What if the victim, or target of the threat, is not present or does not hear the threat? A person may be convicted of retaliation even if the target of the threat is not present to perceive the threat. Further, the threat to harm in retaliation is not required to be imminent, or direct. For example, a defendant told a social worker seeking to terminate his parental rights that he was tired of her messing with him, and he had the same thoughts as another man who killed two people in a Texas courtroom who kept messing with him. Davis v. State, 890 S.W.2d 489 (Tex. App.—Eastland 1994, no pet.).

WHAT IS THE STATUTE OF LIMITATIONS FOR OBSTRUCTION OR RETALIATION IN TEXAS?

The limitation period for obstruction or retaliation, whether it is a second degree or third degree felony, is three years.

OBSTRUCTION OR RETALIATION IN TEXAS

One of the purposes of the retaliation statute is to encourage public servants, witnesses, prospective witnesses, and informants to perform vital public duties without fear of retribution. Those public duties may include reporting criminal activities, testifying in official proceedings, or cooperating with the government in a criminal investigation. Threats to those protected by the statute are based not only on the language used but the context in which they are uttered. Veiled threats, imminent or not, constitute retaliation.

TEXAS OBSTRUCTION OR RETALIATION COURT CASES

The case law regarding obstruction or retaliation in Texas shows there are several alternative ways of committing the offense. Courts have also discussed the types of threats prohibited by the law against retaliation, and have concluded the threat is not required to be verbal, nor does it need to be imminent.

• What is a threat under the obstruction or retaliation law? A threat occurs if a person gives some sign, warning, or otherwise communicates an intent to inflict loss, disadvantage, or injury. A threat may be verbal, non-verbal, or a combination of the two. Actually harming someone and threatening to harm someone may arise from the same act, occur simultaneously, or in sequence. For example, making a “finger gun” gesture at a police officer amounted to a threat when the defendant made other threatening statements and asked about the police officer’s family members. Barnes v. State, 631 S.W.3d 281 (Tex. App.—Houston [14th Dist.] 2020, pet. ref’d).