Texas Penal Code 42.072 – Stalking

WHAT IS STALKING IN TEXAS?

The Texas law against stalking prohibits a repeated scheme of harassment that:

1. threatens bodily injury or death to another, or another’s family member, household member, significant other, or property;
2. causes another to fear bodily injury or death, or to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended; and
3. would cause a reasonable person to fear bodily injury or death, or to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended.

WHAT IS THE STALKING LAW IN TEXAS?

Tex. Penal Code § 42.072. STALKING.

(a) A person commits an offense if the person, on more than one occasion and pursuant to the same scheme or course of conduct that is directed specifically at another person, knowingly engages in conduct that:

(1) constitutes an offense under Section 42.07, or that the actor knows or reasonably should know the other person will regard as threatening:

(A) bodily injury or death for the other person;

(B) bodily injury or death for a member of the other person’s family or household or for an individual with whom the other person has a dating relationship; or

(C) that an offense will be committed against the other person’s property;

(2) causes the other person, a member of the other person’s family or household, or an individual with whom the other person has a dating relationship to be placed in fear of bodily injury or death or in fear that an offense will be committed against the other person’s property, or to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended; and

(3) would cause a reasonable person to:

(A) fear bodily injury or death for himself or herself;

(B) fear bodily injury or death for a member of the person’s family or household or for an individual with whom the person has a dating relationship;

(C) fear that an offense will be committed against the person’s property; or

(D) feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended.

(b) An offense under this section is a felony of the third degree, except that the offense is a felony of the second degree if the actor has previously been convicted of an offense under this section or of an offense under any of the following laws that contains elements that are substantially similar to the elements of an offense under this section:

(1) the laws of another state;

(2) the laws of a federally recognized Indian tribe;

(3) the laws of a territory of the United States; or

(4) federal law.

(c) For purposes of this section, a trier of fact may find that different types of conduct described by Subsection (a), if engaged in on more than one occasion, constitute conduct that is engaged in pursuant to the same scheme or course of conduct.

WHAT IS THE PENALTY CLASS FOR STALKING IN TEXAS?

Stalking is a third degree felony, punishable by two to ten years in prison. If a person has a previous stalking conviction, a subsequent stalking charge is a second degree felony, punishable by two to 20 years in prison.

Texas Penal Code Section 12.501 increases the penalty classification to the next highest category if the offense 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. Stalking enhanced to a first degree felony is punishable by five to 99 years or life in prison.

WHAT IS THE PUNISHMENT RANGE FOR STALKING IN TEXAS?

The punishment range for stalking depends on whether the person has previous stalking convictions, and whether the victim is a public servant.

• Third degree felony: two to ten years in prison, maximum $10,000 fine;
• Second degree felony: two to 20 years in prison, maximum $10,000 fine:
  • if the accused has a prior stalking conviction; or
  • if the offense was committed against a public servant or a public servant’s family member, household member, or property due to the victim’s status as a public servant, and the person has no prior convictions.
• First degree felony: five to 99 years or life in prison, maximum $10,000 fine:
  • if the accused has a prior stalking conviction; and
  • if the offense was committed against a public servant or a public servant’s family member, household member, or property due to the victim’s status as a public servant.

WHAT ARE THE PENALTIES FOR STALKING IN TEXAS?

A person charged with stalking may be eligible for probation after a conviction, or deferred adjudication without a conviction, for a period not to exceed ten years.

Pursuant to Texas Code of Criminal Procedure article 42A.505, a person placed on probation or deferred adjudication for stalking may be prohibited from contacting the victim as a condition of community supervision.

WHAT ARE THE DEFENSES TO STALKING IN TEXAS?

The statute does not authorize specific defenses to stalking. A person accused thereof may attempt to negate at least one of the elements the State must prove at trial, or assert, for example, that the law is unconstitutional.

• Does the Texas law against stalking violate the First Amendment? Texas courts have upheld the constitutionality of the harassment statute, because it does not prohibit communication protected by the First Amendment.In Ex parte Barton, the Texas Court of Criminal Appeals upheld the constitutionality of Subsection 42.07(a)(7) of the harassment statute, which prohibits repeated electronic communications. The Court determined the law is not a restriction on a person’s legitimate communication of ideas, opinions, or information. Rather, the law prohibits conduct that invades a person’s privacy in an intolerable manner, which is not protected by the First Amendment.

WHAT IS THE STATUTE OF LIMITATIONS FOR STALKING IN TEXAS?

The limitation period for stalking is three years.

STALKING IN TEXAS

A person commits stalking in Texas by repeatedly harassing another and placing the victim in fear of bodily injury or death, that a member of the victim’s family or household will suffer bodily injury or death, or an offense will be committed against the victim’s property, or caused the victim to feel harassed, alarmed, annoyed, offended, abused, tormented, or embarrassed.

TEXAS STALKING COURT CASES

The case law regarding stalking in Texas illustrates the types of conduct prohibited.

• In Noble v. State, the defendant sent over 50 emails to the victim in a three-week period, in which he repeatedly referenced wanting to have sex with the victim. He showed up to her office and house, and the victim said she felt threatened, scared, alarmed, and in fear of bodily injury or rape. The defendant was convicted of stalking, and argued on appeal the statute was unconstitutional. The appellate court affirmed, holding the repeated electronic communications provision is facially constitutional.
• In Martinez v. State, after the defendant and victim ended their marriage, the defendant repeatedly went to the victim’s workplace and threatened to shoot her, threw things at her car, and accused her of cheating. He sent her restaurant’s corporate office lengthy complaints, threatened two of her coworkers, and went by the victim’s home on multiple occasions, causing her to fear for her life. He was convicted of stalking, and the appellate court affirmed.