Bruce Kaye Criminal Defense Attorney Dallas, TX, Personal Injury, Entertainment Law

STATE CRIMINAL DEFENSE

Fear. Anxiety. Panic.

These are the normal core emotions that you will feel when you have been arrested. What will happen to my family? Will I lose my job? How will I pay my bills? Your mind can’t stop picturing the worst. For over 25 years, I have helped Texans who have been accused of either state or federal offenses alleviate these core emotions with the goal of returning you to your life before you were charged with an offense.

STATE CRIMINAL DEFENSE ATTORNEY IN DALLAS, TX

In matters of state criminal defense, it is crucial for me to take the time to thoroughly prepare for each case. The key to winning trials is to be more prepared than the prosecutor. I spend quality time gathering up all of the evidence, meeting with the witnesses and filing legal motions in order to win.

BRUCE KAYE, ATTORNEY AT LAW

State Offenses

In state court, experience matters.  In fact, based on my prior experience, I have even been  appointed as a Special Prosecutor in Dallas County, Texas on a murder retrial. I work to obtain the best results possible. Sometimes, that means obtaining the best plea bargain offer to keep charges off of my client’s record. Other times it means a full on trial utilizing the latest technology to enforce your visual story.

For over 25 years, I have helped defendants charged with almost every known offense including murder, sexual assault (adults and children), robbery, family violence, animal cruelty, possession and/or intent to manufacture or distribute controlled substances, and many, many more.

State Offenses & Punishments

Arson is defined as the willful and malicious burning or charring of property. Texas Penal Code § 28.01, et seq.

In its most basic sense a person commits arson when they knowingly, by means of a fire or explosive:

  • Damage any real or personal property of another without their consent; or
  • Damage any real or personal property with intent to defraud an insurer. One example of this would be  when someone deliberately burns their house to collect insurance money.

Conduct that Constitutes Arson in Texas

Several different circumstances can result in an arson charge. While the majority of arson crimes involve damage to buildings, arson can also be committed by a person who sets fire to forest land or a boat. These can include fires intended to damage or destroy fences, vegetation, or structures on open-space land.

  • Starting a fire with the intent to damage a home, building, or vehicle knowing that it is within city limits, insured, subject to a security interest (such as a mortgage) or located on someone else's property is also classified as arson.
  • Additionally, it's considered arson if a person starts a fire with the intent to damage or destroy a house, building, or vehicle when he or she is reckless about whether it will endanger the life of another person or the safety of someone else's property.

It's important to note that arson occurs where there is either intent to cause damage or destroy, or where there is proof of recklessness in starting a fire. Here are some examples:

  • An arson charge can result from recklessly starting a fire or causing an explosion while manufacturing a controlled substance, which results in damage to any vehicle, house, or building.
  • A person can be charged with arson if he or she intentionally starts a fire that recklessly causes bodily injury or death, or damages someone else's building.

One final important point to be aware of is that a person can be charged with arson in Texas even if the fire doesn't continue after ignition; thus, in many circumstances actual damage to property is not a required element.

Penalties

Texas considers arson to be a serious offense. There may be more serious charges if death or serious bodily injuries occur as a result of arson. 

First Degree Felony: Fires which are intentionally started and which result in actual bodily injury or death of any person or which were intended to specifically damage or destroy a habitation or place of assembly or worship. The punishment for this charge is life imprisonment or a term of 5 to 99 years in prison.

Second Degree Felony: General arson charges. The punishment for this charge is 2 to 20 years in prison.

Third Degree Felony: Fires which are recklessly started while manufacturing a controlled substance and which result in actual bodily injury or death of any person. The punishment for this charge is 2 to 10 years in prison

State Jail Felony: Fires which are recklessly started while manufacturing a controlled substance and which damage any building, habitation or vehicle. Fires also constitute a state jail felony where they are intentionally started but which resulted in reckless damage or destruction to buildings or reckless injury or death. The punishment for this charge is 180 days to 2 years in prison.

Additional Penalties:

In addition to the terms of imprisonment described above, a fine of up to $10,000 may be imposed (regardless of the degree of the felony).

Exceptions/Defenses:

  • A person does not commit arson if a fire or explosion was part of controlled burning of open-space land.
  • It is defense to arson if an individual obtained a permit/written authorization before starting a fire or causing an explosion within the city limits.

"Assault" occurs when someone threatens another with imminent bodily injury. 

"Battery" refers to actual bodily contact, either offensive or injurious in nature. 

"Aggravated Assault" occurs if it results in serious injury, or if a weapon is used in the commission of the assault.

Assault and battery also are considered personal injuries, which means you can sue someone for these actions in a civil court to get compensated for your injuries.

In Texas, the elements for a case against a defendant for assault and battery are the same, although there are many different classifications for different degrees of the offense (charged as "assault" even if battery does occur). For example, threatening someone with bodily harm in Texas may just result in a fine, while causing bodily harm against someone can land you in jail for up to one year.

Statutory Definition of Assault: Texas Penal Code § 22.01, et seq.

A person commits an offense if the person:

  • Intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse;
  • Intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse; or
  • Intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.

Penalties for Assault and Battery:

Class C misdemeanor: If a person threatens another with bodily harm or causes physical contact in a provocative or offensive way, and no other aggravating factors are present.

Class B misdemeanor: If a person commits assault against someone who is a sports participant during a performance or in retaliation for a performance.

Class A misdemeanor: If a person causes bodily injury to another, and no other aggravating factors are present; or if a person causes physical contact in a provocative or offensive way against an elderly individual.

3rd degree felony if act committed against:

  • A person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant;
  • A family member, member of the household, or dating relationship if defendant has been previously convicted of a similar offense, or if the offense was committed by intentionally or recklessly choking the victim;
  • A person who contracts with the government for certain family services (such as Child Protective Services) acting in their official duties, or who is retaliated against for said duties;
  • A person the actor knows is a security officer performing within the scope of their duties; or
  • A person the actor knows is emergency services personnel while the person is providing emergency services.

2nd degree felony if:

  • Offense is committed against a family member, member of the household, or dating relationship;
  • Defendant has been previously convicted of a similar offense against an individual described above; and
  • Offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person's throat or neck or by blocking the person's nose or mouth (choking).

1st degree felony if aggravated assault is committed against:

  • Someone with whom you have a domestic relationship; or
  • A public official, police officer, emergency worker, security guard, witness, or informant.

Penalties for Aggravated Assault:

Class C misdemeanor: Fine of up to $500.

Class B misdemeanor: Up to 180 days in jail, fine of up to $2,000.

Class A misdemeanor: Up to 1 year in jail, fine of up to $4,000.

Third degree felony: Up to 10 years in prison, fine of up to $10,000

Second degree felony: 2 to 20 years in prison, fine of up to $10,000.

First degree felony: 5 years to life in prison, plus fine.

Burglary is defined in the Texas Penal Code § 30.01 - § 30.07 as follows:

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

  1. Enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault;
  2. Remains concealed, with intent to commit a felony, theft, or an assault, in a building or habitation; or
  3. Enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.

To get a conviction for burglary, a prosecutor must prove beyond a reasonable doubt that without consent of the owner, the defendant entered a private habitation with the intent to commit a felony, theft, or assault. Entering a vehicle or breaking into a coin-operated machine with the intent to commit a felony or theft is also considered burglary. For burglary, even if the felony, theft, or assault did not take place, a defendant may be found guilty, even if all they had was the intent to commit a crime.

Burglary Offense Classifications:

  • State jail felony if committed in a building other than a habitation.
  • Second degree felony if committed in a habitation.
  • First degree felony if the premises are a habitation and any party to the offense entered with the intent to commit (or attempted to commit) a felony other than felony theft.

Penalties:

  • Class C misdemeanor: Fine of up to $500.
  • Class B misdemeanor: Up to 180 days in jail, fine of up to $2,000.
  • Class A misdemeanor: Up to 1 year in jail, fine of up to $4,000.
  • State Jail Felony: 6 months to 2 years in a state jail facility, find of up to $10,000.
  • Second degree felony: 2 to 20 years in prison, fine of up to $10,000.
  • First degree felony: 5 years to life in prison, plus fine.

 

Criminal Trespass is defined in the Texas Penal Code § 30.01 - § 30.07 as follows:

A person commits an offense if the person enters or remains on or in property of another, including residential land, agricultural land, a recreational vehicle park, a building, or an aircraft or other vehicle, without effective consent and the person:

  1. Had notice that the entry was forbidden; or
  2. Received notice to depart but failed to do so.

To get a conviction for criminal trespass, the only things a prosecutor must prove beyond a reasonable doubt are:

  • The defendant entered or remained on the property of another without the person's consent; and
  • The defendant had notice that the entry was forbidden, or received notice to leave but failed to do so.

Criminal Trespass Offense Classifications:

  • Class B misdemeanor (if no other aggravating or mitigating factors).
  • Class C misdemeanor if committed on or within 100 feet of agricultural land, or on residential land and within 100 feet of a protected freshwater area.
  • Class A misdemeanor if offense was (a) committed in a habitation or shelter center, Superfund site, or within a critical infrastructure facility; or (b) perpetrator carried a deadly weapon in the commission of the offense.

Penalties:

  • Class C misdemeanor: Fine of up to $500.
  • Class B misdemeanor: Up to 180 days in jail, fine of up to $2,000.
  • Class A misdemeanor: Up to 1 year in jail, fine of up to $4,000.
  • State Jail Felony: 6 months to 2 years in a state jail facility, find of up to $10,000.
  • Second degree felony: 2 to 20 years in prison, fine of up to $10,000.
  • First degree felony: 5 years to life in prison, plus fine.

Child Abuse is defined in the Texas Family Code 261.001 et seq. 

Texas child abuse laws criminalize physical, emotional, or sexual abuse of minors and also require certain third parties with knowledge of the abuse to report it to the authorities.

Texas law requires anyone with knowledge of suspected child abuse or neglect to report it to the appropriate authorities. This mandatory reporting requirement applies to all individuals and is not limited to teachers or health care professionals. The law even extends to individuals whose personal communications may be otherwise privileged, such as attorneys, clergy members, and doctors or nurses.

What Constitutes Abuse?

Inflicting or failing to reasonably prevent others from inflicting mental or emotional injury impairing child's growth, development, or psychological functioning; physical injury resulting in substantial harm, or which is at variance with explanation given; sexual abuse, exploitation, use of controlled substance resulting in mental or physical harm to child.

Mandatory Reporting Required

Mandatory reporting of child abuse is required for "Professionals," including teachers, nurses, doctors, day care employees, employees of state-licensed or certified organizations with direct contact with children, clergy, mental health professional, attorney, reproductive health clinic worker, or any person.

Basis of Report of Abuse/Neglect:

If there is cause to believe that a child's physical or mental health or welfare has been or may be adversely affected by abuse or neglect, it must be reported to the Texas Department of Protective and Regulatory Services.

Penalty for Failure to Report or False Reporting:

  • Class B misdemeanor if there was physical injury resulting in substantial harm; mental or emotional injury; failure to prevent injury; harmful sexual conduct or pornography; failure to prevent use of controlled substance by child
  • Class A misdemeanor if there was a false report

Child Neglect and Abandonment is defined in the Texas Family Code 261.001 et seq. 

A parent or guardian is responsible for providing safe and adequate food, clothing, shelter, protection, medical care, and supervision for a child, or arranging to have someone else provide these needs. Texas law defines neglect as the failure to meet this responsibility. Neglect, like other forms of abuse, must involve "observable and material impairment" or "substantial risk" to the child for the civil statute to apply. There are also criminal sanctions against anyone who knowingly abandons or endangers a child.

"Neglect" includes:

  • the leaving of a child in a situation where the child would be exposed to a substantial risk of physical or mental harm, without arranging for necessary care for the child, and the demonstration of an intent not to return by a parent, guardian, or managing or possessory conservator of the child;
  • placing a child in or failing to remove a child from a situation that a reasonable person would realize requires judgment or actions beyond the child's level of maturity, physical condition, or mental abilities and that results in bodily injury or a substantial risk of immediate harm to the child;
  • failing to seek, obtain, or follow through with medical care for a child, with the failure resulting in or presenting a substantial risk of death, disfigurement, or bodily injury or with the failure resulting in an observable and material impairment to the growth, development, or functioning of the child;
  • the failure to provide a child with food, clothing, or shelter necessary to sustain the life or health of the child, excluding failure caused primarily by financial inability unless relief services had been offered and refused;
  • placing a child in or failing to remove the child from a situation in which the child would be exposed to a substantial risk of sexual conduct harmful to the child;
  • placing a child in or failing to remove the child from a situation in which the child would be exposed to acts or omissions that constitute abuse
  • the failure by the person responsible for a child's care, custody, or welfare to permit the child to return to the child's home without arranging for the necessary care for the child after the child has been absent from the home for any reason, including having been in residential placement or having run away
  • a negligent act or omission by an employee, volunteer, or other individual working under the auspices of a facility or program, including failure to comply with an individual treatment plan, plan of care, or individualized service plan, that causes or may cause substantial emotional harm or physical injury to, or the death of, a child served by the facility or program as further described by rule or policy;

Abandonment:

Texas law defines criminal child abandonment as leaving a child younger than age 15 in any place without providing reasonable and necessary care, or in circumstances under which no reasonable, similarly situated adult would leave a child of that age and ability. Examples include leaving a six-year-old child alone in the food court of a mall or leaving a two-year-old alone at home. Criminal charges would also extend to intentionally abandoning a child in any place that expose the child to an unreasonable risk of harm or mental impairment.

Mandatory Reporting of Neglect and Abandonment:

Texas law requires anyone with knowledge of suspected child abuse or neglect to report it to the appropriate authorities. This mandatory reporting applies to everyone, not just teachers or health care professionals. The law even includes individuals whose personal communications are typically seen as privileged, such as attorneys, clergy members, and health care professionals. Failing to report suspected neglect is a Class A misdemeanor, punishable by as much as a year in state jail and a fine up to $4,000.

Signs of Neglect:

  • Obvious malnourishment
  • Lack of personal cleanliness
  • Torn or dirty clothes
  • Left unattended for long periods of time
  • Need for medical or dental care
  • Frequent tardiness or absence from school

Punishment for Child Neglect or Abandonment:

Texas law makes allowances for certain parental errors in judgment. Punishment for abandoning or endangering a child are on a sliding scale based on the seriousness of the charge.

Simple abandonment is a state jail felony punishable by six months to two years in state jail and a fine. If there is a finding that the abandonment placed the child in imminent danger of death, bodily injury, or physical or mental impairment, it will be charged as a second-degree felony punishable by two to 20 years in prison and a fine.

Criminal Penalties:

  • Abandonment with Intent to Return: 6 months to 2 years in state jail and a fine
  • Abandonment No Intent to Return: 2 to 10 years in prison and a fine
  • Abandonment Placing Child in Imminent Danger: 2 to 20 years in prison and a fine

 

Texas prohibits the promotion, use, or exploitation of children under the age of 18 for performance or employment or conduct of sexual acts or depictions of acts of a sexual nature. Texas law defines "sexual conduct" as sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola. It is against the law to promote, create, or disseminate materials depicting any such sexual conduct by any means of visual representation, including plays, motion picture, photographs, and dance.

It is also a crime to possess child pornography. A prosecutor must be able to prove beyond a reasonable doubt that the defendant knowingly and intentionally possessed materials depicting a child under the age of 18 years at the time the material was created, engaging in sexual conduct, and the defendant knows this material depicts the child as such. Under Texas child pornography laws, if six or more identical visual depictions of a child engaging in sexual conduct are found, then there will be a presumption that the defendant had intent to promote the materials.

Statutory Definition of Child Pornography Offenses:

Child Pornography Laws are defined in the Texas Penal Code § 43.25, et seq.

Sexual Performance by a Child:

A person commits an offense if, knowing the character and content thereof, he employs, authorizes, or induces a child younger than 18 years of age to engage in sexual conduct or a sexual performance. A parent or legal guardian or custodian of a child younger than 18 years of age commits an offense if he consents to the participation by the child in a sexual performance.

Possession of Child Pornography:

A person commits an offense if:

  1. The person knowingly or intentionally possesses, or knowingly or intentionally accesses with intent to view, visual material that visually depicts a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct; and
  2. The person knows that the material depicts the child as described by Subdivision 1 (above).

Crime Classifications:

Sexual Performance by a Child:

  • Class A misdemeanor for employing or authorizing a child to work for a sexually oriented commercial activity or in any place requiring the child to work nude or topless.
  • Third degree felony for knowingly producing, directing, or promoting a sexual performance by a child younger than 18.
  • Second degree felony for employing a child under 18 for sexual performance or conduct; or for knowingly producing, directing, or promoting a sexual performance by a child younger than 14.
  • First degree felony for employing a child under 14 for sexual performance or conduct.

Possession of Child Pornography:

  • Third degree felony for possessing child pornography.
  • Second degree felony for possessing child pornography with the intent to promote or distribute it.

Defenses to Child Pornography Charges:

  • Mistake of fact (i.e. the subject appears to be under the age of 18 but in fact, is over the age of 18)
  • Entrapment
  • Age
  • Lack of intent
  • Lack of knowledge

Penalties and Sentences:

  • Class A misdemeanor: Up to 1 year in jail, fine of up to $4,000.
  • Third degree felony: 2 to 10 years in state prison, fine of up to $10,000.
  • Second degree felony: 2 to 20 years in prison, fine of up to $10,000.
  • First degree felony: 5 years to life in prison, fine of up to $10,000.

 

There are various types of criminal activities that fall under the umbrella of "computer crimes" in Texas. Many people may be familiar with the term "hacking," however, there are computer crimes that are even broader and cover a variety of topics. Computer crimes can be broad in range but basically involve any use of a computer or other technological machine or system like a computer to harm, defraud or threaten another person, or to solicit minors or breach security. Texas computer crimes laws are constantly changing to keep up with the fast pace of technology.

Computer Crimes Laws are defined in the Texas Penal Code § 33.01, et seq.

Computer Crimes Offenses Include:

  • Knowingly accessing a computer, computer network or computer system without the consent of the owner;
  • Knowingly soliciting a minor under the age of 17 over the internet, text message, or other electronic system, to meet in person for the purpose of engaging in sexual behavior with the defendant;
  • Knowingly accessing a computer system, network, program, software or machine that is part of a voting system that uses direct recording electronic voting machines and tampers with the votes or the ability of someone to vote;
  • Creating a web page or leaving messages on a social networking site using the persona of another without the person's consent and with the intent to harm, defraud, intimidate or threaten someone; or
  • Referencing the name, domain address, phone number or any other identifying information of a person without that person's consent, intending to cause the recipient to think the message is truly coming from that person, with the intent to harm or defraud someone.

Crime Classifications:

  • For breach of computer security (i.e. gaining access to a computer without the consent of the owner), the charge may range from a "Class B" misdemeanor up to a first degree felony, depending on the value of money or property that the defendant benefitted from and/or was lost by the victim.
  • For soliciting a minor, the crime will be charged as a third degree felony. However, if the minor is under 14 years of age, then it may be a second degree felony.
  • For tampering with a voting machine, the penalty is a first degree felony.
  • For online harassment, the charge is generally a third degree felony. However, if the crime was pretending to send an electronic message of any type from another person, hoping the recipient would believe that other person authorized this message, with the intent to harm or defraud, the defendant may instead be charged with a "Class A" misdemeanor. In the event, however, that this was intended to summon a response by emergency personnel, it will be elevated back to a third degree felony.

Penalties:

  • Class B misdemeanor: Up to 180 days in a county jail, fine of up to $2,000.
  • Class A misdemeanor: Up to 1 year in jail, fine of up to $4,000.
  • Third degree felony: 2 to 10 years in state prison, fine of up to $10,000.
  • Second degree felony: 2 to 20 years in prison, fine of up to $10,000.
  • First degree felony: 5 years to life in prison, fine of up to $10,000.

 

The crime of debit or credit card fraud involves the unauthorized taking of another individual's account information with the intent of either charging unauthorized purchases to the account or removing funds. It is often intertwined with the crime of identity theft, in which another person's personal identifying information (such as Social Security Number, birth date, and street address) in order to fraudulently open an account or commit other types of fraud. In many cases, the perpetrator of credit card fraud may also be charged with identity theft.

Credit Card Fraud Laws are defined in the Texas Penal Code § 32.31

Credit Card or Debit Card Abuse Offenses

  • Using a credit or debit card the defendant knows is not his own;
  • The card has expired, been revoked, or cancelled;
  • Using a fictitious card, or the pretended number of a fictitious card;
  • Receiving any benefit that the defendant knows has been obtained by violation of this law;
  • Stealing a credit or debit card with the intent to use it, sell it or transfer it to anyone but the cardholder;
  • Buying a credit or debit card from someone the defendant knows is not the issuer of the card;
  • Selling a credit or debit card;
  • Inducing the cardholder to use his/her card to obtain property for the defendant's benefit when the cardholder is financially unable to pay for it;
  • Possessing a credit or debit card that is not the defendant's own and having the intent to use it.

Classification of the Crime:

All offenses in this statute are charged as a state jail felony; but charged as a third degree felony if the offense was committed against an elderly person.

Penalties:

  • State Jail Felony: 6 months to 2 years in a state jail facility, find of up to $10,000.
  • Third degree felony: 2 to 10 years in state prison, fine of up to $10,000.

Defenses:

  • Lack of knowledge
  • Lack of intent
  • Mistake
  • Duress (being coerced to perform a crime that you other wise would not perform)
  • Age (being a minor may lessen the penalty imposed)

 

Various types of unruly or obnoxious conduct may violate Texas state law. Police may use a disorderly conduct charge when a person is disturbing the peace or behaving in a disruptive manner, but is not presenting any serious danger to the public. Disorderly conduct may be viewed as a "catch-all" crime. 

Examples of disorderly conduct include:

  • Using abusive, profane or vulgar language in a public place
  • Making an offensive gesture in a public place that could incite unruly conduct
  • Chemically creating an unreasonable odor in a public place
  • Abusing or threatening a person in a public place
  • Making unreasonable amounts of noise in a public place or near a private residence that is not your own
  • Fighting in public
  • Displaying or discharging a firearm in public
  • Exposing one's self in public
  • Looking or "peeping" into a private area that is not your own such as hotel rooms, homes, restrooms, or shower stalls

Disorderly Conduct Laws are defined in the Texas Penal Code Title 9, Chapter 42

Elements of Disorderly Conduct:

In Texas, to prove disorderly conduct, a prosecutor must prove that the conduct was performed both intentionally and knowingly. If the conduct was being performed either unintentionally or if the person did not know their conduct was disturbing the peace, it will likely be insufficient to prove disorderly conduct.

Sometimes, prosecutors may offer a plea deal in which a charge of a more serious crime may be reduced down to that of disorderly conduct in exchange for the defendant's agreement to plead guilty, or perhaps to help the prosecutor with information for a higher priority investigation.

Possible Defenses:

  • Provocation for abusive or threatening conduct
  • Reasonable fear of bodily harm by a dangerous wild animal for discharging a firearm
  • Being a student in the sixth grade or lower grade level and the conduct occurred at a public school campus during school hours.
  • Lack of knowledge
  • You did not commit the act
  • You did not use fighting words, even if your language included profanity or vulgarity

Penalties:

  • Class C misdemeanor in most cases, punishable by a fine of no more than $500
  • Class B misdemeanor if the conduct deals with discharging or displaying a firearm in a public place with the intention of alarming others, funeral picketing, obstructing a highway, disrupting a meeting, and making silent or abusive 911 calls, punishable by up to 180 days in jail, a fine of up to $2,000, or both.
  • Texas has broad sentencing guidelines. The penalty imposed is up to the discretion of the judge, and sometimes will come from a recommendation by the prosecutor.

Texas doesn't have a civil liability law specifically for dog bites, but that doesn't mean you won't be liable if your dog bites someone. The Texas Supreme Court articulated the law and standards that Texas follows for animal attacks in a case called Marshall v. Ranne.

In the Marshall case, Paul Marshall sued John Ranne for damages suffered when Ranne's boar severely injured his hand. The court reviewed previous court cases involving animals and decided that Texas would hold the owner of a vicious animal strictly liable for damages.

With this ruling Texas became a "one bite rule" state. This means the owner can be held strictly liable for any damages caused by an animal known to be dangerous (or which could be dangerous). However, if the animal has never bitten anyone before, then the injured person must prove that it was vicious before they could recover for the injuries.

While Texas lacks statutes for civil liability for dog attacks (or attacks by other animals), it does have criminal statutes. A dog owner may be criminally liable if they acted with criminal negligence or if they had reason to know their dog was dangerous. A person can be said to act with criminal negligence if they should have been aware of the substantial and unjustifiable risk that resulted in the dog attack. For the criminal statutes, a person can be said to know that their dog is dangerous if there was a previous, unprovoked attack or the owner has been informed by appropriate authorities that the dog is dangerous.

Dog Bite Laws are defined in the Texas Health and Safety Code in Section 822.005 (Attack by dog), Section 822.042 (Dangerous dog requirements), Section 822.044 (Attack by dangerous dog)

Dog Bite Laws are defined in the Texas Penal Code in Section 6.03 (Criminal negligence)

Dog Bite Laws are defined in the Texas Civil Code: Section 16.003 (Two-Year Statute of Limitations)

Dog Bite Liability:

If the dog has never bitten anyone before and the owner had no reason to believe that the dog was dangerous, then it will be up to the victim to prove negligence in order to recover.

If the owner had reason to know that the dog was dangerous, then the owner is strictly liable for the injury caused.

Civil Liabilities:

If the owner didn't know the dog was dangerous, they may be liable for the percentage they are deemed at fault. If the victim is deemed to be more than 50% at fault, there is no liability. (Texas Civ 33.001)

If the owner had reason to know the dog was vicious, then the owner is liable for all damages caused.

Penalties:

Criminal negligence or previously determined dangerous dog (Texas H&S 822.05):

  • Felony in the third degree
  • Imprisonment 2 to 10 years
  • Fine not to exceed $10,000

Attack by a dog determined to be dangerous (Texas H&S 822.044):

  • Class C misdemeanor
  • Fine not to exceed $500

Possible Defenses:

  • Defense to prosecution if person is a veterinarian, peace officer, or is employed to deal with animals.
  • Person is a dog trainer or an employee of a guard dog company
  • Attack occurred on owner's property
  • Attack was provoked
  • Attack occurred in dog's enclosure

 

The use of force in domestic situations that causes bodily injury, threatens to cause bodily harm, or causes any kind of physical contact the other person may regard as offensive or provocative is called domestic violence. 

In order to prove a case, a prosecutor must establish beyond a reasonable doubt that the defendant performed such an act intentionally or knowingly. If actual bodily injury occurred, the prosecutor may also provide evidence proving the defendant's actions were reckless and resulted in bodily injury.

Domestic Violence Laws are defined in the Texas Penal Code Title 5, Chapter 22, Section 22.01

Domestic violence in Texas means an assault against a family member, household member, or a current or past dating partner including:

  • intentionally, knowingly or recklessly causing bodily injury to another person
  • intentionally or knowingly threatening another person with imminent bodily injury; or
  • intentionally or knowingly causing physical contact with another that the offender knows or reasonably should know the victim will find provocative or offensive.

Possible Defenses:

  • Unintentional or mistake
  • Lack of knowledge
  • No offense occurred
  • Self-defense

Penalties:

Penalties range from a "Class C" misdemeanor, which carries a penalty of up one year in jail and a fine all the way to a first degree felony, which carries a penalty of five to 99 years in prison and a fine of no more than $10,000.

The primary factors influencing which type of penalty is likely to be imposed are the following:

  • Victim's relationship to the defendant;
  • Defendant's past convictions for domestic violence, or lack thereof;
  • Whether suffocation or strangulation was involved

Note: If the defendant is found to have knowingly, intentionally or recklessly caused bodily injury to another (including a spouse), the defendant will be punished with a "Class A" misdemeanor. However, Texas law carves out various exceptions to this general rule based on specificities of the victim, the situation and the type of violence involved which may elevate or diminish the penalty depending on the circumstances.

 

In Texas, the penalties for the possession and sale of cocaine are dependent on the amount of drugs at issue. Penalties generally include some amount of jail time, as well as monetary fines. For example, the possession of even a small amount of cocaine (less than 1 gram) is charged as a felony, and offenders may be sentenced to as many as two years in state prison. The possession of more than 200 grams of cocaine can land you in prison for up to 99 years. Note that some counties in Texas offer diversion programs for first-time cocaine offenders in exchange for having charges dropped.

Cocaine Laws are defined in the Health and Safety Code § 481.001, et seq.

Penalties for the Possession of Cocaine:

  • Less than 1 g.: state jail felony
  • 1-4 g.: 3rd degree felony
  • 4-200 g.: 2nd degree felony
  • 200-400 g.: 1st degree felony
  • 400 g. and over: 10-99 yrs. or life at Texas Dept. of Criminal Justice institution and/or $100,000

Penalties for the Sale of Cocaine:

  • Less than 1 g.: state jail felony
  • 1-4 g.: 2nd degree felony
  • 4-200 g.: 1st degree felony
  • 200-400 g.: Texas Dept. of Criminal Justice institution for life or 10-99 yrs. and/or $100,000
  • 400 g. and over: Texas Dept. of Criminal Justice institution for life or 15-99 yrs. and/or $250,000;
  • Delivery to minor under 17 who is enrolled in school: 2nd degree felony
  • Within drug-free zone: penalties doubled

Texas takes a relatively strict stance on hard drugs, including heroin and other powerful narcotics. Possession of even a small amount of heroin -- less than one gram -- is charged as a felony and may result in jail time, while possession with intent to sell can get you a life sentence. Some, but not all, court districts in Texas offer drug diversion programs for first-time offenders in lieu of prison.

Texas lawmakers passed legislation to create a drug court program in 2001, mandating the programs in certain counties (including Dallas and El Paso). Texas drug courts offer an alternative to incarceration for non-violent, low-level drug offenders who are determined to be good candidates. The main goal of the program is to reduce recidivism by helping drug offenders get treatment and better their lives.

Drug offenders charged with non-violent offenses (such as heroin possession) are assessed by the court. If approved, participants undergo extensive monitoring (frequent drug testing, visits by officials, treatment sessions, etc.) throughout the 12-18 month program. The case is either dropped (if a pretrial program), pending completion of the program, or the offender is placed on probation.

Heroin Laws are defined in the Health and Safety Code §481.001, et seq.

Penalties for the Possession of Heroin:

  • Less than 1 g.: state jail felony;;
  • 1-4 g.: 3rd degree felony;
  • 4-200 g.: 2nd degree felony
  • 200-400 g.: 1st degree felony;
  • 400 g. and over: 10-99 yrs. or life in Texas Department of Criminal Justice institution and/or $100,000

Penalties for the Sale of Heroin:

  • Less than 1 g.: state jail felony;&
  • 1-4 g.: 2nd degree felony;
  • 4-200 g.: 1st degree felony;
  • 200-400 g.: Texas Dept. of Criminal Justice institution for life or 10-99 yrs. and/or $100,000; 400 g. and over: Texas Dept. of Criminal Justice institution for life or 15-99 yrs. and/or $250,000;
  • Delivery to minor under 17 who is enrolled in school: 2nd degree felony; Within drug-free zone: stricter penalties

Manufacturing or cultivating drugs is a violation of the Texas state law known as the Texas Controlled Substances Act. Under this law, a variety of drugs are placed into four "penalty groups," each with their own classifications and penalties for drug-related violations. Notably, marijuana is classified on its own, independent of these four classes of drugs. Prosecutors must prove beyond a reasonable doubt that the defendant manufactured or cultivated the drug in question with the intent to deliver it to another person.

Drug Manufacturing and Cultivation Laws are defined in the Texas Health and Safety Code, Title 6, Subtitle C, Chapter 481, Section 481.112 - 481.114

Possible Defenses:

  • Lack of knowledge that the drug was being manufactured or cultivated. For example, Bob did not know that many of the green plants growing in the backyard of his new house are marijuana plants.
  • Lack of intent to deliver it to others
  • The drug was not intended for human consumption
  • Insufficient quantity
  • The drug was a substance for which there is an approved new drug application under the Federal Food, Drug, and Cosmetic Act; or
  • The drug has been approved for investigational use under the Federal Food, Drug, and Cosmetic Act and the defendant's conduct was in accord with that exemption.
  • The drug is medical marijuana.
  • The drug is a prescribed medication from a medical doctor and is being cultivated for personal use for that reason only.

NOTE: Addiction is NOT a defense.

Penalties:

Penalties for violation of Texas drug manufacturing and cultivation laws varies, based on a few determining factors. Namely, these are:

  • Type of drug;
  • Quantity;
  • How the drug was being cultivated;
  • Past convictions

Texas has some of the harshest penalties for drug-related offenses. A penalty for manufacturing or cultivating a drug listed in any one of the four penalty groups can range from a state jail felony carrying a sentence of 180 days to two years in state prison and/or a fine of no more than $10,000, to life in prison and/or a fine of up to $250,000. It all depends on the type of drug and which penalty group it falls under, and then how much of the drug is at issue.

If the controlled substance at issue in a case is not listed in any of the penalty groups, then the charge will be a "Class A" misdemeanor. This misdemeanor carries a sentence of not more than one year in a county jail and/or a fine of no more than $4,000.

Another factor that may influence sentencing is whether or not a person died or was seriously injured due to their use of the drug manufactured or cultivated by the defendant. If so, the punishment may be increased by one degree. For example, a charge which would normally carry a penalty of a second degree felony would now be elevated to that of a first degree felony.

 

 

In Texas, possession of even a tiny amount of marijuana can land you in jail; in fact, anything less than 2 ounces carries a maximum penalty of 180 days in jail and a fine of up to $2,000. But penalties are even more serious for possessing concentrates such as hash oil, which is charged as a felony and can result in up to two years in state prison.

Marijuana laws are defined in the Texas Health and Safety sec.481.032, et seq.

Elements of Texas Marijuana Laws:

Possession:

  • Under 2 oz.: Class B misdemeanor
  • 2-4 oz.: Class A misdemeanor
  • 4 oz. to 5 lbs.: State jail felony
  • 5-50 lbs.: 3rd degree felony
  • 50-2000 lbs.: 2nd degree felony
  • Over 2000 lbs.: Texas Dept. of Criminal Justice institution for life or 5-99 yrs. and $50,000

Sale:

  • .25 oz. or less: Class B misdemeanor (if no remuneration)
  • .25 oz. or less: Class A misdemeanor (with remuneration) 
  • .25 oz. to 5 lbs.: state jail felony
  • 5 lbs. to 50 lbs.: 2nd degree felony
  • 50-2000 lbs.: 1st degree felony
  • Over 2000 lbs.: Texas Dept. of Criminal Justice institution for life or 10-99 yrs. and/or $100.000
  • Delivery to minor under 17 who is enrolled in school and over .25 oz.: 2nd degree felony
  • Within drug-free zone: penalties doubled

Diversion Programs:

Some court districts in Texas have drug diversion programs that allow certain first-time offenders to complete a rehabilitation program instead of serving a prison sentence.

Penalties and Sentences: 

The sale of just 7 grams (roughly one-quarter ounce) of cannabis also carries a maximum penalty of 180 days in jail and a possible $2,000 fine. But selling more than 50 pounds of the herb (a felony) can land you in prison for 99 years, with a mandatory minimum sentence of five years. Selling any amount of marijuana to a minor is a felony, with a maximum sentence of 20 years.

Medical Marijuana:

Texas Compassionate Use Act: Main Provisions

  • Illnesses: Intractable epilepsy
  • Possession: Any amount of low-THC (up to 0.5%), high-CBD (more than 10%) oil as prescribed by a physician (raw herb and other cannabis preparations are not allowed)
  • Cultivation: Not allowed
  • Dispensaries: Limited number of state-licensed facilities
  • Statute: Texas Health and Safety Code sec. 487.001, et seq.

Possession of various illicit and controlled drugs may violate the Texas Controlled Substances Act. In order to secure a conviction for drug possession, a prosecutor must prove beyond a reasonable doubt that the defendant knowingly and intentionally possessed or had control over a controlled drug which he or she does not have a valid prescription or order for from a doctor for medical purposes.

Under the Texas law, there are four classes of drugs, each with their own classifications and each with their own set of penalties. Notably, marijuana is classified on its own, independent of these four classes of drugs.

Drug Manufacturing and Cultivation Laws are defined in the Texas Health and Safety Code, Title 6, Subtitle C, Chapter 481, Section 481.115 - 481.123

Possible Defenses:

  • Lack of knowledge that the defendant was in possession of the controlled substance.
  • The drug was not intended for human consumption.
  • The drug was a substance for which there is an approved new drug application under the Federal Food, Drug, and Cosmetic Act; or
  • The drug has been approved for investigational use under the Federal Food, Drug, and Cosmetic Act and the defendant's conduct was in accord with that exemption.
  • The drug is medical marijuana.
  • The drug is a prescribed medication from a medical doctor.
  • Insufficient quantity

Note: Addiction is NOT a defense.

Penalties:

Penalties for drug possession in Texas will vary widely based on a few determining factors. Namely, these are:

  • Type of drug;
  • Quantity;
  • How the drug was stored or concealed;
  • Possession of additional drug paraphernalia (i.e. a scale or large amounts of money); and
  • Past convictions

As for drugs in other classes, the penalty for possession is at the very least a "Class B" misdemeanor, or a "Class A" misdemeanor, which carries a penalty of up to one year in county jail and/or a fine of no more than $4,000, depending on the type of drug at issue. Depending on the amount of the illicit drug in the defendant's possession, the penalty can range from a third degree felony all the way up to a first degree felony. The highest penalty given in Texas for drug possession is life or 99 years in prison and/or a fine of up to $250,000.

Marijuana:

Possession of marijuana may be classified as light as a "Class B" misdemeanor, carrying a sentence of up to 180 days in jail and/or a fine of no more than $10,000 for possession of two ounces or less of Marijuana. This penalty can go all the way up to life in prison and a fine of up to $50,000 for possession of over 2,000 pounds of Marijuana.

Drug trafficking (distributing or delivering illicit drugs) is a violation of the Texas Controlled Substances Act. A person may be found guilty of drug trafficking If he or she is proven to have knowingly delivered marijuana or any other illicit or controlled substance in any of the four groups of drugs defined and listed in the Texas Controlled Substances Act. (Marijuana is classified separately under this law.)

Drug Trafficking and Distribution Laws are defined in the Texas Health and Safety Code, Title 6, Subtitle C, Chapter 481, Section 481.112 - 481.114

Possible Defenses:

  • Lack of knowledge
  • Mistake of fact (For example, thinking the drug was sugar when in fact, it was cocaine.)
  • Duress (For example, if Bob was forced to transport the cocaine because if he refused, something bad would happen to his family.)
  • The substance was not intended for human consumption

Penalties:

Texas has some very heavy penalties for drug trafficking. Prosecutors may often offer plea deals to defendants where they may offer a charge with a lesser penalty in exchange for information that would help them gather evidence for a higher priority investigation.

Texas drug trafficking or distribution laws charge the crime as a felony upon which a wide gamut of penalties may be imposed. The factors influencing which sentence will be imposed are:

  1. the amount of the drug being distributed or delivered; and
  2. the type of drug and which of the four groups of drugs it is classified under.

The smaller the amount of a drug in a certain group, the lighter the sentence may be.

The sentences involved may range anywhere from 180 days to two years in state jail and/or a fine of no more than $10,000 for a state jail felony, to life in the Texas Department of Criminal Justice or a term of 15 to 99 years in prison and/or a fine of not more than $250,000 for the heaviest first degree felony. The harshness of the sentence imposed depends on how much of the drug is being trafficked.

Texas embezzlement laws fall under the law criminalizing theft. Embezzlement is essentially financial theft by an employee. It can be considered white collar crime in some instances but it does not have to be only a white collar offense. It occurs when the defendant is entrusted with his or her employer's money or goods and then steals those money or goods. Many instances of embezzlement also involve elements of fraud.

Embezzlement laws are defined in the Texas Penal Code, Title 7, Chapter 31

Elements of Embezzlement:

Prosecutors must prove beyond a reasonable doubt that the defendant appropriated property, such as money or goods, with the intent to deprive the true owner of the property without the owner's consent. Some of the more well-known ways to be caught up in an embezzlement charge are the following:

  • Theft of cash from an employer
  • Theft of goods or services from an employer
  • Transferring funds from a corporate account of the defendant's employer to the defendant's personal bank account
  • Altering company books in some way in order to conceal income to the defendant's employer

Possible Defenses:

  • Mistake (i.e. the defendant did not intend to alter company books to conceal income, but rather made an honest mistake in some of his math which lead to the apparent concealment)
  • Lack of intent to deprive the owner of the property
  • Consent was given by the owner of the property

NOTE: Entrapment is not a defense.

Texas embezzlement laws, or theft laws, provide for a number of different penalties upon conviction. The factor that determines the severity of the punishment if convicted on a charge of embezzlement is the amount or value of the goods, services or cash stolen. If you are considered a public servant and you commit embezzlement, you will face a higher penalty.

Penalties:

  • Up to $1,500: misdemeanor, penalties include up to one year in jail
  • $1,500 to $20,000: state jail felony, penalties include up to two years in state jail
  • $20,000 to $100,000: 3rd degree felony, 2 to 10 years in prison
  • $100,000 to $200,000: 2nd degree felony, 2 to 20 years in state prison
  • More than $200,000: 1st degree felony, 5 to 99 years in state prison

Extortion occurs when an individual gains property or money by some type of force or threat of violence, property damage, harm to reputation or unfavorable government action. The difference between this kind of threat and robbery is that the victim is not placed in imminent (or immediate) fear of physical danger. Instead, the threatened conduct could occur sometime in the future and could affect things other than the victim's physical body, such as his or her reputation.

Extortion laws are defined in the Texas Penal Code, Title 7, Chapter 31

Proving extortion can be difficult without some type of audio or video recording of the threat made, since it can end up being one person's word against the other in the absence of evidence.

Possible Defenses: 

  • Mistake
  • Lack of intent to deprive the owner of the property
  • Consent was given by the owner of the property

NOTE: Entrapment is not a defense. 

Penalties:

Texas extortion laws offer a wide variety of penalties. The factor that determines the severity of the punishment if convicted is the amount or value of the goods, services or cash that the defendant gains from the crime.

  • For the smallest amounts ($50 and under), the charge will be a "Class C" misdemeanor carrying a penalty of a simple fine of up $500.
  • The most serious charge will be for stealing $200,000 or more in goods, services or cash. This is considered a first degree felony and can be punishable by five to ninety-nine years in prison and/or a fine of up to $10,000.

Forgery laws are defined in the Texas Penal Code, Title 7, Chapter 32

Texas forgery law makes it a crime to forge a "writing" with intent to defraud or harm another person. If the defendant is being charged with having forged two or more writings, then there will be a presumption that he or she did intend to defraud another person. A type of fraud-related crime, a writing can be any of the following things:

  • Any kind of printed or recorded information (including a signature)
  • Money, coins, tokens, stamps, seals, credit cards, badges and trademarks
  • Symbols of value, right, privilege or identification

Elements of Forgery:

  • make, sign, or alter any written document by signing another person’s name, by altering the time or place of signature, or in order to pass off the writing as a copy of an original that does not exist
  • make false entries in records or books
  • use, present, or transfer a forged item (also known as “uttering” a forged instrument), or
  • possess a forged instrument with the intent to utter it.

Possible Defenses:

  • Lack of intent to defraud or harm another person
  • Age (Minors may get lighter punishments than adults)
  • The writing was not forged
  • Mistaken identity
  • Good faith belief that person was authorized to sign or alter the document

Penalties:

  • If the forgery is paper money, stocks or bonds, postage or revenue stamps, a government record, or an item issued by a state or national government: felony of the third degree punishable by two to 10 years in prison and a fine up to $10,000.
  • If the forgery is a will, deed, mortgage, security instrument or agreement, check, credit card, contract, release, or authorization to for payment of money or to debit a financial account: state jail felony punishable by 18 months to 2 years in jail and a fine up to $10,000.
  • Any other forged documents may be charged and punished as a Class A misdemeanor punishable by up to one year in jail or a fine up to $4,000, or both.

Fraud is a broad term that refers to acts intended to swindle someone. In essence, it's the use of intentional deception for monetary or personal gain.

Thousands of people each year fall victim to it. Fraud always includes a false statement, misrepresentation or deceitful conduct. The purpose is to gain something of value, usually money, by misleading or deceiving someone into believing something that the perpetrator knows to be false.

What the Law Says About Fraud

Fraud is covered by both criminal and civil laws. The most obvious difference has to do with who files the legal case. Only government prosecutors can bring criminal charges, but a victim of fraud can file a civil lawsuit. Sometimes a person who commits fraud is both criminally prosecuted and sued in a civil action.

In the criminal context, fraud must be proved "beyond a reasonable doubt." If convicted of the crime, a defendant may be sentenced to jail or probation and fines.

In private civil lawsuits, the standard of proof is lower and punishment is often restitution (i.e., return of the victim's money) and monetary damages. When regulators such as the Federal Trade Commission or Securities and Exchange Commission file civil lawsuits against unscrupulous businesses, they frequently seek injunctions, restitution to victims and monetary penalties.

While the exact wording of fraud laws varies, the main elements usually are:

  • a purposeful misrepresentation of an important ("material") fact;
  • with knowledge that it is false;
  • to a victim who justifiably relies on the misrepresentation; and
  • who suffers actual loss as a result.

Types of Fraud

Common varieties of fraud offenses include:

Clients often have misconceptions when it comes to "pre-bankruptcy planning".

For example, a client advised that her Florida Condo is property of the bankruptcy estate, responded, "But who will know?" A client who learned he could only retain $7,500 from an auto accident, remarked, "Well, that won't be settled for years, we don't have to include it."

And some clients, when asked about additional bank accounts their name, disclose that they have joint savings accounts that are not "really" in their name.

Lawyers may be aware that concealment of assets or the filing of false schedules, or giving false testimony in a bankruptcy case may be grounds for denial of discharge.

That is exactly what happened to one local businessman. Based upon his lawyer's advice, he failed to disclose the existence of certain asset transfers before filing for bankruptcy, failed to list other assets, and scheduled a mortgage which may not, in fact, have been supported by any consideration (other than the desire to shelter substantial equity in the debtor's residence).

Another local businessman failed to disclose an active personal injury case in his bankruptcy schedules. When the settlement was reported in the newspaper, an irate creditor reported it to the bankruptcy trustee, who commenced an adversary proceeding against the debtor and his attorneys for turnover of the money to the bankruptcy estate.

In this situation, since the personal injury attorneys had knowledge of the bankruptcy case prior to distribution of the money to the debtor, they had potential personal liability. It should be pointed out, however, that the absence of knowledge of the bankruptcy would not impact on the fact that these proceeds belonged to the trustee.

What most people, attorneys included, fail to recognize is that conduct which could give rise to a denial of discharge, could also be a crime, punishable by a $5,000 fine and five years imprisonment for each incident.

Under U.S. Code, Title 18, the following bankruptcy crimes are enumerated:

  • concealing property of a bankruptcy estate
  • falsely testifying at a creditors meeting or court proceeding
  • filing false bankruptcy schedules
  • filing a false proof of claim
  • offering or receiving a bribe
  • fraudulently transferring or concealing property (either before or after bankruptcy filing)
  • concealing, destroying, mutilating, changing or withholding records.
  • embezzlement of bankruptcy assets or secreting of documents by any person involved in a bankruptcy estate. This includes an attorney, a trustee, a Chapter 11 debtor-in-possession, or other person involved in post-petition estate administration
  • self-dealing by a trustee or debtor-in-possession
  • refusal by a trustee or debtor-in-possession to provide reasonable access to documents or accounts
  • entering into an undisclosed fee arrangement for attorneys (or other) fees to be paid from property of the bankruptcy estate
  • conduct by a "bankruptcy petition preparer" (other than the debtor's attorney or an employee of that attorney), which results in dismissal of a debtor's bankruptcy case
  • filing a bankruptcy petition for the purpose of perpetrating a fraudulent scheme
  • filing a document in bankruptcy case for the purpose of perpetrating a fraudulent scheme
  • making a false or fraudulent representation, claim or promise in a bankruptcy case, or in a case falsely asserted to be pending
  • concealment of property or impending an investigation relating to liquidation of a bank by the RTC, the FDIC, or like conservator or liquidating agent.

The bankruptcy judge, the case trustee, or the U. S. Trustee has authority to refer suspected bankruptcy crimes to the U.S. Attorney's Office.

Recently, a new emphasis has been placed on investigation of bankruptcy an informal bankruptcy fraud working group has been assembled in the U.S. Attorneys Office. The group consists of representatives from the Office, the FBI and the Inspector General of the Post Office. In the past, these cases have been given low priority, but the climate seems to have changed.

A QUESTION OF INTENT

A key element to prosecuting someone under these provisions can be whether they acted intentionally and fraudulently, or merely innocently.

In a recent Ninth Circuit Case,1 the debtor had been convicted of making false statements and omitting information on his bankruptcy schedules.

Two weeks before filing bankruptcy the debtor transferred a 13-year old dodge van to his daughter; a lease to a Cadillac to another daughter, and ownership of a life insurance policy to his wife (after having just completed drawing out the policy's full loan value, which was deposited in a bank account under his grandson's name).

Post-petition, the debtor filed an insurance claim for a theft, listing items claimed to be worth $21,000, with acquisition dates pre-dating the bankruptcy petition, but which had not been listed in the bankruptcy schedules.

The court heard evidence of a substantial firearms collection which had not been scheduled and a Rolex watch likewise not disclosed.

Although the jury convicted the debtor of various bankruptcy crimes, the Ninth Circuit reversed and remanded for a new trial, since it found the jury was likely swayed by impermissibly allowed testimony of the debtor's attorney, which was used to show the debtor's intent.

At the criminal trial, debtor's bankruptcy counsel testified (after the trial counsel's objection on the basis of attorney-client privilege was overruled) that he advised his client that he was signing the schedules under penalty of perjury. The appellate court concluded that the trial court erroneously compelled the attorney's testimony. The attorney-client privilege is a two-way street, protecting both the client's communications to the attorney and the attorney's responses. When the attorney's communications go beyond the ministerial role as a messenger of factual public information, and reach the level of giving legal advice, those communications are protected.

Reviewing the balance of the evidence, the court concluded that the debtor's defense of "ignorance, mistake or stupidity" could be plausible, the attorney's testimony "almost certainly sealed [the debtor's] fate in the eyes of the jury." Accordingly, the matter was sent back for a new trial.

Notwithstanding the reversal, the case is instructive on the types of typical debtor conduct which could give rise to an indictment. Even though an attorney might not be called upon to testify against his client, the client's intentional omission of relevant information regarding transfers, and suspicious pre-and-post-petition conduct, are likely to give rise to criminal consequences.

Furthermore, although not overtly brought into play in this case, the hidden question was: what did the attorney know about the concealed assets? If he was aware of, or worse, directed those transfers to be made, the unanswered question is did the attorney put his license on the line to help his client?

Credit and debit card fraud is a form of identity theft that involves an unauthorized taking of another's credit card information for the purpose of charging purchases to the account or removing funds from it. This theft can occur physically when the actual credit and debit card is taken, or the theft can occur when just the numbers are stolen from an unprotected website or a card reader at a gas station.

Continue on to learn more about credit card fraud, the federal and state laws that apply to it, and the possible penalties you could face if convicted of the crime.

Elements of Credit Card Fraud

Debit/credit card fraud can be committed in a variety of ways, such as when a person:

  1. Fraudulently obtains, takes, signs, uses, sells, buys, or forges someone else's credit or debit card or card information;
  2. Uses his or her own card with the knowledge that it is revoked or expired or that the account lacks enough money to pay for the items charged; or
  3. Sells goods or services to someone else with knowledge that the credit or debit card being used was illegally obtained or is being used without authorization.

State and Federal Laws

Credit and debit card fraud has become a huge problem, and both the states and the federal government have passed laws in attempt to address the problem.

State Laws

Each state has credit card fraud laws that prohibit the illegal possession and use of a credit or debit card. They have statutes for the physical possession and use of a stolen card. Then there are statutes if just the account number information is stolen, referred to as identity theft. For instance, Alabama Code § 13A-9-14 punishes credit or debit card theft, while § 13A-8-192 punishes identity theft or the possession of identifying information.

Some states have passed more protections that other states. California has been on the forefront of passing numerous laws to try to prevent credit card and identity theft, as can be seen in the following sections from the California Penal Code:

Federal Law

Federal credit card fraud laws focus on interstate and foreign commerce, making it illegal to use a stolen or fraudulently obtained credit or debit card. The penalties for such use shall be fined not more than $10,000 and/or imprisoned not more than ten years. Here is a list of federal statutes addressing credit card fraud:

Types of Credit Card Fraud

Credit fraud is a broad term for the use of a credit card (or any comparable type of credit) to buy goods or services with the intention of evading payment. While it is simple to understand the physical theft of a credit or debit card from a wallet or purse, today it is much more common to just have information stolen and not the card itself. There are several forms of credit card fraud with new and ingenious methods being devised almost daily. The most common types of credit fraud include:

  • Opening new accounts with stolen identification
  • Taking over an existing account
  • Making purchases without the card being present
  • Using a counterfeit card
  • Using a fake card
  • Using a lost or stolen card

Identity Theft

One of the most damaging forms of credit card fraud is identity theft, because once personal identifying information is taken it can be used for numerous fraudulent activities. Several credit card frauds depend on identity theft. If a bad actor steals a person's identifying information they can open new accounts or they can contact credit card companies and change addresses to take over an existing account.

Data Breach

Sometimes the identity theft falls short of stealing a person's complete identity. The thief may just get the number from one card. This sometimes happens when a company has its customer information hacked in a data breach. Companies that store a customer's credit card information sometimes have that information stolen. The thief can then use the credit card number to make telephone or on-line purchases without the credit card being present.

Stolen Credit Card Imprints

It used to be that when you used a credit card an impression of the card was made on carbon paper. Then when the carbon paper was discarded, the credit card numbers could be stolen. That does not happen very often these days, but a modern version of that is electronic credit card skimmers that can read the credit card information from the magnetic strip on the credit card. There are a couple of forms of electronic card skimmers.

One type is a portable reader that can read cards carried in pockets and purses of people as they walk down the street. Another type is a reader that is affixed to a stationary location, such as an ATM machine or a gas station pump. The credit or debit card imprint can then be used to make a counterfeit or fake credit card that will function just like the real thing.

Stolen Credit/Debit Card

Then, of course, there is the old stand-by for credit card fraud and that is the physical stealing of the card itself. A purse or wallet can be stolen, but the card can also be simply lost. There are a number of ways a card can be stolen. They can be taken from mailboxes or as part of a house burglary or a car break-in. A waiter can take in the information at a restaurant. Often, this type of theft will result in a fraud spree, where the perpetrator racks up charges as quickly as possible before the victim has a chance to report the card lost or stolen.

Defenses to Credit Card Fraud

The state and federal laws require that someone has an intent to defraud or steal to be guilty of credit card fraud. Mistakenly using someone else's card or unintentionally using a cancelled or expired card is not grounds to hold someone criminally liable for credit card fraud.

Penalties for Credit Card Fraud

The penalties for credit card fraud are dependent on the facts of the crime and the severity of the offense. If a credit card is stolen but not used, it may be treated as a misdemeanor or a felony. However, the more sophisticated the crime, i.e., counterfeit cards, the more likely it will be a felony with a longer possible sentence.

Credit card fraud that involves the theft of the card or the number typically has a prison sentence of 1 to 5 years. Identity theft is treated much more harshly with prison sentences up to 10 or 20 years. Also, if the thief has the tools of the trade, i.e., credit card skimmers on them when they are caught, there can be additional prison time for those tools.

Identity theft and identity fraud are terms used to refer to all types of crime in which someone wrongfully obtains and uses another person's personal data in some way that involves fraud or deception, typically for economic gain. For example, someone rummages through your garbage and steals an envelope with some old tax records, finding your Social Security number, birth date, and other sensitive information. They use this information to open a credit card in your name.

The following is a summary of the crime of identity fraud or theft, including pertinent laws and penalties for offenses.

Identity Theft Laws

Identity theft laws in most states make it a crime to misuse another person's identifying information -- whether personal or financial. Such data (including Social Security numbers, credit history, and PIN numbers) is often acquired through:

  1. The offender's unlawful access to information from government and financial entities or
  2. Lost or stolen mail, wallets and purses, identification, and credit or debit cards.

Identity theft is one of the fastest-growing crimes in the nation, robbing its victims of time, money and peace of mind. Identity thieves often use the Internet but also can obtain sensitive personal data from trash cans and other unsecured locations.

Because of the rise of identity theft and it's harmful consequences, Congress passed a law in 1998 making it a federal crime. Under the Identity Theft and Assumption Deterrence Act, it is a federal crime when a person "knowingly transfers or uses, without lawful authority, a means of identification of another person with the intent to commit, or to aid or abet, any unlawful activity that constitutes a violation of Federal law, or that constitutes a felony under any applicable State or local law."

This law was followed by the Theft Penalty Enhancement Act in 2004 which increased penalties for "aggravated" identity theft, requiring courts to impose additional sentences of two years for general offenses and 5 years for terrorism related offenses.

Several government agencies are involved in investigating and prosecuting identity theft crimes, including the:

  • Federal Bureau of Investigation
  • Federal Trade Commission
  • Secret Service
  • Postal Inspection Service

The FTC in particular helps to coordinate among other federal agencies and provides resources to law enforcement, consumers and businesses.

Clueless Identity Theft

Unlike a robbery or burglary, identity theft often occurs without the victim's knowledge. Most identity theft victims only find out after they see strange charges on their credit card statements or apply for a loan. While prevention is always the best policy, sometimes personal information is exposed through security breaches at banks or companies with which you do business. Thus, identity theft can happen to even well-prepared consumers.

While your fingerprints are unique to you and can't be given to someone else for their use, your personal data can be used, if it falls into the wrong hands, to personally profit at your expense.

In one notorious case of identity theft, the criminal, a convicted felon, incurred more than $100,000 of credit card debt, obtained a federal home loan, and bought homes, motorcycles, and handguns in the victim's name. He even called his victim to taunt him. The criminal served a brief sentence for making a false statement to procure a firearm, but made no restitution to his victim for any of the harm he had caused. Cases like this one are what ultimately prompted Congress to make identity theft a federal crime.

Insurance fraud occurs most often when an insured individual or entity makes a false or exaggerated insurance claim, seeking compensation for injuries or losses that weren't actually suffered. This type of crime also can be committed upon customers through the sale of unlicensed or bogus insurance coverage to unsuspecting clients, or an insurance broker or agent's diversion or theft of insurance premiums paid by clients.

Below we discuss the basics of insurance fraud, including the different types of offenses, elements of the crime, and more.

Definition of Insurance Fraud

Fraud in the context of insurance refers to any duplicitous act performed with the intent to obtain an improper payment from an insurer. This crime is committed by individuals from all walks of life. Law enforcement officials have prosecuted doctors, lawyers, chiropractors, car salesmen, insurance agents, and people in positions of trust. Anyone who seeks to benefit from insurance through making inflated or false claims of loss or injury can be prosecuted.

The pervasiveness of the crime drives up costs for all consumers and costs the insurance industry billions of dollars each year. One authority estimates that the annual value of insurance fraud approaches $150 billion. Detecting insurance fraud is difficult because of the surreptitious nature by which the criminal perpetrates the fraud.

Depending on the specific issues involved, an alleged wrongful act may be handled as an administrative action or law enforcement may handle it as a criminal matter.

Types of Insurance Fraud

Police and prosecutors typically refer to a fraudulent insurance scheme as either "hard fraud" or "soft fraud."

  • Hard Fraud: Someone deliberately fakes an accident, injury, theft, arson or other loss to collect money illegally from insurance companies. Crooks often act alone, but increasingly, organized crime rings stage large schemes to steal millions of dollars.
  • Soft Fraud: Normally honest people often tell "little white lies" to their insurance company for the purposes of filing or maximizing a claim. Many people think it's just harmless fudging. But soft fraud is a crime, and seemingly minor offenses collectively raise everyone's insurance costs.

Other common examples include the following:

  • Auto damage due to a "phantom vehicle;"
  • False slip and fall claims;
  • False disability claims;
  • Inflated billing by a medical provider or billing for services not provided; and
  • Using another person's identity to secure health care benefits.

Typical Elements for Fraud

In any insurance fraud case, there are certain elements that must be proven beyond a reasonable doubt in order for criminal penalties to apply. While each state may have additional elements for certain specific types of insurance fraud, the core elements often include:

  1. Knowingly making a false or misleading statement;
  2. The statement is made in connection with a claim or payment; and
  3. The statement is material (in other words, the statement can impact the outcome of the claim).

Whether these elements are proven will depend on the evidence in a case, specifically, the evidence that could be admissible at a trial.

Mail fraud is one of the most common federal criminal charges. The use of the U.S. Postal Service (USPS) or a private interstate carrier to commit a crime of deceit gives feds an easy opportunity to claim jurisdiction. The following article provides a definition of this crime and a discussion of two of the most famous mail fraud convictions in history.

Definition of Mail Fraud

The term fraud includes any scheme:

  • To obtain money or property under false pretenses; or
  • To sell, distribute, exchange, supply, or use counterfeits.

A person commits mail fraud when the scheme involves the mailing of something associated with the fraud. Mailing contracts, receipts, and communications regarding a fraudulent deal could all meet the law's requirements. The communications are not limited to the USPS and include mail sent through private and commercial interstate carriers.

The use of interstate mails is important because the federal government's jurisdiction is limited to matters that impact multiple states. Crimes that take place entirely within a single state fall under that state's laws, but the Commerce Clause of the Constitution grants the federal government jurisdiction over interstate matters.

Mail fraud is punishable by a fine and imprisonment of up to 20 years. If the crime involves benefits connected to a presidentially declared major disaster or emergency, or affects a financial institution, there are enhanced penalties that include fines of up to $1 million and imprisonment for up to 30 years.

Famous Mail Fraud Conviction: Charles Ponzi

Charles Ponzi is almost certainly one of the most famous swindlers of all time. His notoriety resulted in the coinage of the term "Ponzi scheme" for financial scams where money from each successive round of participants is used to pay the previous one. This kind of scam is a variation of the "pyramid scheme." During the brief rise and fall of Ponzi's scam it became a nationwide affair that involved extensive use of the postal system.

Ponzi went into business for himself in 1919, was making a million dollars a day on a scheme involving postal reply coupons by the summer of 1920, and was indicted for 86 counts of mail fraud by fall. In November of 1920, he pleaded guilty to a single count and was sentenced to five years in prison.

The scale of Charles Ponzi's scheme may make the punishment he received seem slight, and compared to contemporary prosecutions it is. Ponzi's latter-day corollary didn't get off so easily (though Ponzi himself never recovered from his conviction and ended his life a blind, half-paralyzed pauper.)

Famous Mail Fraud Conviction: Bernie Madoff

Bernard (Bernie) Madoff was responsible for the largest Ponzi fraud scheme of all time. Madoff pretended to trade in securities, but actually simply collected investment funds and used them to pay off victims who wanted to withdraw funds from the investment pool. Like Ponzi, Madoff's scheme produced returns that were a mathematical impossibility. When the scam fell apart, Madoff was prosecuted for defrauding his clients for a whopping $65 billion.

Madoff, in stark contrast to Ponzi, was sentenced to 150 years in federal prison for 11 federal charges, including mail fraud. Members of Madoff's family were sent to prison and one of his sons committed suicide. The courts have continued to pursue his assets in an attempt to compensate his victims, which has resulted in lawsuits against many of the financial institutions involved in his business.

Generally, securities fraud occurs when someone makes a false statement about a company or the value of its stock, and others makes financial decisions based on the false information. In cases of insider trading, insiders (i.e. executives, board members, etc.) buy or sell stocks based on information that isn't available to the public. Although the crime itself isn’t complicated, securities fraud can be particularly difficult to grasp if you lack an understanding of securities regulation.

Below, you’ll find information on common forms of securities fraud and how to protect your assets.

Securities Fraud by the Company Itself

The first type of securities fraud occurs when an officer or director of a corporation doesn’t accurately report the company's financial information to its shareholders. This can artificially raise the worth of the company’s stock and encourage investors to buy shares of an unhealthy company. If the company subsequently goes bankrupt, the people who bought shares based on false information lose their investment completely.

One famous example of this type of securities fraud was the Enron scandal, in which corporate officers failed to report the company's expenses, causing profits to appear larger than they were in reality.

Insider Trading

Insider trading is another type of securities fraud. It occurs when someone with confidential information about a company's financial state uses that information to make decisions about whether to buy or sell the stock before that information is disclosed to the public. For example, a corporate accountant could notice that the company is losing money fast and heading towards bankruptcy. If the accountant places an order to sell his stock before notifying the board, he’s arguably guilty of insider trading.

Third Party Misrepresentation

The last type of securities fraud occurs when a third party gives out false information about the stock market or a particular company or industry. “Pump and dump” schemes are a prevalent type of third party misrepresentations. In a pump and dump scheme, a person will find a small, unknown company with cheap stock and buy large amounts of its shares. The perpetrator will then send out false information about the company to encourage others to buy the stock, driving up the price. Once the price of the stock is high enough, the perpetrator sells his or her shares for a profit.

Protect Yourself

Federal and state governments do their best to combat securities fraud, but it’s still a good idea to take steps to protect yourself and your assets. With all the information about financial markets, and the huge number of players in the stock market, it’s often hard to separate truth from fiction.

There are, however, some things you can do to help. Learn some of the warning signs of securities fraud, so if you’re ever the victim, you could catch it early and minimize the damage. If you own stock, make sure you get your information directly from the company itself, rather than from third parties, and then double check that information against the SEC's database.

As the saying goes, the only sure things in life are death and taxes. If you intentionally fail to pay taxes or underreport your taxable income, you could be charged with tax evasion. While it's certainly a crime in and of itself, it's also commonly charged against those suspected of certain organized crimes where the source of their income is in doubt. For instance, famous Prohibition-era gangster Al Capone was convicted not for murder or racketeering, but for evading taxes.

This article provides an overview of tax evasion, including examples of the offense and suggestions to help you avoid being audited for possible evasion.

Mistakes Are Not Considered Tax Evasion

Tax forms are long, the Internal Revenue Code is complicated, and unless you’re an accountant or other tax professional, you're bound to make some mistakes that may result in underpaying taxes. Although you should always try to fill out your tax forms correctly, there’s no need to worry about being convicted for tax evasion over a simple error.

In order to be convicted of tax evasion, the IRS must show that you deliberately tried to underpay your taxes. If you simply made an error, you’ll still have to pay what you should have paid, and possibly an additional fine, but you’ll avoid the time, expense, and penalties of a criminal trial.

How Taxes Are Calculated

Although the tax code is complicated, general tax procedures are fairly simple at their heart. Every year, Americans must file a return stating how much money they made, how big their families are, and what their expenses were. The IRS then calculates each family's total income and subtracts certain expenses, called “deductions,” in order to determine their adjusted gross income, or AGI. The service then uses a chart to determine what percentage of your AGI to tax and comes up with a number representing the taxes you should owe.

Finally, the IRS looks to see if there were any special circumstances that mean you should pay less taxes, and then reduces the amount you owe by applying “credits.” Congress often uses these credits to motivate people to make changes in the way they live. For example, credits may be available to homeowners who make substantial improvements in order to make their homes energy efficient, or to businesses that hire military veterans or people with criminal backgrounds.

Examples of Tax Evasion

Each step of the process of taxation is vulnerable to tax fraud or evasion. If someone fails to file their tax return, the IRS has no way of auditing their finances. One of the most common forms of tax evasion involves underreporting income. Businesses and employees who deal largely in cash, such as wait staff, hairdressers, and retail store owners, sometimes underreport income because there’s little in the way of a paper trail. Businesses sometimes inflate their expenses, and families occasionally overstate the size of the household in order to take larger deductions.

Finally, people take advantage of the current credit system by misrepresenting their circumstances. If the IRS suspects you of any of these activities, it will launch an investigation and may prosecute you for tax fraud.

Many scams take place over the phone, often with the lure of a possible "grand prize" or some other way of keeping you on the line. Scammers often try to extract sensitive information from their victims, such as Social Security numbers, or may try to sell you something with no intention of actually delivering and every intention of taking your money. But if you know how to protect yourself, you can avoid being defrauded.

In this article, you’ll find useful information on telemarketing fraud, including how to recognize it, how to protect yourself, and how these cases are prosecuted.

How to Recognize Telemarketing Fraud

At its core, telemarketing fraud is a pretty simple crime: someone calls the victim, makes a false statement, and the misrepresentation causes the victim to give money or sensitive information to the caller. This definition can cover a large variety of scams. Sometimes, victims are told that they won a prize in a foreign lottery and their personal information is required to receive the prize.

In another example, the scammer calls the victim, claiming to be from an anti-virus software company, and convinces the victim to allow the caller to access their computer in order to rid it of a fictional virus. Once the scammer has the victim’s personal information, they can use it to access the victim’s bank accounts.

Protect Yourself

Given the wide variety of telemarketing schemes, it can be hard to recognize and even harder to protect yourself against fraud. However, there are a few easy and sensible things you can do:

  • Register your home and mobile phone numbers with the National Do Not Call Registry. Telemarketers aren’t allowed to call people on this registry, so if you get such a phone call, you’ll know immediately that it’s a scam.
  • If the phone call otherwise violates the rules for telemarketing – such as calling too early or too late, or failing to identify the origin of the call – then it’s probably a scammer. Hang up and file a complaint with the Federal Trade Commission.
  • Never give out personal information, such as your Social Security number or bank account number, to a telemarketer. If you’re interested in the caller’s offer, request information to be sent in the mail so that you can make a decision later. Most legitimate companies will be happy to do this for you.
  • Don’t feel pressured to make any decisions right away. One favorite tactic of telemarketers is to rush the decision to make you more likely to give into the scheme. If you start to feel pressured, simply hang up.

How Telemarketing Fraud is Prosecuted

The Federal Trade Commission (FTC) is responsible for prosecuting telemarketing fraud. After a complaint is filed, the FTC investigates the complaint and decides whether or not a violation has occurred. If so, the FTC will start adjudication proceedings within the commission itself.

Its decision can then be appealed to the US Court system. Each state also has its own telemarketing statutes and can prosecute under those laws. However, most telemarketing fraud is committed across state lines, so the FTC is often the best organization to handle complaints.

The crime of fraud can take many forms. Scams that take place over interstate wires, such as telemarketing fraud, phishing, or spam-related schemes, are all called wire fraud. Federal wire fraud is a federal offense and is typically investigated by the Federal Bureau of Investigation, but state laws and charges can also apply.

The definition of wire fraud is rather broad and includes any writings, signs, signals, pictures or sounds transmitted by wire, radio or television in interstate or foreign commerce. Federal prosecutors often charge persons with wire fraud in order to bring federal charges against them, typically when the crimes committed would only be subject to state laws.

Elements of Wire Fraud

Wire fraud is similar to regular fraud, except that it takes place over phone lines or involves electronic communications. The legal definition of wire fraud has four elements:

  • The defendant created or participated in a scheme to defraud another out of money or property;
  • The defendant did so with intent to defraud;
  • It was reasonably foreseeable that the defendant would use wire communications; and
  • The defendant did in fact use interstate wire communications.

For the purposes of wire fraud, "interstate wire communications" could mean telephone calls, faxes, internet communications, or even television transmissions.

Penalties for Wire Fraud

Persons who are found guilty of wire fraud under federal law face the following penalties:

  • Fines up to $250,000 for individuals
  • Fines up to $500,000 for organizations
  • Imprisonment of not more than 20 years

There are special circumstances and additional penalties of 30 years' imprisonment and a million dollar fine, if the wire fraud is related to a presidentially declared major disaster or if it involves a financial institution.

These penalties are per count, which means that each phone call or email or other electronic communication can be considered separate counts. For instance, if an individual makes three phone calls regarding the fraud, there may be three counts of wire fraud. Each count would potentially be subject to the maximum $250,000 fine and 20 years' imprisonment for a total of $750,000 in fines and 60 years in prison.

Typical Wire Fraud Schemes

People who commit wire fraud are frequently looking for your personal financial information in order to misuse your credit cards or transfer money from your bank account. One common example of wire fraud over the phone is telemarketing fraud.

Plenty of scammers have also used the internet to defraud people. "Phishing" is the practice by which a scammer will send out unsolicited email messages to mass numbers of people. The email will typically contain a somewhat convincing story and end with a request for the reader’s personal information.

The Nigerian Prince Scam

One of the most infamous examples of this kind of fraud is the story of the Nigerian prince. In that scam, the sender claims that he is a Nigerian prince who has been exiled, or experienced some other disaster. The sender says he has money in a Nigerian bank account, but needs to use the reader’s bank account as a place to deposit the money until a safer place can be found. The reader would then give her account information, and the scammer would use that information to access the reader’s money.

Some hustles and swindles are easy to spot, but others are not. Be wary of any email, text message, TV broadcast, or phone call requesting your personal information. You can report many instances of wire fraud to the Federal Trade Commission, which will launch an investigation. Also be on your guard against other fraud and financial crimes.

Texas gun control laws are among the least-restrictive in the U.S. While machine guns, saw-off shotguns, silencers, armor-piercing bullets, zip guns, and explosive weapons are in most cases prohibited by state law, Texas does not have a waiting period for gun purchases. Additionally, Texas allows all qualified applicants to carry a concealed firearm with a permit.

Gun control laws are defined in the Texas Penal Code, Section 46.05, et seq. (Prohibited Weapons), H.B.ANo.A1177

Prohibited Weapons:

The following weapons are prohibited under section 46.05*:

  • Explosive weapons
  • Machine guns
  • Short-barreled firearms
  • Firearm silencers
  • Knuckles
  • Armor-piercing ammunition
  • Chemical dispensing devices
  • Zip guns
  • Tire deflation devices

Note: Under Section 46.05(a)(1), certain prohibited weapons may be possessed, manufactured, transported, repaired or sold if they are registered in the National Firearms Registration and Transfer Record maintained by the Bureau of Alcohol Tobacco, Firearms and Explosives or if they are classified as a curio or relic by the U.S. Department of Justice.

Who May Not Own:

  • Convicted felons within 5 yrs. of release or parole
  • Minors under 18 without parental consent
  • Those confined in penal institution

Who May Not Carry:

Texans who can legally own a firearm don't need an additional license to openly carry a long arm. However, to carry a handgun, Texans must get a license to carry.

This law was amended to allow Texans to carry firearms temporarily while complying with an evacuation order.

Law Prohibiting Firearms On or Near School Grounds:

This is a felony in Texas. See Penal Code Sections 46.03 and 46.11.

 

The crime of identity theft includes obtaining, possessing, or using the identity of another individual -- regardless of whether they are living or dead and regardless of their age (infant, minor, adult or elderly) -- with the intent to harm or defraud someone. Under the law, the defendant will be presumed to have had the intent to harm or defraud another person if he or she possesses the identifying information of three or more people, living or dead.

Identity theft laws are defined in Texas Identity Theft Statute (Penal Code, Title 7, Chapter 32, Section 32.51 -the section on fraudulent use or possession of identifying information)

Defenses:

  • Lack of intent to deceive or harm another individual
  • Mistake of fact (e.g. the defendant did not obtain or possess the identity of another individual)
  • Age (Minors may receive lighter punishments under the law if convicted.)

Penalties and Sentences:

The crime of identity theft is a felony. The severity of the felony depends on how many items were obtained, possessed or transferred by the defendant:

  • If the number of items is less than five, the penalty is a state jail felony, which carries a sentence of 180 days to two years in a state prison and/or a fine of no more than $10,000.
  • If the number of items is between five and nine, the penalty is a third degree felony, which carries a sentence of two to ten years in a state prison and/or a fine of up to $10,000.
  • If the number of items is between ten and forty-nine, the penalty is a second degree felony, which carries a sentence of two to twenty years in a state prison and/or a fine of up to $10,000.
  • If the number of items is fifty or more, the penalty is a first degree felony, which carries a sentence of five to ninety-nine years in a state prison and/or a sentence of up to $10,000.

Intentionally defrauding, deceiving or misleading an insurer is a violation of Texas insurance fraud law. Specifically, it is a crime to submit false or misleading information to an insurer regarding a claim or regarding an application for an insurance policy. The defendant has also committed insurance fraud if the defendant, with the intent to defraud the insurer, solicits, offers, pays or receives a benefit in connection with a claim for payment. Essentially, any deceptive or intentionally misleading action or statement made to an insurance company in hopes of gaining an insurance benefit from them is a criminal act.

Insurance Fraud laws are defined in the Texas Penal Code, Title 7, Chapter 35

Defenses:

  • Lack of intent to deceive or defraud
  • The claim or information is not fraudulent or false
  • Mistake of fact (i.e. Bob truly thought the fire in his kitchen was an accident, even though later it was found that an angry employee purposely set fire to the kitchen.)
  • A portion of the claim resulted from a valid loss, injury, expense or service covered by the policy (NOTE: This is only a partial defense. The defendant may still be liable for the invalid portion of the claim.)

Penalties:

The penalties for a conviction on charges of insurance fraud vary depending on the amount or value of the claim. For example, a claim of less than $50 is a "Class C" misdemeanor, which only carries a $500 fine as a penalty. The severity of the penalty imposed increases with the increased value of the fraudulent claim. For example, the most severe penalty for insurance fraud is in the case that the value of the fraudulent claim is $200,000 or more. This will be a first degree felony, which carries a sentence of five to ninety-nine years in a state prison and/or a fine of up to $10,000.

For the falsification of information on an application for insurance, the defendant will be charged with a state jail felony. This imposes a penalty of 180 days to two years in a state prison and/or a fine of no more than $10,000.

Intoxication Assault typically occurs when the police say that you are drunk or on drugs and then get into a car accident.

Section 49.07 of the Texas Penal Code states:

(a) A person commits an offense if the person, by accident or mistake:

  • (1) while operating an aircraft, watercraft, or amusement ride while intoxicated, or while operating a motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another; or
  • (2) as a result of assembling a mobile amusement ride while intoxicated causes serious bodily injury to another.

This section of the code is intended to deter you from drinking and driving because you can be charged even if you did not intentionally injured anyone.  It can be a mistake or an accident that injuries another person and you can still be charged with Intoxication Assault.  Technically, you can be charged even if you are not driving a car.  Texas Penal Code 49.01 sections 3-6 defines “vehicle” under the Intoxication Assault statue as an airplane, an amusement ride, a watercraft (think jet ski or boat) and of course, a motor vehicle.

To charge you with Intoxication Assault,  the State must prove that you  caused serious bodily injury to another person with a vehicle. Serious bodily injury means that the person injured faced a substantial risk of death, that the person has suffered or will suffer permanent disfigurement or that the injured person will now have an impaired body part or organ.

Penalties:

Intoxication assault is a felony DWI of the third degree, which can result in a fine up to $10,000 and 2 years to 10 years in the Texas Department of Criminal Justice, and a driver's license suspension ranging from 180 days to 2 years.

The essential elements of a DWI offense are : (1) intoxication (2) operation of a (3) motor vehicle and (4) in a public place. 

Intoxicated means:

  • a) not having the normal us of your mental faculties by reason of the introduction of any substance into your body or
  • b) not having the normal use of your physical faculties by reason of the introduction of any substance into your body or
  • c) having a blood alcohol concentration (BAC) greater than a 0.08

It’s not just limited to alcohol.  The Texas Penal Code states “intoxicated with alcohol or other substances” so you can be prosecuted if you use a controlled substance, a legal prescribed drug, or a dangerous drug. 

Penalties:

Your first DWI is classified as a Class B Misdemeanor. The range of punishment for all Class B Misdemeanors is up to 180 days in county jail and up to a $2000 fine. Typically, there is a minimum term of confinement of 72 hours for all DWI offenses (you can usually probate the 72 hours).  Also, you will lose your license for a period of time (but you can usually get an Occupational License which will allow you to drive to work, school, doctor, church, etc…).

Your second DWI is a Class A Misdemeanor and will result in a minimum term of confinement of 30 days (usually one only serves the first 72 hours and the balance is not served) and mandatory interlock installation on your vehicle. In addition, the offense is considered a Class A Misdemeanor.

Your third DWI is classified as a third degree felony (can face a jail sentence of 2-10 years incarceration) and you can expect some jail time even if you get probation

Also, take note that the  86thTexas Legislative Session (HB 2048, 86th Texas Legislative Session) added additional fines for all offenses that relate to the operating of a motor vehicle while intoxicated.  Here’s the bad news:

  • (1) $3,000 for the first conviction within a 36-month period;
  • (2) $4,500 for a second or subsequent conviction within a 36-month period; and
  • (3) $6,000 for a first or subsequent conviction if it is shown on the trial of the offense that an analysis of a specimen of the person’s blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed.

If convicted of a third DWI felony, you will have to give up your gun, and you will lose your right to vote until Texas restores voting privileges to felons.  You are also labeled a “felon” which will make your life very difficult (finding a good job, renting an apartment, etc…)

Another thing to consider is your drivers license.  Typically once they arrest you for a DWI, the officer will take your license and give you a paper license which is only good for 40 days unless you request an ALR Hearing.  You only have 14 days to request the ALR Hearing. If you refuse to take the breath test, and you don’t request the ALR Hearing on time (or if you lose the Hearing) your license will be suspended for 180 days to up to two years, depending on the circumstances.  Again, you can apply for an Occupational License. 

DWI vs. DUI:

The main difference between a DWI and a DUI is really the age of the person accused.  A DUI is only applicable to you if you are under the age of 21.  If you are 21 years and a day old or older, then you will be charged with a DWI.  Unlike a DWI, you can be convicted of a DUI if you have as little as 0.01 Blood Alcohol Concentration (BAC).  You can find more information in the Texas Alcoholic Beverage Code, Title 4 Section 106.041.

The offense of Intoxication Manslaughter is included in Chapter 49.08 of the Texas Penal Code and is defined as follows:

(a) A person commits an offense if the person:

(1) operates a motor vehicle in a public place, operates an aircraft, a watercraft, or an amusement ride, or assembles a mobile amusement ride; and

(2) is intoxicated and by reason of that intoxication causes the death of another by accident or mistake.

Basically, If you accidentally kill someone as a result of operating a vehicle while intoxicated, you can be charged with Intoxication Manslaughter.  Typically, this felony charge usually comes about as the result of the police believing that you were driving drunk (or on drugs) and then you get into an accident and the driver (or passenger) of the other car (or a passenger in your own car) dies from the accident. 

Just like other intoxication crimes, Intoxication Manslaughter is included in the 86thTexas Legislative Session’s (HB 2048, 86th Texas Legislative Session) additional fines for all offenses that relate to the operating of a motor vehicle while intoxicated:

(1) $3,000 for the first conviction within a 36-month period;

(2) $4,500 for a second or subsequent conviction within a 36-month period; and

(3) $6,000 for a first or subsequent conviction if it is shown on the trial of the offense that an analysis of a specimen of the person’s blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed

Section 49.02 of the Texas Penal Code defines Public Intoxication as follows:

(a) A person commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.

The Public Intoxication statute specifically includes bars and other places that sell liquor as being public places for purposes of this offense.  Texas law defines a public place as: “any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops.”

What you may not know is that the arresting office is the one who subjectively makes the decision regarding the “threat of danger an intoxicated person poses toward either themselves or others.”  It’s not fair, but it’s the law.  Fear not, you can still have a trial and if the jury agrees that you were not “intoxicated to the degree that you may endanger yourself or another” then you will be acquitted!

Punishment:

Public Intoxication is a Class C Misdemeanor.

Kidnapping may describe a range of situations, from a stranger snatching a child off of the street to an estranged parent absconding with their child in order to deny the other parent custody. Kidnappings may take place in order to extort a ransom, to permit the kidnapper to abuse the abductee, or to use the hostage as a bargaining chip with authorities.

Kidnapping laws are defined in the Texas Penal Code, Title 5, Chapter 20, Sections 20.03 - 20.04

A defendant has committed the crime of kidnapping if he or she intentionally or knowingly abducts another person. This situation often arises within the divorced or separated family context as well. The most commonly publicized cases involve the kidnapping of a child by one of the child's parents while the child is in the custody of the other parent.

In Texas, the defendant can be convicted of the higher crime of aggravated kidnapping if he or she has committed a kidnapping and had the intent to do one of the following:

  • Hold the victim for a ransom or reward;
  • Use the victim as a shield or hostage;
  • Aid in the commission of a felony or an escape after committing the felony;
  • Inflict bodily injury on the victim or sexually violate or abuse the victim;
  • Terrorize the victim or another person;
  • Interfere with the performance of any governmental or political function;
  • Uses or exhibits a deadly weapon during the crime.

Defenses:

  • The defendant voluntarily released the victim in a safe place (NOTE: This is only a partial defense and may only result in the decrease of the penalty and charge by one degree.)
  • Lack of intent to use deadly force
  • Lack of knowledge
  • The defendant is a relative of the victim
  • The defendant's only intent was to gain lawful control of the victim

Penalties:

Texas kidnapping laws classify the crime as a third degree felony. This carries a penalty of two to ten years in a state prison and/or a fine of up to $10,000. If the crime is elevated to aggravated kidnapping, the defendant will be charged with a first degree felony. This carries a penalty of five to ninety-nine years in a state prison and/or a fine of up to $10,000. This penalty may be reduced to being a second degree felony if at the punishment stage of the trial, the defendant can show through the evidence that he or she voluntarily released the victim in a safe place. If that defense succeeds, the penalty imposed may be two to twenty years in a state prison and/or a fine of up to $10,000.

Manslaughter laws are defined in the Texas Penal Code, Texas Penal Code, Title 5, Chapter 19

Elements of Manslaughter:

Reckless Conduct: To convict a defendant of manslaughter, prosecutors must be able to prove beyond a reasonable doubt that the defendant recklessly caused the death of another individual. There is no requirement of premeditation to this crime and no requirement for there to be intent or knowledge on the part of the defendant. The only requirement is that the defendant's conduct was reckless.

Intoxication Manslaughter:

Intoxication manslaughter deals with the defendant recklessly causing the death of another while intoxicated.

Vehicular manslaughter:

Vehicular manslaughter deals with the defendant recklessly causing the death of another while driving a vehicle or vessel.

Defenses Against Manslaughter Charges:

There are several different types of defenses to the crime of manslaughter. Please speak to an experienced criminal defense attorney to learn if any of them are available in your specific situation.

  • Insanity
  • Self-defense
  • "Heat of passion" defense (i.e. The defendant was provoked to commit the crime by fear, rage, terror or some other extreme emotion.)

Penalties:

Manslaughter in Texas is a second degree felony. This charge will typically carry a sentence of between two and twenty years in a state prison and/or a fine of no more than $10,000.

Money Laundering laws are defined in the Texas Money Laundering Statute (Penal Code, Title 7, Chapter 34, Section 34.02)

Elements of the Crime of Money Laundering:

Money laundering is a serious crime in Texas. It involves the defendant knowingly having an interest in, concealing, transferring, transporting or facilitating in any way a transaction involving the proceeds of a criminal activity. It may also involve investing these proceeds, receiving them, spending them, or financing them in any way.

It is important to note that Texas money laundering law does not require that the defendant knows about the criminal activity that gave rise to the proceeds in order to be convicted. Just knowing that the proceeds themselves have come from some type of criminal activity is enough. If a peace officer or someone acting at his direction has informed the defendant that the proceeds or funds are either from a criminal activity or are intended to help commit a criminal activity, the defendant will be presumed to have the required knowledge about the proceeds for a conviction.

Money laundering often involves racketeering or other criminal activity.

Defenses Against Money Laundering Laws:

  • Lack of knowledge
  • The defendant acted with the intention to facilitate the lawful seizure of the funds
  • The transaction was necessary to preserve the defendant's right to representation as guaranteed in the Sixth Amendment to the United States Constitution.
  • The funds were for legal fees and the attorney did not know at the time they were paid to him that the funds were derived from criminal activity

Penalties and Sentences:

The severity of the penalty imposed depends on the amount of money at issue. The offense of money laundering carries the following charges for the following amounts of money:

  • State jail felony: the value of the funds is $1,500 or more but less than $20,000;
  • Third degree felony: the value of the funds is $20,000 or more but less than $100,000;
  • Second degree felony: the value of the funds is $100,000 or more but less than $200,000;
  • First degree felony: the value of the funds is $200,000 or more.

Texas does not officially use the term "first degree murder" which can sometimes be a little bit confusing. Instead, the equivalent in Texas is known as "capital murder," which is murder for which a perpetrator can get a sentence of capital punishment.

First Degree Murder laws are defined in the Texas Penal Code, Title 5, Chapter 19

To convict a defendant of capital murder, prosecutors must be able to prove beyond a reasonable doubt that:

  • The defendant intentionally and knowingly caused the death of another person;
  • The defendant intended to cause serious bodily injury and committed an act that was clearly dangerous to human life and this act caused the death of an individual; or
  • The defendant committed or attempted to commit a felony (other than manslaughter) and in performing that felony, committed an act that was clearly dangerous to human life and this act caused the death of an individual.

In order for the charge to be capital murder, as opposed to just "murder' in Texas, one of the following must apply:

  • The victim is a peace officer or fireman who was acting under lawful duty at the time of the crime;
  • The defendant intentionally commits the murder in the course of committing or attempting to commit kidnapping, burglary, robbery, aggravated sexual assault, arson, obstruction or retaliation, or terroristic threat;
  • The defendant is paid to commit murder or pays someone else to commit murder;
  • The defendant commits the crime while trying to escape from a penal institution;
  • The defendant murders another person while in jail
  • The defendant murders more than one person
  • The defendant murders a child younger than six years of age
  • The defendant murders someone in retaliation for or on account of the service of a member of the judiciary

Possible Defenses:

  • Lack of intent
  • Lack of knowledge
  • Insanity
  • Intoxication
  • Self-defense

NOTE: If none of the criteria are met for capital murder, the defendant may still be found guilty of a lesser murder charge.

Penalties: 

In Texas, first degree murder (or capital murder), carries a very serious and very heavy penalty. Since Texas is a state that allows capital punishment, it is possible to receive a death penalty sentence. Generally speaking, the sentence for a capital felony in Texas is either death or life in prison without the possibility of parole.

If the defendant is declared to be incapacitated (e.g. with a mental disability or is declared insane), then he/she will be spared from the death penalty. The minimum age in Texas to receive the death penalty is 17 years of age.

The crime of second degree murder, simply called "murder" in Texas, is a serious crime with harsh penalties. Second degree murder is a crime involving a death that resulted from the accused's wrongful acts. These include deaths that occur during the commission of a crime, or on account of the accused's recklessness. 

Laws regarding Second Degree Murder are defined in the Texas Murder Statute (Penal Code, Title 5, Chapter 19)

Elements of Second Degree Murder:

Texas does not officially use the term "second degree murder" which can sometimes be a little bit confusing. Instead, the equivalent in Texas is known as just "murder," which is a first degree felony. To convict a defendant of murder, prosecutors must be able to prove beyond a reasonable doubt that:

  • The defendant intentionally and knowingly caused the death of another person;
  • The defendant intended to cause serious bodily injury and committed an act that was clearly dangerous to human life and this act caused the death of an individual; or
  • The defendant committed or attempted to commit a felony (other than manslaughter) and in performing that felony, committed an act that was clearly dangerous to human life and this act caused the death of an individual.

Defenses Against Second Degree Murder Charges:

  • Lack of intent
  • Lack of knowledge
  • Insanity
  • Intoxication
  • Self-defense
  • "Heat of passion" defense (i.e. The defendant was provoked to commit the crime by fear, rage, terror or some other extreme emotion.)

NOTE: If none of the criteria are met, the defendant may still be found guilty of a lesser homicide charge.

Penalties and Sentences: 

Murder in Texas is a first degree felony. This charge will typically carry a sentence of between five and 99 years in a state prison and/or a fine of no more than $10,000. At the sentencing stage of the defendant's trial, the defendant can raise the issue of having committed the crime in the "heat of passion" arising from an adequate cause. If the defendant is found to have been in the heat of passion at the time of the homicide, then the charge will be reduced to second degree felony. A second degree felony carries a sentence of between two and twenty years in a state prison and a fine of no more than $10,000.

Committing perjury is a violation of Texas state law. One commits perjury by making a false statement (either oral or written) while under oath or when swearing to the truth of a previous false statement that was either made under oath or required to be made under oath (such as a written statement). In order to prove a case for perjury, prosecutors must prove that the defendant made the false statement with the intent to deceive and with knowledge of the statement's meaning.

Perjury and Aggravated Perjury Under Texas Law

The following examples illustrate the similar charges of perjury and aggravated perjury, which differ in severity:

Perjury: Bob is completing a background check form for his new government job, and he signs a statement stating that all the information in the form is true and correct to the best of his knowledge. However, Bob purposely states on the form that he graduated from college, when he knows that he did not but he wants his new employer to think that he did. This would be considered perjury because Bob intends to deceive his new employer and he knows the meaning of his statement.

Aggravated Perjury: Bob was testifying as a witness at a trial for a bank robbery and he was asked the color of the car he saw speeding off from the scene of the crime. He answered "blue" when he knew the car was red, however, Bob intentionally wanted people to think it was not red. Bob has committed aggravated perjury. This is because Bob intended to deceive the jury at the trial, he knew the meaning of the statement he was making, and it was a material statement during a trial about a very important detail of the crime.

Perjury laws are defined in the Texas Penal Code § 37.01, et seq.

Statutory Definition of Perjury:

A person commits perjury if, with intent to deceive and with knowledge of the statement's meaning:

  1. He makes a false statement under oath or swears to the truth of a false statement previously made and the statement is required or authorized by law to be made under oath; or
  2. He makes a false unsworn declaration under Chapter 132, Civil Practice and Remedies Code.

A person commits aggravated perjury if he commits perjury (as defined above) and the false statement:

  1. Is made during or in connection with an official proceeding; and
  2. Is material (A statement is material, regardless of the admissibility of the statement under the rules of evidence, if it could have affected the course or outcome of the official proceeding).

Classification of the Crime:

  • Class A misdemeanor
  • Third degree felony for aggravated perjury

Sentences and Penalties:

  • Class A misdemeanor: Up to 1 year in county jail, fine of up to $4,000.
  • Third degree felony: 2 to 10 years in state prison, fine of up to $10,000.

Defenses:

  • Lack of intent to deceive
  • Lack of knowledge of the statement's meaning
  • Mistake
  • Entrapment

Note: It is not a defense that the oath was taken in an irregular manner or that there was some irregularity with the appointment or qualification of the person who was giving the oath.

In Texas, pyramid schemes are against the law. They are considered a type of investment fraud. Many of these schemes are carried out over the internet and e-mail as scams. Texas law makes it a crime to create, prepare, advertise, sell, operate or promote a pyramid promotional scheme. A pyramid promotional scheme is a plan under which an initial investor is promised a large return on a small amount of money. He invests the money and tries to recruit others to join the venture. If he does recruit others, their money will be added into the venture. The plan is that additional people will continually be recruited, adding more and more money into the pyramid scheme. However, at some point, investors grow scarce and the whole scheme collapses upon itself causing many people to lose large amounts of money.

Texas Pyramid Scheme Laws are found in Texas Business and Commerce Code § 17.461

Statutory Definition of a Pyramid Promotional Scheme:

Pyramid promotional scheme means a plan or operation by which a person gives consideration for the opportunity to receive compensation that is derived primarily from a person's introduction of other persons to participate in the plan or operation rather than from the sale of a product by a person introduced into the plan or operation.

  • Consideration means the payment of cash or the purchase of a product.
  • Participate means to contribute money into a pyramid promotional scheme without promoting, organizing, or operating the scheme.
  • Promoting a pyramid promotional scheme means (a) inducing or attempting to induce one or more other persons to participate in a pyramid promotional scheme; or (b) assisting another person in inducing or attempting to induce one or more other persons to participate in a pyramid promotional scheme, including by providing references.

A person commits an offense if the person contrives, prepares, establishes, operates, advertises, sells, or promotes a pyramid promotional scheme.

Crime Classification, Penalties, and Sentences:

State Jail Felony: 6 months to 2 years in a state jail facility, fine of up to $10,000.

Defenses to Pyramid Scheme Charges:

  • The business venture is not set up as a pyramid promotion scheme
  • The defendant did not promote the pyramid scheme
  • The selling point was an actual product and not just the sale of the plan or operation itself

Note: It is not a defense that the pyramid promotional scheme involved both a franchise to sell a product and the authority to sell additional franchises if the emphasis of the scheme is on the sale of additional franchises.

Texas racketeering and RICO laws have been developed in order to put a stop to gangs and other kinds of organized criminal activities.

Texas racketeering and RICO laws are found in Texas Organized Crime Statute (Penal Code, Title 11, Chapter 71, Section 71.02).

Elements of Racketeering and RICO Offenses: 

Racketeering is a violation of federal laws and Texas state law. Racketeering is the criminal act of engaging in illegal business or acts run as part of organized crime. RICO (Racketeer-Influenced and Corrupt Organization) laws make it illegal for criminal organizations (i.e. the mafia, or other like-minded criminal organizations) to profit from other legitimate businesses (i.e. extortion) or to run their own legitimate businesses. The goal is to stop the flow of income to criminal organizations that ultimately use the profits to fund their illegal activities.

Example: A criminal organization forced local businesses on a particular street block to make weekly payments to them in exchange for "protection" from crimes against their business such as vandalism or robberies. The "protection" offered is really protection from members of their own organization who, if not paid, would commit crimes against these businesses and threaten their livelihoods.

Defenses Against Racketeering/RICO Charges:

Depending on the actual crime involved the defenses will vary and are specific to any given crime. Some additional defenses that may be available are:

  • The defendant was not a member of the criminal organization
  • The defendant did not have knowledge that his actions were furthering the agenda of a criminal organization

Penalties and Sentences:

Texas Racketeering and RICO laws administer harsh penalties for violations. For any offense in which a person is engaging in organized criminal activity, the offense is classified as one charge higher than the most serious offense that was committed. For example, if the crime committed would at its most serious level be a "Class A" misdemeanor, it would be a state jail felony under this law due to the engagement in organized criminal activity. The only exception is that if the charge for the most serious offense would be a first degree felony, it will remain a first degree felony.

Example: If Bob is a member of a crime organization and committed a burglary of a home, he would be charged with a first degree felony since burglarizing a home normally carries a charge of second degree felony.

If the defendant conspired to commit a crime with a criminal organization, the charge will remain the same as the most serious charge offered for the crime the defendant conspired to commit.

Example: As above, if Bob conspired to commit a burglary of a home, but never actually committed the burglary, the charge would be a second degree felony. Since the crime normally carries a charge of second degree felony if committed outside the context of a criminal organization, when placed in the context of a criminal organization, merely conspiring to commit this crime will carry the same charge.

Resisting Arrest in Texas

In Texas resisting arrest occurs when an individual uses force to interfere with or prevent a law enforcement officer from:

  • Completing an arrest;
  • Carrying out a search; or
  • Transporting a person accused of a crime.

Evading Arrest in Texas:

You can be charged with evading arrest if you intentionally run from a known law enforcement officer who is attempting to lawfully arrest or detain you. Lawful Arrest

In some states, the underlying arrest must be a lawful arrest. However, that is not the case in Texas: You can be charged with resisting arrest even if the arrest itself was unlawful. For evading arrest charges, you cannot be charged if the arrest was unlawful.

Statutes and Elements of the Crime:

  • Resisting arrest, search, or transportation: Texas Penal Code 38.03 (requires you to use force, but the arrest does not have to be lawful)
  • Evading arrest or detention: Texas Penal Code 38.04 (does not require you to use force, but the evasion must result from a lawful arrest)

Penalties and Sentencing:

Resisting arrest:

  • Resisting arrest is a class A misdemeanor which means that you can face a 1-year jail sentence and fines up to $4000.
  • The charge is upgraded to a felony of the third degree if you use a deadly weapon to resist the arrest or search.

Evading arrest: Under most circumstances, resisting arrest is a class A misdemeanor.

  • The charge is elevated to a State Jail felony if you have been previously convicted of this crime or if you used a vehicle to evade law enforcement and have not been previously convicted.
  • A State Jail felony is punishable by a fine of up to $10,000 and a jail term of 180 days to 2 years.
  • This crime will be charged as a felony in the third degree if you have a prior conviction of this crime and you use a vehicle to evade arrest or another party suffers serious bodily injury directly resulting from your evasion attempt.
  • If another party dies as a direct result of the attempted evasion, the crime will be considered a felony in the second degree; a second degree felony conviction carries with it fines up to $10,000 and a prison sentence ranging between 2 and 20 years.

Possible Defenses:

  • Self defense
  • Officer used excessive force
  • No use of force (applicable to resisting arrest charges)
  • Officer did not identify himself/herself

Related Offense:

Robbery Laws are defined in the Texas Robbery Statute (Penal Code, Title 7, Chapter 29)

Elements of Robbery Offenses:

Robbery and aggravated robbery (sometimes called "armed robbery") are violations of Texas state law. To convict a defendant of robbery, prosecutors must prove beyond a reasonable doubt that while committing theft (taking another person's property with the intention of depriving them of it), the defendant intentionally, knowingly or recklessly causes bodily injury to another. Alternately, the prosecutor may prove that the defendant intentionally, knowingly or recklessly threatened the victim or caused the victim to fear bodily injury or death.

The crime of robbery can be elevated to that of aggravated robbery if in addition to the criteria for proving a case of robbery, the prosecutor can prove that the defendant used or exhibited a deadly weapon, and/or the victim who was threatened or placed in fear of bodily injury or death was an individual 65 years of age or older, or was disabled either physically, mentally or developmentally.

Example: If Bob walked up to Joe and pressed a finger into his back and said he had a gun and that Joe must give him his wallet, that would be a robbery. Joe was placed in fear that he would be physically hurt if he did not give up his wallet. However, if Bob really did use a gun or if Joe really did get hurt, Bob's crime would be elevated to aggravated (or "armed") robbery.

Defenses Against Robbery Charges:

  • Lack of intent
  • Lack of knowledge
  • No bodily injury was caused
  • The victim did not fear bodily injury or death

Penalties and Sentences:

Robbery is charged as a second degree felony in Texas. This carries a penalty of two to twenty years in a state prison and/or a fine of no more than $10,000. If the crime is elevated to that of aggravated robbery, the charge will be first degree felony. This carries a more serious penalty of five to 99 years in a state prison and/or a fine of no more than $10,000.

Both Texas and the federal government have laws that govern the crime of securities fraud. The crime involves engaging in any kind of fraudulent or deceptive practice dealing with the sale of securities. This includes dealing in securities in any way without being a registered dealer or agent or dealing in securities issued after September 6, 1955 and not being registered or having a permit to do so.

Texas securities fraud laws are defined in the Texas Securities Fraud Statute (Texas Civil Code Annotated, Section 581-29).

Elements of Securities Fraud:

In the white collar crime context, securities fraud can be committed when a corporate officer or director makes a statement that misrepresents, withholds or distorts information relating to the company's stock (i.e. its value), the officer or director unlawfully discloses that information and an individual or entity acts on that unlawfully disclosed information.

Example: The director of Corporation X discloses to a stockbroker at a major stock brokerage firm that his company will be acquiring a very large competitor and that therefore, he expects the value of his stock to increase dramatically. Acting on this unlawful information, the stockbroker goes out and purchases a large quantity of stock in Corporation X. The director of Corporation X and the stockbroker have committed securities fraud.

There is a five-year statute of limitation under Texas securities fraud law. This means that after the date the offense is committed, prosecutors have five years within which they must bring charges for the crime, or the defendant cannot be charged with the crime.

Defenses: 

  • Lack of knowledge
  • The high managerial agent of the corporation performed his/her due diligence to ensure that securities fraud was not committed
  • The agent was a registered dealer or agent in the security
  • Entrapment
  • No one acted on the disclosed unlawful information

Penalties and Sentences:

Securities fraud is a felony in Texas. The degree of severity of the felony will depend on the total amount of money involved. (NOTE: Prosecutors may aggregate the amount involved from several smaller incidences or offenses and create one larger charge for securities fraud.)

If the offense has less than $10,000 at issue, then the charge will be a third degree felony. The sentence for a third degree felony is two to ten years in a state prison and/or a fine of up to $10,000. If the offense is for $10,000 or more but less than $100,000, then the penalty will be a charge of second degree felony. This carries a sentence of two to twenty years in a state prison and/or a fine of up to $10,000. Finally, if the offense is for $100,000 or more, the defendant will be charged with a first degree felony. This carries a sentence of up to life in prison or for not less than five or more than ninety-nine years in a state prison and/or a fine of up to $10,000.

If the defendant has been issued a "cease and desist" order asking him/her to stop performing fraudulent activities in dealing with securities and the defendant violates this order, he/she may face a charge of a state fail felony. This is punishable by a fine of up to $5,000 and/or a jail term of up to two years in a state prison.

Self-defense laws in Texas are defined in: 

Texas Penal Code § 9.31: Self Defense

Texas Penal Code § 9.32: Deadly Force in Defense of Person

Texas Penal Code § 9.33: Defense of Third Person

When the use of force is justified: 

If the person who used force knew or had reason to believe that it was being used against one who was entering or attempting to enter his or her home, business or vehicle; removing or attempting to remove the person from his or her home, business or vehicle; OR committing or attempting to commit:

  • murder
  • sexual assault
  • robbery
  • aggravated kidnapping
  • aggravated sexual assault
  • aggravated robbery

Note: Self-defense is not allowed if the person claiming the defense:

  • provoked the person they were defending against
  • was engaged in a criminal activity (other than a Class C misdemeanor that is a violation of a law regulating traffic).

When the use of force is not justified: 

  • In response to verbal provocation (alone).
  • To resist an unlawful search or arrest by a police officer UNLESS the officer uses greater force than necessary before the actor resists and when the actor reasonably believes the force is immediately necessary to protect himself.
  • If the actor consented to the force used by another.
  • If the actor provoked the other's use of unlawful force, UNLESS the actor abandons or clearly communicates his or her intent to abandon the encounter and the other continues to use force against the actor.
  • If the actor sought an explanation from or discussion with the other person while the actor was carrying a weapon in violation of § 46.02 or possessing or transporting a weapon in violation of § 46.05.

Duty to retreat?

No. A person who has the right to be present at the location where the force is used is not required to retreat before using force (including deadly force) as long as the person did not provoke the person against whom the force is used nor is the person using force engaged in a criminal activity.

Related Statute:

Texas Penal Code § 9.34: Protection of Life or Health

  • A person is justified in using force (but not deadly force) in order to prevent someone from committing suicide or inflicting serious bodily injury to him or herself.
  • A person can use force (including deadly force) against another when it's immediately necessary to preserve the other's life in an emergency.

Sex crimes are some of the more serious crimes in the criminal justice system, both in terms of harm to victims and in terms of penalties for offenders. Considering the seriousness of sex crimes, it's no surprise that a conviction can impact one's life long after they complete their sentence. In fact, many sex offenses require convicts to register as a sex offender, usually for their entire life.

Society and policy makers have long struggled with finding effective ways to protect the public from sex offenders. A sex offender is a person who's been convicted of certain sex crimes, such as sexual assault or sexual conduct with a minor. Because of the seriousness of sex offenses, a number of factors come into play when it comes to sentencing and penalties for sex offenders at both the state and federal levels.

Sex Offenses: State Laws

The definition of a sex crime differs from jurisdiction to jurisdiction. However, there are core offenses that are common to most jurisdictions, but some states outlaw additional particular acts. The common sex offenses fall into the following categories:

  • Crimes against adults: rape, sexual assault and marital rape
  • Crimes against relatives: incest
  • Crimes against children: pornography, exploitation, molestation, abduction
  • Crimes against nature: indecent exposuresodomy, bestiality
  • Crimes against sex for sale: prostitution

Most states, such as New York, have a long list of items that are considered sex offenses. Some of the included items are intuitive and others have been included to address particular problems. For instance, Alabama has targeted school employees having sex with students as a specific sex crime. Several states include sodomy as a sex offense.

Sex Offenses Involving Computers

More recently, states have begun to define certain behaviors in conjunction with the internet or the electronic transfer of data. Many states, including California, make it a crime to distribute images of a child engaged in sexual conduct via a computer.

Sex Offenses Involving Registered Sex Offenders

In addition to explicit acts, states now make the failure to register as a sex offender or violations of the sex register statutes as sex offenses.

Sex Offenses: State vs. Federal Law

Most offenses involving criminal sexual conduct fall within the jurisdiction of state law, but federal law also includes a number of sexual offenses. The offenses are found in Title 18 of the United States Code. Some of the federal offenses specifically apply to sexual offenses committed within the territorial jurisdiction of the United States or in a federal prison. Other crimes involve offenders who cross state or international borders to commit, or in the commission, of a sexual offense.

For example, 18 U.S.C. section 2251 makes it illegal to knowingly print, publish, or cause to be made, "any notice or advertisement seeking or offering to receive, exchange, buy, produce, display, distribute, or reproduce any visual depiction involving the use of a minor engaging in sexually explicit conduct. This statute also applies when such person knows that such notice or advertisement will be, or has been, transported in interstate or foreign commerce by any means, including by computer."

Sex Offenses: Federal Law

Federal sexual offenses focus on offenses involving children, production of prohibited pornography and interstate travel for the purposes of prohibited sexual activity. Some of these statutes include:

  • Selling or buying of children (Section 2251A(a)(b))
  • Certain activities relating to material involving the sexual exploitation of minors, including both distribution and receipt of visual depictions in books, magazines, periodicals, films, and videotapes (Section 2252)
  • Certain activities relating to material constituting or containing child pornography (Section 2252A)
  • Transporting an individual in interstate or foreign commerce with the intent that the individual engage in prostitution or other illegal sexual activity (Section 2421)
  • Interstate or foreign travel with intent to engage in a sexual act with a juvenile (Section 2423(b))
  • Use of interstate facilities to transmit information about an individual under the age of 16, with "the intent to entice, encourage, offer, or solicit that minor to engage in any sexual activity that can be charged as a criminal offense." (Section 2425)

Sex Offense Penalties and Sentencing

As with any criminal offense, the nature, circumstances, and the parties involved control the seriousness of the sentences and penalties that may be imposed. The states vary widely in the length of sentence terms. As an example, incest is a class 4 felony in Colorado and punished by a 2 to 6 year prison sentence, but the same offense in Montana will be punished by a 100 year prison term.

Any sexual offense involving children or violence will have a harsh sentence. For instance, violations of the federal statutes involving sexual exploitation of children has a minimum sentence of 15 years. Charges of first degree rape or sexual assault will be punished by 15 years to life imprisonment, depending on the state and the circumstances of the crime.

Sexual Offender Registry

States and the Federal government have both established sex offender registries. These are databases of information about convicted sex offenders. They require persons convicted of sex crimes to list themselves on the registry, failing to do so is considered a sex offense. The statutes establishing the registries also have compliance requirements about not living too close to schools and notifying officials when they move. Again, failure to abide by the registry requirements is a sex offense.

Restrictions on Sex Offenders

Defendants who are convicted of a sex crime often face lifelong restrictions, either in the form of registration requirements or preventive measures taken by the state to stop them from committing future crimes. These restrictions may apply even if an offense may appear less serious than others, such as statutory rape between an adult and a consenting minor who are close in age or minors texting nude pictures of themselves.

When it comes to preventive measures taken by the state to prevent future crimes, some can be quite invasive while others serve more as alerts to the community. Under current laws, states are required to provide information about where convicted sex offenders live. While this simply serves as an alert to the community, other states have imposed additional restrictions on sex offenders. For example, some states allow the imposition of drug treatments to lower the sex drive of convicted sex offenders. Some states order the civil commitment of habitual sex offenders in order to reduce the risk of future crimes.

Some of these restrictions, including laws requiring registered sex offenders to live a specified distance from schools, have become controversial because they effectively render people homeless in many jurisdictions.

PC 21.07 – Public Lewdness

PC 21.08 – Indecent Exposure

PC 21.08 – Bestiality

PC 21.15 – Invasive Visual Recording

PC 21.16 – Voyeurism

PC 21.16 – Unlawful Disclosure or Promotion of Intimate Visual Material (this is the how they prosecute you for “Revenge Porn”)

PC 21.16 – Sexual Coercion

PC 22.011 – Sexual Assault

PC 22.012 – Indecent Assault

PC 22.021 – Aggravated Sexual Assault  

PC 25.02 – Prohibited Sexual Conduct (this is how they prosecute you for Incest)

PC 38.111 – Improper Contact with Victim 

PC 43.02 – Prostitution

PC 43.262 – Possession or Promotion of Lewd Visual Material Depicting a Child

PC 43.03 – Promotion of Prostitution

PC 43.031 – Online Promotion of Prostitution

PC 43.04 – Aggravated Promotion of Prostitution

PC 43.041 – Aggravated Online Promotion of Prostitution

PC 43.05 – Compelling Prostitution (this is how they prosecute you for being a “pimp” although that term is a bit outdated and human trafficking is now used)

PC 43.22 – Obscene Display or Distribution

PC 43.23 – Obscenity

Disorderly Conduct is found in  Section 42.01 of the Texas Penal Code, and is defined as follows:

A person commits an offense if he intentionally or knowingly:

  • uses abusive, indecent, profane, or vulgar language in a public place, and the language by its very utterance tends to incite an immediate breach of the peace;
  • makes an offensive gesture or display in a public place, and the gesture or display tends to incite an immediate breach of the peace;
  • creates, by chemical means, a noxious and unreasonable odor in a public place;
  • abuses or threatens a person in a public place in an obviously offensive manner;
  • makes unreasonable noise in a public place other than a sport shooting range, as defined by Section 250.001, Local Government Code, or in or near a private residence that he has no right to occupy;
  • fights with another in a public place;
  • discharges a firearm in a public place other than a public road or a sport shooting range, as defined by Section 250.001, Local Government Code;
  • displays a firearm or other deadly weapon in a public place in a manner calculated to alarm;
  • discharges a firearm on or across a public road;
  • exposes his anus or genitals in a public place and is reckless about whether another may be present who will be offended or alarmed by his act; or
  • for a lewd or unlawful purpose:

(A) enters on the property of another and looks into a dwelling on the property through any window or other opening in the dwelling;

(B) while on the premises of a hotel or comparable establishment, looks into a guest room not the person’s own through a window or other opening in the room; or

(C) while on the premises of a public place, looks into an area such as a restroom or shower stall or changing or dressing room that is designed to provide privacy to a person using the area.

Unfortunately, this is a very subjective offense because it’s up to the officer to make the call (of course, you can fight it in court, but still, the police officer is the one who determines whether to arrest you based on his/her opinion as to whether you committed an offense or not.

Punishment:

Disorderly Conduct is a Class C Misdemeanor (maximum $500 fine), unless you use a firearm in two situations (Texas Penal Code Section 42.01(a)(7) (“discharges a firearm in a public place other than a public road or a sport shooting range, as defined by Section 250.001, Local  Government Code”) and Texas Penal Code Section 42.01(a)(8) (“displays a firearm or other deadly weapon in a public place in a manner calculated to alarm”) which makes it a Class B Misdemeanor (maximum six months in county jail plus a $2000 fine)

For you technical types: Texas Penal Code Section 42.01(d) – “An offense under this section is a Class C misdemeanor unless committed under Subsection (a)(7) or (a)(8), in which event it is a Class B misdemeanor.”

The offense is found in Section 21.08(a) of the Texas Penal Code:

A person commits an offense if he exposes his anus or any part of his genitals with intent to arouse or gratify the sexual desire of any person, and he is reckless about whether another is present who will be offended or alarmed by his act.

Typically, this is the charge you get if you urinate outside or lets say you expose yourself and start touching… I think you get it.  It’s important to note that the State has to prove you did it with the intent to arouse or gratify the sexual desire of any person (that can be just you) and you had to be reckless about it too. 

Be forewarned, the police like to charge you with Disorderly Conduct  in addition to Public Lewdness because Disorderly Conduct is a subjective and based on the Police Officer’s viewpoint (see section on Disorderly Conduct for more information).

Punishment: 

Indecent exposure is a Class B Misdemeanor (Texas Penal Code Section 21.08(b)) and carries a maximum possible fine of up to $2,000 and jail time of up to 180 days in the county jail.  Good news: It is not a registrable offense unless you have a prior conviction for Indecent Exposure (that’s the bad news)

Defenses:

  • Lack of intent - Since the intent must be to around sexual desire, urinating behind a dumpster likely would not be considered "indecent."
  • Insanity - Someone with a diagnosed mental illness or disorder may not be held accountable for certain acts (i.e. he/she lacks capacity).
  • Intoxication - This is not a standard defense to charges, but intoxication may be a mitigating factor in some cases (thus reducing penalties)
  • Age - Children are less likely to have had intent to arouse another individual by such an act of exposure than an adult.

Sentences are imposed at the discretion of the judge and will depend upon the circumstances of each defendant and the nature of the offense. For example, a defendant who has been convicted of the same charge in the past will likely face a harsher sentence than one who has not been convicted before.

Pimping and pandering laws are meant to undercut the sex industry by targeting the intermediaries - those who solicit money from sex workers, transport them to and from hotspots, recruit them into the sex industry, and advertise sex services. Even in Nevada, the only state in the U.S. in which prostitution is legal, pandering is a felony. All states, therefore, punish individuals seeking to encourage work in the sex industry. The choice to enter into and remain in the sex industry must be made entirely by the sex worker.

The Elements of Pimping and Pandering

Some states incorporate both pimping and pandering into one cause of action. In New Jersey, for example, the crime of promoting prostitution is a broad substitute for pimping and pandering, and specifically targets non-sex-worker individuals who benefit, promote, or earn money from prostitution. In most states, however, these crimes are related, but addressed separately.

Pandering generally requires the following elements:

  1. Procurement of a person for the purpose of prostitution. In many states, a broad range of behaviors qualifies as procurement: securing a spot in a brothel for someone, threatening a person with violence unless they become a sex worker, giving a substantial gift to entice someone to become a sex worker, etc. This element is also satisfied if a person attempt to procure a person for prostitution.
  2. Specific intent to promote, encourage, or otherwise facilitate prostitution. For example, if a business owner is unaware that some of her employees are prostituting themselves at her place of business, she wouldn't be guilty of pandering. An individual can only be found guilty if they actually knew of the prostitution-at-issue, not for their mistake or ignorance.

Pimping, on the other hand, generally requires the following:

  1. Receipt of benefits from a sex worker as a result of their sex services. The receipt of money and/or benefits can be direct or indirect. For example, if a man has control over a woman, and he exerts this control so that the woman has sex with a potential business partner (in the hope that this exchange of sex will positively influence the business partner's dealings with the man), it would likely be considered a receipt of indirect benefits.
  2. Specific intent to receive money and/or benefits from a sex worker as a result of their sex services. For instance, if a landlord receives money from his tenant that was she earned from prostitution, but he's unaware that the money was made that way, the landlord wouldn't be guilty of pimping.

Penalties for Pimping and Pandering

The penalties for violating pimping and pandering laws are much more severe than those for prostitution or solicitation. Unlike prostitution and solicitation, which are classified as misdemeanors in most states, pimping and pandering are typically classified as felonies. Committing these crimes may subject the violator to over a decade of jail time and tens of thousands of dollars in monetary punishment, depending on applicable state law and whether the sex worker involved was a minor.

Defenses to Pimping and Pandering

As with all criminal charges, a defendant may assert various affirmative defenses to avoid conviction. These include, but are not limited to, coercion/duress, insanity, entrapment, mistake of fact, and involuntary intoxication. It's important to keep in mind that the availability of a particular defense will vary significantly depending on the specific circumstances of your situation and state case law. For this reason, it's best to work with a local attorney to determine the best defense strategy for each case.

Laws prohibiting certain types of consensual sexual activity typically originate at the state level. Only two states, including Texas, have laws that specifically prohibit homosexual acts. But even though the Texas ban on same sex sodomy remains on the books, the U.S. Supreme Court found it unconstitutional in 2003 (and therefore unenforceable). Laws regulating consensual sexual activity also refer to offenses such as public lewdness, indecent exposure, and intentional HIV exposure.

Texas Sodomy Laws

Texas has not repealed the law that was struck down by the Lawrence v. Texas case. That law prohibits consensual sexual activity between individuals of the same sex. It is, however, unenforceable.

HIV Exposure and Compelled Testing

Victims of alleged sexual offenses have the right to compel their alleged assailant to be tested for HIV/AIDS.

Public Lewdness

Texas prohibits public lewdness, which is punishable as a class A misdemeanor. The law defines public lewdness as engaging in sexual intercourse, oral or anal intercourse, sexual contact, or sexual contact with an animal, in public.

Indecent Exposure

Texas law also prohibits indecent exposure. This is a class B misdemeanor. The law defines indecent exposure as exposing his anus or genitals to another person with the intent to arouse or gratify sexual desire in any person, in a setting that may be offensive to someone. This may be considered "consensual" behavior because the actor consents to the behavior, even though the offended person does not.

Statutory Rape

Statutory rape generally describes the situation in which a consenting adult and a consenting minor engage in sexual relations. Although the contact is consensual, Texas law prohibits sexual contact between someone younger than 17 years of age, and someone who is more than three years older than the minor, because a minor is legally unable to provide consent.

Penalty for Sodomy:

Pen. 21.06 Homosexual conduct: Class C misdemeanor; Note: found unconstitutional by Lawrence v. Texas (2003) and thus unenforceable.

HIV Exposure and Compelled Testing for Offenders:

Crim. Proc. §21.31 Upon indictment for felony sex offense or upon request of victim of alleged sex offense, court may order HIV testing of offender

Other Crimes Relating to Consensual Sex Acts:

Pen. 21.07 Public lewdness: Class A misdemeanor
Pen. 21.08 Indecent exposure: Class B misdemeanor
Pen. 42.01 Disorderly conduct: Class C misdemeanor

Penalties and Sentences:

  • Class C misdemeanor: Fine of up to $500.
  • Class B misdemeanor: Up to 180 days in jail, fine of up to $2,000.
  • Class A misdemeanor: Up to 1 year in jail, fine of up to $4,000.

In Texas, it is a crime to commit prostitution. Under Texas law, a person commits the crime of prostitution if they knowingly engage in or offer to engage in sexual contact for a fee or if they solicit another person in a public place for sexual conduct. The offense is established by either soliciting or receiving a fee.

It is also a crime to promote prostitution (also called pimping or pandering). Promoting prostitution includes receiving money or other proceeds from an agreement to participate in the proceeds from prostitution. For example, if Bob were to agree with Larry to split the fee from Sally's act of prostitution, that constitutes the crime of promotion of prostitution. Promotion of prostitution also occurs when one person solicits another to engage in sexual contact with a third party. For example, if Bob talked to Larry and got him to engage in sexual contact with Sally for a fee, that amounts to the promotion of prostitution as well.

Compelling prostitution is a crime where the defendant knowingly causes a child under the age of 18 to commit prostitution, regardless of whether the defendant knew the age of the child or not. Additionally, the solicitation of prostitution -- such as inquiring about a sex worker's rate -- is charged as prostitution under Texas prostitution laws.

Texas Prostitution Laws are defined in Texas Penal Code § 43.02 - 43.06

Statutory Definition of Prostitution:

(a) A person commits an offense if, in return for receipt of a fee, the person knowingly:

  • Offers to engage, agrees to engage, or engages in sexual conduct; or
  • Solicits another in a public place to engage with the actor in a sexual conduct for hire.

(b) A person commits an offense if, based on the payment of a fee by the actor or another person on behalf of the actor, the person knowingly:

  • Offers to engage, agrees to engage, or engages in sexual conduct; or
  • Solicits another in a public place to engage with the actor in sexual conduct for hire.

An offense is established under Subsection (a) regardless of whether the actor is offered or actually receives the fee. An offense is established under Subsection (b) regardless of whether the actor or another person on behalf of the actor offers or actually pays the fee.

Statutory Definition of Pimping/Pandering/Managing a Prostitution Enterprise:

A person commits an offense if, acting other than as a prostitute receiving compensation for personally rendered prostitution services, he or she knowingly:

  • Receives money or other property pursuant to an agreement to participate in the proceeds of prostitution; or
  • Solicits another to engage in sexual conduct with another person for compensation.

A person commits an offense if he knowingly owns, invests in, finances, controls, supervises, or manages a prostitution enterprise that uses two or more prostitutes.

Statutory Definition of Compelling Prostitution:

A person commits an offense if the person knowingly causes by any means a child younger than 18 years to commit prostitution, regardless of whether the actor knows the age of the child at the time.

Classification of the Crime of Prostitution:

  • Class B misdemeanor for prostitution or solicitation (if no aggravating factors are present).
  • Class A misdemeanor if perpetrator has 1 or 2 previous convictions for prostitution or solicitation; for pimping (if no other aggravating factors are present).
  • State jail felony if perpetrator has 3 or more previous convictions for prostitution or solicitation; for repeat offense of pimping.
  • Third degree felony for owning, financing, controlling, or managing a prostitution enterprise with 2 or more prostitutes.
  • Second degree felony if the person solicited is younger than 18 (regardless of whether the perpetrator knew at the time); if the perpetrator believed the person solicited was younger than 18; for pimping the services of someone younger than 18; for compelling a child younger than 18 to commit prostitution.
  • First degree felony for owning, financing, controlling, or managing a prostitution enterprise with 2 or more prostitutes, where at least 1 is under 18; if an actor who compels a child under 18 to commit prostitution also may be charged with another offense in this section.

Sentences and Penalties:

  • Class B misdemeanor: Up to 180 days in jail, fine of up to $2,000.
  • Class A misdemeanor: Up to 1 year in jail, fine of up to $4,000.
  • State jail felony: 6 months to 2 years in a state jail facility, find of up to $10,000.
  • Third degree felony: Up to 10 years in prison, fine of up to $10,000
  • Second degree felony: 2 to 20 years in prison, fine of up to $10,000.
  • First degree felony: 5 years to life in prison, fine of up to $10,000.

Defenses:

  • Intoxication
  • Entrapment (i.e. by an undercover police officer)
  • Age
  • Duress (i.e. the defendant was under threats of bodily harm if they did not commit the sexual contact for a fee)
  • No money was received for the sexual contact
  • Lack of knowledge

 

 

Public Lewdness is found in Section 21.07 of the Texas Penal Code.

A person commits an offense if the person knowingly engages in any of the following acts in a public place or, if not in a public place, the person is reckless about whether another is present who will be offended or alarmed by the person’s:

(1) act of sexual intercourse;

(2) act of deviate sexual intercourse; or

(3) act of sexual contact

Technically speaking, the first element (sexual intercourse) is pretty self explanatory.  The second element (deviate sexual intercourse) means means any contact of one personals genitals to the mouth or anus of another person, or penetrating the anus with either the genitals or a physical object (Texas Penal Code Section 21.01(1)).  The final element (sexual contact) is defined as “any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person” (Texas Penal Code Section 21.01(2)).

Basically, if you are having sex in public, you can be charged with Public Lewdness.  If you are having sex in a what you thought was a private place (for instance, at the office), but it is a place where there is a substantial risk that someone might see you (and then they are alarmed or offended), then you may also be charged with Public Lewdness.  It is not relevant that you thought no one was around, so long as there is a substantial risk that someone may see you (and then they are alarmed or offended).  Very subjective, I know.

Punishment for Public Lewdness is a Class A Misdemeanor (Texas Penal Code §21.07(b)). The punishment can be a jail sentence up to one year and a $4,000 fine.

The crime of rape generally refers to non-consensual sexual intercourse that is committed by physical force, threat of injury, or other duress.

Common law defined rape as unlawful intercourse by a man against a woman who is not his wife by force or threat and against her will. However, most states have refined and broadened the statutory definition of rape so that marriage, gender, and force are not relevant. The victim's lack of consent is the crucial element. A lack of consent can include the victim's inability, due to the effects of drugs or alcohol, to say "no."

Rape Laws in General

To convict an offender of rape, some form of nonconsensual sexual penetration, however slight, must occur. Each instance of penetration can serve as a count of rape, as well.

The most common form of rape is forcible rape, in which an offender uses violence or threats of violence to force a victim into sexual intercourse. In most states, however, rape can also occur with other forms of duress, such as blackmailing the victim.

Prosecutors can charge rape when an offender and victim have a preexisting relationship (including so-called date rape), or even when the offender is the victim's spouse.

In some states, rape is classified as first-degree sexual assault. The term sexual assault is broader than rape and covers a whole range of nonconsensual sexual contact.

Statutory Rape Laws

The crime of statutory rape refers to sexual intercourse with a minor (someone below the age of consent). Minors who are below the age of consent cannot legally consent to having sex. This means that sex with them violates the law even if they signal their agreement.

Statutory rape laws vary by state, with states setting the age of consent differently. Many states punish statutory rape under laws addressing sexual assault, corruption of a minor, or carnal knowledge of a child. In more than half of the states, statutory rape is a felony only if one of the participants is at least several years older than the other; if the two people are extremely close in age, but one of them is underage, some states will not treat this as a crime or may treat it just as a misdemeanor. However, not all states have "close-in-age" laws.

Defenses to a Rape Charge

One of the frequent defenses to a rape allegation is misidentification of the perpetrator. For example, if a man is accused of a rape that occurred in Denver on November 1, he can present evidence that he was actually in Phoenix on that day.

When the alleged offender and victim were personally acquainted beforehand, the most common defense is that the victim consented. In some instances, such as a date rape involving two individuals who had been drinking alcohol, the issue of consent can become murky or complex.

Penalties for Rape

The punishment for any form of rape is generally a lengthy prison sentence, the specific duration of which will be based on the laws of your state. In addition, a convicted defendant normally will have to register as a sex offender for life.

Intentional distribution of non-consensual porn, or "revenge porn," is a type of online harassment that occurs when an ex-partner or even a hacker posts sexually explicit images of a person online without their permission.

Whether we are talking about nude pictures on social media or so-called "celebrity sex tapes," the act of posting sexually explicit material online can be criminal.

But what exactly is revenge porn? Does it mean that someone wants revenge on another person and posts pornographic material containing them? Not quite. In fact, in many jurisdictions a perpetrator doesn't even need to be exacting revenge on anyone. The distributor of the material need only intend to distribute the sexually explicit video or photograph with the intent to annoy or harass the victim without their consent.

To be clear, revenge porn is a form of cyber sexual harassment or, in some cases, cyberbullying, and should be taken very seriously, particularly if minors (those under the age of 18 years old) are the subject of the revenge porn. Penalties can be steep and civil lawsuits may also arise from posting these nonconsensual, pornographic materials including:

  • Injunctions;
  • Infringement notices;
  • Formal warnings; and
  • Take-down notices.

In order to be guilty of this crime in most states, the distributor must be sending out pictures or a video that are considered sexual in nature, such as showing the victim's intimate body parts or engaging in a sexual act. Simply posting an unflattering picture of your ex in a bathing suit is not pornographic, absent any other circumstances, such as the victim's genitalia being visible. While each state has different laws, most generally define the crime of revenge porn as any person, with the intent to harass or annoy another who:

  • Publishes or distributes electronic or printed photographs, pictures, or films that
  • Show the genitals, anus, or female breast of the other person, or
  • Depicts that person engaged in a sexual act.

Texas Statute: Texas Penal Code, Section 21.16

Without the effective consent of the depicted person, the person intentionally discloses visual material depicting another person with the person's intimate parts exposed or engaged in sexual conduct.

Penalty:

Class A misdemeanor

In its various forms, "sexting" is the transmission of nude images or suggestive material via text messages. Such transmission can be textual or image-based and typically occurs via cell phones, smart phones, computers, etc. However, it's typically the latter, image-based transmission of nude, partially nude, and/or suggestive pictures of individuals, sometimes minors, that can potentially lead to criminal consequences.

Sexting and the Law: The Basics

Few criminal laws directly address sexting, at least as far as that term is used. Perhaps for that reason, however, when sexting involves pictures of minors it can run afoul of child pornography laws. Child porn production and distribution laws are some of the harshest felonies in the books, and when minors get caught up in these types of charges it can have very serious, long-lasting consequences.

Although many suggest that child porn laws should not be applied to sexting and related conduct by minors, sexting involving images of naked minors technically can fall within the broad reach of child pornography laws. As a result, it may be left to the discretion of prosecutors whether to bring such charges or not.

As this issue has gained more attention in the media and by lawmakers, some legislation has been proposed to more specifically address sexting. The approaches, however, vary widely. Some legislators and local authorities take a hard-line approach to sexting and may prosecute individuals sending or receiving nude or partial nude images of minors as discussed above, using existing child pornography laws.

Other jurisdictions may attempt to use probation or other diversionary methods to educate and give minors a second chance. And some jurisdictions take the reverse approach and have considered specifically de-criminalizing sexting when done by minors and distributed amongst minors. However, sexting often correlates to instances of cyberbullying as well.

Sexting and the Law: What Does This Mean For You?

The bottom line is that the laws in this area are generally either non-existent or rapidly evolving and can differ quite dramatically by jurisdiction. Depending on which laws apply to you, there can be major consequences for sexting, including prison time and even lifelong registration requirements. Registration also may involve the government placing you on a sex offender list, viewable to the public at large.

So, whether you're an adult or a minor, you may want to think twice before hitting the "send" button. Doing so could end up impacting you for the rest of your life, not to mention the harm it may cause to others.

Sexual assault, commonly known as rape, occurs when a defendant -- intentionally and knowingly -- commits any of a number of prohibited sexual activities listed under Texas' sexual assault law without the victim's consent.

Sexual assaults affect millions of Americans annually. The term encompasses various actions that involve behavior or contact toward another person without their consent. The actions are defined by state law and can therefore differ by jurisdiction. However, some common examples of sexual assault include:

  • Fondling, kissing, or making unwanted bodily contact;
  • Forcing another person to perform or receive oral sex;
  • Forcing a tongue, mouth, finger, penis, or an object on another person's anus, penis, or vagina; and
  • Forced masturbation.

Sexual Assault: Definition

Specific laws vary by state, but sexual assault generally refers to any crime in which the offender subjects the victim to sexual touching that is unwanted and offensive. These crimes can range from sexual groping or assault/battery, to attempted rape. All states prohibit this type of assault but the exact definitions of the crimes that fall within the category of sexual assault differ from state to state. The laws share some basic elements, but the structures, wording and scope of offenses vary considerably, so always check your local statutes for specific questions.

For state-specific answers, you can learn more on our sex offenses legal answers page.

Proving Sexual Assault Charges

In general, sexual assault is involuntary sexual contact that occurs through the actor's use of force, coercion or the victim's incapacitation. The law will consider the victim incapacitated if he or she did not have the mental ability to understand the nature of the sexual acts, or if the victim was physically incapable of indicating their unwillingness to participate in the sexual conduct. Common examples of these charges may arise from the use of alcohol or date rape drugs, both of which can make it impossible for a victim to legally consent to sexual conduct.

Modern laws covering this subject area include the nonconsensual sexual contact that occurs between any sex and between people of any age. For example, most laws cover involuntary sexual contact occurring between two men, two women or two children, etc., not just an adult man and woman.

Sexual Assault laws are defined in the "Texas Sexual Assault Statute" Texas Sexual Assault Statute (Penal Code, Title 5, Chapter 22, Sections 22.011 and 22.021.)

Elements of Sexual Assault:

For purposes of Texas sexual assault law, a "child" is a person younger than 17 years of age. The act is considered to have been without the victim's consent if physical violence was threatened or used in order to get the victim to submit or participate to the defendant's actions. Also, if the victim for any reason is physically unable to resist or appreciate the nature of the act being performed, there is a lack of consent. Consent is lacking in any situation where the defendant is in a place of power or charged with the care of the victim. This includes the defendant being a health care services provider, clergyman, public servant, or an employee of a facility where the victim resides.

This charge may be elevated to that of aggravated sexual assault if any of the following occur during the commission of the sexual assault:

  • The defendant has caused serious bodily injury or attempted to cause the death of the victim;
  • The defendant placed the victim in fear of death, serious bodily injury or kidnapping to the victim's self or to another person;
  • A deadly weapon was used or exhibited during the crime;
  • The defendant acted with another individual in committing the crime;
  • The "date rape drug" also known as rohypnol or ketamine was used with the intent of making the offense easier to commit;
  • The victim is younger than 14 years of age;
  • The victim is an elderly or disabled individual.

Defenses Against Sexual Assault Charges:

  • The conduct consisted of medical care for a child and did not include the contact or penetration of the child's mouth, anus or sexual organ by any of the same belonging to the defendant.
  • The defendant was the child's spouse at the time of the offense; or
  • The defendant was no more than three years older than the child at the time of the offense, and the child was 14 years of age or older and the child was not prohibited from marrying the defendant
  • Lack of intent
  • Lack of knowledge
  • Consent of the victim
  • Insanity of the defendant

Penalties and Sentences:

A sexual assault is typically a second degree felony. This carries a sentence of two to twenty years in a state prison and/or a fine of up to $10,000. However, this crime may be elevated to a first degree felony if the victim was a person whom the defendant was prohibited from marrying or was prohibited from living under the appearance of being married to the victim. A first degree felony in Texas is punishable by five to ninety-nine years in a state prison and/or a fine of up to $10,000.

Aggravated sexual assault is a first degree felony. The minimum prison sentence may be twenty-five years in the event that the victim is younger than 6 years of age when the crime was committed or if the victim was younger than 14 years of age and either a deadly weapon was used or exhibited, the child was seriously hurt, the defendant attempted to kill the child, or the defendant used drugs to facilitate the crime.

Elements of Solicitation

The crime of solicitation is requesting, encouraging or demanding someone to engage in criminal conduct, with the intent to facilitate or contribute to the commission of that crime. Commonly, solicitation often is linked to prostitution with the crime being the request of someone to engage in sex for money.

Though state laws vary, to be guilty of solicitation, one must:

  • request that someone else engage in criminal conduct; and
  • have the intention to engage in criminal conduct with that person.

States vary as to whether the other person must receive the request, or whether the act of making the request (along with criminal intent) is enough to constitute solicitation. Some require that the other person actually receive the request. Most crimes can be paired with solicitation, such that a ringleader for a gang of thieves can be charged with soliciting the burglary without having to have participated in the actual burglary.

Under federal law, the government must prove that the defendant intended to engage another person to commit a felony crime of violence by commanding, inducing or persuading the person to commit a federal crime. Charging someone with solicitation allows the police to arrest someone for soliciting a murder for hire or an act of terrorism without the need for the murder or terrorism being carried out.

Subsequent Crime Need Not Be Committed

It's important to remember that the subsequent crime need not be committed. Someone can still be guilty of even if their request is not accepted, or the subsequent crime simply never happens. For example, if an undercover police officer receives a request to be a hit man for a murder, the alleged client can be convicted for soliciting even though the murder did not actually take place.

Defenses to Solicitation Charges

As in all criminal cases, a solicitation defendant can challenge that they did not commit the act, or that they did not have a criminal intent if they did commit the act. For example, someone charged with solicitation of prostitution might argue that he or she was not the person who did it, or that there was no offer or intent to compensate the other person for performing sex acts.

In some cases, a person is not liable for solicitation if they recant their intention to commit the subsequent crime, and notifies the other person that their request is off the table. Depending on what type of criminal behavior the person was soliciting, recanting might also require notifying the police in order to prevent subsequent criminal conduct from unfolding. Often, evidence in addition to any testimony from the person propositioned is required in order to convict someone of solicitation.

Punishment for Solicitation

Since one can solicit the commission of a variety of crimes, punishment for solicitation can vary widely, and vary by state as well. Solicitation charges escalate depending on the degree of felony which was allegedly solicited. For example, solicitation of murder is punished as a much higher degree of felony than solicitation of prostitution.

Statutory rape refers to sexual relations involving someone below the "age of consent." People who are underage cannot legally consent to having sex, so any form of sexual activity with them violates the law. This is true even in situations where they signal their agreement.

While the crime is popularly called statutory rape, many states don't use that term officially but instead classify it as sexual assault, corruption of a minor, or carnal knowledge of a child. Most laws on this subject are state rather than federal ones.

No Requirement of Force

Usually people think of the word "rape" as meaning a forcible sexual encounter. However, with statutory rape, no force is required to be in violation of the law. The crime typically involves an underage participant who willingly engages in sexual relations. However, because the individual is too young to legally consent to sex, it's a crime whether or not force is involved. If the act involves force or coercion, many states prosecute the offender on charges such as child molestation or aggravated rape.

Age of Consent

The age at which a person can legally consent to have sex varies from state to state. In most places it is 16 years old, but some set it at 17 or 18. In the eyes of the law, people below this age are simply too immature to make a decision that could have consequences such as a pregnancy. Society protects them by making it a criminal offense to have sex with them. Note that "age of consent" is a different legal concept from "age of majority," which refers to becoming an adult for general purposes, such as being able to enter into contracts.

Historically, statutory rape was a "strict liability" offense, meaning that it didn't matter whether the actor knew that the other person was too young to consent to sex. Some states now permit a defense of honest mistake. Basically, the actor argues "I honestly thought she was old enough because...." However, other states don't recognize this defense.

Factors Affecting the Punishment

The usual punishment for statutory rape is imprisonment, sometimes along with a hefty fine and an order to register as a sex offender. A number of factors affect the severity of the sentence in a particular case. One is the age of the victim: the younger, the more serious the crime. Other factors that can impact a sentence include:

  • the age difference between the two people;
  • whether the actor and victim are members of the same household;
  • whether the actor is a teacher or other employee at the victim's school; and
  • the actor's past sex offenses, if any.

Close-in-Age Laws

To address potential statutory rape situations where two people are close in age, a number of states have enacted what are sometimes called "Romeo and Juliet laws." These laws carve out a different set of rules where the offender is only slightly older than the minor.

For example, in New Jersey, having sex with an underage person is sexual assault only if the actor is four or more years older. Thus, a 22-year-old who has intercourse with a 15-year-old commits a felony, but an 18-year-old who does the same thing does nothing unlawful. In some states, such as Georgia, closeness in age is not a complete defense but rather lowers the offense level to a misdemeanor.

Professionals Required to Report

States impose a duty on certain classes of professionals to report any suspicion of child abuse, which can include statutory rape. Generally, they types of professionals designated as mandatory reporters are those with access to children (such as teachers or medical professional) or in service positions (such as public employees and clergy). Mandatory reporting requirements are outlined in state laws, so the people designated as mandatory reporters, and the circumstances in which they must report suspected child abuse, will vary from state to state.

Shoplifting offenses fall under the general definition of "theft" in the Texas Penal Code. In addition, shielding or deactivating instruments used for shoplifting are also expressly prohibited under state law. The nature of a shoplifting charge and the associated penalty will depend on a couple of factors, including the value of the property stolen, and whether you have previously been convicted of any type of theft.

Shoplifting laws are defined in the Texas Penal Code Sections 31.0231.03, and 31.15

Definition of the Shoplifting Offense: 

  • The definition of "theft" under the Texas Penal Code includes a variety of offenses, including shoplifting.
  • "Theft" is defined as the unlawful appropriation of property with the intent to deprive the owner of the property.
  • It's also a crime to possess, manufacture, or distribute shielding or deactivating instruments used for shoplifting.

Nature of the Charge:

  • Shoplifting property valued at less than 100 is a Class C misdemeanor.
  • Shoplifting property valued at $100 or more but less than $750 is a Class B misdemeanor.
  • If you have been previously convicted of any grade of theft, shoplifting will be a Class B misdemeanor if the value of the property stolen is less than $100.
  • Shoplifting property valued at $750 or more but less than $2,500 is a Class A misdemeanor.
  • Possession, manufacture, or distribution of a shielding or deactivating instrument is a Class A misdemeanor.
  • Shoplifting property valued at $2,500 or more but less than $30,000 is a state jail felony.
  • You will also be charged with a state jail felony if you have two or more prior convictions for theft, and the value of the property stolen is less than $2,500.
  • Shoplifting property valued at $30,000 or more but less than $150,000 is a felony in the third degree.
  • Shoplifting property valued at $150,000 or more but less than $300,000 is a felony in the second degree.
  • Shoplifting property valued at more than $300,000 is a felony in the first degree.

Penalties:

  • Class C misdemeanor - fine of up to $500.
  • Class B misdemeanor - fine of up to $2,000 and up to 180 days in jail.
  • Class A misdemeanor - fine of up to $4,000 and up to one year in jail.
  • State jail felony - fine of up to $10,000 and between 180 days and two years in jail.
  • Third degree felony - fine of up to $10,000 and between 2 and 10 years' imprisonment.
  • Second degree felony - fine of up to $10,000 and between 2 and 20 years' imprisonment.
  • First degree felony - fine of up to $10,000 and between 5 and 99 years' imprisonment.

The crime of stalking is defined as a pattern of malicious behavior -- such as repeatedly showing up at an estranged partner's house after being told to stay away -- as opposed to a one-time event. While stalking is often associated with repeatedly following or pursuing someone, stalking can also be characterized by less direct actions, such as repeatedly contacting someone through the mail, phone, or internet. In addition, stalking can take the form of unwanted gifts or messages. The pattern of behavior must cause the victim to fear for his or her safety or well-being in order to be considered stalking.

In Texas, specifically, the law defines stalking as when someone knowingly engages in behavior that someone else would find threatening, and that would cause a reasonable person to be afraid. Stalking is treated as a 3rd degree felony, which means that it is often punishable with a prison sentence. If convicted of another charge of stalking, it is considered to be a 2nd degree felony.

Stalking laws are defined in the Texas Penal 42.072.

Stalking Definition: 

A person commits an offense if on more than one occasion and pursuant to scheme or course of conduct directed at specific person, knowingly engages in conduct that:

  1. Stalker knows/reasonably believes victim will view as threatening;
  2. Causes fear; and
  3. Would cause a reasonable person to fear.

Punishment/Classification: 

3rd degree felony

Penalty for Repeat Offense:

2nd degree felony

Note About the Threats:

  • Threats can be explicit (saying you are going to kill the victim) or implied (veiled threats, hurting the family pet).
  • Threats have to be aimed at a specific person; they cannot be general threats.
  • Threats may be conveyed by the stalker or by someone acting on behalf of the stalker.

Note to Victims:

If you are being stalked by another person, your first course of action should be to notify law enforcement or your local prosecutor's office. You can request:

  • Each incident be documented
  • A copy of the report from your local law enforcement agency

Keep in mind, stalking is a serious crime and can be accompanied by escalating criminal behavior and even violence.

Avoiding or fraudulently filing taxes are serious crimes under federal and state laws. In Texas, tax evasion can land you in prison and also may indicate the presence of a criminal enterprise (former mob boss Al Capone, for example, was convicted on federal tax evasion charges). Since Texas does not collect personal income tax, its main source of state revenue comes from sales tax. Therefore, Texas tax evasion and fraud laws generally apply to businesses.

Failing to pay taxes or committing fraudulent acts with respect to record-keeping, including the use of technology to falsify electronic sales records, are punishable with fines and/or incarceration.

Tax Evasion and Fraud Laws are defined in the Tax Code sec. 151.7032 and 151.7102Business and Commerce Code sec. 326.001-326.002

Charges:

Failing to pay sales taxes collected to the state comptroller.

Intentionally or knowingly committing various fraudulent acts with respect to books and records required to be kept by law (false entry; failure to enter required records; failure to produce records for inspection).

Using automated sales suppression devices or phantom-ware to falsify an electronic record (such as transaction reports).

Classifications and Penalties:

Failure to pay (tax evasion):

  • Class C misdemeanor if less than $50;
  • Class B misdemeanor if greater than $50 but less than $500;
  • Class A misdemeanor if greater than $500 but less than $1,500;
  • State jail felony (180 days to 2 yrs) if greater than $1,500 but less than $20,000;
  • Third degree felony (2-10 yrs) if more than $20,000 but less than $100,000;
  • Second degree felony (2-20 yrs) if more than $100,000 but less than $200,000;
  • First degree felony (5-99 yrs) if greater than $200,000.

False entry / failure to enter required records: third degree felony (2-10 yrs); failure to produce records for inspection: Class C misdemeanor.

Use of automated sales suppression devices and phantom-ware: state jail felony (180 days to 2 yrs).

Additional Penalties:

Sales tax permits may be revoked or suspended, and future permits may be denied by the state comptroller.

The Federal Trade Commission investigates telemarketing fraud claims at the federal level, in addition to claims of unwanted texts or email messages. But many states also regulate telemarketers to varying degrees. The Texas Telemarketing Disclosure and Privacy Act prohibits certain acts, such as calling or sending facsimiles to recipients against their will or interfering with caller I.D.

Claims of violations are not handled in criminal court in Texas, but may be investigated by the attorney general or various agencies. Penalties typically are limited to fines, but may also include restitution, monetary damages, and the revocation of a state license.

Keep in mind, these types of crimes are often charged in conjunction with mail fraud, wire fraud, bank fraud, and more. If the activities involved cross state lines, you can be charged with a federal crime.

Telemarketing Fraud Laws are defined in the Business and Commerce Code sec. 304.001, et seq.

Definition of Telemarketing Call: 

A person makes a telemarketing call if the other entity receiving the call can

  1. Become entitled to receive money or property from a sale solicited during the call, or
  2. Receive information during the call to extend credit for a consumer good or service, or directly solicit a sale.

Prohibited Telemarketing Acts:

  • Placing a telemarketing call to a number on the Texas no-call list more than 60 days after the telephone number appears on the list.
  • Sending facsimiles to recipients more than 24 hours after receiving oral or written notice not to send further transmissions.
  • Interference with caller identification.

Penalties:

After investigating complaint, the state commission may impose a fine of up to $1,000 per violation. State attorney general may impose a $1,000 fine per violation, injunctive relief, and attorney's fees (court may increase civil penalties to $3,000 per violation if it finds willful violation of the law). State licensing agencies, after investigating complaint, may impose a $1,000 fine per violation, order restitution for any monetary damages, and suspend or revoke the state licensee's license.

 

A person has committed a theft (or larceny) if they take property with the intent to deprive the owner of the property. Theft does not only have to be direct taking of another's property. Theft may be taking property that the defendant already knows to be stolen by someone else.

Example: Joe owns a pawn shop. Bob enters the shop and sells a necklace to Joe which Joe knows that Bob has stolen from its owner. If Joe takes the necklace, he may be found guilty of theft or larceny.

In Texas, it may also be considered theft if a person fails to perform some affirmative act which would prove that the item being sold or given to them has not been stolen.

Example: Sally fails to report to the Texas Department of Motor Vehicles that the person who sold her a car failed to turn over to her a properly executed certificate of title (commonly known as a "pink slip"). She may be found to have violated Texas' law against theft. Also, if Sally fails to file with the county tax collector/assessor within 20 days of receiving the vehicle, this may also be grounds for finding her guilty of theft.

The amount or value of the property stolen does not necessarily have to be large in order to be convicted of theft. It can be any amount, large or small.

Theft and Larceny Laws are defined in the Texas Penal Code, Title 7, Chapter 31 (Penal Code, Title 7, Chapter 31 -- scroll down for sections dealing with theft)

Possible Defenses:

  • Lack of intent
  • Mistake of fact (For example, the property was thought to have been stolen, but in fact, it was not.)
  • Age (Although being a minor is not a complete defense, it may serve to lessen the penalty.)
  • Duress

NOTE: Entrapment is not a defense. Although a police officer or peace officer was solicited with an opportunity to commit the crime, or a facility was given that created an opportunity to commit the offense, this is not a defense to theft.

Penalties:

Under Texas theft / larceny law, offenders may receive charges varying from a "Class C" misdemeanor for the most minor of thefts, all the way up to a first degree felony for the most serious.

The following guidelines are generally set for varying degrees of theft based on the amount or value of property taken:

  • "Class C" misdemeanor: $50 or less
  • "Class B" misdemeanor: $50 or more, but less than $500
  • "Class A" misdemeanor: $500 or more, but less than $1,500
  • State jail felony: $1,500 or more, but less than $20,000
  • Third degree felony: $20,000 or more, but less than $100,000
  • Second degree felony: $100,000 or more, but less than $200,000
  • First degree felony: $200,000 or more

Note: Based on the amount or value of property stolen, the penalty will go up. Penalties may range anywhere from a fine of no more than $500 (for a "Class C" misdemeanor), up to 5 to 99 years in prison and/or a fine of no more than $10,000 for a first degree felony.

Also, depending on who the defendant is and in what capacity he/she stole the property (i.e. whether he/she a public servant, or in contract with the government, or was the individual a Medicare provider, etc.) the penalty may be bumped up to the next higher level. Therefore, the guidelines mentioned above are meant to be followed generally. Depending on the exact circumstances of each crime, the penalty may be higher.

 

Criminal Mischief Charges in Texas:

Criminal mischief is a broadly defined crime that punishes willful behavior aimed at destroying, altering, or defacing property belonging to another. Under Texas law, a person is guilty of criminal mischief if they intentionally or knowingly perform any of the following acts without the consent of the property owner:

  1. Damage or destroy the tangible property of the owner;
  2. Tamper with the tangible property of the owner, causing monetary loss or substantial inconvenience to the owner or a third person; or
  3. Make markings, including inscriptions, slogans, drawings, or paintings, on the tangible property of the owner.

Since this is a specific intent crime, the prosecution must prove that the defendant acted with purpose, knowing that their act damaged or tampered with another person's property. Common defenses to criminal mischief are mistake of fact or accident. Without proof of intent, you can be charged with reckless damage or destruction, which occurs when one recklessly damages or destroys another's property without consent.

Penalties for Criminal Mischief:

Punishment for criminal mischief is scaled to meet the seriousness of the crime; but as the chart below reflects, most violations are charged as misdemeanors. Basically, the greater the value of the property involved, the stiffer the penalty.

For example, vandalism resulting in less than $100 in damage is considered a fine-only offense. However, when property damage is valued between $750 and $2,500, you could face up to one year in jail and fines as much as $4,000.

Understanding Texas Graffiti Charges:

It's not uncommon for other crimes to be alleged along with a criminal mischief charge. Graffiti is a related property crime that involves the unauthorized writing or drawing on a wall or other surface. Under Texas law, a person commits a graffiti offense if, without the consent of the owner, the person intentionally makes markings, drawings, or paintings on someone else's tangible property with:

  • Paint;
  • Indelible marker; or
  • An etching or engraving device.

Texas Vandalism laws:

Penalties for Criminal Mischief:

If loss is less than $100 or causes substantial inconvenience:

  • Class C misdemeanor
  • Punishable by a $500 fine

If loss is more than $100 but less than $750:

  • Class B misdemeanor
  • Punishable by up to 180 days in jail and fines up to $2,000

If loss is more than $750 but less than $2,500:

  • Class A misdemeanor
  • Also Class A if defendant impairs any public water supply, regardless of the amount of the monetary loss.
  • Punishable by up to 1 year in jail and fines of up to $4,000

If loss is $2,500 or more but less than $30,000:

  • State jail felony
  • Punishable by up to 180 days to 2 years in state jail and fines up to $10,000

If the property was a fence used for the production or containment of livestock:

  • State jail felony

Vandalism Defenses:

Common vandalism defense are as follows:

  • Insufficient evidence
  • Owner consent
  • Damage done was to defendant's own property
  • Accident
  • Lack of intent
  • False accusation

Protective orders are intended to protect individuals from abusive partners or others who may try to cause harm. Texas protective orders laws allow for both temporary (20 days maximum) and general (up to two years) protective orders, also referred to as "restraining orders." Violating a protective order can result in a jail sentence and/or fine.

Protective Order laws are defined in the Texas Family code 71.001 et seq.

Activity Addressed by a Protective Order: Enjoin contact; exclude from dwelling, employment, school; regarding minors: enjoin contact, temporary custody, support; counseling; reasonable court costs and attorney fees; suspension of firearm license

Duration of a Protective Order: Temporary: maximum 20 days, may be extended; General: maximum 2 yrs.

Penalty for a Violation of a Protective Order: Fine, maximum $4,000 and/or jail, maximum 1 year. If family violence occurs, can be prosecuted for a misdemeanor or felony, carry jail minimum 2 years. Temporary: maximum $500 fine or maximum 6 months jail, or both

Who May Apply for a Protective Order: Adult member of family; prosecuting attorney; department of protective and regulatory services

Can Fees Be Waived? Yes; fees paid by respondent

Order Transmission to Law Enforcement: Copy to chief of police where protected resides and to department of public safety

Civil Liability for Violation of Order: Yes, contempt of court

Types of Protective Orders

Protective orders come in many different forms, as each court order is written to address each specific situation. The following list covers a few of the most common types of protective orders.

Enjoin Contact

This type of protective order is commonly called a "restraining order." This prevents the defendant from having any contact with the petitioner. Restraining orders are common when any contact between the defendant and petitioner risks harm to the petitioner.

Exclude from Private Places

Sometimes, there are reasons that make prohibiting all contact unreasonable. Even between abusive and abused partners, they may need to make contact in order to exchange children as part of a custody order. In this case, the abusive partner may be required to keep away from the petitioner's private places, like a home, school, or place of employment.

Orders Regarding Minors

Adults are not the only ones who can benefit from a protective order. A court may also issue a protective order to prevent an abusive parent from having contact with a child, to give temporary custody to another parent, or to pay child support.

Counseling

Because each protective order situation is different, a court may want to order someone to seek counseling in addition to other requirements. For an abuser, the court may order that they seek anger management counseling in addition to enjoining contact with their victims. Drug and alcohol addiction counseling are common as well.

Suspension of Firearm License

Texas issues concealed carry permits and licenses to qualified individuals. If someone has one of these permits, and is accused or convicted of a crime against another person, the court may order the permit holder to surrender their firearm(s) and their carry permit.

Penalties for Violating a Protective Order

Violating a protective order can result in jail time and a fine. The fine cannot exceed $4,000, and the jail time cannot exceed one year for violating the order alone. If violating the order resulted in family violence, the defendant can be prosecuted with for a misdemeanor or felony with jail time of up to two years. This punishment is in addition to any other crimes committed.

"White collar crime" can describe a wide variety of crimes, but they all typically involve crime committed through deceit and motivated by financial gain. The most common white collar crimes are various types of fraud, embezzlement, tax evasion and money laundering. Many types of scams and frauds fall into the bucket of white collar crime, including Ponzi schemes and securities fraud such as insider trading. More common crimes, like insurance fraud and tax evasion, also constitute white collar crimes

The crime of embezzlement involves improperly taking money from someone to whom you owe some type of duty. The most common example is a company employee that embezzles money from their employer by siphoning money into a personal account. Embezzlement can take many forms, however. Lawyers who improperly use client funds commit embezzlement. So do investment advisers who improperly use client funds they've been entrusted to protect.

Money laundering is the criminal act of filtering illegally obtained ("dirty") money through a series of transactions designed to make the money appear legitimate ("clean"). Money laundering often involves three steps:

  1. First, the money is deposited into a financial institution such as a bank or brokerage.
  2. Next, the money is separated from its illegal origin by layers of often complex transactions, making it more difficult to trace the "dirty" money.
  3. The third step is integration. This is where the freshly "cleaned" money is mixed with legally obtained money, often through the purchase or sale of assets.

Many types of fraudulent schemes, including mortgage fraud and insurance fraud, are amongst the more common white collar crimes. These can be as common as an individual embarking on an insurance scheme to improperly collect on an insurance policy after lying in application materials. They can also extend to larger scale schemes by businesses to defraud their customers or others in the marketplace.

Ponzi schemes and other business related scams to fraudulently take money from investors have been some of the most famous white collar crimes. These can take all shapes and sizes.

For example, disgraced investor Bernie Madoff (who's currently serving a prison sentence for running a Ponzi scheme) inflated his earnings numbers in order to entice more investors to put money into his fund. He would then use those funds to pay off earlier investors who wanted to withdraw their funds. But once the market cooled and a critical mass of investors pulled their investments, it became clear he didn't have the money to repay the investors.

Securities fraud comes in many flavors, but one common type is "insider trading," in which someone with inside information about a company or investment trades on that information in violation of a duty or obligation. For example, an executive knows confidential information about an upcoming company earnings report decides to sell of a chunk of his stock in the company. That would be considered securities fraud; specifically, insider trading.

Another type of securities fraud occurs when someone seeks investment in a company by knowingly misstating the company's prospects, health, or finances. By luring an investor to put up money based on false or misleading information, the company and individuals within it commit securities fraud. False or misleading statements in public reports from publicly traded companies also can constitute securities fraud. To commit securities fraud, those speaking on behalf of the business must make these false statements with knowledge that they're false, or at least reasonably should have known them to be false.

Criminal tax evasion is a white collar crime through which the perpetrator attempts to avoid taxes they would otherwise owe. Tax evasion can range from simply filing tax forms with false information to illegally transferring property so as to avoid tax obligations. Individuals as well as businesses can commit criminal tax evasion. As with fraud, there are perhaps infinite ways to commit tax evasion.

Exercise Your Right to Remain Silent.

Many defendants make the mistake of speaking to the police instead of getting an attorney involved from the very beginning. It just makes sense to keep your mouth shut and say nothing because they are looking for any excuse to charge you, and you may be giving them all the details that will be used against you in court. Same goes for agreeing to take any field sobriety tests. My advice is to simply (and politely) tell the officer that you refuse to take any such tests. Then, the results cannot be used against you in your trial.

The Reality of The Criminal Justice System

I utilize the multi-modal approach to the criminal justice system (and recognize its importance). There is systematic disenfranchisement at place within our justice system for marginalized communities in America. I will work with you to understand the ways in which the system could be working against you and how we can best overcome it. I have resources available to help you understand your rights. When possible, I utilize tenants of restorative justice as well as the philosophy espoused in “The New Jim Crow: Mass Incarceration in the Age of Color Blindness” by Michelle Alexander.

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