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PENAL CODE CHAPTER 28.
TITLE 7. OFFENSES AGAINST PROPERTY
ARSON, CRIMINAL MISCHIEF, AND OTHERPROPERTY DAMAGE OR DESTRUCTION
§ 28.01. DEFINITIONS. In this chapter:
(1) "Habitation" means a structure or vehicle that is
adapted for the overnight accommodation of persons and includes:
(A) each separately secured or occupied portion
of the structure or vehicle; and
(B) each structure appurtenant to or connected
with the structure or vehicle.
(2) "Building" means any structure or enclosure
intended for use or occupation as a habitation or for some purpose
of trade, manufacture, ornament, or use.
(3) "Property" means:
(A) real property;
(B) tangible or intangible personal property,
including anything severed from land; or
(C) a document, including money, that represents
or embodies anything of value.
(4) "Vehicle" includes any device in, on, or by which
any person or property is or may be propelled, moved, or drawn in
the normal course of commerce or transportation.
(5) "Open-space land" means real property that is
undeveloped for the purpose of human habitation.
(6) "Controlled burning" means the burning of unwanted
vegetation with the consent of the owner of the property on which
the vegetation is located and in such a manner that the fire is
controlled and limited to a designated area.
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974.
Amended by Acts 1979, 66th Leg., p. 1216, ch. 588, § 1, eff.
Sept. 1, 1979; Acts 1989, 71st Leg., ch. 31, § 1, eff. Sept. 1,
1989; Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.
§ 28.02. ARSON. (a) A person commits an offense if the
person starts a fire, regardless of whether the fire continues
after ignition, or causes an explosion with intent to destroy or
damage:
(1) any vegetation, fence, or structure on open-space
land; or
(2) any building, habitation, or vehicle:
(A) knowing that it is within the limits of an
incorporated city or town;
(B) knowing that it is insured against damage or
destruction;
(C) knowing that it is subject to a mortgage or
other security interest;
(D) knowing that it is located on property
belonging to another;
(E) knowing that it has located within it
property belonging to another; or
(F) when the person is reckless about whether the
burning or explosion will endanger the life of some individual or
the safety of the property of another.
(b) It is an exception to the application of Subsection
(a)(1) that the fire or explosion was a part of the controlled
burning of open-space land.
(c) It is a defense to prosecution under Subsection
(a)(2)(A) that prior to starting the fire or causing the explosion,
the actor obtained a permit or other written authorization granted
in accordance with a city ordinance, if any, regulating fires and
explosions.
(d) An offense under this section is a felony of the second
degree, except that the offense is a felony of the first degree if
it is shown on the trial of the offense that:
(1) bodily injury or death was suffered by any person
by reason of the commission of the offense; or
(2) the property intended to be damaged or destroyed
by the actor was a habitation or a place of assembly or worship.
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974.
Amended by Acts 1979, 66th Leg., p. 1216, ch. 588, § 2, eff.
Sept. 1, 1979; Acts 1981, 67th Leg., p. 1837, ch. 425, § 1, eff.
Sept. 1, 1981; Acts 1989, 71st Leg., ch. 31, § 2, eff. Sept. 1,
1989; Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994;
Acts 1997, 75th Leg., ch. 1006, § 1, eff. Sept. 1, 1997; Acts
2001, 77th Leg., ch. 976, § 1, eff. Sept. 1, 2001.
§ 28.03. CRIMINAL MISCHIEF. (a) A person commits an
offense if, without the effective consent of the owner:
(1) he intentionally or knowingly damages or destroys
the tangible property of the owner;
(2) he intentionally or knowingly tampers with the
tangible property of the owner and causes pecuniary loss or
substantial inconvenience to the owner or a third person; or
(3) he intentionally or knowingly makes markings,
including inscriptions, slogans, drawings, or paintings, on the
tangible property of the owner.
(b) Except as provided by Subsections (f) and (h), an
offense under this section is:
(1) a Class C misdemeanor if:
(A) the amount of pecuniary loss is less than
$50; or
(B) except as provided in Subdivision (3)(A) or
(3)(B), it causes substantial inconvenience to others;
(2) a Class B misdemeanor if the amount of pecuniary
loss is $50 or more but less than $500;
(3) a Class A misdemeanor if:
(A) the amount of pecuniary loss is:
(i) $500 or more but less than $1,500; or
(ii) less than $1,500 and the actor causes
in whole or in part impairment or interruption of public
communications, public transportation, public gas or power supply,
or other public service, or causes to be diverted in whole, in part,
or in any manner, including installation or removal of any device
for any such purpose, any public communications or public gas or
power supply; or
(B) the actor causes in whole or in part
impairment or interruption of any public water supply, or causes to
be diverted in whole, in part, or in any manner, including
installation or removal of any device for any such purpose, any
public water supply, regardless of the amount of the pecuniary
loss;
(4) a state jail felony if the amount of pecuniary loss
is:
(A) $1,500 or more but less than $20,000;
(B) less than $1,500, if the property damaged or
destroyed is a habitation and if the damage or destruction is caused
by a firearm or explosive weapon; or
(C) less than $1,500, if the property was a fence
used for the production or containment of:
(i) cattle, bison, horses, sheep, swine,
goats, exotic livestock, or exotic poultry; or
(ii) game animals as that term is defined by
Section 63.001, Parks and Wildlife Code;
(5) a felony of the third degree if the amount of the
pecuniary loss is $20,000 or more but less than $100,000;
(6) a felony of the second degree if the amount of
pecuniary loss is $100,000 or more but less than $200,000; or
(7) a felony of the first degree if the amount of
pecuniary loss is $200,000 or more.
(c) For the purposes of this section, it shall be presumed
that a person who is receiving the economic benefit of public
communications, public water, gas, or power supply, has knowingly
tampered with the tangible property of the owner if the
communication or supply has been:
(1) diverted from passing through a metering device;
or
(2) prevented from being correctly registered by a
metering device; or
(3) activated by any device installed to obtain public
communications, public water, gas, or power supply without a
metering device.
(d) The terms "public communication, public transportation,
public gas or power supply, or other public service" and "public
water supply" shall mean, refer to, and include any such services
subject to regulation by the Public Utility Commission of Texas,
the Railroad Commission of Texas, or the Texas Natural Resource
Conservation Commission or any such services enfranchised by the
State of Texas or any political subdivision thereof.
(e) When more than one item of tangible property, belonging
to one or more owners, is damaged, destroyed, or tampered with in
violation of this section pursuant to one scheme or continuing
course of conduct, the conduct may be considered as one offense, and
the amounts of pecuniary loss to property resulting from the damage
to, destruction of, or tampering with the property may be
aggregated in determining the grade of the offense.
(f) An offense under this section is a state jail felony if
the damage or destruction is inflicted on a place of worship or
human burial, a public monument, or a community center that
provides medical, social, or educational programs and the amount of
the pecuniary loss to real property or to tangible personal
property is less than $20,000.
(g) In this section:
(1) "Explosive weapon" means any explosive or
incendiary device that is designed, made, or adapted for the
purpose of inflicting serious bodily injury, death, or substantial
property damage, or for the principal purpose of causing such a loud
report as to cause undue public alarm or terror, and includes:
(A) an explosive or incendiary bomb, grenade,
rocket, and mine;
(B) a device designed, made, or adapted for
delivering or shooting an explosive weapon; and
(C) a device designed, made, or adapted to start
a fire in a time-delayed manner.
(2) "Firearm" has the meaning assigned by Section
46.01.
(3) "Institution of higher education" has the meaning
assigned by Section 61.003, Education Code.
(h) An offense under this section is a state jail felony if
the amount of the pecuniary loss to real property or to tangible
personal property is $1,500 or more but less than $20,000 and the
damage or destruction is inflicted on a public or private
elementary school, secondary school, or institution of higher
education.
(i) Notwithstanding Subsection (b), an offense under this
section is a felony of the first degree if the property is livestock
and the damage is caused by introducing bovine spongiform
encephalopathy, commonly known as mad cow disease, or a disease
described by Section 161.041(a), Agriculture Code. In this
subsection, "livestock" has the meaning assigned by Section
161.001, Agriculture Code.
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974.
Amended by Acts 1981, 67th Leg., p. 66, ch. 29, § 1, eff. Aug. 31,
1981; Acts 1983, 68th Leg., p. 2917, ch. 497, § 1, eff. Sept. 1,
1983; Acts 1985, 69th Leg., ch. 352, § 1, eff. Sept. 1, 1985;
Acts 1989, 71st Leg., ch. 559, § 1, eff. June 14, 1989; Acts
1989, 71st Leg., ch. 1253, § 1, eff. Sept. 1, 1989; Acts 1989,
71st Leg., 1st C.S., ch. 42, § 1, eff. Sept. 1, 1989; Acts 1993,
73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994; Acts 1995, 74th
Leg., ch. 76, § 11.280, eff. Sept. 1, 1995; Acts 1997, 75th
Leg., ch. 1083, § 1, eff. Sept. 1, 1997; Acts 1999, 76th Leg.,
ch. 686, § 1, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 747,
§ 1, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 976, § 2,
eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 1280, § 1, eff.
Sept. 1, 2003.
§ 28.04. RECKLESS DAMAGE OR DESTRUCTION. (a) A person
commits an offense if, without the effective consent of the owner,
he recklessly damages or destroys property of the owner.
(b) An offense under this section is a Class C misdemeanor.
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974.
Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1,
1994.
§ 28.05. ACTOR'S INTEREST IN PROPERTY. It is no defense
to prosecution under this chapter that the actor has an interest in
the property damaged or destroyed if another person also has an
interest that the actor is not entitled to infringe.
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974.
Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1,
1994.
§ 28.06. AMOUNT OF PECUNIARY LOSS. (a) The amount of
pecuniary loss under this chapter, if the property is destroyed,
is:
(1) the fair market value of the property at the time
and place of the destruction; or
(2) if the fair market value of the property cannot be
ascertained, the cost of replacing the property within a reasonable
time after the destruction.
(b) The amount of pecuniary loss under this chapter, if the
property is damaged, is the cost of repairing or restoring the
damaged property within a reasonable time after the damage
occurred.
(c) The amount of pecuniary loss under this chapter for
documents, other than those having a readily ascertainable market
value, is:
(1) the amount due and collectible at maturity less
any part that has been satisfied, if the document constitutes
evidence of a debt; or
(2) the greatest amount of economic loss that the
owner might reasonably suffer by virtue of the destruction or
damage if the document is other than evidence of a debt.
(d) If the amount of pecuniary loss cannot be ascertained by
the criteria set forth in Subsections (a) through (c), the amount of
loss is deemed to be greater than $500 but less than $1,500.
(e) If the actor proves by a preponderance of the evidence
that he gave consideration for or had a legal interest in the
property involved, the value of the interest so proven shall be
deducted from:
(1) the amount of pecuniary loss if the property is
destroyed; or
(2) the amount of pecuniary loss to the extent of an
amount equal to the ratio the value of the interest bears to the
total value of the property, if the property is damaged.
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974.
Amended by Acts 1983, 68th Leg., p. 2918, ch. 497, § 2, eff.
Sept. 1, 1983; Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept.
1, 1994.
§ 28.07. INTERFERENCE WITH RAILROAD PROPERTY. (a) In
this section:
(1) "Railroad property" means:
(A) a train, locomotive, railroad car, caboose,
work equipment, rolling stock, safety device, switch, or connection
that is owned, leased, operated, or possessed by a railroad; or
(B) a railroad track, rail, bridge, trestle, or
right-of-way owned or used by a railroad.
(2) "Tamper" means to move, alter, or interfere with
railroad property.
(b) A person commits an offense if the person:
(1) throws an object or discharges a firearm or weapon
at a train or rail-mounted work equipment; or
(2) without the effective consent of the owner:
(A) enters or remains on railroad property,
knowing that it is railroad property;
(B) tampers with railroad property;
(C) places an obstruction on a railroad track or
right-of-way; or
(D) causes in any manner the derailment of a
train, railroad car, or other railroad property that moves on
tracks.
(c) An offense under Subsection (b)(1) is a Class B
misdemeanor unless the person causes bodily injury to another, in
which event the offense is a felony of the third degree.
(d) An offense under Subsection (b)(2)(A) is a Class C
misdemeanor.
(e) An offense under Subsection (b)(2)(B), (b)(2)(C), or
(b)(2)(D) is a Class C misdemeanor unless the person causes
pecuniary loss, in which event the offense is:
(1) a Class B misdemeanor if the amount of pecuniary
loss is $20 or more but less than $500;
(2) a Class A misdemeanor if the amount of pecuniary
loss is $500 or more but less than $1,500;
(3) a state jail felony if the amount of pecuniary loss
is $1,500 or more but less than $20,000;
(4) a felony of the third degree if the amount of the
pecuniary loss is $20,000 or more but less than $100,000;
(5) a felony of the second degree if the amount of
pecuniary loss is $100,000 or more but less than $200,000; or
(6) a felony of the first degree if the amount of the
pecuniary loss is $200,000 or more.
(f) The conduct described in Subsection (b)(2)(A) is not an
offense under this section if it is undertaken by an employee of the
railroad or by a representative of a labor organization which
represents or is seeking to represent the employees of the railroad
as long as the employee or representative has a right to engage in
such conduct under the Railway Labor Act (45 U.S.C. Section 151 et
seq.).
Added by Acts 1989, 71st Leg., ch. 908, § 1, eff. Sept. 1, 1989.
Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1,
1994.
§ 28.08. GRAFFITI. (a) A person commits an offense if,
without the effective consent of the owner, the person
intentionally or knowingly makes markings, including inscriptions,
slogans, drawings, or paintings, on the tangible property of the
owner with:
(1) aerosol paint;
(2) an indelible marker; or
(3) an etching or engraving device.
(b) Except as provided by Subsection (d), an offense under
this section is:
(1) a Class B misdemeanor if the amount of pecuniary
loss is less than $500;
(2) a Class A misdemeanor if the amount of pecuniary
loss is $500 or more but less than $1,500;
(3) a state jail felony if the amount of pecuniary loss
is $1,500 or more but less than $20,000;
(4) a felony of the third degree if the amount of
pecuniary loss is $20,000 or more but less than $100,000;
(5) a felony of the second degree if the amount of
pecuniary loss is $100,000 or more but less than $200,000; or
(6) a felony of the first degree if the amount of
pecuniary loss is $200,000 or more.
(c) When more than one item of tangible property, belonging
to one or more owners, is marked in violation of this section
pursuant to one scheme or continuing course of conduct, the conduct
may be considered as one offense, and the amounts of pecuniary loss
to property resulting from the marking of the property may be
aggregated in determining the grade of the offense.
(d) An offense under this section is a state jail felony if:
(1) the marking is made on a school, an institution of
higher education, a place of worship or human burial, a public
monument, or a community center that provides medical, social, or
educational programs; and
(2) the amount of the pecuniary loss to real property
or to tangible personal property is less than $20,000.
(e) In this section:
(1) "Aerosol paint" means an aerosolized paint
product.
(2) "Etching or engraving device" means a device that
makes a delineation or impression on tangible property, regardless
of the manufacturer's intended use for that device.
(3) "Indelible marker" means a device that makes a
mark with a paint or ink product that is specifically formulated to
be more difficult to erase, wash out, or remove than ordinary paint
or ink products.
(4) "Institution of higher education" has the meaning
assigned by Section 481.134, Health and Safety Code.
(5) "School" means a private or public elementary or
secondary school.
Added by Acts 1997, 75th Leg., ch. 593, § 1, eff. Sept. 1, 1997.
Amended by Acts 1999, 76th Leg., ch. 166, § 1, 2, eff. Sept. 1,
1999; Acts 1999, 76th Leg., ch. 695, § 1, eff. Sept. 1, 1999;
Acts 2001, 77th Leg., ch. 1420, § 16.001, eff. Sept. 1, 2001.
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