Theft Defense Attorney in Georgetown, TX
Williamson county has become a large and varied county in the more than 20 years that Russ Hunt Jr has been practicing in Georgetown, Tx, and as various types of commerce have expanded across our county, law enforcement has detected a corresponding expansion of various categories of theft offenses. The laws that used to define multiple categories of Theft crimes in Texas like theft, fraud, extortion and the like have largely been consolidated into a single “Theft” statute. “Theft,” under Texas law, is now described simply as the “unlawful appropriation of property with the intent to deprive the owner of that property.” This seemingly simple definition masks the possible complexity in determining whether an “appropriation” of property was “unlawful.”
The Texas Theft law changed in September 2015 to update the "value ladder" which determines what level of offense a certain value of stolen property requires. The new values are higher than the old values in order to better reflect the increasing cost of living in Texas.
THEFT CRIMES ATTORNEY FAQs
- What is the law on theft in Texas?
- What is “Unlawful Appropriation“?
- What are the penalties for theft and what determines the offense levels?
- How can a theft charge be enhanced?
- What is the difference between theft and a breach of contract?
- What are the special rules for pawn shops, purchases of motor vehicles, livestock, vehicle salvage or pesticide?
- What is a breach of fiduciary duty?
Theft crimes in the past used to be separated into different offenses under Texas law: theft by false pretext, conversion by a bailee, theft from the person, shoplifting, acquisition of property by threat, swindling, swindling by worthless check, embezzlement, extortion, receiving or concealing embezzled property, and receiving or concealing stolen property. Now all of these offenses are grouped under the single category of "Theft." Because special interests have begged the Legislature for special consideration, still separate offenses were created for Theft of Service, Theft of Trade Secrets, Organized Retail Theft and the “Unauthorized Acquisition or Transfer of Certain Financial Information.”
Theft is defined in Texas Penal Code Section 31.03(a):
A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property.
Appropriation is described in the theft statute as the bringing about a transfer or purported transfer of title to or other non-possessory interest in property, whether to the actor or another; or the acquisition or other exercise of control over property other than real property.
Section 31.03(b) of the Texas Penal Code describes three ways in which an “appropriation” is “unlawful”:
(b) Appropriation of property is unlawful if:
(1) it is without the owner's effective consent;
(2) the property is stolen and the actor appropriates the property knowing it was stolen by another; or
(3) property in the custody of any law enforcement agency was explicitly represented by any law enforcement agent to the actor as being stolen and the actor appropriates the property believing it was stolen by another.
Effective consent generally means that the owner of the property agreed to the appropriation or was presumed to agree to the transaction. The term “effective consent” is not defined in the Texas theft statute, but it is limited to certain things:
“Effective consent” includes consent by a person legally authorized to act for the owner. Consent is not effective if:
(A) induced by deception or coercion;
(B) given by a person the actor knows is not legally authorized to act for the owner;
(C) given by a person who by reason of youth, mental disease or defect, or intoxication is known by the actor to be unable to make reasonable property dispositions;
(D) given solely to detect the commission of an offense; or
(E) given by a person who by reason of advanced age is known by the actor to have a diminished capacity to make informed and rational decisions about the reasonable disposition of property.
The definition of effective consent is found in Texas Penal Code §31.01(3).
Section 31.03(e) outlines the penalties for theft under Texas law. Because the penalties become more severe as the value of the stolen property increases in a stair-step manner, this is called a "value ladder."
- Theft under $100 is a Class C Misdemeanor (punishable by a fine up to $500)
- Theft between $100 and $750 is a Class B Misdemeanor (punishable by up to 180 days in jail and a $2000 fine). If the value of the stolen property is under $100, it is still a Class B Misdemeanor theft if you have been previously convicted of theft or if the property stolen was an identification card like a driver's license
- Theft between $750 and $2,500 is a Class A Misdemeanor, punishable by up to one year in jail and a $4000 fine
- Theft between $2,500 and $30,000 is a state jail felony. Other thefts punishable as a state jail felony without regard to the value of property taken are
- theft of a firearm,
- a third theft conviction (even if the value of the stolen property on the third case is less than $2,500),
- any theft under $20,000 if the theft is a metal including aluminum, copper, brass and copper,
- an official election ballot,
- theft from a grave
- certain thefts of livestock.
- Theft between $30,000 and $150,000 is a third degree felony. Certain thefts of livestock are also thefts of the third degree.
- Theft between $150,000 and $300,000 is a second degree felony. Thefts of ATM machines are also second degree felonies, even if the value is under $300,000.
- Any Theft over $300,000 is a first degree felony.
Theft punishments can be enhanced under certain conditions. Among them:
- Theft by a public servant or public official who used his or her status as a public servant or official to accomplish the theft – Texas Penal Code § 31.03(f)(1)
- Theft from the government by a government contractor – Texas Penal Code § 31.03(f)(2)
- Theft from an elderly person or a nonprofit organization – Texas Penal Code § 31.03(f)(3)
- Theft from the government by a Medicare provider – Texas Penal Code § 31.03(f)(4)
- A theft committed when a person “1) caused a fire exit alarm to sound or otherwise become activated; (2) deactivated or otherwise prevented a fire exit alarm or retail theft detector from sounding; or (3) used a shielding or deactivation instrument to prevent or attempt to prevent detection of the offense by a retail theft detector” – Texas Penal Code § 31.03(f)(5)
What are the special rules for pawn shops, purchases of motor vehicles, livestock, vehicle salvage or pesticide?
There are special rules for various types of businesses that are thought to receive stolen property more often than others:
- Pawn shops, described in the statute as people “in the business of buying and selling used or secondhand personal property, or lending money on the security of personal property deposited with the actor” (Section 31.03(c)(3)),
- Vehicle salvage businesses, described as people “in the business of obtaining abandoned or wrecked motor vehicles or parts of an abandoned or wrecked motor vehicle for resale, disposal, scrap, repair, rebuilding, demolition, or other form of salvage” (Section 31.03(c)(6)),
- Purchasers of motor vehicles, described in the statute as “purchases or receives a used or secondhand motor vehicle” (Section 31.03(c)(7)),
- Purchasers of pesticide (Section 31.03(c)(8)) and
- Purchasers of livestock (Section 31.03(c)(9)).
If a person promises to perform a service, takes payment for the service, and then doesn't ultimately do that service, can the person be prosecuted for theft? Consider the hypothetical situation where a person is paid to paint someone's car, takes the money, and doesn't paint the car: can that person be arrested for theft? The answer depends largely on the person's intent at the time the payment was made.
This kind of prosecution frequently happens. Whether the person is legally guilty of theft usually depends on whether the State can prove to a jury that the person deceived the vehicle owner who paid for the service in order to get their money. The State will often have to use circumstances surrounding the exchange including a history of non-performance, or an inability to perform at the time the agreement was made to show that the person did not intend to perform the service.
Merely failing to perform a service without other evidence of criminal intent or knowledge is not sufficient proof that the actor did not intend to perform or knew the promise would not be performed. Courts have held that if a contract is partially or substantially performed, then intent to commit theft through deception is not shown by the evidence, unless the service provider has engaged in a pattern or scheme where he accepted people's money, began the work and regularly left his customers with unfinished projects.
So, when is a case a non-criminal civil breach of contract, and when does nonperformance rise to the level of a criminal theft case? The answer depends on whether the State can prove an intent to deceive at the time of the contract. When consumers feel that they have been cheated they will often believe that they have been intentionally misled them and that they worker never intended to do the work he promised to do. Russ knows that disputes with customers and other unforseeable or intervening events can make it difficult or even impossible for a worker or contractor to perform as contracted. Even if a contractor simply decides at some later point that he does not want to do the work, it isn't necessarily a criminal theft offense.
Attorneys, Accountants, Trustees, Home builders, investment promoters and other occupations may have a contractual or statutory duty to protect the funds of their clients or investors. This duty is called a "fiduciary duty," and a breach of this duty can result in criminal charges. Attorneys in Texas must maintain a "Trust" account which is separate from their regular operating account and which contains funds belonging to their clients. These funds might be earmarked to pay for expert assistance, future attorney fees not yet earned, or other purposes; or the funds may reflect a settlement of some sort that was paid to the client through the attorney. Builders have a duty to provide homebuyers with clear title to the property when the buyer takes ownership of the property; otherwise a subcontractor could file a lien on the property which would prevent the homeowner from re-selling the property. Investment promoters and security salespeople may have contracts that specify the purposes for which client funds may be used.
If funds are used in a manner inconsistent with the statutory requirements or with the contractual agreement a criminal charge can be brought against the person who had the duty.
Russ has handled many theft cases including cases involving breaches of fiduciary duty, notably including multi-million dollar breaches by a homebuilder, many thousands of dollars in breaches by a commercial builder, and multi million dollar breaches by a concert promoter. The real key in each of these kinds of cases is making the client whole. The State's strongest motivation is usually to obtain restitution for the victim of the breach, which may involve up front payments or agreements to pay the money back over time. These cases can be extremely complex or terribly straightforward--Russ has the experience and knowledge to evaluate any type of criminal theft charge and strategically develop an effective strategy to combat the charges or negotiate a favorable resolution.
The costs and consequences of a theft conviction are severe, expensive and can last for your entire life. If you have been charged with any type of theft offense, it is extremely important that you have the right lawyer handle your case. Call today or send the contact form to arrange your FREE consultation about your Williamson county theft charge with Board Certified Criminal Lawyer Russ Hunt Jr. in Georgtown, Tx
Russ Hunt, Jr. is known for powerful, understanding representation.
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