By Deandra Grant, J.D., M.S. (Pharmaceutical Science), ACS-CHAL Forensic Lawyer-Scientist
Theft charges in Texas cover a wider range of conduct than most people realize. Shoplifting from a retail store, accepting payment for services you never intended to deliver, buying merchandise you suspected was stolen, and participating in an organized retail theft ring can all result in theft charges under Penal Code §31.03, and the penalty level depends not just on the value of the property involved in a single transaction, but potentially on the aggregated value of everything prosecutors can connect to the same scheme.
This piece focuses on the forms of theft that most commonly result in unexpected or more serious charges than defendants anticipated and what the defense looks like in each.
"Deandra Grant Law – Criminal & DWI Defense handled my case with diligence and professionalism. Deandra Grant's reputation is stellar and now I know why. She has a team of individuals who provide quality service."
- N. Coulter
"Deandra Grant Law – Criminal & DWI Defense fights hard for their clients and is always willing to go above and beyond. They are the best firm for DWI cases in DFW and beyond. Definitely hire them to represent you in any pending cases."
- P. Williams
"Deandra Grant made a tough situation so much better. She listened to my concerns and helped me so much with my case. I would recommend her to anyone needing legal services."
- M. Haley
The Penalty Framework
Before getting into the specific conduct types, the current penalty tiers under Texas Penal Code §31.03 are worth stating clearly, because what appears to be a minor theft case can escalate quickly once the value calculation is complete:
- Class C misdemeanor — value under $100; fine only, up to $500
- Class B misdemeanor — value $100 to under $750; up to 180 days in county jail and $2,000 fine
- Class A misdemeanor — value $750 to under $2,500; up to one year in county jail and $4,000 fine
- State jail felony — value $2,500 to under $30,000; 180 days to two years in state jail and up to $10,000 fine
- Third-degree felony — value $30,000 to under $150,000; 2 to 10 years in prison and up to $10,000 fine
- Second-degree felony — value $150,000 to under $300,000; 2 to 20 years in prison and up to $10,000 fine
- First-degree felony — value $300,000 or more; 5 to 99 years or life in prison and up to $10,000 fine
Two enhancements apply regardless of the dollar amount: theft of a firearm is automatically a third-degree felony, and theft from an elderly person (65 or older) results in an enhancement of one penalty tier above whatever the value alone would support.
How the Numbers Add Up: Aggregation Under §31.09
The single most important concept in Texas theft law that defendants consistently do not understand is aggregation.
Texas Penal Code §31.09 provides that when a defendant commits theft on more than one occasion pursuant to the same scheme or continuing course of conduct, the amounts may be aggregated (added together) to produce a single, higher charge. The practical consequence is severe: a defendant who took $200 from their employer each week for two years has not committed 104 Class B misdemeanors. They have committed one second-degree felony, because $200 multiplied by 104 weeks equals $20,800 (state jail felony territory) and the prosecution has discretion in how much conduct to include in the charging period.
Retail theft rings, employee theft cases, and any situation involving repeated smaller takings from the same source are all candidates for aggregation. The offense level that appears on the charging document is often much higher than what any single transaction would support. Defendants who assume they are facing a misdemeanor because each individual act was small frequently discover that the aggregated charge is a felony.
Challenging the aggregation theory (i.e. arguing that the transactions did not share a common scheme or that the prosecution’s calculation improperly includes transactions beyond the scope of the alleged conduct) is a critical part of defense in any repeat-taking case.
Shoplifting and Retail Theft
Shoplifting is charged under the same general theft statute as any other theft (§31.03) and the penalty tier is determined by the retail value of the merchandise, not what the defendant paid or what it could be sold for. Retailers typically use the full retail price as the value, which can push cases into higher tiers than defendants expect.
Texas also has an organized retail theft statute under Penal Code §31.16, which creates a separate and more serious offense for theft conducted as part of an organized group. Under §31.16, a person commits organized retail theft if they intentionally conduct, promote, or facilitate an activity in which two or more persons receive or purchase merchandise acquired through shoplifting or robbery, knowing it was stolen. The penalty tiers for organized retail theft escalate on the same value scale as general theft but begin at the state jail felony level regardless of the dollar amount of any single transaction.
For retail theft cases, defense strategy focuses on several points. Retailers sometimes inflate the value of merchandise or incorrectly identify items. Loss prevention personnel (who are not law enforcement and operate under different legal constraints) sometimes conduct stops, detentions, and questioning in ways that create evidentiary problems. Surveillance video, which is often the primary evidence, must be properly authenticated and may not show what the prosecution claims it shows. And in organized retail theft cases, the prosecution must prove the defendant knew the merchandise was stolen. This is a knowledge element that can be contested when a defendant purchased items through what appeared to be a legitimate transaction.
Theft by Deception
Theft by deception is charged under Penal Code §31.03(b)(1), which defines “deception” to include creating or confirming by words or conduct a false impression of fact the defendant knows to be false, preventing another from acquiring information likely to affect their judgment, failing to correct a false impression previously created, or making a misrepresentation in connection with a promotion or sale.
Common theft by deception scenarios include: contractors who accept payment for work they never perform or never intend to perform; sellers who misrepresent the condition or ownership of property; individuals who write checks knowing there are insufficient funds; and anyone who obtains services, goods, or payment through material misrepresentation.
The critical distinction between theft by deception and a civil breach of contract is intent. A contractor who accepts a deposit, runs into financial trouble, and fails to complete the job has a civil problem. A contractor who accepts deposits from multiple customers with no genuine intent to perform the work, or who diverts funds from one job to cover another while never intending to complete any of them, has a criminal problem. The line between these situations is contested in many cases, and establishing that the defendant’s failure to perform was the result of changed circumstances rather than original intent is the central defense.
Deception cases also arise in the context of misrepresentation of property. Selling a vehicle with a rolled-back odometer, misrepresenting the condition of real property, or passing off counterfeit or substitute goods as genuine all fall within the deception definition. These cases often turn on the specific representations made, what the defendant knew about the falsity of those representations at the time they were made, and whether the buyer’s decision to purchase was actually induced by the misrepresentation.
Receiving Stolen Property
Texas does not have a standalone “receiving stolen property” statute. Under §31.03(b)(3), a person commits theft if they receive, retain, or dispose of stolen property knowing that it was stolen. The knowledge element (knowing the property was stolen) is the central issue in every receiving case.
The prosecution typically tries to establish knowledge through circumstantial evidence: the price paid was far below market value, the seller had no documentation of ownership, the transaction was conducted in an unusual manner, or the defendant had prior experience with the same seller. None of these circumstances independently establishes knowledge, but they are often presented in combination.
The defense challenge is that suspicion is not knowledge. A defendant who had reason to be suspicious about the origin of property, but did not actually know it was stolen, may not satisfy the knowledge element. The distinction between suspicion and actual knowledge is a fact-intensive analysis that requires examining exactly what the defendant was told, what they observed, and what information was actually available to them at the time of the transaction.
Receiving cases also raise Fourth Amendment issues. Law enforcement frequently conducts sting operations where undercover officers or informants sell “stolen” property to test whether targets will purchase it. The circumstances of the sting, whether the defendant was told the property was stolen versus merely appearing suspicious, and whether there was predisposition or improper inducement are all potential defense points.
Collateral Consequences of Theft Convictions
Employment. Theft convictions (including misdemeanors) appear on background checks and are frequently disqualifying for positions involving financial responsibility, access to cash or merchandise, or fiduciary duties. Many employers have categorical exclusions for theft convictions regardless of how old they are.
Professional licensing. Nurses, teachers, lawyers, accountants, real estate agents, and other licensed professionals face licensing board review following a theft conviction. A felony theft conviction is disqualifying for many professional licenses and can result in suspension or revocation of an existing license.
Immigration. Theft is classified as a crime involving moral turpitude under federal immigration law. Even a misdemeanor theft conviction can trigger grounds of inadmissibility or deportability for non-citizens, and deferred adjudication may not fully protect against immigration consequences in all circumstances.
Future sentencing. A prior theft conviction, including a misdemeanor, can be used to enhance future charges under the habitual offender provisions of the Texas Penal Code.
Case Results
Speak With Deandra Grant Law
Theft charges in Texas require immediate attention. The charge on the complaint may not reflect the actual exposure once aggregation and enhancements are factored in, and the collateral consequences extend well beyond whatever sentence the court imposes. Managing Partner Deandra Grant brings more than 30 years of criminal defense experience to every case.
Call (214) 225-7117 or visit texasdwisite.com to schedule a confidential consultation.
Firm Accolades
Better Business Bureaus
D Magazine
