PENAL CODE


TITLE 1. INTRODUCTORY PROVISIONS


CHAPTER 1. GENERAL PROVISIONS


Sec. 1.01.  SHORT TITLE. This code shall be known and may be cited as the Penal Code.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 1.02.  OBJECTIVES OF CODE. The general purposes of this code are to establish a system of prohibitions, penalties, and correctional measures to deal with conduct that unjustifiably and inexcusably causes or threatens harm to those individual or public interests for which state protection is appropriate. To this end, the provisions of this code are intended, and shall be construed, to achieve the following objectives:

(1)  to insure the public safety through:

(A)  the deterrent influence of the penalties hereinafter provided;

(B)  the rehabilitation of those convicted of violations of this code; and

(C)  such punishment as may be necessary to prevent likely recurrence of criminal behavior;

(2)  by definition and grading of offenses to give fair warning of what is prohibited and of the consequences of violation;

(3)  to prescribe penalties that are proportionate to the seriousness of offenses and that permit recognition of differences in rehabilitation possibilities among individual offenders;

(4)  to safeguard conduct that is without guilt from condemnation as criminal;

(5)  to guide and limit the exercise of official discretion in law enforcement to prevent arbitrary or oppressive treatment of persons suspected, accused, or convicted of offenses; and

(6)  to define the scope of state interest in law enforcement against specific offenses and to systematize the exercise of state criminal jurisdiction.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 1.03.  EFFECT OF CODE..

(a) Conduct does not constitute an offense unless it is defined as an offense by statute, municipal ordinance, order of a county commissioners court, or rule authorized by and lawfully adopted under a statute.

(b)  The provisions of Titles 1, 2, and 3 apply to offenses defined by other laws, unless the statute defining the offense provides otherwise; however, the punishment affixed to an offense defined outside this code shall be applicable unless the punishment is classified in accordance with this code.

(c)  This code does not bar, suspend, or otherwise affect a right or liability to damages, penalty, forfeiture, or other remedy authorized by law to be recovered or enforced in a civil suit for conduct this code defines as an offense, and the civil injury is not merged in the offense.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 1.04.  TERRITORIAL JURISDICTION.. (a) This state has jurisdiction over an offense that a person commits by his own conduct or the conduct of another for which he is criminally responsible if:

(1)  either the conduct or a result that is an element of the offense occurs inside this state;

(2)  the conduct outside this state constitutes an attempt to commit an offense inside this state;

(3)  the conduct outside this state constitutes a conspiracy to commit an offense inside this state, and an act in furtherance of the conspiracy occurs inside this state; or

(4)  the conduct inside this state constitutes an attempt, solicitation, or conspiracy to commit, or establishes criminal responsibility for the commission of, an offense in another jurisdiction that is also an offense under the laws of this state.

(b)  If the offense is criminal homicide, a "result" is either the physical impact causing death or the death itself. If the body of a criminal homicide victim is found in this state, it is presumed that the death occurred in this state. If death alone is the basis for jurisdiction, it is a defense to the exercise of jurisdiction by this state that the conduct that constitutes the offense is not made criminal in the jurisdiction where the conduct occurred.

(c)  An offense based on an omission to perform a duty imposed on an actor by a statute of this state is committed inside this state regardless of the location of the actor at the time of the offense.

(d)  This state includes the land and water and the air space above the land and water over which this state has power to define offenses.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 1.05.  CONSTRUCTION OF CODE..

(a) The rule that a penal statute is to be strictly construed does not apply to this code. The provisions of this code shall be construed according to the fair import of their terms, to promote justice and effect the objectives of the code.

(b)  Unless a different construction is required by the context, Sections 311.011, 311.012, 311.014, 311.015, and 311.021 through 311.032 of Chapter 311, Government Code (Code Construction Act), apply to the construction of this code.

(c)  In this code:

(1)  a reference to a title, chapter, or section without further identification is a reference to a title, chapter, or section of this code; and

(2)  a reference to a subchapter, subsection, subdivision, paragraph, or other numbered or lettered unit without further identification is a reference to a unit of the next-larger unit of this code in which the reference appears.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1985, 69th Leg., ch. 479, Sec. 69, eff. Sept. 1, 1985; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 1.06.  COMPUTATION OF AGE. A person attains a specified age on the day of the anniversary of his birthdate.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 1.07.  DEFINITIONS..

(a) In this code:

(1)  "Act" means a bodily movement, whether voluntary or involuntary, and includes speech.

(2)  "Actor" means a person whose criminal responsibility is in issue in a criminal action. Whenever the term "suspect" is used in this code, it means "actor."

(3)  "Agency" includes authority, board, bureau, commission, committee, council, department, district, division, and office.

(4)  "Alcoholic beverage" has the meaning assigned by Section 1.04, Alcoholic Beverage Code.

(5)  "Another" means a person other than the actor.

(6)  "Association" means a government or governmental subdivision or agency, trust, partnership, or two or more persons having a joint or common economic interest.

(7)  "Benefit" means anything reasonably regarded as economic gain or advantage, including benefit to any other person in whose welfare the beneficiary is interested.

(8)  "Bodily injury" means physical pain, illness, or any impairment of physical condition.

(9)  "Coercion" means a threat, however communicated:

(A)  to commit an offense;

(B)  to inflict bodily injury in the future on the person threatened or another;

(C)  to accuse a person of any offense;

(D)  to expose a person to hatred, contempt, or ridicule;

(E)  to harm the credit or business repute of any person; or

(F)  to take or withhold action as a public servant, or to cause a public servant to take or withhold action.

(10)  "Conduct" means an act or omission and its accompanying mental state.

(11)  "Consent" means assent in fact, whether express or apparent.

(12)  "Controlled substance" has the meaning assigned by Section 481.002, Health and Safety Code.

(13)  "Corporation" includes nonprofit corporations, professional associations created pursuant to statute, and joint stock companies.

(14)  "Correctional facility" means a place designated by law for the confinement of a person arrested for, charged with, or convicted of a criminal offense. The term includes:

(A)  a municipal or county jail;

(B)  a confinement facility operated by the Texas Department of Criminal Justice;

(C)  a confinement facility operated under contract with any division of the Texas Department of Criminal Justice; and

(D)  a community corrections facility operated by a community supervision and corrections department.

(15)  "Criminal negligence" is defined in Section 6.03 (Culpable Mental States).

(16)  "Dangerous drug" has the meaning assigned by Section 483.001, Health and Safety Code.

(17)  "Deadly weapon" means:

(A)  a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or

(B)  anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

(18)  "Drug" has the meaning assigned by Section 481.002, Health and Safety Code.

(19)  "Effective consent" includes consent by a person legally authorized to act for the owner. Consent is not effective if:

(A)  induced by force, threat, or fraud;

(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 decisions; or

(D)  given solely to detect the commission of an offense.

(20)  "Electric generating plant" means a facility that generates electric energy for distribution to the public.

(21)  "Electric utility substation" means a facility used to switch or change voltage in connection with the transmission of electric energy for distribution to the public.

(22)  "Element of offense" means:

(A)  the forbidden conduct;

(B)  the required culpability;

(C)  any required result; and

(D)  the negation of any exception to the offense.

(23)  "Felony" means an offense so designated by law or punishable by death or confinement in a penitentiary.

(24)  "Government" means:

(A)  the state;

(B)  a county, municipality, or political subdivision of the state; or

(C)  any branch or agency of the state, a county, municipality, or political subdivision.

(25)  "Harm" means anything reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person affected is interested.

(26)  "Individual" means a human being who is alive, including an unborn child at every stage of gestation from fertilization until birth.

(27)  Repealed by Acts 2009, 81st Leg., R.S., Ch. 87, Sec. 25.144, eff. September 1, 2009.

(28)  "Intentional" is defined in Section 6.03 (Culpable Mental States).

(29)  "Knowing" is defined in Section 6.03 (Culpable Mental States).

(30)  "Law" means the constitution or a statute of this state or of the United States, a written opinion of a court of record, a municipal ordinance, an order of a county commissioners court, or a rule authorized by and lawfully adopted under a statute.

(31)  "Misdemeanor" means an offense so designated by law or punishable by fine, by confinement in jail, or by both fine and confinement in jail.

(32)  "Oath" includes affirmation.

(33)  "Official proceeding" means any type of administrative, executive, legislative, or judicial proceeding that may be conducted before a public servant.

(34)  "Omission" means failure to act.

(35)  "Owner" means a person who:

(A)  has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor; or

(B)  is a holder in due course of a negotiable instrument.

(36)  "Peace officer" means a person elected, employed, or appointed as a peace officer under Article 2.12, Code of Criminal Procedure, Section 51.212 or 51.214, Education Code, or other law.

(37)  "Penal institution" means a place designated by law for confinement of persons arrested for, charged with, or convicted of an offense.

(38)  "Person" means an individual, corporation, or association.

(39)  "Possession" means actual care, custody, control, or management.

(40)  "Public place" means 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.

(41)  "Public servant" means a person elected, selected, appointed, employed, or otherwise designated as one of the following, even if he has not yet qualified for office or assumed his duties:

(A)  an officer, employee, or agent of government;

(B)  a juror or grand juror; or

(C)  an arbitrator, referee, or other person who is authorized by law or private written agreement to hear or determine a cause or controversy; or

(D)  an attorney at law or notary public when participating in the performance of a governmental function; or

(E)  a candidate for nomination or election to public office; or

(F)  a person who is performing a governmental function under a claim of right although he is not legally qualified to do so.

(42)  "Reasonable belief" means a belief that would be held by an ordinary and prudent man in the same circumstances as the actor.

(43)  "Reckless" is defined in Section 6.03 (Culpable Mental States).

(44)  "Rule" includes regulation.

(45)  "Secure correctional facility" means:

(A)  a municipal or county jail; or

(B)  a confinement facility operated by or under a contract with any division of the Texas Department of Criminal Justice.

(46)  "Serious bodily injury" means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

(46-a)  "Sight order" means a written or electronic instruction to pay money that is authorized by the person giving the instruction and that is payable on demand or at a definite time by the person being instructed to pay.   The term includes a check, an electronic debit, or an automatic bank draft.

(47)  "Swear" includes affirm.

(48)  "Unlawful" means criminal or tortious or both and includes what would be criminal or tortious but for a defense not amounting to justification or privilege.

(49)  "Death" includes, for an individual who is an unborn child, the failure to be born alive.

(b)  The definition of a term in this code applies to each grammatical variation of the term.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1975, 64th Leg., p. 912, ch. 342, Sec. 1, eff. Sept. 1, 1975; Acts 1977, 65th Leg., p. 2123, ch. 848, Sec. 1, eff. Aug. 29, 1977; Acts 1979, 66th Leg., p. 1113, ch. 530, Sec. 1, eff. Aug. 27, 1979; Acts 1979, 66th Leg., p. 1520, ch. 655, Sec. 1, eff. Sept. 1, 1979; Acts 1987, 70th Leg., ch. 167, Sec. 5.01(a)(43), eff. Sept. 1, 1987; Acts 1989, 71st Leg., ch. 997, Sec. 1, eff. Aug. 28, 1989; Acts 1991, 72nd Leg., ch. 543, Sec. 1, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 2003, 78th Leg., ch. 822, Sec. 2.01, eff. Sept. 1, 2003.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 87, Sec. 25.144, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch. 421, Sec. 1, eff. September 1, 2009.

Sec. 1.08.  PREEMPTION. No governmental subdivision or agency may enact or enforce a law that makes any conduct covered by this code an offense subject to a criminal penalty. This section shall apply only as long as the law governing the conduct proscribed by this code is legally enforceable.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 1.09.  CONCURRENT JURISDICTION UNDER THIS CODE TO PROSECUTE OFFENSES THAT INVOLVE STATE PROPERTY. With the consent of the appropriate local county or district attorney, the attorney general has concurrent jurisdiction with that consenting local prosecutor to prosecute under this code any offense an element of which occurs on state property or any offense that involves the use, unlawful appropriation, or misapplication of state property, including state funds.

Added by Acts 2007, 80th Leg., R.S., Ch. 378, Sec. 1, eff. June 15, 2007.

TITLE 1. INTRODUCTORY PROVISIONS


CHAPTER 2. BURDEN OF PROOF


Sec. 2.01.  PROOF BEYOND A REASONABLE DOUBT. All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that he has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 2.02.  EXCEPTION..

(a) An exception to an offense in this code is so labeled by the phrase: "It is an exception to the application of . . . ."

(b)  The prosecuting attorney must negate the existence of an exception in the accusation charging commission of the offense and prove beyond a reasonable doubt that the defendant or defendant's conduct does not fall within the exception.

(c)  This section does not affect exceptions applicable to offenses enacted prior to the effective date of this code.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 2.03.  DEFENSE..

(a) A defense to prosecution for an offense in this code is so labeled by the phrase: "It is a defense to prosecution . . . ."

(b)  The prosecuting attorney is not required to negate the existence of a defense in the accusation charging commission of the offense.

(c)  The issue of the existence of a defense is not submitted to the jury unless evidence is admitted supporting the defense.

(d)  If the issue of the existence of a defense is submitted to the jury, the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted.

(e)  A ground of defense in a penal law that is not plainly labeled in accordance with this chapter has the procedural and evidentiary consequences of a defense.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 2.04.  AFFIRMATIVE DEFENSE..

(a) An affirmative defense in this code is so labeled by the phrase: "It is an affirmative defense to prosecution . . . ."

(b)  The prosecuting attorney is not required to negate the existence of an affirmative defense in the accusation charging commission of the offense.

(c)  The issue of the existence of an affirmative defense is not submitted to the jury unless evidence is admitted supporting the defense.

(d)  If the issue of the existence of an affirmative defense is submitted to the jury, the court shall charge that the defendant must prove the affirmative defense by a preponderance of evidence.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 2.05.  PRESUMPTION..

(a) Except as provided by Subsection (b), when this code or another penal law establishes a presumption with respect to any fact, it has the following consequences:

$1  if there is sufficient evidence of the facts that give rise to the presumption, the issue of the existence of the presumed fact must be submitted to the jury, unless the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact; and

(\d)  if the existence of the presumed fact is submitted to the jury, the court shall charge the jury, in terms of the presumption and the specific element to which it applies, as follows:

(A)  that the facts giving rise to the presumption must be proven beyond a reasonable doubt;

(B)  that if such facts are proven beyond a reasonable doubt the jury may find that the element of the offense sought to be presumed exists, but it is not bound to so find;

(C)  that even though the jury may find the existence of such element, the state must prove beyond a reasonable doubt each of the other elements of the offense charged; and

(D)  if the jury has a reasonable doubt as to the existence of a fact or facts giving rise to the presumption, the presumption fails and the jury shall not consider the presumption for any purpose.

(b)  When this code or another penal law establishes a presumption in favor of the defendant with respect to any fact, it has the following consequences:

(1)  if there is sufficient evidence of the facts that give rise to the presumption, the issue of the existence of the presumed fact must be submitted to the jury unless the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact; and

(2)  if the existence of the presumed fact is submitted to the jury, the court shall charge the jury, in terms of the presumption, that:

(A)  the presumption applies unless the state proves beyond a reasonable doubt that the facts giving rise to the presumption do not exist;

(B)  if the state fails to prove beyond a reasonable doubt that the facts giving rise to the presumption do not exist, the jury must find that the presumed fact exists;

(C)  even though the jury may find that the presumed fact does not exist, the state must prove beyond a reasonable doubt each of the elements of the offense charged; and

(D)  if the jury has a reasonable doubt as to whether the presumed fact exists, the presumption applies and the jury must consider the presumed fact to exist.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1975, 64th Leg., p. 912, ch. 342, Sec. 2, eff. Sept. 1, 1975; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Amended by:

Acts 2005, 79th Leg., Ch. 288, Sec. 2, eff. September 1, 2005.

PENAL CODE


TITLE 1. INTRODUCTORY PROVISIONS


CHAPTER 3. MULTIPLE PROSECUTIONS


Sec. 3.01.  DEFINITION. In this chapter, "criminal episode" means the commission of two or more offenses, regardless of whether the harm is directed toward or inflicted upon more than one person or item of property, under the following circumstances:

(1)  the offenses are committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan; or

(2)  the offenses are the repeated commission of the same or similar offenses.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1987, 70th Leg., ch. 387, Sec. 1, eff. Sept. 1, 1987; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 3.02.  CONSOLIDATION AND JOINDER OF PROSECUTIONS..

(a) A defendant may be prosecuted in a single criminal action for all offenses arising out of the same criminal episode.

(b)  When a single criminal action is based on more than one charging instrument within the jurisdiction of the trial court, the state shall file written notice of the action not less than 30 days prior to the trial.

(c)  If a judgment of guilt is reversed, set aside, or vacated, and a new trial ordered, the state may not prosecute in a single criminal action in the new trial any offense not joined in the former prosecution unless evidence to establish probable guilt for that offense was not known to the appropriate prosecuting official at the time the first prosecution commenced.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 3.03.  SENTENCES FOR OFFENSES ARISING OUT OF SAME CRIMINAL EPISODE..

(a) When the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action, a sentence for each offense for which he has been found guilty shall be pronounced. Except as provided by Subsection (b), the sentences shall run concurrently.

(b)  If the accused is found guilty of more than one offense arising out of the same criminal episode, the sentences may run concurrently or consecutively if each sentence is for a conviction of:

(1)  an offense:

(A)  under Section 49.07 or 49.08, regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of both sections; or

(B)  for which a plea agreement was reached in a case in which the accused was charged with more than one offense listed in Paragraph (A), regardless of whether the accused is charged with violations of the same section more than once or is charged with violations of both sections;

(2)  an offense:

(A)  under Section 33.021 or an offense under Section 21.02, 21.11, 22.011, 22.021, 25.02, or 43.25 committed against a victim younger than 17 years of age at the time of the commission of the offense regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of more than one section; or

(B)  for which a plea agreement was reached in a case in which the accused was charged with more than one offense listed in Paragraph (A) committed against a victim younger than 17 years of age at the time of the commission of the offense regardless of whether the accused is charged with violations of the same section more than once or is charged with violations of more than one section;

(3)  an offense:

(A)  under Section 21.15 or 43.26, regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of both sections; or

(B)  for which a plea agreement was reached in a case in which the accused was charged with more than one offense listed in Paragraph (A), regardless of whether the accused is charged with violations of the same section more than once or is charged with violations of both sections; or

(4)  an offense for which the judgment in the case contains an affirmative finding under Article 42.0197, Code of Criminal Procedure.

(b-1)  Subsection (b)(4) does not apply to a defendant whose case was transferred to the court under Section 54.02, Family Code.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1995, 74th Leg., ch. 596, Sec. 1, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 667, Sec. 2, eff. Sept. 1, 1997.

Amended by:

Acts 2005, 79th Leg., Ch. 527, Sec. 1, eff. September 1, 2005.

Acts 2007, 80th Leg., R.S., Ch. 593, Sec. 3.47, eff. September 1, 2007.

Acts 2007, 80th Leg., R.S., Ch. 1291, Sec. 6, eff. September 1, 2007.

Acts 2009, 81st Leg., R.S., Ch. 1130, Sec. 21, eff. September 1, 2009.

Sec. 3.04.  SEVERANCE..

(a) Whenever two or more offenses have been consolidated or joined for trial under Section 3.02, the defendant shall have a right to a severance of the offenses.

(b)  In the event of severance under this section, the provisions of Section 3.03 do not apply, and the court in its discretion may order the sentences to run either concurrently or consecutively.

(c)  The right to severance under this section does not apply to a prosecution for offenses described by Section 3.03(b) unless the court determines that the defendant or the state would be unfairly prejudiced by a joinder of offenses, in which event the judge may order the offenses to be tried separately or may order other relief as justice requires.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1997, 75th Leg., ch. 667, Sec. 3, eff. Sept. 1, 1997.

Amended by:

Acts 2005, 79th Leg., Ch. 527, Sec. 2, eff. September 1, 2005.

PENAL CODE


TITLE 2. GENERAL PRINCIPLES OF CRIMINAL RESPONSIBILITY


CHAPTER 6. CULPABILITY GENERALLY


Sec. 6.01.  REQUIREMENT OF VOLUNTARY ACT OR OMISSION..

(a) A person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession.

(b)  Possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control.

(c)  A person who omits to perform an act does not commit an offense unless a law as defined by Section 1.07 provides that the omission is an offense or otherwise provides that he has a duty to perform the act.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1975, 64th Leg., p. 913, ch. 342, Sec. 3, eff. Sept. 1, 1975; Acts 1993, 73rd Leg., ch. 3, Sec. 1, eff. Feb. 25, 1993; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 6.02.  REQUIREMENT OF CULPABILITY..

(a) Except as provided in Subsection (b), a person does not commit an offense unless he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct as the definition of the offense requires.

(b)  If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.

(c)  If the definition of an offense does not prescribe a culpable mental state, but one is nevertheless required under Subsection (b), intent, knowledge, or recklessness suffices to establish criminal responsibility.

(d)  Culpable mental states are classified according to relative degrees, from highest to lowest, as follows:

(1)  intentional;

(2)  knowing;

(3)  reckless;

(4)  criminal negligence.

(e)  Proof of a higher degree of culpability than that charged constitutes proof of the culpability charged.

(f)  An offense defined by municipal ordinance or by order of a county commissioners court may not dispense with the requirement of a culpable mental state if the offense is punishable by a fine exceeding the amount authorized by Section 12.23.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Amended by:

Acts 2005, 79th Leg., Ch. 1219, Sec. 1, eff. September 1, 2005.

Sec. 6.03.  DEFINITIONS OF CULPABLE MENTAL STATES..

(a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.

(b)  A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

(c)  A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.

(d)  A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 6.04.  CAUSATION: CONDUCT AND RESULTS..

(a) A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.

(b)  A person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that:

(1)  a different offense was committed; or

(2)  a different person or property was injured, harmed, or otherwise affected.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

PENAL CODE


TITLE 2. GENERAL PRINCIPLES OF CRIMINAL RESPONSIBILITY


CHAPTER 7. CRIMINAL RESPONSIBILITY FOR CONDUCT OF ANOTHER


SUBCHAPTER A. COMPLICITY


Sec. 7.01.  PARTIES TO OFFENSES..

(a) A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.

(b)  Each party to an offense may be charged with commission of the offense.

(c)  All traditional distinctions between accomplices and principals are abolished by this section, and each party to an offense may be charged and convicted without alleging that he acted as a principal or accomplice.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 7.02.  CRIMINAL RESPONSIBILITY FOR CONDUCT OF ANOTHER..

(a) A person is criminally responsible for an offense committed by the conduct of another if:

(1)  acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense;

(2)  acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or

(3)  having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense.

(b)  If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 7.03.  DEFENSES EXCLUDED. In a prosecution in which an actor's criminal responsibility is based on the conduct of another, the actor may be convicted on proof of commission of the offense and that he was a party to its commission, and it is no defense:

(1)  that the actor belongs to a class of persons that by definition of the offense is legally incapable of committing the offense in an individual capacity; or

(2)  that the person for whose conduct the actor is criminally responsible has been acquitted, has not been prosecuted or convicted, has been convicted of a different offense or of a different type or class of offense, or is immune from prosecution.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

SUBCHAPTER B. CORPORATIONS AND ASSOCIATIONS


Sec. 7.21.  DEFINITIONS. In this subchapter:

(1)  "Agent" means a director, officer, employee, or other person authorized to act in behalf of a corporation or association.

(2)  "High managerial agent" means:

(A)  a partner in a partnership;

(B)  an officer of a corporation or association;

(C)  an agent of a corporation or association who has duties of such responsibility that his conduct reasonably may be assumed to represent the policy of the corporation or association.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 7.22.  CRIMINAL RESPONSIBILITY OF CORPORATION OR ASSOCIATION..

(a) If conduct constituting an offense is performed by an agent acting in behalf of a corporation or association and within the scope of his office or employment, the corporation or association is criminally responsible for an offense defined:

(1)  in this code where corporations and associations are made subject thereto;

(2)  by law other than this code in which a legislative purpose to impose criminal responsibility on corporations or associations plainly appears; or

(3)  by law other than this code for which strict liability is imposed, unless a legislative purpose not to impose criminal responsibility on corporations or associations plainly appears.

(b)  A corporation or association is criminally responsible for a felony offense only if its commission was authorized, requested, commanded, performed, or recklessly tolerated by:

(1)  a majority of the governing board acting in behalf of the corporation or association; or

(2)  a high managerial agent acting in behalf of the corporation or association and within the scope of his office or employment.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1975, 64th Leg., p. 913, ch. 342, Sec. 4, eff. Sept. 1, 1975; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 7.23.  CRIMINAL RESPONSIBILITY OF PERSON FOR CONDUCT IN BEHALF OF CORPORATION OR ASSOCIATION..

(a) An individual is criminally responsible for conduct that he performs in the name of or in behalf of a corporation or association to the same extent as if the conduct were performed in his own name or behalf.

(b)  An agent having primary responsibility for the discharge of a duty to act imposed by law on a corporation or association is criminally responsible for omission to discharge the duty to the same extent as if the duty were imposed by law directly on him.

(c)  If an individual is convicted of conduct constituting an offense performed in the name of or on behalf of a corporation or association, he is subject to the sentence authorized by law for an individual convicted of the offense.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 7.24.  DEFENSE TO CRIMINAL RESPONSIBILITY OF CORPORATION OR ASSOCIATION. It is an affirmative defense to prosecution of a corporation or association under Section 7.22(a)(1) or (a)(2) that the high managerial agent having supervisory responsibility over the subject matter of the offense employed due diligence to prevent its commission.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1975, 64th Leg., p. 913, ch. 342, Sec. 5, eff. Sept. 1, 1975; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

PENAL CODE


TITLE 2. GENERAL PRINCIPLES OF CRIMINAL RESPONSIBILITY


CHAPTER 8. GENERAL DEFENSES TO CRIMINAL RESPONSIBILITY


Sec. 8.01.  INSANITY..

(a) It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.

(b)  The term "mental disease or defect" does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1983, 68th Leg., p. 2640, ch. 454, Sec. 1, eff. Aug. 29, 1983; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 8.02.  MISTAKE OF FACT..

(a) It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.

(b)  Although an actor's mistake of fact may constitute a defense to the offense charged, he may nevertheless be convicted of any lesser included offense of which he would be guilty if the fact were as he believed.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 8.03.  MISTAKE OF LAW..

(a) It is no defense to prosecution that the actor was ignorant of the provisions of any law after the law has taken effect.

(b)  It is an affirmative defense to prosecution that the actor reasonably believed the conduct charged did not constitute a crime and that he acted in reasonable reliance upon:

(1)  an official statement of the law contained in a written order or grant of permission by an administrative agency charged by law with responsibility for interpreting the law in question; or

(2)  a written interpretation of the law contained in an opinion of a court of record or made by a public official charged by law with responsibility for interpreting the law in question.

(c)  Although an actor's mistake of law may constitute a defense to the offense charged, he may nevertheless be convicted of a lesser included offense of which he would be guilty if the law were as he believed.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 8.04.  INTOXICATION..

(a) Voluntary intoxication does not constitute a defense to the commission of crime.

(b)  Evidence of temporary insanity caused by intoxication may be introduced by the actor in mitigation of the penalty attached to the offense for which he is being tried.

(c)  When temporary insanity is relied upon as a defense and the evidence tends to show that such insanity was caused by intoxication, the court shall charge the jury in accordance with the provisions of this section.

(d)  For purposes of this section "intoxication" means disturbance of mental or physical capacity resulting from the introduction of any substance into the body.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 8.05.  DURESS..

(a) It is an affirmative defense to prosecution that the actor engaged in the proscribed conduct because he was compelled to do so by threat of imminent death or serious bodily injury to himself or another.

(b)  In a prosecution for an offense that does not constitute a felony, it is an affirmative defense to prosecution that the actor engaged in the proscribed conduct because he was compelled to do so by force or threat of force.

(c)  Compulsion within the meaning of this section exists only if the force or threat of force would render a person of reasonable firmness incapable of resisting the pressure.

(d)  The defense provided by this section is unavailable if the actor intentionally, knowingly, or recklessly placed himself in a situation in which it was probable that he would be subjected to compulsion.

(e)  It is no defense that a person acted at the command or persuasion of his spouse, unless he acted under compulsion that would establish a defense under this section.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 8.06.  ENTRAPMENT..

(a) It is a defense to prosecution that the actor engaged in the conduct charged because he was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.

(b)  In this section "law enforcement agent" includes personnel of the state and local law enforcement agencies as well as of the United States and any person acting in accordance with instructions from such agents.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 8.07.  AGE AFFECTING CRIMINAL RESPONSIBILITY..

(a) A person may not be prosecuted for or convicted of any offense that the person committed when younger than 15 years of age except:

(1)  perjury and aggravated perjury when it appears by proof that the person had sufficient discretion to understand the nature and obligation of an oath;

(2)  a violation of a penal statute cognizable under Chapter 729, Transportation Code, except for conduct for which the person convicted may be sentenced to imprisonment or confinement in jail;

(3)  a violation of a motor vehicle traffic ordinance of an incorporated city or town in this state;

(4)  a misdemeanor punishable by fine only;

(5)  a violation of a penal ordinance of a political subdivision;

(6)  a violation of a penal statute that is, or is a lesser included offense of, a capital felony, an aggravated controlled substance felony, or a felony of the first degree for which the person is transferred to the court under Section 54.02, Family Code, for prosecution if the person committed the offense when 14 years of age or older; or

(7)  a capital felony or an offense under Section 19.02 for which the person is transferred to the court under Section 54.02(j)(2)(A), Family Code.

(b)  Unless the juvenile court waives jurisdiction under Section 54.02, Family Code, and certifies the individual for criminal prosecution or the juvenile court has previously waived jurisdiction under that section and certified the individual for criminal prosecution, a person may not be prosecuted for or convicted of any offense committed before reaching 17 years of age except an offense described by Subsections (a)(1)-(5).

(c)  No person may, in any case, be punished by death for an offense committed while the person was younger than 18 years.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1975, 64th Leg., p. 2158, ch. 693, Sec. 24, eff. Sept. 1, 1975; Acts 1987, 70th Leg., ch. 1040, Sec. 26, eff. Sept. 1, 1987; Acts 1989, 71st Leg., ch. 1245, Sec. 3, eff. Sept. 1, 1989; Acts 1991, 72nd Leg., ch. 169, Sec. 3, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994. Amended by Acts 1995, 74th Leg., ch. 262, Sec. 77, eff. Jan. 1, 1996; Acts 1997, 75th Leg., ch. 165, Sec. 30.236, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 822, Sec. 4, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1086, Sec. 42, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 1297, Sec. 68, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 283, Sec. 52, eff. Sept. 1, 2003.

Amended by:

Acts 2005, 79th Leg., Ch. 787, Sec. 2, eff. September 1, 2005.

Acts 2005, 79th Leg., Ch. 949, Sec. 45, eff. September 1, 2005.

Acts 2009, 81st Leg., R.S., Ch. 311, Sec. 5, eff. September 1, 2009.

PENAL CODE


TITLE 2. GENERAL PRINCIPLES OF CRIMINAL RESPONSIBILITY


CHAPTER 9. JUSTIFICATION EXCLUDING CRIMINAL RESPONSIBILITY


SUBCHAPTER A. GENERAL PROVISIONS


Sec. 9.01.  DEFINITIONS. In this chapter:

(1)  "Custody" has the meaning assigned by Section 38.01.

(2)  "Escape" has the meaning assigned by Section 38.01.

(3)  "Deadly force" means force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury.

(4)  "Habitation" has the meaning assigned by Section 30.01.

(5)  "Vehicle" has the meaning assigned by Section 30.01.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1997, 75th Leg., ch. 293, Sec. 1, eff. Sept. 1, 1997.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 1, Sec. 1, eff. September 1, 2007.

Sec. 9.02.  JUSTIFICATION AS A DEFENSE. It is a defense to prosecution that the conduct in question is justified under this chapter.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 9.03.  CONFINEMENT AS JUSTIFIABLE FORCE. Confinement is justified when force is justified by this chapter if the actor takes reasonable measures to terminate the confinement as soon as he knows he safely can unless the person confined has been arrested for an offense.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 9.04.  THREATS AS JUSTIFIABLE FORCE. The threat of force is justified when the use of force is justified by this chapter. For purposes of this section, a threat to cause death or serious bodily injury by the production of a weapon or otherwise, as long as the actor's purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 9.05.  RECKLESS INJURY OF INNOCENT THIRD PERSON. Even though an actor is justified under this chapter in threatening or using force or deadly force against another, if in doing so he also recklessly injures or kills an innocent third person, the justification afforded by this chapter is unavailable in a prosecution for the reckless injury or killing of the innocent third person.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 9.06.  CIVIL REMEDIES UNAFFECTED. The fact that conduct is justified under this chapter does not abolish or impair any remedy for the conduct that is available in a civil suit.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

SUBCHAPTER B. JUSTIFICATION GENERALLY


Sec. 9.21.  PUBLIC DUTY..

(a) Except as qualified by Subsections (b) and (c), conduct is justified if the actor reasonably believes the conduct is required or authorized by law, by the judgment or order of a competent court or other governmental tribunal, or in the execution of legal process.

(b)  The other sections of this chapter control when force is used against a person to protect persons (Subchapter C), to protect property (Subchapter D), for law enforcement (Subchapter E), or by virtue of a special relationship (Subchapter F).

(c)  The use of deadly force is not justified under this section unless the actor reasonably believes the deadly force is specifically required by statute or unless it occurs in the lawful conduct of war. If deadly force is so justified, there is no duty to retreat before using it.

(d)  The justification afforded by this section is available if the actor reasonably believes:

(1)  the court or governmental tribunal has jurisdiction or the process is lawful, even though the court or governmental tribunal lacks jurisdiction or the process is unlawful; or

(2)  his conduct is required or authorized to assist a public servant in the performance of his official duty, even though the servant exceeds his lawful authority.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 9.22.  NECESSITY. Conduct is justified if:

(1)  the actor reasonably believes the conduct is immediately necessary to avoid imminent harm;

(2)  the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and

(3)  a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

SUBCHAPTER C. PROTECTION OF PERSONS


Sec. 9.31.  SELF-DEFENSE..

(a) Except as provided in Subsection (b), a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force.  The actor's belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor:

(1)  knew or had reason to believe that the person against whom the force was used:

(A)  unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;

(B)  unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or

(C)  was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery;

(2)  did not provoke the person against whom the force was used; and

(3)  was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

(b)  The use of force against another is not justified:

(1)  in response to verbal provocation alone;

(2)  to resist an arrest or search that the actor knows is being made by a peace officer, or by a person acting in a peace officer's presence and at his direction, even though the arrest or search is unlawful, unless the resistance is justified under Subsection (c);

(3)  if the actor consented to the exact force used or attempted by the other;

(4)  if the actor provoked the other's use or attempted use of unlawful force, unless:

(A)  the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and

(B)  the other nevertheless continues or attempts to use unlawful force against the actor; or

(5)  if the actor sought an explanation from or discussion with the other person concerning the actor's differences with the other person while the actor was:

(A)  carrying a weapon in violation of Section 46.02; or

(B)  possessing or transporting a weapon in violation of Section 46.05.

(c)  The use of force to resist an arrest or search is justified:

(1)  if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and

(2)  when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer's (or other person's) use or attempted use of greater force than necessary.

(d)  The use of deadly force is not justified under this subchapter except as provided in Sections 9.32, 9.33, and 9.34.

(e)  A person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force as described by this section.

(f)  For purposes of Subsection (a), in determining whether an actor described by Subsection (e) reasonably believed that the use of force was necessary, a finder of fact may not consider whether the actor failed to retreat.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1995, 74th Leg., ch. 190, Sec. 1, eff. Sept. 1, 1995.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 1, Sec. 2, eff. September 1, 2007.

Sec. 9.32.  DEADLY FORCE IN DEFENSE OF PERSON..

(a) A person is justified in using deadly force against another:

(1)  if the actor would be justified in using force against the other under Section 9.31; and

(2)   when and to the degree the actor reasonably believes the deadly force is immediately necessary:

(A)  to protect the actor against the other's use or attempted use of unlawful deadly force; or

(B)  to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

(b)  The actor's belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:

(1)  knew or had reason to believe that the person against whom the deadly force was used:

(A)  unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;

(B)  unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or

(C)  was committing or attempting to commit an offense described by Subsection (a)(2)(B);

(2)  did not provoke the person against whom the force was used; and

(3)  was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

(c)  A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.

(d)  For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1983, 68th Leg., p. 5316, ch. 977, Sec. 5, eff. Sept. 1, 1983; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1995, 74th Leg., ch. 235, Sec. 1, eff. Sept. 1, 1995.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 1, Sec. 3, eff. September 1, 2007.

Sec. 9.33.  DEFENSE OF THIRD PERSON. A person is justified in using force or deadly force against another to protect a third person if:

(1)  under the circumstances as the actor reasonably believes them to be, the actor would be justified under Section 9.31 or 9.32 in using force or deadly force to protect himself against the unlawful force or unlawful deadly force he reasonably believes to be threatening the third person he seeks to protect; and

(2)  the actor reasonably believes that his intervention is immediately necessary to protect the third person.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 9.34.  PROTECTION OF LIFE OR HEALTH..

(a) A person is justified in using force, but not deadly force, against another when and to the degree he reasonably believes the force is immediately necessary to prevent the other from committing suicide or inflicting serious bodily injury to himself.

(b)  A person is justified in using both force and deadly force against another when and to the degree he reasonably believes the force or deadly force is immediately necessary to preserve the other's life in an emergency.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

SUBCHAPTER D. PROTECTION OF PROPERTY


Sec. 9.41.  PROTECTION OF ONE'S OWN PROPERTY..

(a) A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other's trespass on the land or unlawful interference with the property.

(b)  A person unlawfully dispossessed of land or tangible, movable property by another is justified in using force against the other when and to the degree the actor reasonably believes the force is immediately necessary to reenter the land or recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession and:

(1)  the actor reasonably believes the other had no claim of right when he dispossessed the actor; or

(2)  the other accomplished the dispossession by using force, threat, or fraud against the actor.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 9.42.  DEADLY FORCE TO PROTECT PROPERTY. A person is justified in using deadly force against another to protect land or tangible, movable property:

(1)  if he would be justified in using force against the other under Section 9.41; and

(2)  when and to the degree he reasonably believes the deadly force is immediately necessary:

(A)  to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or

(B)  to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and

(3)  he reasonably believes that:

(A)  the land or property cannot be protected or recovered by any other means; or

(B)  the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 9.43.  PROTECTION OF THIRD PERSON'S PROPERTY. A person is justified in using force or deadly force against another to protect land or tangible, movable property of a third person if, under the circumstances as he reasonably believes them to be, the actor would be justified under Section 9.41 or 9.42 in using force or deadly force to protect his own land or property and:

(1)  the actor reasonably believes the unlawful interference constitutes attempted or consummated theft of or criminal mischief to the tangible, movable property; or

(2)  the actor reasonably believes that:

(A)  the third person has requested his protection of the land or property;

(B)  he has a legal duty to protect the third person's land or property; or

(C)  the third person whose land or property he uses force or deadly force to protect is the actor's spouse, parent, or child, resides with the actor, or is under the actor's care.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 9.44.  USE OF DEVICE TO PROTECT PROPERTY. The justification afforded by Sections 9.41 and 9.43 applies to the use of a device to protect land or tangible, movable property if:

(1)  the device is not designed to cause, or known by the actor to create a substantial risk of causing, death or serious bodily injury; and

(2)  use of the device is reasonable under all the circumstances as the actor reasonably believes them to be when he installs the device.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1975, 64th Leg., p. 913, ch. 342, Sec. 6, eff. Sept. 1, 1975. Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

SUBCHAPTER E. LAW ENFORCEMENT


Sec. 9.51.  ARREST AND SEARCH..

(a) A peace officer, or a person acting in a peace officer's presence and at his direction, is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to make or assist in making an arrest or search, or to prevent or assist in preventing escape after arrest, if:

(1)  the actor reasonably believes the arrest or search is lawful or, if the arrest or search is made under a warrant, he reasonably believes the warrant is valid; and

(2)  before using force, the actor manifests his purpose to arrest or search and identifies himself as a peace officer or as one acting at a peace officer's direction, unless he reasonably believes his purpose and identity are already known by or cannot reasonably be made known to the person to be arrested.

(b)  A person other than a peace officer (or one acting at his direction) is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to make or assist in making a lawful arrest, or to prevent or assist in preventing escape after lawful arrest if, before using force, the actor manifests his purpose to and the reason for the arrest or reasonably believes his purpose and the reason are already known by or cannot reasonably be made known to the person to be arrested.

(c)  A peace officer is justified in using deadly force against another when and to the degree the peace officer reasonably believes the deadly force is immediately necessary to make an arrest, or to prevent escape after arrest, if the use of force would have been justified under Subsection (a) and:

(1)  the actor reasonably believes the conduct for which arrest is authorized included the use or attempted use of deadly force; or

(2)  the actor reasonably believes there is a substantial risk that the person to be arrested will cause death or serious bodily injury to the actor or another if the arrest is delayed.

(d)  A person other than a peace officer acting in a peace officer's presence and at his direction is justified in using deadly force against another when and to the degree the person reasonably believes the deadly force is immediately necessary to make a lawful arrest, or to prevent escape after a lawful arrest, if the use of force would have been justified under Subsection (b) and:

(1)  the actor reasonably believes the felony or offense against the public peace for which arrest is authorized included the use or attempted use of deadly force; or

(2)  the actor reasonably believes there is a substantial risk that the person to be arrested will cause death or serious bodily injury to another if the arrest is delayed.

(e)  There is no duty to retreat before using deadly force justified by Subsection (c) or (d).

(f)  Nothing in this section relating to the actor's manifestation of purpose or identity shall be construed as conflicting with any other law relating to the issuance, service, and execution of an arrest or search warrant either under the laws of this state or the United States.

(g)  Deadly force may only be used under the circumstances enumerated in Subsections (c) and (d).

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 9.52.  PREVENTION OF ESCAPE FROM CUSTODY. The use of force to prevent the escape of an arrested person from custody is justifiable when the force could have been employed to effect the arrest under which the person is in custody, except that a guard employed by a correctional facility or a peace officer is justified in using any force, including deadly force, that he reasonably believes to be immediately necessary to prevent the escape of a person from the correctional facility.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 9.53.  MAINTAINING SECURITY IN CORRECTIONAL FACILITY. An officer or employee of a correctional facility is justified in using force against a person in custody when and to the degree the officer or employee reasonably believes the force is necessary to maintain the security of the correctional facility, the safety or security of other persons in custody or employed by the correctional facility, or his own safety or security.

Added by Acts 1987, 70th Leg., ch. 512, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

SUBCHAPTER F. SPECIAL RELATIONSHIPS


Sec. 9.61.  PARENT-CHILD..

(a) The use of force, but not deadly force, against a child younger than 18 years is justified:

(1)  if the actor is the child's parent or stepparent or is acting in loco parentis to the child; and

(2)  when and to the degree the actor reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare.

(b)  For purposes of this section, "in loco parentis" includes grandparent and guardian, any person acting by, through, or under the direction of a court with jurisdiction over the child, and anyone who has express or implied consent of the parent or parents.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 9.62.  EDUCATOR-STUDENT. The use of force, but not deadly force, against a person is justified:

(1)  if the actor is entrusted with the care, supervision, or administration of the person for a special purpose; and

(2)  when and to the degree the actor reasonably believes the force is necessary to further the special purpose or to maintain discipline in a group.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 9.63.  GUARDIAN-INCOMPETENT. The use of force, but not deadly force, against a mental incompetent is justified:

(1)  if the actor is the incompetent's guardian or someone similarly responsible for the general care and supervision of the incompetent; and

(2)  when and to the degree the actor reasonably believes the force is necessary:

(A)  to safeguard and promote the incompetent's welfare; or

(B)  if the incompetent is in an institution for his care and custody, to maintain discipline in the institution.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

PENAL CODE


TITLE 3. PUNISHMENTS


CHAPTER 12. PUNISHMENTS


SUBCHAPTER A. GENERAL PROVISIONS


Sec. 12.01.  PUNISHMENT IN ACCORDANCE WITH CODE..

(a) A person adjudged guilty of an offense under this code shall be punished in accordance with this chapter and the Code of Criminal Procedure.

(b)  Penal laws enacted after the effective date of this code shall be classified for punishment purposes in accordance with this chapter.

(c)  This chapter does not deprive a court of authority conferred by law to forfeit property, dissolve a corporation, suspend or cancel a license or permit, remove a person from office, cite for contempt, or impose any other civil penalty. The civil penalty may be included in the sentence.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 12.02.  CLASSIFICATION OF OFFENSES. Offenses are designated as felonies or misdemeanors.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 12.03.  CLASSIFICATION OF MISDEMEANORS..

(a) Misdemeanors are classified according to the relative seriousness of the offense into three categories:

(1)  Class A misdemeanors;

(2)  Class B misdemeanors;

(3)  Class C misdemeanors.

(b)  An offense designated a misdemeanor in this code without specification as to punishment or category is a Class C misdemeanor.

(c)  Conviction of a Class C misdemeanor does not impose any legal disability or disadvantage.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 12.04.  CLASSIFICATION OF FELONIES..

(a) Felonies are classified according to the relative seriousness of the offense into five categories:

(1)  capital felonies;

(2)  felonies of the first degree;

(3)  felonies of the second degree;

(4)  felonies of the third degree; and

(5)  state jail felonies.

(b)  An offense designated a felony in this code without specification as to category is a state jail felony.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1973, 63rd Leg., p. 1125, ch. 426, art. 2, Sec. 3, eff. Jan. 1, 1974; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

SUBCHAPTER B. ORDINARY MISDEMEANOR PUNISHMENTS


Sec. 12.21.  CLASS A MISDEMEANOR. An individual adjudged guilty of a Class A misdemeanor shall be punished by:

(1)  a fine not to exceed $4,000;

(2)  confinement in jail for a term not to exceed one year; or

(3)  both such fine and confinement.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1991, 72nd Leg., ch. 108, Sec. 1, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 12.22.  CLASS B MISDEMEANOR. An individual adjudged guilty of a Class B misdemeanor shall be punished by:

(1)  a fine not to exceed $2,000;

(2)  confinement in jail for a term not to exceed 180 days; or

(3)  both such fine and confinement.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1991, 72nd Leg., ch. 108, Sec. 1, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 12.23.  CLASS C MISDEMEANOR. An individual adjudged guilty of a Class C misdemeanor shall be punished by a fine not to exceed $500.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1991, 72nd Leg., ch. 108, Sec. 1, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

SUBCHAPTER C. ORDINARY FELONY PUNISHMENTS


Sec. 12.31.  CAPITAL FELONY..

(a) An individual adjudged guilty of a capital felony in a case in which the state seeks the death penalty shall be punished by imprisonment in the Texas Department of Criminal Justice for life without parole or by death.  An individual adjudged guilty of a capital felony in a case in which the state does not seek the death penalty shall be punished by imprisonment in the Texas Department of Criminal Justice for:

(1)  life, if the individual's case was transferred to the court under Section 54.02, Family Code; or

(2)  life without parole.

(b)  In a capital felony trial in which the state seeks the death penalty, prospective jurors shall be informed that a sentence of life imprisonment without parole or death is mandatory on conviction of a capital felony.  In a capital felony trial in which the state does not seek the death penalty, prospective jurors shall be informed that the state is not seeking the death penalty and that:

(1)  a sentence of life imprisonment is mandatory on conviction of the capital felony, if the case was transferred to the court under Section 54.02, Family Code; or

(2)  a sentence of life imprisonment without parole is mandatory on conviction of the capital felony.

Added by Acts 1973, 63rd Leg., p. 1124, ch. 426, art. 2, Sec. 2, eff. Jan. 1, 1974. Amended by Acts 1991, 72nd Leg., ch. 652, Sec. 12, eff. Sept. 1, 1991; Acts 1991, 72nd Leg., ch. 838, Sec. 4, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Amended by:

Acts 2005, 79th Leg., Ch. 787, Sec. 1, eff. September 1, 2005.

Acts 2009, 81st Leg., R.S., Ch. 87, Sec. 25.145, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch. 765, Sec. 1, eff. September 1, 2009.

Sec. 12.32.  FIRST DEGREE FELONY PUNISHMENT..

(a) An individual adjudged guilty of a felony of the first degree shall be punished by imprisonment in the Texas Department of Criminal Justice for life or for any term of not more than 99 years or less than 5 years.

(b)  In addition to imprisonment, an individual adjudged guilty of a felony of the first degree may be punished by a fine not to exceed $10,000.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Renumbered from Penal Code Sec. 12.31 by Acts 1973, 63rd Leg., p. 1124, ch. 426, art. 2, Sec. 2, eff. Jan. 1, 1974. Amended by Acts 1979, 66th Leg., p. 1058, ch. 488, Sec. 1, eff. Sept. 1, 1979; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 87, Sec. 25.146, eff. September 1, 2009.

Sec. 12.33.  SECOND DEGREE FELONY PUNISHMENT..

(a) An individual adjudged guilty of a felony of the second degree shall be punished by imprisonment in the Texas Department of Criminal Justice for any term of not more than 20 years or less than 2 years.

(b)  In addition to imprisonment, an individual adjudged guilty of a felony of the second degree may be punished by a fine not to exceed $10,000.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Renumbered from Penal Code Sec. 12.32 by Acts 1973, 63rd Leg., p. 1124, ch. 426, art. 2, Sec. 2, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 87, Sec. 25.147, eff. September 1, 2009.

Sec. 12.34.  THIRD DEGREE FELONY PUNISHMENT..

(a) An individual adjudged guilty of a felony of the third degree shall be punished by imprisonment in the Texas Department of Criminal Justice for any term of not more than 10 years or less than 2 years.

(b)  In addition to imprisonment, an individual adjudged guilty of a felony of the third degree may be punished by a fine not to exceed $10,000.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Renumbered from Penal Code Sec. 12.33 by Acts 1973, 63rd Leg., p. 1124, ch. 426, art. 2, Sec. 2, eff. Jan. 1,1974. Amended by Acts 1989, 71st Leg., ch. 785, Sec. 4.01, eff. Sept. 1, 1989; Acts 1990, 71st Leg., 6th C.S., ch. 25, Sec. 7, eff. June 18, 1990; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 87, Sec. 25.148, eff. September 1, 2009.

Sec. 12.35.  STATE JAIL FELONY PUNISHMENT..

(a) Except as provided by Subsection (c), an individual adjudged guilty of a state jail felony shall be punished by confinement in a state jail for any term of not more than two years or less than 180 days.

(b)  In addition to confinement, an individual adjudged guilty of a state jail felony may be punished by a fine not to exceed $10,000.

(c)  An individual adjudged guilty of a state jail felony shall be punished for a third degree felony if it is shown on the trial of the offense that:

(1)  a deadly weapon as defined by Section 1.07 was used or exhibited during the commission of the offense or during immediate flight following the commission of the offense, and that the individual used or exhibited the deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited; or

(2)  the individual has previously been finally convicted of any felony:

(A)  under Section 21.02 or listed in Section 3g(a)(1), Article 42.12, Code of Criminal Procedure; or

(B)  for which the judgment contains an affirmative finding under Section 3g(a)(2), Article 42.12, Code of Criminal Procedure.

Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 593, Sec. 3.48, eff. September 1, 2007.

SUBCHAPTER D. EXCEPTIONAL SENTENCES


Sec. 12.41.  CLASSIFICATION OF OFFENSES OUTSIDE THIS CODE. For purposes of this subchapter, any conviction not obtained from a prosecution under this code shall be classified as follows:

(1)  "felony of the third degree" if imprisonment in the Texas Department of Criminal Justice or another penitentiary is affixed to the offense as a possible punishment;

(2)  "Class B misdemeanor" if the offense is not a felony and confinement in a jail is affixed to the offense as a possible punishment;

(3)  "Class C misdemeanor" if the offense is punishable by fine only.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 87, Sec. 25.149, eff. September 1, 2009.

Sec. 12.42.  PENALTIES FOR REPEAT AND HABITUAL FELONY OFFENDERS..

(a) (1) If it is shown on the trial of a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two state jail felonies, on conviction the defendant shall be punished for a third-degree felony.

(2)  If it is shown on the trial of a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felonies, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction the defendant shall be punished for a second-degree felony.

(3)  Except as provided by Subsection (c)(2), if it is shown on the trial of a state jail felony punishable under Section 12.35(c) or on the trial of a third-degree felony that the defendant has been once before convicted of a felony, on conviction he shall be punished for a second-degree felony.

(b)  Except as provided by Subsection (c)(2), if it is shown on the trial of a second-degree felony that the defendant has been once before convicted of a felony, on conviction he shall be punished for a first-degree felony.

(c)(1)  If it is shown on the trial of a first-degree felony that the defendant has been once before convicted of a felony, on conviction he shall be punished by imprisonment in the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 15 years.  In addition to imprisonment, an individual may be punished by a fine not to exceed $10,000.

(2)  Notwithstanding Subdivision (1), a defendant shall be punished by imprisonment in the Texas Department of Criminal Justice for life if:

(A)  the defendant is convicted of an offense:

(i)  under Section 21.11(a)(1), 22.021, or 22.011, Penal Code;

(ii)  under Section 20.04(a)(4), Penal Code, if the defendant committed the offense with the intent to violate or abuse the victim sexually; or

(iii)  under Section 30.02, Penal Code, punishable under Subsection (d) of that section, if the defendant committed the offense with the intent to commit a felony described by Subparagraph (i) or (ii) or a felony under Section 21.11, Penal Code; and

(B)  the defendant has been previously convicted of an offense:

(i)  under Section 43.25 or 43.26, Penal Code, or an offense under Section 43.23, Penal Code, punishable under Subsection (h) of that section;

(ii)  under Section 21.02, 21.11, 22.011, 22.021, or 25.02, Penal Code;

(iii)  under Section 20.04(a)(4), Penal Code, if the defendant committed the offense with the intent to violate or abuse the victim sexually;

(iv)  under Section 30.02, Penal Code, punishable under Subsection (d) of that section, if the defendant committed the offense with the intent to commit a felony described by Subparagraph (ii) or (iii); or

(v)  under the laws of another state containing elements that are substantially similar to the elements of an offense listed in Subparagraph (i), (ii), (iii), or (iv).

(3)  Notwithstanding Subdivision (1) or (2), a defendant shall be punished for a capital felony if it is shown on the trial of an offense under Section 22.021 otherwise punishable under Subsection (f) of that section that the defendant has previously been finally convicted of:

(A)  an offense under Section  22.021 that was committed against a victim described by Section 22.021(f)(1) or was committed against a victim described by Section 22.021(f)(2) and in a manner described by Section 22.021(a)(2)(A); or

(B)  an offense that was committed under the laws of another state that:

(i)  contains elements that are substantially similar to the elements of an offense under Section 22.021; and

(ii)  was committed against a victim described by Section 22.021(f)(1) or was committed against a victim described by Section 22.021(f)(2) and in a manner substantially similar to a manner described by Section 22.021(a)(2)(A).

(4)  Notwithstanding Subdivision (1) or (2), a defendant shall be punished by imprisonment in the Texas Department of Criminal Justice for life without parole if it is shown on the trial of an offense under Section 21.02 that the defendant has previously been finally convicted of:

(A)  an offense under Section 21.02; or

(B)  an offense that was committed under the laws of another state and that contains elements that are substantially similar to the elements of an offense under Section 21.02.

(d)  Except as provided by Subsection (c)(2), if it is shown on the trial of a felony offense other than a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by imprisonment in the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25 years.

(e)  A previous conviction for a state jail felony punished under Section 12.35(a) may not be used for enhancement purposes under Subsection (b), (c), or (d).

(f)  For the purposes of Subsections (a), (b), (c)(1), and (e), an adjudication by a juvenile court under Section 54.03, Family Code, that a child engaged in delinquent conduct on or after January 1, 1996, constituting a felony offense for which the child is committed to the Texas Youth Commission under Section 54.04(d)(2), (d)(3), or (m), Family Code, or Section 54.05(f), Family Code, is a final felony conviction.

(g)  For the purposes of Subsection (c)(2):

(1)  a defendant has been previously convicted of an offense listed under Subsection (c)(2)(B) if the defendant was adjudged guilty of the offense or entered a plea of guilty or nolo contendere in return for a grant of deferred adjudication, regardless of whether the sentence for the offense was ever imposed or whether the sentence was probated and the defendant was subsequently discharged from community supervision; and

(2)  a conviction under the laws of another state for an offense containing elements that are substantially similar to the elements of an offense listed under Subsection (c)(2)(B) is a conviction of an offense listed under Subsection (c)(2)(B).

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1983, 68th Leg., p. 1750, ch. 339, Sec. 1, eff. Sept. 1, 1983; Acts 1985, 69th Leg., ch. 582, Sec. 1, eff. Sept. 1, 1985; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1995, 74th Leg., ch. 250, Sec. 1, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 262, Sec. 78, eff. Jan. 1, 1996; Acts 1995, 74th Leg., ch. 318, Sec. 1, eff. Jan. 1, 1996; Acts 1997, 75th Leg., ch. 665, Sec. 1, 2, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 667, Sec. 4, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 62, Sec. 15.01, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 283, Sec. 53, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1005, Sec. 2, eff. Sept. 1, 2003.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 340, Sec. 1, eff. September 1, 2007.

Acts 2007, 80th Leg., R.S., Ch. 340, Sec. 2, eff. September 1, 2007.

Acts 2007, 80th Leg., R.S., Ch. 340, Sec. 3, eff. September 1, 2007.

Acts 2007, 80th Leg., R.S., Ch. 340, Sec. 4, eff. September 1, 2007.

Acts 2007, 80th Leg., R.S., Ch. 593, Sec. 1.14, eff. September 1, 2007.

Acts 2007, 80th Leg., R.S., Ch. 593, Sec. 1.15, eff. September 1, 2007.

Acts 2007, 80th Leg., R.S., Ch. 593, Sec. 1.16, eff. September 1, 2007.

Acts 2009, 81st Leg., R.S., Ch. 87, Sec. 25.150, eff. September 1, 2009.