Perjury For Filing A Writ Of Habeas Corpus?

Reading between the lines from this KXAN news story, “Man Faces Life In Prison for Perjury”:

A Liberty Hill man faces life in prison for aggravated perjury charges after claiming he was innocent following a plea bargain with the Williamson County District Attorney’s Office.

Prosecutors say Markus Peavy had made false statements in his plea bargain and the writ when claiming he was not guilty of DWI charges. Peavy is two years into a 55-year sentence for a fourth DWI conviction.

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Prostitution Sting ORR

I sent an open records request just now to Austin Police Department to find out the costs to taxpayers for this:

In an undercover prostitution-reversal sting, the Austin Police Department Central Metro Tactical Unit arrested 23 males, all varying in age.

Undercover police officers posed as prostitutes and when men agreed to service terms, they were arrested on the scene.

I’ll update the post when I get a response. In the meantime, any one care to hazard a guess as to how much it cost taxpayers to dress up female officers as prostitutes and make 23 arrests for prostitution?
 

De Facto Legalization of Prostitution?

Mike, of Crime and Federalism, reads an article about sex trafficking, “San Francisco Is A Major Center For International Crime Networks That Smuggle And Enslave”, and proclaims:

I'd always said, gee, of course prostitution should be legal. I'm changing my mind. San Francisco has de facto legalized prostitution. You can go to MyRedBook.com to read reviews of "massage parlors." Prostitution is, more-or-less, legal.

 

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'The Legislature, In Their Infinite Wisdom...'

AKA the phrase you’ll never see written in an appellate decision or hear spoken out loud.

Gideon’s post about the fifth consecutive failed attempt by Connecticut’s legislature to pass an open container law got me thinking:

So, come to CT, where you can drink and drive (just not drunk and driving).

Well, in Texas we do indeed have an open container law, but we also have drive through liquor stores. Go figure. That’s got to be illegal in (most? perhaps all?) other parts of the country.

Anyone?

Update: A little googling and I find that Fox Noise reports that Texas is not alone. At least we were the first, and apparently the best at it. (Everything’s bigger in Texas.)

Texas boasts the most drive-thru liquor stores in the country. And despite legal controversy for drinking-and-driving-related reasons, they have also popped up in Maryland, Louisiana, Arizona and Hawaii, to name a few.

Criminalizing Normal Teenage Behavior

Filed under ‘sad but true’ comes Stephen’s post at South Texas Defense on over-criminalization being one reason he practices in juvi court:

Fighting at school is a good example. When I was growing up, if you got into a fight at school, you got detention (at school, not at a juvenile facility) or maybe, suspension. Now, thirteen year-old kids are taken into police custody and end up in court.

As a result of their dispositions in court, many of the kids will end up on probation, with a probation officer checking in on them every so often. All of this for a fight at school.

Put it down to fear.

Parents these days fear a Columbine type incident, and I don’t necessarily blame them. But the over reaction to that fear is felt in ways that they themselves are surprised at. Stephen’s post is titled “Let me get this straight, my kid is a felon?”

So in an effort to combat another Columbine in our hometown high school, we have police at the ready. For any situation.

Hey, there’s a couple of kids fighting. No need to look up the penal code to know that sounds like assault. Crime committed. Police available. Predictable result.

The principal – or other administrator in charge - that calls for the police in this situation is the one to blame. Doesn’t he remember this happened at Lincoln High every week when he was a kid? Did the police need to come “handle that situation”?

My wife often asks me if there isn’t some sort of ‘common sense’ written into the criminal laws. I keep telling her there’s not.

When's the Last Time You Heard Someone Say...

A former police officer, county Sheriff, and corrections officer asked Simple Justice a simple question: “When does a felon become an ex-felon? Is even a low grade nonviolent felony conviction a life sentence? And, if it is, should it be?” To which he replied, in part:

Mr. Woodward is old enough to remember when we used to say that a person who completed his sentence had "paid his debt to society."  How quaint that sounds today, like some line by Atticus Finch to Scout.  When is the last time (other than here) that you heard someone use this archaic phrase? 

Actually, Scott, I hear it all the time, at least, if you allow me to tweak the question.  I hear all about “I’ve paid my debt to society” or something similar, when I start explaining Texas’ enhancement provisions to clients. They want to know about the “constitutionality” of holding past criminal convictions against them, you know… the ones for which they have already “done their time”.

Typically, at least in Texas, enhanced misdemeanor offenses fall into one of a few general categories:

  • DWI: Class B Misdemeanor, Class A Misdemeanor, then 3rd Degree Felony
  • Assault Family Violence: Class A Misdemeanor, 3rd Degree Felony
  • Theft: Any Class of felony or misdemeanor based on the combined value of the items alleged stolen, until finally the 3rd theft becomes a State Jail Felony. 

For some reason, folks don’t seem to get enhanced on Theft charges until they’ve hit their 10th or more; but DWIs and Assaults are almost always enhanced, at least in Travis County. Seems like most clients are either of the first time variety, or the “Wow, you’ve really got a rap sheet” variety. I know that can’t be actually true (how did anyone ever get those convictions numbers two through nine?) but I don’t remember the last time I had a third or fourth “only” type theft client.

Of course, Texas also has Felony enhancement provisions too. Probably better left for another post, but suffice it to say, those DWIs and Assault charges can be raised to higher charges still, if the defendant has prior pen trips.

So, yeah, I hear about that quaint concept of “not holding my priors against me”. But as for everyone else, it’s a forgotten concept.

Incarceration Choices: Attempted Second Degree Murder

Still in DC, and my sister in law (who has been an excellent host this week) notices this AP story reproduced in the Washington Post. 

“Two years for a beating and stabbing attack on a homeless man?” she exclaims, looking to me for a reasonable explanation. When you’re the defense lawyer in the family, you get these sorts of inquiries.

In Texas, we don’t have degrees of murder and manslaughter, as most other states do, so I don’t know what constitutes attempted second degree murder in Florida. Not many details in the story, but it sounds like something that would be prosecuted in Texas as Aggravated Assault and/or Attempted Murder, both 3g offenses and second degree felonies with punishment ranges of 2-20 years.

“Guess they gotta keep those prison beds open for marijuana and drug offenders,” is the best I can reply.

Austin Prostitution Stings: Your Tax Dollars at Work

The Sheriff’s Office publishes a list of everyone booked into the Travis County Jail, and I’ve been watching it over the last week or so to keep track of the new policy of housing Immigration (ICE) in the jail. The numbers of folks listed under ‘INS Detainer’ has certainly increased exponentially.

But today I noticed that there were over thirty arrests for prostitution this weekend, and while I don’t look at the list regularly, much less keep detailed statistics,  I’m pretty sure that means there was a john sting operation.

This must mean that the Austin Police Department spent a ton of your money, dressing an undercover officer up as a hooker, and sent her out to solicit sex from ‘johns,’ that is to say, men looking for prostitutes. Or maybe they were stopped at a light because it was red, and had no intention of doing anything but passing through, until they were propositioned by a cop.

It used to be that I’d see these things publicized in the local paper – not the names of the arrestees, but the fact that the police department had run a sting, and how proud they were that they had arrested so many people, etc. But I’ve searched Google News and the Austin American Statesman, and I can’t find a press release or anything.

Hey, if you guys aren’t going to brag about this, is that some sort of indication that you think public support for these stings is waning? And if so, any chance you could use our money on something more useful?

Also See:

Jail Time Instead of Probation For Possession of Marijuana

I have a specific question regarding a recent arrest in [XXX] Texas.

My boyfriend was arrested for possession of marijuana (less than two grams) during a traffic stop - he had recently had body work done on his car and the front license plate was missing.

This is his first offense and he was very compliant and was released on a PR bond (after the magistrate had made fun of him first and said he looked like a girl about a half dozen times - quite unprofessional in my opinion).

Anyways, he travels out of the country quite a bit for his job and he's worried that if he is given a long probation sentence it would cause him to lose his job.

Another friend of mine got a DUI and elected to pay a hefty fine and do a little jail time in lieu of probation so that he too could leave the country.

Would this be possible in my boyfriend's case (I know you can't predict what will happen, but I'm wondering if that is even a possibility or if probation is mandatory for a class b misdemeanor first offense)?

He is currently in the process of finding a defense attorney with experience in possession cases.

[Anonymous – via email]

Answer:

Class B Misdemeanor Possession of Marijuana is punishable by ‘up to’ 180 days in jail and ‘up to’ a $2000 fine. This means a sentence, after conviction, of as low as 1 day in jail with credit for the time he spent in jail already with a $0 fine is a possibility. 

Unfortunately, it’s only possible to do this if convicted, and while I don’t practice in [XXX] Texas, I imagine that some form of deferred probation without a conviction is a very reasonable possibility.

The local probation department will want him to be employed, so traveling may have to be pre-arranged, but will not likely be prohibited.  If we knew in advance that only a final conviction with jail time, or a deferred probation withou a conviction were possible, he still might need to at least consider the deferred to avoid the conviction - and to set himself up to eventually file a motion for non disclosure to seal the records.

Finally, with no prior arrests of any sort, a good defense lawyer will possibly be able to get your boyfriend a reduction to a Class C (traffic ticket level) offense, or perhaps even a dismissal, with counseling and/or community service done up front. Obviously, either of these outcomes are within the range of best case scenario, and I appreciate your realizing up front I can’t predict a particular result.

However, to answer the question directly, there is no mandatory probation for possession of marijuana in Texas – as is there is, for example, for 3rd offense enhanced Class B public intoxication.

Prostitution Stings: Webster's Definition vs. the Law

Quick. What’s the definition of prostitution? Having sex for money, right?

Yes, if you are using the Webster’s dictionary definition:

Main Entry: pros·ti·tu·tion
Pronunciation: "präs-t&-'tü-sh&n, -'tyü-
Function: noun
1 : the act or practice of engaging in promiscuous sexual relations especially for money
2 : the state of being prostituted : Debasement

Perfectly correct, but that’s not the complete legal definition of the crime ‘prostitution’, at least not in Texas. And I doubt in any other state.

The legal definition of prostitution in the Texas Penal Code:

§ 43.02. Prostitution. 

(a)    A person commits an offense if he knowingly: 

            (1) offers to engage, agrees to engage, or engages in sexual conduct for a fee; or

            (2) solicits another in a public place to engage with him in sexual conduct for hire.

(b) An offense is established under Subsection (a)(1) whether the actor is to receive or pay a fee. An offense is established under Subsection (a)(2) whether the actor solicits a person to hire him or offers to hire the person solicited.

(c) An offense under this section is a Class B misdemeanor, unless the actor has previously been convicted one or two times of an offense under this section, in which event it is a Class A misdemeanor. If the actor has previously been convicted three or more times of an offense under this section, the offense is a state jail felony.

Most criminal prosecutions of prostitution cases rest on the “knowingly offers to engage or agrees to engage in sex” part of the statute. In other words, no consummation necessary.

That’s what makes so called ‘John Stings’ work. The police (usually female) dress up as, well, as something other than policewomen, and approach men in their cars, and offer sex for money. When the man agrees, the officer directs him to drive down the street where she tells him the hotel is.

Of course, it’s not her hotel room, it’s the jump out boys, and they arrest him and take him to jail.

Clients frequently come in and tell me that it wasn’t prostitution; it was ‘solicitation of prostitution’ or perhaps they call it just ‘solicitation’. I pull out the Penal Code and show them the definition itself.

All of this came to mind when I ran across a story in the Chicago Sun-Times Group Beacon News titled ‘Reverse prostitution sting nets 13 arrests’:

Eleven men and two women were arrested and charged Tuesday night during a four-hour reverse prostitution sting, Aurora police said.

The men were charged with solicitation of a sexual act after police said they offered undercover female officer cash in exchange for sex acts. The two women, ages 17 and 16, were charged with obstructing police after they continually interfered with officers conducting the operation, police said.

It’s not a reverse prostitution sting. 

It apparently seemed like the reverse of prostitution to the reporter, because the police were the ones initially coming up with the ‘idea’ while the guy in the car was merely assenting to it. But I’d bet dollars to donuts that the Illinois statute covers this the same way Texas does.

Perhaps I’ll come up with a tag I call “Your Tax Dollars at Work” and report on every time Austin Police Department sets one of these things up. They do get quite expensive.

And I still need to write up a post on asking for a 38.23 instruction based on the illegal police behavior. But in the meantime, here are some related posts on the subject:

Are Prostitution Stings Entrapment Under Texas Law?

Prostitution Banishment Zones

Alternate definitions in public intoxication cases

There is only one “official” definition of intoxication for Texas Public Intoxication charges: A person commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.

Although the statute is listed in the DWI chapter of the Penal Code, neither of the definitions of intoxication for DWI apply in Public Intoxication or PI charges.

But the definition is fairly vague, isn’t it? I’m not saying there aren’t folks who are so smashed on 6th Street here in Austin that fit that definition. There probably are.

However, most folks arrested for PI probably fit what I call the alternate, non-legislated, non-statutory definition: frankly, they pissed off the cop.

Some officers would probably admit that they know a Public intoxication charge won’t stick in the long run, or that the defendant can fairly easily sign up for a deferred disposition, take an alcohol class, stay out of trouble for 6 months and get it dismissed.

Classic case of “You can beat the rap, but you can’t beat the ride”. My two cents worth? Even though you’re not actually a danger to yourself or others, if you’ve been drinking, especially in Downtown Austin, and a police officer comes up and starts asking you questions, be very polite.

You might eventually beat that public intoxication arrest, but wouldn’t you rather have taken a cab home than spend the night in the Travis County Jail?

Disorderly Conduct - Unreasonable Noise and 85 Decibels

Please clarify this statement: "...a noise is presumed to be unreasonable if the noise exceeds a decibel level of 85 after the person making the noise receives notice from a magistrate or peace officer that the noise is a public nuisance." 

What procedure is utilized to confirm that the noise level exceeded 85, specifically as it relates to a vehicle's radio? Is this presumption made pre or post rendering of a citation? 

[Great question left by a commenter to the post on 42.01 Disorderly Conduct…Let me take a stab at answering it with a post of its own.]

From a practical standpoint, i.e., what really happens when a police officer decides to cite, or even arrest someone for a DOC Unreasonable Noise violation, I think the answer is a familiar one: often times, it is left up to the officer to decide whether or not the person is in violation of the statute.

I’m sure there are times when officers have actually measured the noise from a party, for example, using one device or another. In those cases, if the case went to trial, the prosecutor would certainly have better evidence to argue that they had proven their case beyond a reasonable doubt.

Most of the time, however, it’s probably just the officer’s testimony about his “training and experience” that would bolster the state’s case at trial.

This is a good example of the difference needed for a police officer to cite or arrest someone for an offense, and for the prosecutor to convict that person at trial. As a practical matter, most DOC tickets in Austin can probably be disposed of by way of deferred disposition, and eventual dismissal, rather than full-blown jury trial.

As far as the “prior notice from a magistrate or peace officer” part of it, this does not mean that you always get a second chance before receiving a ticket for DOC - Unreasonable Noise. The presumption simply makes it easier, again at the trial level, for the state to prove the defendant was guilty. Again, in Austin, when it comes to loud parties, it has been my experience that the police will usually issue a warning first, and then come back and check on the noise level from the party later.

As far as car radio noise levels are concerned, my guess is that since an officer knows he’s unlikely to see the person in the car again anytime soon, and certainly won’t have a fixed address to come back and check on the radio, that probably increases the chances that he will issue the citation, even though there has been no prior notice. Of course, they always have discretion to “just issue a warning”.

On that note, let me end this discussion for now with a quote from my letter to the UT Daily Texan Firing Line a few months ago on a similar subject:

Police have great discretion as to what to charge someone with, and even whether to charge them with anything at all. Very often the difference between being issued a minor Class C Noise Ordinance violation, instead of being arrested for a Class A Misdemeanor or even a felony, is your attitude when you talk to and interact with the police.

Are Prostitution Stings Entrapment Under Texas Law?

The short answer is “no”.

Prostitution stings (aka john stings) involve female officers dressing up as call girls/hookers, hanging out in high crime areas, and approaching men (usually in cars), and asking them if they “want a date”. The conversations proceed from there, often with the undercover officer being the first one to actually raise the prospect of exchanging sex for money (which is the legal definition of prostitution in Texas).

Austin Police Department runs these sorts of sting operations several times a year. Well, if you’re arrested in this sort of operation, can your lawyer successfully argue entrapment?

Probably not. Through caselaw, the definition of entrapment in Texas includes not only inducement or persuasion by the officer to commit the crime. It also must be of such a nature that the ordinary law abiding citizen would have been induced or persuaded to commit it.

Thus, at jury trial, if the defense were even successful in having an entrapment charge submitted to the jury, the prosecutor can simply argue this: “Find this defendant not guilty, if you too, the jury members would have agreed to have sex with this undercover officer for money.” That’s a pretty high standard to get a juror to agree with (at least back in the jury room with the other members).

I was involved in a jury trial involving a prostitution sting once, where we were able to get a 38.23 instruction in front of the jury, and they acquitted. But that’s a story for another day.

Definition of Entrapment - Texas Penal Code

§ 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.

Possession of Marijuana - Texas Health and Safety Code

§ 481.121. OFFENSE: POSSESSION OF MARIHUANA. (MARIJUANA)

(a) Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a usable quantity of marihuana.

(b) An offense under Subsection (a) is:                                      

            (1) a Class B misdemeanor if the amount of marihuana possessed is two ounces or less;

            (2) a Class A misdemeanor if the amount of marihuana possessed is four ounces or less but more than two ounces;

            (3) a state jail felony if the amount of marihuana possessed is five pounds or less but more than four ounces;

            (4) a felony of the third degree if the amount of marihuana possessed is 50 pounds or less but more than 5 pounds;

            (5) a felony of the second degree if the amount of marihuana possessed is 2,000 pounds or less but more than 50 pounds; and

            (6) punishable by imprisonment in the institutional division of the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than 5 years, and a fine not to exceed $50,000, if the amount of marihuana possessed is more than 2,000 pounds.

State Jail Felony Range of Punishment - Texas Penal Code

§ 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) 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.

Third Degree Felony Range of Punishment - Texas Penal Code

§ 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 institutional division 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.

First Degree Felony Range of Punishment - Texas Penal Code

§ 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 institutional division 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.

Class A Misdemeanor Range of Punishment - Texas Penal Code

§ 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.

Definition of Possession

§ 1.07. DEFINITIONS.

(a) In this code:

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

Definition of Bodily Injury - Texas Penal Code

§ 1.07. DEFINITIONS.

(a) In this code:

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

Possession of a Cell Phone by Inmate in Texas Prison - Texas Penal Code Section 38.11

(This post only quotes Subsection J of 38.11, dealing with cell phones)

§ 38.11. Prohibited Substances and Items in Adult or Juvenile Correctional or Detention Facility or on Property of Texas Department of Criminal Justice or Texas Youth Commission

            (j) A person commits an offense if the person while an inmate of a correctional facility operated by or under contract with the Texas Department of Criminal Justice or while in the custody of a secure correctional facility or secure detention facility for juveniles possesses a cellular telephone or other wireless communications device or a component of one of those devices.

Definition of False Report to a Peace Officer - Texas Penal Code

§ 37.08. FALSE REPORT TO PEACE OFFICER OR LAW ENFORCEMENT EMPLOYEE.

(a) A person commits an offense if, with intent to deceive, he knowingly makes a false statement that is material to a criminal investigation and makes the statement to:

(1) a peace officer conducting the investigation; or                       

(2) any employee of a law enforcement agency that is authorized by the agency to conduct the investigation and that the actor knows is conducting the investigation.

(b) In this section, "law enforcement agency" has the meaning assigned by Article 59.01, Code of Criminal Procedure.

(c) An offense under this section is a Class B misdemeanor.

Definition of Public Intoxication - Texas Penal Code Section 49.02

§ 49.02. PUBLIC INTOXICATION. 

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

(b) It is a defense to prosecution under this section that the alcohol or other substance was administered for therapeutic purposes and as a part of the person's professional medical treatment by a licensed physician.

(c) Except as provided by Subsection (e), an offense under this section is a Class C misdemeanor.

(d) An offense under this section is not a lesser included offense under Section 49.04.

(e) An offense under this section committed by a person younger than 21 years of age is punishable in the same manner as if the minor committed an offense to which Section 106.071, Alcoholic Beverage Code, applies.

Texas Penal Code Chapter 33 Computer Crimes

Chapter 33 Computer Crimes Section 33.01 Definitions - Texas Penal Code

§ 33.01. Definitions

In this chapter:

(1) "Access" means to approach, instruct, communicate with, store data in, retrieve or intercept data from, alter data or computer software in, or otherwise make use of any resource of a computer, computer network, computer program, or computer system.

(2) "Aggregate amount" means the amount of:

(A) any direct or indirect loss incurred by a victim, including the value of money, property, or service stolen or rendered unrecoverable by the offense; or

(B) any expenditure required by the victim to verify that a computer, computer network, computer program, or computer system was not altered, acquired, damaged, deleted, or disrupted by the offense.

(3) "Communications common carrier" means a person who owns or operates a telephone system in this state that includes equipment or facilities for the conveyance, transmission, or reception of communications and who receives compensation from persons who use that system.

(4) "Computer" means an electronic, magnetic, optical, electrochemical, or other high-speed data processing device that performs logical, arithmetic, or memory functions by the manipulations of electronic or magnetic impulses and includes all input, output, processing, storage, or communication facilities that are connected or related to the device.

(5) "Computer network" means the interconnection of two or more computers or computer systems by satellite, microwave, line, or other communication medium with the capability to transmit information among the computers.

(6) "Computer program" means an ordered set of data representing coded instructions or statements that when executed by a computer cause the computer to process data or perform specific functions.

(7) "Computer services" means the product of the use of a computer, the information stored in the computer, or the personnel supporting the computer, including computer time, data processing, and storage functions.

(8) "Computer system" means any combination of a computer or computer network with the documentation, computer software, or physical facilities supporting the computer or computer network.

(9) "Computer software" means a set of computer programs, procedures, and associated documentation related to the operation of a computer, computer system, or computer network.

(10) "Computer virus" means an unwanted computer program or other set of instructions inserted into a computer's memory, operating system, or program that is specifically constructed with the ability to replicate itself or to affect the other programs or files in the computer by attaching a copy of the unwanted program or other set of instructions to one or more computer programs or files.

(11) "Data" means a representation of information, knowledge, facts, concepts, or instructions that is being prepared or has been prepared in a formalized manner and is intended to be stored or processed, is being stored or processed, or has been stored or processed in a computer. Data may be embodied in any form, including but not limited to computer printouts, magnetic storage media, laser storage media, and punchcards, or may be stored internally in the memory of the computer.

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

(A) induced by deception, as defined by Section 31.01, or induced by coercion;

(B) given by a person the actor knows is not legally authorized to act for the owner;

(C) given by a person who by reason of youth, mental disease or defect, or intoxication is known by the actor to be unable to make reasonable property dispositions;

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

(E) used for a purpose other than that for which the consent was given.

(13) "Electric utility" has the meaning assigned by Section 31.002, Utilities Code.

(14) "Harm" includes partial or total alteration, damage, or erasure of stored data, interruption of computer services, introduction of a computer virus, or any other loss, disadvantage, or injury that might reasonably be suffered as a result of the actor's conduct.

(15) "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;

(B) has the right to restrict access to the property; or

(C) is the licensee of data or computer software.

(16) "Property" means:

(A) tangible or intangible personal property including a computer, computer system, computer network, computer software, or data; or

(B) the use of a computer, computer system, computer network, computer software, or data.

Definition of Breach of Computer Security - Texas Penal Code Section 33.02

§ 33.02. Breach of Computer Security

(a) A person commits an offense if the person knowingly accesses a computer, computer network, or computer system without the effective consent of the owner.

(b) An offense under this section is a Class B misdemeanor unless in committing the offense the actor knowingly obtains a benefit, defrauds or harms another, or alters, damages, or deletes property, in which event the offense is:

(1) a Class A misdemeanor if the aggregate amount involved is less than $1,500;

(2) a state jail felony if:

(A) the aggregate amount involved is $1,500 or more but less than $20,000; or

(B) the aggregate amount involved is less than $1,500 and the defendant has been previously convicted two or more times of an offense under this chapter;

(3) a felony of the third degree if the aggregate amount involved is $20,000 or more but less than $100,000;

(4) a felony of the second degree if the aggregate amount involved is $100,000 or more but less than $200,000; or

(5) a felony of the first degree if the aggregate amount involved is $200,000 or more.

(c) When benefits are obtained, a victim is defrauded or harmed, or property is altered, damaged, or deleted in violation of this section, whether or not in a single incident, the conduct may be considered as one offense and the value of the benefits obtained and of the losses incurred because of the fraud, harm, or alteration, damage, or deletion of property may be aggregated in determining the grade of the offense.

(d) A person who his subject to prosecution under this section and any other section of this code may be prosecuted under either or both sections.

Definition of Online Solicitation of a Minor - Texas Penal Code Section 33.021

§ 33.021. Online Solicitation of a Minor

(a) In this section:

(1) "Minor" means:

(A) an individual who represents himself or herself to be younger than 17 years of age; or

(B) an individual whom the actor believes to be younger than 17 years of age.

(2) "Sexual contact," "sexual intercourse," and "deviate sexual intercourse" have the meanings assigned by Section 21.01.

(3) "Sexually explicit" means any communication, language, or material, including a photographic or video image, that relates to or describes sexual conduct, as defined by Section 43.25.

(b) A person who is 17 years of age or older commits an offense if, with the intent to arouse or gratify the sexual desire of any person, the person, over the Internet or by electronic mail or a commercial online service, intentionally:

(1) communicates in a sexually explicit manner with a minor; or

(2) distributes sexually explicit material to a minor.

(c) A person commits an offense if the person, over the Internet or by electronic mail or a commercial online service, knowingly solicits a minor to meet another person, including the actor, with the intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person.

(d) It is not a defense to prosecution under Subsection (c) that:

(1) the meeting did not occur;

(2) the actor did not intend for the meeting to occur; or

(3) the actor was engaged in a fantasy at the time of commission of the offense.

(e) It is a defense to prosecution under this section that at the time conduct described by Subsection (b) or (c) was committed:

(1) the actor was married to the minor; or

(2) the actor was not more than three years older than the minor and the minor consented to the conduct.

(f) An offense under Subsection (b) is a state jail felony, and an offense under Subsection (c) is a felony of the third degree, except that an offense under Subsection (b) or (c) is a felony of the second degree if the minor is younger than 14 years of age or is an individual whom the actor believes to be younger than 14 years of age.

(g) If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section, the other law, or both.

Defenses - Texas Penal Code Section 33.03

§ 33.03.  Defenses

It is an affirmative defense to prosecution under Section 33.02 that the actor was an officer, employee, or agent of a communications common carrier or electric utility and committed the proscribed act or acts in the course of employment while engaged in an activity that is a necessary incident to the rendition of service or to the protection of the rights or property of the communications common carrier or electric utility.

Assistance by Attorney General - Texas Penal Code Section 33.04

§ 33.04. Assistance by Attorney General

The attorney general, if requested to do so by a prosecuting attorney, may assist the prosecuting attorney in the investigation or prosecution of an offense under this chapter or of any other offense involving the use of a computer.

Tampering with Direct Recording Electronic Voting Machine - Texas Penal Code Section 33.05

§ 33.05. Tampering with Direct Recording Electronic Voting Machine

(a) In this section:

(1) "Direct recording electronic voting machine" has the meaning assigned by Section 121.003, Election Code.

(2) "Measure" has the meaning assigned by Section 1.005, Election Code.

(b) A person commits an offense if the person knowingly accesses a computer, computer network, computer program, computer software, or computer system that is a part of a voting system that uses direct recording electronic voting machines and by means of that access:

(1) prevents a person from lawfully casting a vote;

(2) changes a lawfully cast vote;

(3) prevents a lawfully cast vote from being counted; or

(4) causes a vote that was not lawfully cast to be counted.

(c) An offense under this section does not require that the votes as affected by the person's actions described by Subsection (b) actually be the votes used in the official determination of the outcome of the election.

(d) An offense under this section is a felony of the first degree.

(e) Notwithstanding Section 15.01(d), an offense under Section 15.01(a) is a felony of the third degree if the offense the actor intends to commit is an offense under this section.

Definition of Improper Photography or Visual Recording - Texas Penal Code Section 21.15

§ 21.15. IMPROPER PHOTOGRAPHY OR VISUAL RECORDING. 

a) In this section, "promote" has the meaning assigned by Section 43.21.

b) A person commits an offense if the person:

(1) photographs or by videotape or other electronic means visually records another:

(A) without the other person's consent; and

(B) with intent to arouse or gratify the sexual desire of any person; or

(2) knowing the character and content of the photograph or recording, promotes a photograph or visual recording described by Subdivision (1).

c) An offense under this section is a state jail felony.

d) If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section or the other law.

Definition of Improper Relationship Between Educator and Student - Texas Penal Code Section 21.12

§ 21.12 IMPROPER RELATIONSHIP BETWEEN EDUCATOR AND STUDENT. 

(a) An employee of a public or private primary or secondary school commits an offense if the employee engages in sexual contact, sexual intercourse, or deviate sexual intercourse with a person who is enrolled in a public or private primary or secondary school at which the employee works and who is not the employee's spouse.

(b) An offense under this section is a felony of the second degree.

(c) If conduct constituting an offense under this section also constitutes an offense under another section of this code, the actor may be prosecuted under either section or both sections.

Definition of Indecency with a Child - Texas Penal Code Section 21.11

§ 21.11. INDECENCY WITH A CHILD. 

(a) A person commits an offense if, with a child younger than 17 years and not the person's spouse, whether the child is of the same or opposite sex, the person:

(1) engages in sexual contact with the child or causes the child to engage in sexual contact; or

(2) with intent to arouse or gratify the sexual desire of any person:

(A) exposes the person's anus or any part of the person's genitals, knowing the child is present; or

(B) causes the child to expose the child's anus or any part of the child's genitals.

(b) It is an affirmative defense to prosecution under this section that the actor:

(1) was not more than three years older than the victim and of the opposite sex;

(2) did not use duress, force, or a threat against the victim at the time of the offense; and

(3) at the time of the offense:

(A) was not required under Chapter 62, Code of Criminal Procedure, to register for life as a sex offender; or

(B) was not a person who under Chapter 62 had a reportable conviction or adjudication for an offense under this section.

(c) In this section, "sexual contact" means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person:

(1) any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or

(2) any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person.

(d) An offense under Subsection (a)(1) is a felony of the second degree and an offense under Subsection (a)(2) is a felony of the third degree.

Definition of Indecent Exposure - Texas Penal Code Section 21.08

§ 21.08 INDECENT EXPOSURE.  

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

(b) An offense under this section is a Class B misdemeanor.

Definition of Public Lewdness - Texas Penal Code Section 21.07

§ 21.07 PUBLIC LEWDNESS. (a) A person commits an offense if he knowingly engages in any of the following acts in a public place or, if not in a public place, he is reckless about whether another is present who will be offended or alarmed by his:

(1) act of sexual intercourse;

(2) act of deviate sexual intercourse;

(3) act of sexual contact; or

(4) act involving contact between the person's mouth or genitals and the anus or genitals of an animal or fowl.

(b) An offense under this section is a Class A misdemeanor.

Definition of Homosexual Conduct - Texas Penal Code Section 21.06

§ 21.06. HOMOSEXUAL CONDUCT.

[This section was declared unconstitutional by Lawrence v. Texas, 123 S.Ct. 2472.]

(a) A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex.

(b) An offense under this section is a Class C misdemeanor.

Chapter 21 Sexual Offenses Section 21.01 Definitions

§ 21.01. DEFINITIONS. In this chapter:

(1) "Deviate sexual intercourse" means:

(A) any contact between any part of the genitals of one person and the mouth or anus of another person; or

(B) the penetration of the genitals or the anus of another person with an object.

(2) "Sexual contact" means, except as provided by Section 21.11, any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person.

(3) "Sexual intercourse" means any penetration of the female sex organ by the male sex organ.

(4) "Spouse" means a person to whom a person is legally married under Subtitle A, Title 1, Family Code, or a comparable law of another jurisdiction.

Texas Penal Code Chapter 21 Sexual Offenses

Definition of Theft (Long Version) - Texas Penal Code

§ 31.03. THEFT.

(a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property.

(b) Appropriation of property is unlawful if:                                

            (1) it is without the owner's effective consent;                    

            (2) the property is stolen and the actor appropriates the property knowing it was stolen by another; or

            (3) property in the custody of any law enforcement agency was explicitly represented by any law enforcement agent to the actor as being stolen and the actor appropriates the property believing it was stolen by another.

(c) For purposes of Subsection (b):                                         

            (1) evidence that the actor has previously participated in recent transactions other than, but similar to, that which the prosecution is based is admissible for the purpose of showing knowledge or intent and the issues of knowledge or intent are raised by the actor's plea of not guilty;

            (2) the testimony of an accomplice shall be corroborated by proof that tends to connect the actor to the crime, but the actor's knowledge or intent may be established by the uncorroborated testimony of the accomplice;

            (3) an actor engaged in the business of buying and selling used or secondhand personal property, or lending money on the security of personal property deposited with the actor, is presumed to know upon receipt by the actor of stolen property (other than a motor vehicle subject to Chapter 501, Transportation Code) that the property has been previously stolen from another if the actor pays for or loans against the property $25 or more (or consideration of equivalent value) and the actor knowingly or recklessly:

                        (A) fails to record the name, address, and physical description or identification number of the seller or pledgor;

                        (B) fails to record a complete description of the property, including the serial number, if reasonably available, or other identifying characteristics; or

                        (C) fails to obtain a signed warranty from the seller or pledgor that the seller or pledgor has the right to possess the property. It is the express intent of this provision that the presumption arises unless the actor complies with each of the numbered requirements;

            (4) for the purposes of Subdivision (3)(A), "identification number" means driver's license number, military identification number, identification certificate, or other official number capable of identifying an individual;

            (5) stolen property does not lose its character as stolen when recovered by any law enforcement agency;

            (6) an actor engaged in the business of obtaining abandoned or wrecked motor vehicles or parts of an abandoned or wrecked motor vehicle for resale, disposal, scrap, repair, rebuilding, demolition, or other form of salvage is presumed to know on receipt by the actor of stolen property that the property has been previously stolen from another if the actor knowingly or recklessly:

                        (A) fails to maintain an accurate and legible inventory of each motor vehicle component part purchased by or delivered to the actor, including the date of purchase or delivery, the name, age, address, sex, and driver's license number of the

seller or person making the delivery, the license plate number of the motor vehicle in which the part was delivered, a complete description of the part, and the vehicle identification number of the motor vehicle from which the part was removed, or in lieu of maintaining an inventory, fails to record the name and certificate of inventory number of the person who dismantled the motor vehicle from which the part was obtained;

                        (B) fails on receipt of a motor vehicle to obtain a certificate of authority, sales receipt, or transfer document as required by Chapter 683, Transportation Code, or a certificate of title showing that the motor vehicle is not subject to a lien or that all recorded liens on the motor vehicle have been released; or

                        (C) fails on receipt of a motor vehicle to immediately remove an unexpired license plate from the motor vehicle, to keep the plate in a secure and locked place, or to maintain an inventory, on forms provided by the Texas Department of Transportation, of license plates kept under this paragraph, including for each plate or set of plates the license plate number and the make, motor number, and vehicle identification number of the motor vehicle from which the plate was removed;

            (7) an actor who purchases or receives a used or secondhand motor vehicle is presumed to know on receipt by the actor of the motor vehicle that the motor vehicle has been previously stolen from another if the actor knowingly or recklessly:

                        (A) fails to report to the Texas Department of Transportation the failure of the person who sold or delivered the motor vehicle to the actor to deliver to the actor a properly executed certificate of title to the motor vehicle at the time the motor vehicle was delivered; or

                        (B) fails to file with the county tax assessor-collector of the county in which the actor received the motor vehicle, not later than the 20th day after the date the actor received the motor vehicle, the registration license receipt and certificate of title or evidence of title delivered to the actor in accordance with Subchapter D, Chapter 520, Transportation Code, at the time the motor vehicle was delivered; 

            (8) an actor who purchases or receives from any source other than a licensed retailer or distributor of pesticides a restricted-use pesticide or a state-limited-use pesticide or a compound, mixture, or preparation containing a restricted-use or state-limited-use pesticide is presumed to know on receipt by the actor of the pesticide or compound, mixture, or preparation that the pesticide or compound, mixture, or preparation has been previously stolen from another if the actor:

                        (A) fails to record the name, address, and physical description of the seller or pledgor;

                        (B) fails to record a complete description of the amount and type of pesticide or compound, mixture, or preparation purchased or received; and

                        (C) fails to obtain a signed warranty from the seller or pledgor that the seller or pledgor has the right to possess the property; and

            (9) an actor who is subject to Section 409, Packers and Stockyards Act (7 U.S.C. Section 228b), that obtains livestock from a commission merchant by representing that the actor will make prompt payment is presumed to have induced the commission merchant's consent by deception if the actor fails to make full payment in accordance with Section 409, Packers and Stockyards Act (7 U.S.C. Section 228b).

(d) It is not a defense to prosecution under this section that:           

            (1) the offense occurred as a result of a deception or strategy on the part of a law enforcement agency, including the use of an undercover operative or peace officer;

            (2) the actor was provided by a law enforcement agency with a facility in which to commit the offense or an opportunity to engage in conduct constituting the offense; or

            (3) the actor was solicited to commit the offense by a peace officer, and the solicitation was of a type that would encourage a person predisposed to commit the offense to actually commit the offense, but would not encourage a person not predisposed to commit the offense to actually commit the offense.

(e) Except as provided by Subsection (f), an offense under this section is:

            (1) a Class C misdemeanor if the value of the property stolen is less than:

                        (A) $50; or                                                               

                        (B) $20 and the defendant obtained the property by issuing or passing a check or similar sight order in a manner described by Section 31.06;

            (2) a Class B misdemeanor if:                                               

                        (A) the value of the property stolen is:                                   

                                    (i) $50 or more but less than $500; or                                   

                                    (ii) $20 or more but less than $500 and the defendant obtained the property by issuing or passing a check or similar sight order in a manner described by Section 31.06; or

                        (B) the value of the property stolen is less than:                       

                                    (i) $50 and the defendant has previously been convicted of any grade of theft; or

                                    (ii) $20, the defendant has previously been convicted of any grade of theft, and the defendant obtained the property by issuing or passing a check or similar sight order in a manner described by Section 31.06;

            (3) a Class A misdemeanor if the value of the property stolen is $500 or more but less than $1,500;

            (4) a state jail felony if:                                                 

                        (A) the value of the property stolen is $1,500 or more but less than $20,000, or the property is less than 10 head of cattle, horses, or exotic livestock or exotic fowl as defined by Section 142.001, Agriculture Code, or any part thereof under the value of $20,000, or less than 100 head of sheep, swine, or goats or any part thereof under the value of $20,000;

                        (B) regardless of value, the property is stolen from the person of another or from a human corpse or grave;

                        (C) the property stolen is a firearm, as defined by Section 46.01;       

                        (D) the value of the property stolen is less than $1,500 and the defendant has been previously convicted two or more times of any grade of theft; or

                        (E) the property stolen is an official ballot or official carrier envelope for an election;

            (5) a felony of the third degree if the value of the property stolen is $20,000 or more but less than $100,000, or the property is:

                        (A) 10 or more head of cattle, horses, or exotic livestock or exotic fowl as defined by Section 142.001, Agriculture Code, stolen during a single transaction and having an aggregate value of less than $100,000; or

                        (B) 100 or more head of sheep, swine, or goats stolen during a single transaction and having an aggregate value of less than $100,000;

            (6) a felony of the second degree if the value of the property stolen is $100,000 or more but less than $200,000; or

            (7) a felony of the first degree if the value of the property stolen is $200,000 or more.

(f) An offense described for purposes of punishment by Subsections (e)(1)-(6) is increased to the next higher category of offense if it is shown on the trial of the offense that:           

(1) the actor was a public servant at the time of the offense and the property appropriated came into the actor's custody, possession, or control by virtue of his status as a public servant;

            (2) the actor was in a contractual relationship with government at the time of the offense and the property appropriated came into the actor's custody, possession, or control by virtue of the contractual relationship; or

            (3) the owner of the property appropriated was at the time of the offense an elderly individual.

(g) For the purposes of Subsection (a), a person is the owner of exotic livestock or exotic fowl as defined by Section 142.001, Agriculture Code, only if the person qualifies to claim the animal under Section 142.0021, Agriculture Code, if the animal is an estray.

(h) In this section:                                                          

            (1) "Restricted-use pesticide" means a pesticide classified as a restricted-use pesticide by the administrator of the Environmental Protection Agency under 7 U.S.C. Section 136a, as that law existed on January 1, 1995, and containing an active ingredient listed in the federal regulations adopted under that law (40 C.F.R. Section 152.175) and in effect on that date.

            (2) "State-limited-use pesticide" means a pesticide classified as a state-limited-use pesticide by the Department of Agriculture under Section 76.003, Agriculture Code, as that section existed on January 1, 1995, and containing an active ingredient listed in the rules adopted under that section (4 TAC Section 7.24) as that section existed on that date.

(i) For purposes of Subsection (c)(9), "livestock" and "commission merchant" have the meanings assigned by Section 147.001, Agriculture Code.

(j) With the consent of the appropriate local county or district attorney, the attorney general has concurrent jurisdiction with that consenting local prosecutor to prosecute an offense under this section that involves the state Medicaid program.

Definition of Theft (Short Version) - Texas Penal Code

§ 31.03. THEFT.

 

(a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property.

 

(b)  Appropriation of property is unlawful if:   

                            

            (1)  it is without the owner's effective consent; 

                    

            (2)  the property is stolen and the actor appropriates the property knowing it was stolen by another;  or

 

            (3)  property in the custody of any law enforcement agency was explicitly represented by any law enforcement agent to the actor as being stolen and the actor appropriates the property believing it was stolen by another.

Penalties for Repeat and Habitual Felony Offenders - Texas Penal Code Section 12.42

§ 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) 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) 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) Except as provided by Subdivision (2), 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 institutional division of 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) A defendant shall be punished by imprisonment in the institutional division for life if:

                   (A) the defendant is convicted of an offense:                              

                               (i) under Section 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 or 22.011, 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 21.11, 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).

(d) 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 institutional division of 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).

Classification of Offenses Outside this Code - Texas Penal Code Section 12.41

§ 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 a 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.

Definition of Disorderly Conduct - Texas Penal Code

§ 42.01. DISORDERLY CONDUCT.

(a) A person commits an offense if he intentionally or knowingly:

(1) uses abusive, indecent, profane, or vulgar language in a public place, and the language by its very utterance tends to incite an immediate breach of the peace;

(2) makes an offensive gesture or display in a public place, and the gesture or display tends to incite an immediate breach of the peace;

(3) creates, by chemical means, a noxious and unreasonable odor in a public place;

(4) abuses or threatens a person in a public place in an obviously offensive manner;

(5) makes unreasonable noise in a public place other than a sport shooting range, as defined by Section 250.001, Local Government Code, or in or near a private residence that he has no right to occupy;

(6) fights with another in a public place;                                  

(7) discharges a firearm in a public place other than a public road or a sport shooting range, as defined by Section 250.001, Local Government Code;

(8) displays a firearm or other deadly weapon in a public place in a manner calculated to alarm;

(9) discharges a firearm on or across a public road;                        

(10) exposes his anus or genitals in a public place and is reckless about whether another may be present who will be offended or alarmed by his act; or

(11) for a lewd or unlawful purpose:                                        

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

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

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

(b) It is a defense to prosecution under Subsection (a)(4) that the actor had significant provocation for his abusive or threatening conduct.

(c) For purposes of this section:                                            

(1) an act is deemed to occur in a public place or near a private residence if it produces its offensive or proscribed consequences in the public place or near a private residence; and

(2) a noise is presumed to be unreasonable if the noise exceeds a decibel level of 85 after the person making the noise receives notice from a magistrate or peace officer that the noise is a public nuisance.

(d) An offense under this section is a Class C misdemeanor unless committed under Subsection (a)(7) or (a)(8), in which event it is a Class B misdemeanor.

(e) It is a defense to prosecution for an offense under Subsection (a)(7) or (9) that the person who discharged the firearm had a reasonable fear of bodily injury to the person or to another by a dangerous wild animal as defined by Section 822.101, Health and Safety Code.

Second Degree Felony Range of Punishment - Texas Penal Code

§ 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 institutional division 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.

Class C Misdemeanor Range of Punishment - Texas Penal Code

§ 12.23. CLASS C MISDEMEANOR. 

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

 

 

Definition of Prostitution - Texas Penal Code

§ 43.02. PROSTITUTION. 

(a) A person commits an offense if he knowingly: 

            (1) offers to engage, agrees to engage, or engages in sexual conduct for a fee; or

            (2) solicits another in a public place to engage with him in sexual conduct for hire.

(b) An offense is established under Subsection (a)(1) whether the actor is to receive or pay a fee. An offense is established under Subsection (a)(2) whether the actor solicits a person to hire him or offers to hire the person solicited.

(c) An offense under this section is a Class B misdemeanor, unless the actor has previously been convicted one or two times of an offense under this section, in which event it is a Class A misdemeanor. If the actor has previously been convicted three or more times of an offense under this section, the offense is a state jail felony.

Definition of Intoxication for DWI - Texas Penal Code

§ 49.01. DEFINITIONS. In this chapter:

(2) "Intoxicated" means:
(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or
(B) having an alcohol concentration of 0.08 or more.

Definition of Assault - Texas Penal Code

§ 22.01. ASSAULT.

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

 (1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse;

 (2) intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse; or

 (3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.