Oooooops. I got this one wrong in my last post. Here’s the incorrect part:

Worst case scenario for stealing merchandise under $10 — Usually the answer would be a Class C misdemeanor, up to a $500 fine and no jail time possible, but… Enhanced with two prior thefts in Texas? State Jail felony, up to two years and a ten thousand dollar fine. Enhance that with two non-theft pen trips, three strikes you’re out, 25 to Life. (If you think I’m exaggerating, ask Leandro Andrade about his $153 theft. You did ask for worst case scenario, right?)

I’m cringing simply from reposting that; it’s just wrong, wrong, wrong. Houston defense lawyer Mark Bennett emailed me a few hours after the post went up:


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The Texas Penal Code has a “value ladder” for theft. Get yourself accused of stealing:

  • Less than $50   = Class C Misdemeanor – max $500 fine
  • $50 < $500         = Class B Misdemeanor – max 6 months in jail
  • $500 < $1500    = Class A Misdemeanor – max 1 year in jail (but see)

Et cetera, et cetera. Theft of $1500 up to $20,000 is a State Jail Felony and it just keeps on going up and up from there. This makes some sense. After all, stealing a nickel from me somehow seems less egregious than ripping me off for a whole lot of money.

But the Texas Legislature meets every two years, and there’s nothing better for your re-election campaign eighteen months after the session ends than going back home and telling your constituents that you got “Tough on Crime”. So let’s tweak those criminal laws, shall we?

What if someone steals a [Gasp! Fill-in-the-Blank… but it’s not really valued as much as it should be!] and only gets punished as if they stole something with an equivalent monetary value? Why they’d be getting away with something, and goodness knows you Don’t Mess With Texas.

So throughout the years, several extra important things have been super-criminalized in Texas. The prosecutor won’t need to prove the value of the property stolen: if you stole it, extra punishment will come.


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Given the state of the economy, it’s no surprise that everyone’s favorite curmudgeon Andy Rooney chose to speak about “thriftiness” last night. To be more like Andy you can:

  • Make your own coffee at work, and save $1.50
  • Ride the bus to the Giants home games costing $4.40 both ways, saving yourself the $8 fee for

If you are the clerk at the 7/11 around the corner from my home or my office, then you probably know me. Sometimes that convenience store price premium is worth not fighting the lines at HEB. Bottom line? If you’re the one behind the register, you probably recognize me.

Coffee in the morning, fountain drinks in the afternoon. My

Question:  I recently received a citation with a violation of "theft under $50′.

The police officer advised me to go to court and appear before the judge and pay the fine.  However I am not sure if I pay my fine, will my background check always reveal this offense?

How can I go about getting this erased from my records? Should I plead Not Guilty?

Answer: I feel obligated to mention that the police officer should not be giving advice of this sort to people he writes citations (or anyone else for that matter). Nothing will come of that though, so on to your real questions…

Should I plead ‘Not Guilty’? Absolutely. “Just” paying the fine, as the officer advised you, is a plea of guilty or no contest, and will result in a permanent criminal conviction for theft on your record forever.

A conviction for theft is a ‘crime involving moral turpitude’…meaning basically that you are being convicted of something that labels you as either (1) a bad person or (2) a person who did a bad thing, depending on who is doing the defining. (I, however, am a criminal defense attorney, and not one given to making moral judgments about other people, so you’re going to have to try a lot harder than Class C Theft to offend me.)

If you enter a plea of Not Guilty, however, you will probably be given the opportunity to enter into a deferred disposition, jump through some hoops, and get the case dismissed. Successful completion of a Class C deferred will then entitle you to expunge the offense from your record – although, recent caselaw indicates that you may have to wait 2 years to do so. Still, no conviction, and an expunction in two years is better than a theft conviction on your record for life.


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Question (from an email): Can a person be charged with theft (class b misdemeanor) if merchandise was not found on a person? Or is this considered attempted theft? If so what is the difference and maximum punishment for each?

Reply: Can you give me more details?  (What happened exactly?)

Maybe I can give you a