Criminal Harassment in Texas – In Plain English

The crime of harassment is committed by taking deliberate action to inflict emotional distress upon another person, and there are several specific actions prohibited by the law. Unfortunately, the Texas harassment law is so complicated that even professional law enforcement officers sometimes get it wrong. The purpose of this page is to simplify the law into plain language.

Intent to Inflict Distress is Required

It is not enough to show that the defendant inflicted emotional distress negligently, recklessly, or even knowingly. [1]Culpable mental states are defined in Sec. 6.03 of the Texas Penal Code. To win a criminal conviction for harassment, the prosecution must prove that the defendant acted with specific intent to harass, annoy, alarm, abuse, torment, or embarrass the alleged victim.[2]Scott v. State, 322 S.W.3d 662, (Tex. Crim. App. 2010)

Eleven Ways to Commit Harassment

The statute contains seven numbered items describing eleven distinct means of committing harassment. You may have committed the crime of harassment if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another person:

  • You initiated communication and made an obscene comment, request, suggestion, or proposal.[3]”Obscene” means containing a patently offensive description of or a solicitation to commit an ultimate sex act, including sexual intercourse, masturbation, cunnilingus, fellatio, or anilingus, or a description of an excretory function. Texas Penal Code Sec. 42.07(b)(3)
  • You alarmed a person by threatening to hurt them in a manner that could cause physical pain.
  • You alarmed a person by threatening to commit a felony against them, their family, or their roommate.
  • You alarmed a person by threatening to commit a felony against their property.
  • You alarmed a person with a false report that someone had been killed or seriously injured, and you knew the report was false when you sent it.
  • You caused a person’s phone to ring repeatedly.
  • You made repeated phone communications anonymously.
  • You made repeated phone communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend an average person.
  • You made a phone call and intentionally failed to hang up.
  • You knowingly allowed someone else to use your phone to commit the crime of harassment.
  • You sent repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment,  embarrass, or offend an average person. [4]”Electronic communication” includes communication initiated through the use of electronic mail, instant message, network call, a cellular or other type of telephone, a computer, a camera, text message, a social media platform or application, an Internet website, any other Internet-based communication tool, or facsimile machine; and communication made to a pager. See Texas Penal Code Sec. 42.07(b)(1)

UPDATE: The Ft. Worth court of appeals recently declared the “repeated electronic communications” arm of the law “unconstitutionally overbroad and vague.”[5]Ex parte Barton, No. 02-17-00188-CR (Tex. App.—Fort Worth 2019) is currently before the Court of Criminal Appeals as PD-1123-19. The statute has since been amended but the new version is even broader. The court’s logic seems unnecessarily convoluted but I like the result.

Punishment Range Upon Conviction

In most situations, the maximum punishment for harassment is 180 days in the county jail and a fine up to $2,000. However, if a person who has previously been convicted of harassment is charged again, the level of the offense increases, and the maximum punishment becomes one year in the county jail and a fine up to $4,000.  The sentence can be probated for up to two years.

A person who commits the offense of harassment on more than one occasion and pursuant to the same course of conduct may be charged with the felony offense of stalking.  The punishment range for stalking is 2 to 10 years incarceration in the state penitentiary and a fine up to $10,000.  The sentence can be probated for up to 10 years.

What about Freedom of Speech?

The first half of the list of prohibited actions includes types of speech that are constitutionally unprotected, like obscenity, true threats, and false alarms. The second half of the list prohibits the bad behavior of misusing the tools of speech but is content-neutral with regard to actual speech.

The plain text of the law does NOT prohibit words that make a person feel harassed, annoyed, alarmed, abused, tormented, or embarrassed. Unfortunately, that is a mistake often made by law enforcement, prosecutors, and even judges. Criminal defense attorneys must identify this type of error and fight back with an “as-applied” challenge.

The intent of this page is to put the harassment law into simple language, but First Amendment jurisprudence is NOT simple! Please read our primer on the intersection of Freedom of Speech and harassment if you are concerned that Free Speech may be an issue in your case.


Call or text us at (512) 480-9020 to hire us for a harassment or stalking case in Austin, Texas.


References

References
1Culpable mental states are defined in Sec. 6.03 of the Texas Penal Code.
2Scott v. State, 322 S.W.3d 662, (Tex. Crim. App. 2010)
3”Obscene” means containing a patently offensive description of or a solicitation to commit an ultimate sex act, including sexual intercourse, masturbation, cunnilingus, fellatio, or anilingus, or a description of an excretory function. Texas Penal Code Sec. 42.07(b)(3)
4”Electronic communication” includes communication initiated through the use of electronic mail, instant message, network call, a cellular or other type of telephone, a computer, a camera, text message, a social media platform or application, an Internet website, any other Internet-based communication tool, or facsimile machine; and communication made to a pager. See Texas Penal Code Sec. 42.07(b)(1)
5Ex parte Barton, No. 02-17-00188-CR (Tex. App.—Fort Worth 2019) is currently before the Court of Criminal Appeals as PD-1123-19.