Can Sending Text Messages be a Crime in Texas?
One of the many ways a person can commit the misdemeanor crime of harassment is by sending two or more text messages with the specific intent to harass, annoy, alarm, abuse, torment, embarrass, or offend the recipient.
This page is written for people accused of sending unwanted messages.
Click here if you have been RECEIVING unwanted messages.
One of the ways to commit the felony offense of stalking is to commit harassment against the same person on two or more occasions.
Sending text messages can also amount to the criminal offense of violation of bond or protective order when communication with the message recipient is forbidden by either a protective order or by a condition of a jail-release bond in a case involving family violence, sexual assault, or stalking.
What Should I do if I am Accused of Harassment or Stalking?
A conviction on your criminal record for these types of offenses could inflict serious damage on your future opportunities. You must take a stalking accusation seriously because a felony conviction makes you virtually unemployable for many high-paying jobs.
If you are being prosecuted for stalking, you should expect your text messages to be subpoenaed from your phone company, taken out of context, and made to seem much worse than you intended. To provide the proper context, you should provide your defense team with a log of ALL messages you ever exchanged with the alleged victim, including private messages you never intended anyone else to read.
You should download one of the software applications that allow you to extract the text messages stored on your phone and save them to a computer. Many mobile phone companies do not save records of text messages so saving them to a computer gives you some protection if your mobile phone is lost, stolen, or accidentally damaged.
What is the Punishment for Harassment or Stalking?
Harassment is usually a class B misdemeanor punishable by up to 180 days in the county jail and a fine up to $2,000. However, when a person has previously been convicted of harassment, the charge is a Class A misdemeanor punishable by as much as one year in the county jail and a fine up to $4,000.
Stalking is usually a third-degree felony punishable by up to 10 years in the state penitentiary and a fine up to $10,000. However, when a person has previously been convicted of stalking, the charge may be a second-degree felony punishable by as much as 20 years in the state penitentiary and a fine up to $10,000. A conviction for stalking will probably come with a protective order that prevents any contact between the defendant and the alleged victim except through their attorneys. Also, convicted felons and people subject to a stalking protective order lose the right to possess a firearm or ammunition.
Probation may be an option depending on your criminal history. The maximum term of probation is 2 years for a misdemeanor and 10 years for a felony.
What Laws Apply to Annoying Text Messages?
Harassment is defined in Section 42.07 of the Texas Penal Code.
Stalking is defined in Section 42.072 of the Texas Penal Code.
A lifetime protective order based on stalking is described in Chapter 7A of the Texas Code of Criminal Procedure. These laws have recently been re-written under Chapter 7B, which takes effect on January 1, 2021.
No-Contact and Keep-Away orders as a condition of probation in stalking cases are issued in compliance with Article 42A.505 of the Texas Code of Criminal Procedure. Note: This part of the code was previously under Article 42.12 Sec. 11(L)(1) until 2017.
Convicted felons and people under a stalking protective order are prohibited from possessing firearms or ammunition by US Code Title 18 Section 922(g).
This section is provided for the benefit of other Texas criminal defense attorneys.
Admissibility of Text Messages
Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012)
Aekins v. State, 447 S.W.3d 270 (Tex. Crim. App. 2014)
Butler v. State, 459 S.W.3d 595 (Tex. Crim. App. 2015)
First Amendment (Free Speech) & “Repeated” Communications
Scott v. State, 322 S.W.3d 662, (Tex. Crim. App. 2010)
In Ex parte Barton the Forth Worth Court of Appeals ruled 42.07(a)(7) unconstitutional and that case is now before the Court of Criminal Appeals as PD-1123-19.
See also: Free Speech vs. Harassment and Stalking in Texas