Criminal defense in Austin Texas.

Are You A Felon?

Posted By on September 12, 2009

Well, one Craig’s listing, one Friday afternoon, and $100 later I’m back online, upgraded, and – incredibly – all 300K + spam comments are gone from my database.  (Thanks Bob!)  I even sort of understand what I did wrong the first time.

To celebrate, I’m going to talk about how incredibly thick-headed & hypocritical our Texas legislature is.  Ever write something on your desk when you were in high school?  Guess what?

You’re a felon.

Or you would be, if you did it today, in Texas.

Sec. 28.08.  GRAFFITI.  (a) A person commits an offense if, without the effective consent of the owner, the person intentionally or knowingly makes markings, including inscriptions, slogans, drawings, or paintings, on the tangible property of the owner with:
(1)  aerosol paint;
(2)  an indelible marker; or
(3)  an etching or engraving device.
(b)  Except as provided by Subsection (d), an offense under this section is:
(1)  a Class B misdemeanor if the amount of pecuniary loss is less than $500;
(2)  a Class A misdemeanor if the amount of pecuniary loss is $500 or more but less than $1,500;
(3)  a state jail felony if the amount of pecuniary loss is $1,500 or more but less than $20,000;
(4)  a felony of the third degree if the amount of pecuniary loss is $20,000 or more but less than $100,000;
(5)  a felony of the second degree if the amount of pecuniary loss is $100,000 or more but less than $200,000; or
(6)  a felony of the first degree if the amount of pecuniary loss is $200,000 or more.
(c)  When more than one item of tangible property, belonging to one or more owners, is marked in violation of this section pursuant to one scheme or continuing course of conduct, the conduct may be considered as one offense, and the amounts of pecuniary loss to property resulting from the marking of the property may be aggregated in determining the grade of the offense.
(d)  An offense under this section is a state jail felony if:
(1)  the marking is made on a school, an institution of higher education, a place of worship or human burial, a public monument, or a community center that provides medical, social, or educational programs; and
(2)  the amount of the pecuniary loss to real property or to tangible personal property is less than $20,000.
(e)  In this section:
(1)  “Aerosol paint” means an aerosolized paint product.
(2)  “Etching or engraving device” means a device that makes a delineation or impression on tangible property, regardless of the manufacturer ’s intended use for that device.
(3)  “Indelible marker” means a device that makes a mark with a paint or ink product that is specifically formulated to be more difficult to erase, wash out, or remove than ordinary paint or ink products.
(4)  “Institution of higher education” has the meaning assigned by Section 481.134, Health and Safety Code.
(5)  “School” means a private or public elementary or secondary school.


Of course, kids don’t usually get arrested for graffiti.  For one thing, they don’t usually know who did it.  (In my case, the kid signed his name, which made things a little easier for them.  Plus, the would-be object of his affections was not so fond of him – she ratted him out when they came to talk to her.)  In any case, police and prosecutors are expected to use discretion.  Which you can read as code for not arresting the kids of rich & powerful people.

Which is why legislators  feel comfortable passing laws like this in the first place – they expect other people’s kids to get arrested for it.  Not their kids.

Another story about Texas Penal Code 28.08.

In my case the kid did not get the felony conviction he “deserved” to get under Sec. 28.08.  But honestly, he was lucky.  He didn’t “get off” because he wasn’t guilty.  Or because they couldn’t prove it.   Had it happened in another county – say Williamson County, for example, instead of Austin – he might not have been so lucky.


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