What is theft of service in Texas?
It is taking the benefit of work or a rental you knew had to be paid for, while intending not to pay. Penal Code §31.04 covers four routes: securing a service by deception, threat or false token, diverting someone else's services, holding rented property past the rental period, and simply failing to pay after notice. It is graded on the value of the service, from a Class C misdemeanor under $100 to a first degree felony at $300,000 or more. In most contested cases the live question is not whether money is owed. It is whether a proper written notice demanding payment was ever given.
- Notice is the hinge. The (a)(4) offense and most of the presumptions in §31.04(b) only operate once written notice has been given in the form the statute requires.
- Since 1 September 2025, notice for the non-payment route may go by e-mail or text message, added by H.B. 3463. That is a real loosening, and it applies to that route only.
- The rental presumptions still require certified mail or commercial delivery. §31.04(c) was not given the e-mail option, so the two notice regimes are different.
- It reaches employers, not just customers. §31.04(d-3) says partial payment of wages alone does not negate intent to avoid payment.
- Rent-to-own is carved out of the rental route by §31.04(d-2).
- A post-dated check is a defense under §31.04(g) where the other side presented it early.
- Amounts aggregate. §31.09 lets one scheme be charged as a single offense with the amounts added together, which is how an invoice dispute becomes a felony.
This statute covers an unusually wide field: a walked restaurant bill, an unreturned rental tool, a contractor paid in advance, a customer who refuses a final invoice, and an employer who does not pay a crew. The facts often look like a civil dispute, and sometimes they are one. Peter M. Barrett has defended Dallas County cases since 1994, across more than 150 jury trials, and the case review is free and confidential. This guide sets out what §31.04 requires.
The four routes to the offense
All four share the same mental state: acting with intent to avoid payment for a service the person knows is provided only for compensation.
| Subsection | Conduct |
|---|---|
| §31.04(a)(1) | Intentionally or knowingly securing performance of the service by deception, threat, or false token |
| §31.04(a)(2) | Having control over the disposition of another's services, to which the actor is not entitled, and diverting them to the actor's benefit or to someone else not entitled to them |
| §31.04(a)(3) | Having personal property under a written rental agreement and holding it beyond the rental period without the owner's effective consent, depriving the owner of its use in further rentals |
| §31.04(a)(4) | Securing performance by agreeing to pay and, after the service is rendered, failing to make full payment after receiving notice demanding payment |
The presumptions in subsection (b)
Intent is the hard element, so the statute supplies situations in which it is presumed. Under §31.04(b), intent to avoid payment is presumed where the person:
- absconded without paying, or expressly refused to pay, where payment is ordinarily made immediately on the service being rendered. The statute names hotels, campgrounds, recreational vehicle parks and restaurants as the examples.
- failed to pay within 10 days after receiving notice demanding payment under a service agreement.
- returned rented property late and then failed to pay the rental charge within 10 days after notice.
- failed to return rented property after notice demanding return, within five days if it is worth under $2,500, three days if $2,500 or more but under $10,000, and two days if $10,000 or more.
- failed to return property under a rent-to-own style agreement within five business days after notice, and has made fewer than three complete payments. Under §31.04(d-5), a business day excludes Sunday and state or federal holidays.
A presumption is not a finding. It shifts what the defense has to engage with; it does not relieve the State of proving the elements. And every one of these presumptions except the first depends entirely on notice.
Notice, and the change that took effect in 2025
This is the part worth reading twice, because the statute now runs two different notice regimes and they are not interchangeable.
| §31.04(b-1), for the (a)(4) non-payment offense | §31.04(c), for the (b)(2), (b)(4) and (b)(5) presumptions | |
|---|---|---|
| Must be in writing | Yes | Yes |
| Permitted delivery | Registered or certified mail with return receipt, commercial delivery service, e-mail, or text message | Registered or certified mail with return receipt, or commercial delivery service only |
| Must be sent to | The mailing address, e-mail address, phone number or other contact shown on the rental or service agreement, the provider's records, or the check used | The mailing address shown on the same three sources |
| Presumed received | Not later than 2 days after sending | 2 days, or 5 days for the (b)(4)(A) and (B) and (b)(5) presumptions |
H.B. 3463 added subsection (b-1) with effect from 1 September 2025. Before it, every notice under this section had to go by registered or certified mail or by commercial delivery. A demand for payment may now arrive by text message, provided the number is one shown on the agreement, the provider's records or the check.
Two practical consequences follow. For a complainant, the non-payment route is now much easier to trigger. For the defense, the question becomes precise and checkable: was the address or number actually one of the three sources the statute names, and can the sending be proved? An e-mail to an address the provider simply had on file from somewhere else does not satisfy the subsection as written.
The value ladder
| Value of the service stolen | Level | Range |
|---|---|---|
| Under $100 | Class C misdemeanor | Fine up to $500 |
| $100 to under $750 | Class B misdemeanor | Up to 180 days, fine up to $2,000 |
| $750 to under $2,500 | Class A misdemeanor | Up to 1 year, fine up to $4,000 |
| $2,500 to under $30,000 | State jail felony | 180 days to 2 years |
| $30,000 to under $150,000 | 3rd degree felony | 2 to 10 years |
| $150,000 to under $300,000 | 2nd degree felony | 2 to 20 years |
| $300,000 or more | 1st degree felony | 5 to 99 years or life |
The ladder matches theft under §31.03 exactly, and the felony line sits at $2,500. On a commercial job that is not a large number, which is why disputes that feel civil can carry felony exposure.
Aggregation is what makes these cases felonies
§31.09 provides that where amounts are obtained in violation of Chapter 31 under one scheme or continuing course of conduct, whether from the same or several sources, the conduct may be treated as one offense and the amounts added together to set the grade.
So a series of unpaid invoices, or several customers on the same job, can be charged as a single felony rather than as separate misdemeanors. Whether the conduct really was one scheme, rather than a run of separate transactions that went wrong for separate reasons, is a genuine issue and often the difference between a misdemeanor and a state jail felony.
One related provision closes an argument people reach for: §31.10 says it is no defense that the actor has an interest in the property or service. A part owner, a partner or someone owed money on the same job cannot rely on that interest alone.
The wage route, which is less well known
§31.04 is usually described as a customer offense. It is not confined to that. Where an employer secures work by agreeing to pay and then does not pay after notice, the (a)(4) route is available against the employer, and §31.04(d-3) is written for exactly that situation:
- where compensation is paid periodically, the intent to avoid payment may be formed at any time during or before a pay period;
- partial payment of wages alone is not sufficient evidence to negate the intent to avoid payment; and
- "service" for this route does not include leasing personal property under a rent-to-own agreement.
The second of those is the striking one. Paying something, but not the balance, does not by itself answer the charge.
Rent-to-own is carved out of the rental route
§31.04(d-2) says that for the (a)(3) rental offense, a "written rental agreement" does not include an agreement that lets an individual use personal property for personal, family or household purposes for an initial period, renews automatically with each payment, and lets the individual become the owner. In other words the ordinary rent-to-own contract.
Those agreements are instead reached through the (b)(5) presumption and the diversion route in (a)(2), and §31.04(d-4) gives a defendant a way out of the presumption: it may be refuted by showing the defendant intended to return the property and was unable to.
Where these cases are fought
- Notice. Whether it was written, sent by a permitted method for that subsection, and sent to an address or number the statute actually names. This is the single most productive issue in the section.
- Intent to avoid payment, at the right time. A business that ran out of money after taking a job is in a different position from one that never meant to pay, and the sequence of the accounts usually shows which.
- The post-dated check defense. §31.04(g) is a complete defense where the service was secured by a post-dated check or similar sight order and the other side presented it before the date on it.
- Value. The figure claimed sets the grade, and a disputed invoice is not the same as a proved value.
- Aggregation. Whether several transactions really were one scheme.
- Whether this is a crime at all. A genuine quality dispute, a withheld final payment over defective work, or a contract argument is civil. The criminal statute requires an intent to avoid payment, not a disagreement about what was owed.
Disposition
§31.04 appears on neither the art. 42A.054(a) list of offenses for which a judge may not order community supervision, nor among the offenses excluded from deferred adjudication by art. 42A.102(b), so both routes are legally available. Restitution usually drives the outcome: where the amount is paid and the complainant is made whole, the posture of the case changes substantially, and that is worth exploring before a plea rather than after one.
Is theft of service a felony in Texas?
It depends on the value of the service. Under Penal Code §31.04(e) it is a Class C misdemeanor under $100, a Class B at $100 to under $750, a Class A at $750 to under $2,500, a state jail felony at $2,500 to under $30,000, a third degree felony at $30,000 to under $150,000, a second degree felony at $150,000 to under $300,000, and a first degree felony at $300,000 or more. Amounts from one scheme can be aggregated under §31.09.
Can they charge me if I never got a demand letter?
For the main non-payment route, no. §31.04(a)(4) requires that the person failed to make full payment after receiving notice demanding payment, and §31.04(b-1) sets out the form that notice must take. Most of the presumptions in §31.04(b) also depend on notice. Whether a proper notice was given, and by a permitted method, is the first thing to check.
Can the demand for payment be sent by text message?
Since 1 September 2025, yes, for the §31.04(a)(4) non-payment offense. H.B. 3463 added §31.04(b-1), which permits written notice by registered or certified mail, commercial delivery service, e-mail or text message, sent to a contact shown on the agreement, the provider's records or the check used. The separate notice rule in §31.04(c), which governs the rental-return presumptions, was not changed and still requires certified mail or commercial delivery.
Is a contractor dispute theft of service?
Not by itself. The offense requires an intent to avoid payment for a service known to be provided only for compensation. A genuine argument about the quality of work, a withheld final payment over defects, or a contract disagreement is a civil matter. What turns it criminal is evidence that the person never intended to pay, and under §31.09 a series of transactions under one scheme can be aggregated to raise the grade.
Does theft of service apply to unpaid wages?
It can. The §31.04(a)(4) route is not limited to customers, and §31.04(d-3) is written with periodic compensation in mind: the intent to avoid payment may be formed at any time during or before a pay period, and partial payment of wages alone is not sufficient evidence to negate that intent. Paying part of what is owed does not by itself answer the charge.
What if I gave a post-dated check?
§31.04(g) gives a defense where the defendant secured the service by giving a post-dated check or similar sight order and the person performing the service, or anyone else, presented it before the date written on it. That is a complete defense to prosecution under the section, not merely a mitigating fact.
I rented something and returned it late. Is that a crime?
Returning late is not automatically the offense. §31.04(a)(3) requires holding the property beyond the rental period without the owner's effective consent, with intent to avoid payment, and depriving the owner of its use in further rentals. Where the property was returned late, the relevant presumption is that intent is presumed if the rental charge then goes unpaid for 10 days after a proper notice. Rent-to-own agreements are excluded from this route entirely by §31.04(d-2).
Does it matter that I was owed money too?
Not on its own. §31.10 states that it is no defense to prosecution under Chapter 31 that the actor has an interest in the property or service. A partner, part owner or someone owed money on the same job cannot rely on that interest by itself, although the surrounding facts may still bear on whether there was any intent to avoid payment.
This page is general legal information about Texas law, not legal advice about your case. Reading it does not create an attorney-client relationship. Laws change, so confirm the current rule with a licensed Texas criminal defense attorney about your specific facts. Request a free, confidential case review.