How does Texas decide how serious a theft or burglary charge is?
By two different measures. Theft under §31.03 is graded by the value of what was taken, on a ladder that runs from a Class C fine to a first degree felony. Burglary under §30.02 is graded by what was entered, and entering a habitation is a second degree felony before anything is taken at all. That difference is why a burglary count is usually the heavier exposure even when nothing was stolen. Peter M. Barrett has defended Texas criminal cases since 1994. The case review is free and confidential.
- Burglary does not require a theft. §30.02 is complete on entry with the required intent.
- A habitation changes everything. Entering one is a second degree felony, and a first degree felony where the intent was a felony other than theft.
- Theft is a value ladder. §31.03 moves with the amount, which makes valuation a live argument rather than a given.
- Amounts can be aggregated. Separate small takings can be charged as one larger offense, which moves the grade.
- Vehicle burglary is its own statute. §30.04, separate from burglary of a building.
- Taking a car is often not theft. Unauthorized use under §31.07 is a different offense with a different element.
Theft and burglary are charged together often enough that people assume they are the same family of offense. They are not. One is about what was taken and what it was worth. The other is about crossing a threshold with a particular intention, and it is complete the moment that happens. Understanding which one the State has actually charged, and on what facts, is where a defense starts.
The charges this firm defends
- Theft, §31.03, from shoplifting at the Class C end to first degree felony amounts.
- Burglary of a habitation, §30.02, the second degree felony that rises to first degree on certain intents.
- Burglary of a building, also §30.02, graded differently from a habitation.
- Burglary of a vehicle, §30.04, which is its own offense and its own ladder.
- Criminal trespass, §30.05, which is sometimes the honest description of what happened.
- Unauthorized use of a vehicle, §31.07, the charge that car cases often belong in rather than theft.
Theft that is really a financial or business allegation, including employee theft, embezzlement and identity theft, is handled on the white collar defense side, where the evidence is documents rather than scenes.
Where these cases are actually won
Value. Because §31.03 grades by amount, the State's valuation is an element, not background. Replacement cost, retail price and actual market value are not the same number, and the difference can move a case across a grade boundary.
Intent at the threshold. Burglary requires the intent at the time of entry. Someone who entered for one reason and formed a different intention later has not committed the offense the State has charged, whatever else they may have done.
What counts as a habitation. The grade turns on it, and the answer is not always obvious for garages, outbuildings, vehicles adapted for overnight use and premises in transition.
Consent and authority. Many theft allegations between people who know each other are really disputes about permission. That is a defense, and it is also a reason these cases are sometimes better resolved early.
What a conviction costs
A Class A misdemeanor theft carries up to one year in county jail and a fine of up to $4,000 under §12.21. A state jail felony is 180 days to 2 years under §12.35, and a third degree felony is 2 to 10 years under §12.34. Burglary of a habitation starts higher than any of those. Beyond the sentence, theft is a crime of dishonesty, and that label follows people into employment and licensing in a way that other convictions of the same grade do not.
Why people hire Peter Barrett for theft and burglary cases
Peter M. Barrett has practised Texas criminal defense since 1994 and has tried more than 150 cases to a jury. He is AV Preeminent rated by Martindale-Hubbell, holds a 10.0 rating on Avvo, and has been named to Super Lawyers each year from 2022 to 2026.
No outcome can be assured in any case. What can be done is to test the valuation, the intent and the identification, because property cases are built on all three and each of them is arguable.
Common questions
Can I be charged with burglary if I did not take anything?
Yes. Under §30.02 the offense is complete on entering without consent with the intent to commit a felony, theft or an assault. Nothing has to be taken and nothing has to be damaged. That is why burglary counts are often graded above the theft counts filed with them.
How does Texas decide the level of a theft charge?
By the value of the property under §31.03, on a ladder that runs from a Class C misdemeanor at the lowest amounts to a first degree felony at the highest. Because the grade moves with the number, how the property was valued is a genuine issue in the case rather than a formality.
Is taking a car always theft?
No. Unauthorized use of a vehicle under §31.07 covers operating someone else's vehicle without consent, and it does not require the intent to deprive the owner permanently that theft does. Which statute fits is a real question in many vehicle cases, and the answer changes the exposure.
What makes a building a habitation?
It matters a great deal, because burglary of a habitation is graded above burglary of a building. The question is whether the structure was adapted for overnight accommodation, which is not always clear for garages, outbuildings and vehicles fitted out for living. It is a frequent point of argument.
Can several small thefts be charged as one big one?
Yes. Texas allows amounts obtained in a continuing course of conduct to be aggregated and charged as a single offense, which can lift a group of misdemeanor-level takings into felony territory. Whether the episodes really form one course of conduct is open to challenge.
Will a theft conviction show on a background check?
Yes, and theft carries the added weight of being treated as an offense of dishonesty by employers and licensing bodies. Whether a particular outcome can later be sealed or cleared depends on how the case was resolved, which is one reason the disposition matters as much as the sentence.
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.