Relating to the prosecution and punishment of the criminal offense of organized retail theft; increasing criminal penalties.

89(R) HB 3167 - Introduced version - Bill Text

89R9191 JRR-F

By: Cook

H.B. No. 3167

A BILL TO BE ENTITLED

AN ACT

relating to the prosecution and punishment of the criminal offense

of organized retail theft; increasing criminal penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Chapter 21, Code of Criminal Procedure, is

amended by adding Article 21.155 to read as follows:

Art.

21.155.

ORGANIZED RETAIL THEFT. (a) In this article,

"merchant" has the meaning assigned by Section 31.01, Penal Code.

(b)

Notwithstanding Article 21.09, an indictment or

information in the prosecution of an offense under Section 31.16,

Penal Code, shall not be held insufficient for failure to name or

describe each item of property stolen. It shall be sufficient to

name the merchant and, if the offense level is based on a value of

the property stolen, the aggregate value range of the stolen

property applicable to the offense being alleged.

SECTION 2. Chapter 38, Code of Criminal Procedure, is

amended by adding Article 38.51 to read as follows:

Art.

38.51.

EVIDENCE IN PROSECUTION FOR ORGANIZED RETAIL

THEFT. (a) In this article, "merchant" and "retail merchandise"

have the meanings assigned by Section 31.01, Penal Code.

(b)

In the prosecution of an offense under Section 31.16,

Penal Code:

(1)

if issues of intent, knowledge, and whether the

defendant was acting in concert with one or more other persons are

raised by the defendant's plea of not guilty, evidence that the

defendant has participated in any theft offense, other than a theft

offense that forms the basis of the offense under Section 31.16,

Penal Code, on which the prosecution is based, is admissible:

(A)

for the purpose of showing intent or

knowledge; or

(B)

as evidence that the defendant was acting in

concert with one or more other persons;

(2)

the unaltered price tag or other marking on retail

merchandise identifying the price of the retail merchandise is

prima facie evidence of the value of the retail merchandise for

purposes of Section 31.08(a-1), Penal Code; and

(3)

a price tag or other marking described by

Subdivision (2) that identifies or is unique to a merchant is prima

facie evidence of the merchant's ownership of the retail

merchandise.

SECTION 3. Section 31.01, Penal Code, is amended by

amending Subdivision (11) and adding Subdivision (15) to read as

follows:

(11) "Retail merchandise" means one or more items of

tangible personal property displayed, held, stored, or offered for

sale
by a merchant
[
in a retail establishment
].
The term includes a

gift card.

(15)

"Merchant" means any business that sells items to

the public.

SECTION 4. Section 31.08, Penal Code, is amended by

amending Subsections (a), (c), and (d) and adding Subsection (a-1)

to read as follows:

(a) Subject to the additional criteria of Subsections

(a-1),
(b)
,
and (c), value under this chapter is:

(1) the fair market value of the property or service at

the time and place of the offense; or

(2) if the fair market value of the property cannot be

ascertained, the cost of replacing the property within a reasonable

time after the theft.

(a-1)

In the prosecution of an offense under Section 31.16

involving retail merchandise stolen from a merchant, the value of

the stolen retail merchandise is:

(1)

the sales price of the retail merchandise as

stated, posted, or advertised by the merchant, including applicable

sales tax, at the time of the offense; or

(2)

the rental price of the retail merchandise as

stated, posted, or advertised by the merchant, including applicable

sales tax, at the time of the offense plus the cost of replacing the

retail merchandise within a reasonable time after the offense.

(c) If property or service has value that cannot be

reasonably ascertained by the criteria set forth in Subsections

(a)
, (a-1),
and (b), the property or service is deemed to have a

value of $750 or more but less than $2,500.

(d) If the actor proves by a preponderance of the evidence

that
the actor
[
he
] gave consideration for or had a legal interest

in the property or service stolen, the amount of the consideration

or the value of the interest so proven shall be deducted from the

value of the property or service ascertained under Subsection (a),

(a-1),
(b), or (c) to determine value for purposes of this chapter.

SECTION 5. Section 31.16, Penal Code, is amended to read as

follows:

Sec. 31.16. ORGANIZED RETAIL THEFT.
(a)
[
(b)
] A person

commits an offense if the person
:

(1)

acting in concert with one or more other persons,

unlawfully appropriates retail merchandise, money, or other

property from a merchant with the intent to deprive the merchant of

the property;

(2)

on two or more occasions within a 180-day period,

unlawfully appropriates retail merchandise, money, or other

property from a merchant with the intent to deprive the merchant of

the property;

(3)

knowingly obtains a benefit from conduct

constituting an offense under Subdivision (1) or (2) that was

committed by another person; or

(4)

knowingly acts in concert with one or more other

persons to overwhelm the security response of a merchant or a peace

officer for the purpose of committing an offense under Subdivision

(1) or (2) or avoiding detection or apprehension for the offense

[
intentionally conducts, promotes, or facilitates an activity in

which the person receives, possesses, conceals, stores, barters,

sells, or disposes of:

[
(1) stolen retail merchandise; or

[
(2)

merchandise explicitly represented to the person

as being stolen retail merchandise
].

(b) In the prosecution of an offense under this section:

(1)

Sections 31.03(b) and (c) apply to the offense for

purposes of determining whether property was unlawfully

appropriated from a merchant; and

(2)

a person is presumed to have acted with the intent

to deprive a merchant of retail merchandise if the person:

(A)

altered or removed a label, universal product

code, price tag, or retail theft detector for retail merchandise;

or

(B)

transferred retail merchandise from the

merchandise's packaging into other packaging.

(c)
It is not a defense to prosecution under this section

that:

(1)

a person who acted in concert with the actor has

not been charged, convicted, apprehended, or identified;

(2)

the offense occurred as a result of a deception or

strategy on the part of a law enforcement agency, including the use

of an undercover operative or peace officer;

(3)

the actor was provided by a law enforcement agency

with a facility in which to commit the offense or an opportunity to

engage in conduct constituting the offense; or

(4)

the actor was solicited to commit the offense by a

peace officer, and the solicitation was of a type that would

encourage a person predisposed to commit the offense to actually

commit the offense but would not encourage a person not predisposed

to commit the offense to actually commit the offense.

(d)
An offense under this section is:

(1) a Class
B
[
C
] misdemeanor if the total value of the

property
[
merchandise
] involved in the
offense
[
activity
] is less

than $100;

(2) a Class
A
[
B
] misdemeanor if the total value of the

property
[
merchandise
] involved in the
offense
[
activity
] is $100

or more but less than $750;

(3) a
state jail felony
[
Class A misdemeanor
] if the

total value of the
property
[
merchandise
] involved in the
offense

[
activity
] is $750 or more but less than $2,500;

(4) a [
state jail
] felony
of the third degree
if the

total value of the
property
[
merchandise
] involved in the
offense

[
activity
] is $2,500 or more but less than $30,000;

(5) a felony of the
second
[
third
] degree if the total

value of the
property
[
merchandise
] involved in the
offense

[
activity
] is $30,000 or more but less than $150,000;

(6) a felony of the
first
[
second
] degree if the total

value of the
property
[
merchandise
] involved in the
offense

[
activity
] is $150,000 or more but less than $300,000; or

(7) a felony of the first degree
punishable by

imprisonment in the Texas Department of Criminal Justice for life

or for any term of not more than 99 years or less than 15 years, and

a fine not to exceed $250,000,
if the total value of the
property

[
merchandise
] involved in the
offense
[
activity
] is $300,000 or

more.

(e)

For purposes of enhancement of penalties under

Subchapter D, Chapter 12, a person is considered to have been

convicted of an offense under this section if the person was

adjudged guilty of the offense or entered a plea of guilty or nolo

contendere in return for a grant of deferred adjudication community

supervision, regardless of whether the sentence for the offense was

ever imposed or whether the sentence was probated and the person was

subsequently discharged from community supervision

[
(d)

An offense described for purposes of punishment by

Subsections (c)(1)-(6) is increased to the next higher category of

offense if it is shown on the trial of the offense that:

[
(1)

the person organized, supervised, financed, or

managed one or more other persons engaged in an activity described

by Subsection (b); or

[
(2)

during the commission of the offense, a person

engaged in an activity described by Subsection (b) intentionally,

knowingly, or recklessly:

[
(A)

caused a fire exit alarm to sound or

otherwise become activated;

[
(B)

deactivated or otherwise prevented a fire

exit alarm or retail theft detector from sounding; or

[
(C)

used a shielding or deactivation instrument

to prevent or attempt to prevent detection of the offense by a

retail theft detector
].

SECTION 6. The changes in law made by this Act apply only to

an offense committed on or after the effective date of this Act. An

offense committed before the effective date of this Act is governed

by the law in effect on the date the offense was committed, and the

former law is continued in effect for that purpose. For purposes of

this section, an offense was committed before the effective date of

this Act if any element of the offense occurred before that date.

SECTION 7. This Act takes effect September 1, 2025.