By: Flores, et al. S.B. No. 1300
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.