Burglary of a habitation is a second degree felony in Texas, punishable by two to twenty years in prison, and it rises to a first degree felony — five to ninety-nine years or life — when the intended offense inside was a felony other than felony theft. Burglary of a building that is not a habitation is a state jail felony. Nothing has to be stolen for either charge to stick. The offense is defined at Texas Penal Code Section 30.02.
What are the elements of burglary in Texas?
Section 30.02(a) sets out three separate ways to commit the offense, all of which require that the actor was without the effective consent of the owner. The first is entering a habitation, or a building or a portion of a building not then open to the public, with intent to commit a felony, theft, or an assault. The second is remaining concealed in a building or habitation with that same intent. The third is entering a habitation or building and then actually committing or attempting to commit a felony, theft, or an assault.
The first two are complete the moment the person crosses the threshold with the required intent. That is why a person can be convicted of burglary having taken nothing at all. The third way exists to cover the case where the State can prove what happened inside but cannot prove what the person was thinking on the way in.
What counts as entry?
Subsection (b) defines enter as intruding any part of the body, or any physical object connected with the body. Reaching an arm through a window is entry. So is pushing a tool through a gap in a door. There is no requirement of force, of breaking anything, or of the whole body going inside.
What is the difference between a habitation and a building?
Section 30.01 draws the line, and it is the single most important line in the chapter because it is worth several years of punishment range. A habitation is a structure or vehicle that is adapted for the overnight accommodation of persons, and it includes each separately secured or occupied portion of that structure or vehicle and each structure appurtenant to or connected with it. A building is any enclosed structure intended for use or occupation as a habitation or for some purpose of trade, manufacture, ornament, or use.
Under those definitions an occupied recreational vehicle can be a habitation, and an attached garage can be part of one. A detached storage shed, an office suite, and a retail store are buildings. Whether a structure was adapted for overnight accommodation is a fact question, not a label the State gets to assign.
What is the punishment range for burglary in Texas?
| Subsection | What was entered, and with what intent | Offense grade and punishment |
|---|---|---|
| (c)(1) | A building other than a habitation | State jail felony: 180 days to 2 years in a state jail, plus a fine up to $10,000 (Sec. 12.35) |
| (c)(2) | A habitation | Second degree felony: 2 to 20 years in TDCJ, plus a fine up to $10,000 (Sec. 12.33) |
| (c-1) | A commercial building where a controlled substance is generally stored — a pharmacy, clinic, hospital, nursing facility, or warehouse — entered or remained concealed in with intent to commit theft of a controlled substance | Third degree felony: 2 to 10 years in TDCJ, plus a fine up to $10,000 (Sec. 12.34) |
| (c-2) | A building other than a habitation, where the actor committed the offense in the course of an offense under Section 20.05(a)(2) | Third degree felony: 2 to 10 years in TDCJ, plus a fine up to $10,000 (Sec. 12.34) |
| (d) | A habitation, where any party to the offense entered with intent to commit, or committed or attempted to commit, a felony other than felony theft | First degree felony: life, or 5 to 99 years in TDCJ, plus a fine up to $10,000 (Sec. 12.32) |
Section 30.02 assigns the grade; the punishment numbers come from Chapter 12 of the Penal Code. Subsection (d) is worth reading twice. It is what turns a residential burglary into a first degree felony, and it applies if any party to the offense had the required intent — not only the person who went inside.
How is burglary different from theft?
Theft under Section 31.03 is about taking property, and its grade is set by what the property was worth. Burglary is about unlawful entry, and its grade is set by what was entered and what the person meant to do there. The two overlap constantly — most burglaries are charged because something was taken — but a person can be convicted of burglary with no property taken at all, and a burglary of a habitation is a second degree felony even where the property involved would only have supported a Class C theft. Our page on Texas Penal Code Section 31.03 covers the theft ladder.
Charged with burglary in Harris County?
Burglary cases turn on intent at the moment of entry, on whether consent was actually withheld, and on whether the structure really was a habitation. Those are all provable and disprovable facts, and the answer to each of them moves the punishment range by years. Call Blass Law at (713) 664-4000 or request a case evaluation.
Related: Houston burglary lawyer, Houston robbery lawyer, and Texas Penal Code Section 22.01, assault.
Reviewed by Jay Blass Cohen, founder of Blass Law PLLC — ACS-CHAL Forensic Lawyer-Scientist, certified Drug Recognition Expert, and SFST instructor, serving Houston since 2009. This article is general information, not legal advice for your situation. Prior results do not guarantee a similar outcome.