How is shoplifting charged in Texas?
There is no charge known as shoplifting in Texas. Most cases where items are stolen from a retail store are simply charged as theft (attorneys refer to “shoplifting” as a specific type of theft). For first-time shoplifting cases, the offense level will be based on the amount that is alleged to have been stolen: Under $100 is a class C misdemeanor, between $100-$750 is a class B misdemeanor, between $750-2500 is a class A misdemeanor, between $2500-30,000 is a State Jail Felony, between $30,000-150,000 is a third-degree felony, between $150,000-$300,000 is a second-degree felony, and anything over $300,000 is a first-degree felony. Almost all shoplifting cases filed in the State of Texas and the Houston area are filed as misdemeanors.
How do I keep a shoplifting case off of my record?
As with all criminal cases, in order to protect your record, it is best to obtain a dismissal or an acquittal of a shoplifting charge. If your case is dismissed, or if you are found “not guilty” at trial, you will likely be eligible for an expunction. The best possible result in a criminal case is an expunction, since an expunction of a shoplifting case results in the destruction of all records pertaining to your arrest. After your shoplifting case is expunged, you will even be permitted to deny the existence of the arrest in most instances (on a job application, for example). But it is important to understand that in order to be eligible for an expunction, you must get your case dismissed, or go to trial and be acquitted (aka a verdict of “not guilty”).
Shoplifting cases are dismissed for several reasons. If the evidence against you is weak, or if evidence is lost, or if a witness is unavailable, your shoplifting case might be dismissed. Occasionally, if the police interrogated you after you were under arrest but did not advise you of your Miranda rights, that may lead to the dismissal of your case. Also, as discussed below, in many places, including the Greater Houston area, you might be able to convince the prosecutor to dismiss the case by offering you a pre-trial diversion.
If your shoplifting case is not dismissed, or if you are not acquitted, then the only way to keep it “off” of your record in some form, is by successfully completing a deferred adjudication probation. If you complete deferred adjudication probation, you may be eligible to have your record sealed (also known as a “non-disclosure”). Getting your records sealed prevents certain private entities (but usually not the government) from seeing that you were arrested for shoplifting but does not result in the destruction of the records of the arrest. Although getting your records sealed not as good as an expunction, in many cases it will be just as good and even allow you to deny the existence of the arrest in many cases.
What is the total cost of a shoplifting case?
In the Greater Houston area, most experienced attorneys will charge at least $3000-7000 for a first-time theft or shoplifting case. High-profile attorneys may charge as much as $10,000. In many cases, trial is an additional fee. When hiring an attorney, it is important to hire an experienced criminal defense attorney who has handled the particular type of case, as well as experience working in the courts of the county where the case is filed.
Other than the cost of a criminal defense lawyer, your will have to pay bond. Fortunately, in Houston, for many misdemeanors, you may be eligible for a pretrial bond, which is essentially free. You may still have to pay a small amount of supervision fees or fees for drug testing, depending on what the judge orders. If you end up on probation for your shoplifting case, there are typically monthly supervision fees, as well as a fine and the costs of classes you may be ordered to take as a condition of your probation.
How do I get my shoplifting case dismissed?
In order to get your shoplifting case dismissed, your attorney will typically first need to obtain the evidence. In most shoplifting cases, this will include, at a minimum, an offense report and a surveillance video. Often there will also be a 911 call and body cameras.
Once your attorney obtains all of the evidence, he can evaluate the case and advise you on what the best strategy might be for keeping a conviction off of your record. If the State’s case is weak, a defense attorney might share the reasons why with a prosecutor in the hopes of getting the case dismissed.
The strategy to defend a shoplifting case will vary with the facts of the case. Recently, our law firm represented a Houston mother who was in a grocery store with two children and forgot to pay for two items that were in the bottom of her shopping basket. She was charged with theft but insisted that she simply forgot and did not intend to steal. Knowing that we had a sympathetic prosecutor, our law firm sent her to a polygraph examiner and shared the results with the prosecutor who agreed to dismiss the case. Obviously, this will not be the correct strategy in every theft case, but an effective criminal defense attorney should have the experience to find the best strategy for the facts of your case.
As in the above example, most defenses in shoplifting cases have to do with a lack of intent to steal. Under Texas law, a person must act with the intent to steal to be guilty of any type of theft, including shoplifting. This means that if a shoplifting defense lawyer can show that you did not intend to steal, your case could be dismissed.
Even where the evidence against a defendant is strong, it is sometimes possible to negotiate an informal dismissal if certain conditions are met (like community service or a donation to a food bank). As discussed below, most counties in the Greater Houston area offer pre-trial diversion programs that can result in the dismissal of a case. Whether your case is dismissed due to a problem with the facts or because your attorney is able to negotiate a dismissal, you would be eligible to have your shoplifting case expunged, which is the ultimate goal in a theft case.
Do stores build cases on shoplifters?
Most large department stores have trained loss prevention personnel whose main goal is to prevent shoplifters. Some stores are more aggressive than others. In Houston, stores like HEB and Wal-Mart are known to prosecute all shoplifters. According to some reports, other large retailers, like Whole Foods, have a laxer policy towards shoplifters. Of course, shoplifting anywhere is always a bad idea and puts your freedom and criminal record in jeopardy.
Many stores are beginning to build databases of suspected shoplifters using artificial intelligence. For example, in 2023 Kroger announced plans to use artificial technology to track suspected shoplifters and to enforce bans on convicted shoplifters. Although we are not aware of artificial intelligence being used to build cases against shoplifter in Houston, it is safe to assume that this technology is coming soon.
Will I go to jail for a first-time shoplifting arrest in Houston?
If you are arrested for shoplifting, whether or not you go to jail at the time of your arrest will typically depend on the number of items that were allegedly shoplifted. If you are alleged to have shoplifted under $100 then you will typically be cited and released and given a court date to appear at a municipal court (shoplifting under $100 is a Class “C” misdemeanor which is assigned to municipal court. If you are alleged to have shoplifted $100 or over then you will be taken to jail and bond out.
A sentence to jail is unlikely, particularly for a first-time shoplifting case. First of all, if your shoplifting attorney successfully gets the case dismissed, then you would not be facing a jail sentence. But even if the case is not dismissed, a jail sentence is unlikely. For most shoplifting cases, the realistic worst-case scenario is ending up on probation with a conviction on your record. In any shoplifting case, the goal should be to avoid this.
I received a letter from a law firm demanding money. Do I need to pay?
After a shoplifting arrest, it is common to receive a letter from an out-of-state law firm asking for payment of a sum of money for “damages” the store supposedly incurred because of the alleged shoplifting incident. This is known as a civil demand letter. Although you should consult with a civil attorney, in the Houston area, it is the opinion of most attorneys with experience with shoplifting cases that these letters can safely be ignored. Often, the attorneys sending these letters are not even authorized to practice law in Texas, and even if they are, there are typically no actual damages relating to the shoplifting since most of the time, the merchandise is recovered. In other words, these letters represent an attempt to shakedown a defendant for money and many attorneys recommend ignoring these letters, although you should consult with a criminal defense attorney before doing so.
Can I be convicted of shoplifting if I didn’t remove items from the store?
In many cases, you can still be convicted of shoplifting, even if you did not physically remove items from the store. According to one Texas court, the act of carrying away or removing property is not an element of theft. One Texas court has stated that “any removal of the property, no matter how slight, from its customary location is sufficient to show control over the property for purposes of theft.” This means that removing and concealing items could be enough for the prosecution to prove its case against you under certain circumstances. Another common is example is changing the tags on items, which can form the basis of a shoplifting charge even if you did not set foot outside the store.
Of course, the State will often need more to convince a jury that you intended to steal, which is always an element that must be established. One of the most important facts in a theft case – which can be strong evidence of intent – is whether points of sale were passed with merchandise concealed.
Things you shouldn’t do if you are caught shoplifting
If you have been detained for shoplifting, it is important that you do not sign any documents or make any statements admitting your guilt. In some cases, loss prevention officers and police may not have enough evidence to prove that you were shoplifting without your statement. It is important to remember that you always have the right to remain silent and refuse to answer questions. You should be polite, but remain silent.
If you have been charged with shoplifting, you should not be in a rush to resolve your case. As we tell our clients, you can have your case handled quickly or handled right. With so much at stake after a shoplifting arrest, we think that it is critical to have your case handled right. Particularly for Class “C” theft cases, it may be tempting to want to accept the first deal offered by a prosecutor, but is critical to consult with an experienced shoplifting defense lawyer before taking any action.
How long will a shoplifting charge stay on your record?
After a shoplifting arrest, the length of time a shoplifting charge will stay on your record will depend on the outcome of the case. If your case is dismissed, or if you are found “not guilty” at trial, then you will be eligible for an expunction of your shoplifting case. As discussed above, an expunction of a shoplifting case is the best possible result as it restores your name and deletes any record of the arrest.
If you complete a deferred adjudication probation, you will not be eligible for an expunction, but you could be eligible for a non-disclosure (also called getting your records “sealed”). The one exception is that a Class “C” deferred adjudication probation may be eligible for an expunction if completed successfully. But for most deferred adjudication probations, you must wait until you successfully complete your probation before applying to get your record sealed.
If you are convicted of shoplifting because you accepted a jail sentence, “time served,” or regular probation, a shoplifting charge will stay on your record forever. Having a final conviction for shoplifting should be avoided whenever possible.
While your case is pending, there is nothing that can be done to remove a charge from your record. Until you are eligible to get your records sealed or expunged, a shoplifting charge will likely appear on your record if someone were to run a criminal history search.
How do pre-trial intervention programs work?
A pre-trial intervention program (also called a pre-trial diversion program) is a contract with the State of Texas that your case will be dismissed if certain conditions are met. The terms and availability of these programs vary by county and charged offense. For first-time shoplifting cases, many District Attorney’s offices in the Greater Houston area will consider pre-trial diversion programs.
In Houston, the Harris County District Attorney’s Office has a pre-trial intervention program known as a Retail Theft Diversion Program. Currently, this is only available for class B theft ($100-750) and lasts for a period of 90 days. The program is limited to defendants who have no other criminal history and were not charged with other offenses at the time of the arrest (e.g., drug possession). Even if a defendant does not meet the requirements for this program, it is still possible to obtain a pre-trial diversion in Harris County, although the terms may be longer. Most other counties will consider some form of pre-trial diversion, particularly for first-time shoplifting arrests, for defendants with no other criminal history. If you are not a United States citizen, it is highly advisable to consult with an immigration attorney before applying for a pre-trial diversion program, as the application process for many counties requires an admission of guilt, which can sometimes be used in immigration proceedings, even where the criminal case is subsequently dismissed. Attorney Jose Ceja regularly handles theft and shoplifting cases throughout the Greater Houston area, including Harris County, Brazoria County, Fort Bend County, Montgomery County and Galveston County. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. Although the vast majority of thefts are filed as misdemeanors in Texas, the potential consequences of having a theft conviction on your record could be as impactful as a felony. If you or a loved on is charged with theft, attorney Jose Ceja would be happy to consult with you for free.
