A tale of two approaches to Texas property-theft thresholds

A pair of bills heard in two Texas House committees this week demonstrate opposing philosophies when it comes to incarcerating people for low-end property theft.

At Monday's Texas House Criminal Jurisprudence Committee hearing, state Rep. Gene Wu, a Houston Democrat, proposed HB 760 making theft of packages delivered to someone's front porch an automatic state-jail felony, even if the value of the stolen items were just a few dollars. Wu said this was justified because going onto someone's porch was a particularly egregious invasion of privacy. State Rep. Andrew Murr suggested expanding the bill to make it a state-jail felony to steal anything out of someone's yard or driveway.

State-jail felonies are essentially Texas' version of a fourth-degree felony, punishable by 180 days to 2 years incarcerated, served day for day without parole, with fines up to $10,000. Under current law, thieves must steal $2,500 or more worth of goods to reach that threshold in Texas; below that, theft is a misdemeanor.

There are still pockets of particular types of theft scattered throughout Texas' criminal code exempted from the 2015 thresholds. E.g., it's still a state-jail felony to steal "less than 10 head of sheep, swine, or goats." So, steal a couple of goats worth $40 apiece - which would be a Class C misdemeanor in terms of value - and it's an automatic felony. Switch price tags to reduce the price of a hammer at the hardware store - automatic Class A misdemeanor. Since the passage of Texas' new property-theft thresholds in 2015, legislators have continued the effort by applying them to additional theft types. E.g., in 2017, another bill by Konni Burton applied them to check forgery.

Just Liberty opposed HB 760 in committee and followed up this week walking around a handout to committee-members' offices opposing the bill. Our fear is that it would ramp up state imprisonment for property theft during an era when it's been rapidly declining. Give our handout a read.

Porch piracy is a function of consumers seeking convenience. People want products delivered to their homes, and don't want to wait around the house to sign for them. But convenience can come with trade-offs, both in terms of consumer privacy and security. When commerce occurs in a commercially zoned location, retailers employ loss-prevention specialists and a certain amount of low-grade shoplifting is considered a cost of doing business. Move commerce to your front porch and no one should be surprised if consumers face the same low-grade theft problem witnessed at retailers.

Wu compared porch piracy to burglary of a habitation, saying if it were made a state-jail felony, police would take it more seriously and investigate. But home burglaries have among the lowest clearance rates of all index crimes, often in the 10-12 percent range. There's scant evidence making the punishment for such crimes harsher makes them any easier to solve.

There's also no evidence to support his inference that public pressure couldn't convince police to change their priorities and investigate porch-piracy incidents, especially as cameras proliferate, making them easier to pursue. IRL, police are remarkably responsive to such pressure. Maybe not in every instance, but in aggregate, for sure.

By contrast, in the Business and Industry Committee on Tuesday, Rep. Matt Shaheen, a Plano Republican, proposed legislation Just Liberty supported, HB 427, which would apply the property-theft thresholds to theft involving price-tag switching. This is a less-frequently seen brand of shoplifting, essentially, which occasionally can reach grandiose levels but is more often an impulse crime committed in a moment of human weakness.

Presently, price-tag switching on low-value items garners an automatic Class A misdemeanor, punishable by up to a year in county jail and a $4,000 fine. Shaheen's bill applies the property-theft thresholds Texas passed in 2015 to such crimes, so that the theft only becomes a Class A misdemeanor if the person is stealing more than $750. Remarkably, the bill faced no opposition in committee.

This blog has opposed criminal-penalty enhancements for more than a decade, and in recent years we've seen new allies step up like the Texas Public Policy Foundation criticizing the idea that criminal-penalty enhancements are a one-size-fits-all policy response to any objectionable behavior. Juxtaposing these two pieces of legislation provides a good demonstration of 2019 public-policy debates in Texas regarding punishment of property theft.

Shaheen's bill continues efforts to reduce incarceration for low-level theft begun by Republican state Sen. Konni Burton, who was ousted by Democrat Beverly Powell last November.

By contrast, Wu's HB 760 evinces an old-school, tuff-on-crime mindset: Don't like a petty but annoying behavior? Throw government resources at the problem till it goes away. (And then, pretend you're surprised when the behavior inevitably persists.)

To be fair, Wu has supported other criminal-justice reform legislation in the past, particularly on juvenile matters. But the last thing Texas needs is a new law filling up prisons for low-grade property theft. Shaheen's approach makes more sense. Legislators shouldn't begin carving out exceptions to property-theft thresholds just two sessions after enacting them. Consolidating all the various brands of theft to apply the thresholds across the board is the better approach.