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Section 2-6-24

Emergency Declarations How Penalties for Crimes Significantly Increase

How close are we to a lockdown? And if the lockdowns we’ve seen across the country persist, what happens when people reach their tipping point?

Disasters like hurricanes Katrina and Harvey showed us that many people come together during times of crisis, the threat of certain criminal offenses during stressful times is very real. Looting, riots, assaults, and even price gouging are not uncommon… even good people have gotten desperate during times of emergency. But stealing a few groceries or a shirt out of desperation in a time of emergency carries much harsher penalties than if it were to happen at any other time.

Across the country, many cities have been ordered to lockdown. California is currently under a statewide “shelter in place” order. We recently discussed Austin’s order restricting public gatherings due to the COVID 19 pandemic and the criminal consequences of violating such an order. Now it appears that Austin and Travis County authorities are inching closer and closer to a full-blown lockdown or “shelter in place” order.

Tensions are rising and will continue to rise as the restrictions increase and resources become more and more scarce. During this time, it is vitally important to understand the offenses related to times of emergency… if only so you can avoid any activity that may be misconstrued as such. It is also just as important to know and understand how the penalty for a common offense such as theft changes if it’s committed during a time of emergency.

Looting:

Looting in and of itself is not codified as a crime in Texas. Looting is more of a general term that includes offenses like theft, burglary, robbery, and criminal trespassing committed in times of an emergency. Depending on the offense and if there is a declaration of disaster made by the President of the United States or the Governor of Texas, a person who is charged with certain offenses that could be considered as looting face stiffer penalties.

To address looting offenses, the Texas Legislature enacted Section 12.50 of the Texas Penal Code (“TPC”). Said section establishes that if a person commits certain offenses during a declaration of disaster, the punishment for that offense is increased to the punishment prescribed for the next higher category, excluding offenses classified as felonies of the first degree. For example, if a person commits a Class B misdemeanor during a declaration of emergency and it is one of the offenses included in Section 12.50, then the punishment will be enhanced to a punishment comparable to a Class A misdemeanor. That means instead of facing up to 180 days in County Jail and/or a fine up to $2,000, that person will be facing up to a year in County Jail and/or a fine up to $4,000.

What are those looting offenses that could face a stiffer penalty under a declaration of emergency?

Those offenses are: Theft, Burglary, Burglary of a Vehicle, Assault, and Robbery.

In fact, in most scenarios, looting usually takes the form of theft, burglary, and burglary of a vehicle. This is because the most common form of offense is one that takes advantage of confusion and people leaving their property unattended due to an emergency. Therefore, looters might take items that are left in front of a storefront, break into a store or house to take articles that do not belong to them, or break into cars to steal valuables that are in plain sight. These three scenarios are why we will concentrate more on these certain offenses.

The offense of theft takes place when a person takes someone’s property without his or her consent or if the person who takes the property knowing that such property was stolen by another person.  See, Section 30.01 of the TPC.  Simply put, theft is taking valuables that belong to someone else without their consent. Depending on the amount or value of the property taken, you could be facing anywhere from a Class C misdemeanor to a first-degree felony. Punishments vastly differ between a misdemeanor and a felony. A Class C misdemeanor carries a fine up to $500 vs. a first-degree felony costing you 5 to 99 years in prison and/or a fine up to $10,000. In normal circumstances, if someone steals property valued at $30,000 to $150,000, that person could be prosecuted for a third-degree felony. A third-degree felony would land you in prison for 2 to 10 years. Yet, if that third-degree felony theft is committed during an emergency declaration (as defined in Section 12.50 of the TCP), the person would be facing a second-degree felony punishable by 2 to 20 years in prison.

Burglary is handled as more of a serious offense. A burglary occurs when someone enters a habitation or a building that isn’t open to the public without the consent of the owner, intending to commit a theft, assault, or felony.  See, Section 30.02 TPC.

Depending on the circumstances of the burglary a person could be facing:

  1. A State Jail Felony if he or she enters a building that’s not a habitation, which carries a punishment from 6 months to 2 years in State Jail
  2. A third-degree felony which carries a punishment of 2 to 10 years in prison, if it’s a commercial building used to house controlled substances or if the offender remains concealed inside the building to consume controlled substances
  3. A second-degree felony if it’s in a habitation, which carries a punishment from 2 to 20 years in prison
  4. A first-degree felony if the premises is a habitation and the offender enters to commit or attempt to commit a felony other than theft, which carries a punishment from 5 to 99 years in prison

For example, if someone enters a person’s house to steal a TV, which is a second-degree felony, if caught she or he will be facing 2 to 20 years in prison. But if that person is caught committing that same burglary in the middle of an emergency declaration, he or she will be facing 5 to 99 years in prison because it will be considered a first-degree felony.

Burglary of a vehicle occurs when a person breaks into or enters a vehicle without the consent of the owner, to commit theft. See, Section 31.04 of the TPC. This offense is considered a Class A misdemeanor unless the person has been previously convicted of two or more burglaries of a vehicle, then the offense would be considered a State Jail felony. If the vehicle broken into is owned and operated by a distributor of prescription drugs or if the person breaks into the vehicle to steal controlled substances; it is a third-degree felony. If the person has only one previous conviction, the offense will still be a Class A misdemeanor but the minimum confinement in County Jail will be 6 months. If that person commits such offenses in the middle of an emergency declaration, the punishment range will be increased to the punishment prescribed for the next higher class. For example, if a person has two previous convictions of burglary of a vehicle and he or she is caught burglarizing another vehicle during an emergency declaration, he or she will be facing a third-degree felony. In other words, instead of facing anywhere from 6 months to 2 years in State Jail, that person will be facing 2 to 10 years in prison.

The other two charges that tend to happen during emergencies are robbery and assault.

Robbery happens when a person commits theft but intentionally or recklessly causes bodily injury to another person. Intentionally threatening another person by causing fear of bodily injury or death while committing theft is also considered robbery.  See, Section 29.02 of the TPC.  Robbery is a second-degree felony, which is punishable by 2 to 20 years in prison. If the offense is committed during an emergency declaration, then the person could face the same punishment prescribed for a first-degree felony i.e. 5 to 99 years in prison.

Assault happens when:

  1. A person intentionally or recklessly causes bodily injury to another, including his or her spouse (at minimum considered a Class A misdemeanor)
  2. Intentionally threatens or causes offensive physical contact with another (at minimum a Class C misdemeanor)

It depends on the severity of the assault:

  1. Strangulation
  2. The person that’s assaulted: a public servant, security officer, emergency services personnel, a person whom you have a family relation with, or consensual intimate partner or ex intimate partner
  3. If you have been previously convicted of a family violence assault

A person who was arrested for such offenses could be facing anywhere from a Class C misdemeanor to a second-degree felony. For example, if a couple has a fight and one spouse hits the other causing pain or injury, the person that committed the assault could face up to 1 year in County Jail. The offense would be a Class A misdemeanor, but if the offense happens during a declaration of emergency, then the punishment could be enhanced from 6 months to 2 years in State Jail, i.e. the punishment prescribed for a State Jail felony.

Theft, burglary, burglary of a vehicle, assault, and robbery are offenses that everyone should avoid being arrested for but especially during a period when the Government has issued an emergency declaration since the person arrested could face stiffer penalties than the original penalties prescribed for such offense.

The other common offense that happens during the declaration of emergencies is, Price Gouging:

Price gouging is regulated by Section 17.46 of the Texas Deceptive Trade Practices—Consumer Protection Act (DTPCPA). The said section states that it is unlawful to take advantage during a disaster declaration by price gouging.

Definition:

Price Gouging – selling or leasing fuel, food, medicine, lodging, building materials, construction tools, or another necessity at an exorbitant or excessive price or demanding an exorbitant or excessive price in connection with the sale or lease of fuel, food, medicine, lodging, building materials, construction tools, or another necessity during the designated disaster period.

The problem with this definition of price gouging is that there is no clear definition in the DTPCPA of what an exorbitant or excessive price is. In addition, no case law defines those terms. So, in a claim for price gouging, a jury will have to decide whether the prices of the sued establishment were exorbitant or excessive since there is no clear definition by law.

Another element of price gouging is when it is prohibited. Section 17.4625 of the DTPCPA states that price gouging is prohibited during a designated disaster period, which is: (a) the date the disaster occurs (b) the date of the Governor’s proclamation or executive order declaring the disaster or (c) the declaration of the disaster by the President if any part of Texas is included within the federally declared disaster area. The designated disaster period ends on the thirtieth day after the disaster declaration expires or when the order is terminated by the authorities.

So, the consequences of price gouging are not criminal but civil. Section 17.47 of the DTPCPA establishes that any establishment that incurs in price gouging may be sued by the Attorney General’s consumer division and forced to stop such practices by a restraining order. The establishment may be required to reimburse the consumer who filed the claim to the Attorney General, and they may have to pay a civil penalty of up to $10,000 per violation or up to $250,000 if the consumer is elderly.  Finally, if the establishment knowingly or intentionally violated the DTPCPA, a consumer can sue the violators for damages, court costs, and reasonable attorneys’ fees.

In times of emergency, things drastically change…including criminal penalties. Take the necessary steps to protect you and your family. Avoid putting yourself in a position to be arrested at all costs. If you or a loved one fall victim of the times, reach out to us for advice and guidance.

Be informed. Stay safe. Remain protected.

Community Gathering – Can You Be Arrested?

With news reports coming in from all parts of the country about entire states shutting down restaurants, canceling events, and being ordered to “shelter in place”, there is quite a bit of confusion about what’s going on in Austin.

As of March 17, 2020, the City of Austin issued an order of banning community gatherings. The order bans gatherings of 10 or more people and is currently in effect through May 1, 2020. The order makes it illegal to have 10 or more people together in a confined space be it indoor or outdoor. Most significantly, Mayor Steve Adler authorized law enforcement, code inspectors, and the fire marshal to charge people who violate the ban with a criminal offense punishable by up to a $1000 fine and up to six months in jail. In other words, it’s not just the police that have the authority to enforce this.

How did we get here (legally speaking)?

The order is issued in agreement with Section 418.108 of the Texas Government Code (Declaration of Local Disaster) and Section 2-6-23 of the Austin City Code. Obviously, this follows on the heels of the government’s response to the COVID-19 pandemic.

Under Section 418.108, a Disaster is defined as:

“… the occurrence or imminent threat of widespread or severe damage, injury, or loss of life or property resulting from any natural or man-made cause, including fire, flood, earthquake, wind, storm, wave action, oil spill or other water contamination, volcanic activity, epidemic, air contamination, blight, drought, infestation, explosion, riot, hostile military or paramilitary action, other public calamity requiring emergency action, or energy emergency.”

Section 2-6-23 of the Austin City Code states that if a local disaster is declared by the Mayor under Section 418.108 of the Texas Government Code, the Mayor may issue public orders and direct City employees to take necessary action to:

  1. Implement the emergency management program;
  2. Comply with this article and Texas Government Code Chapter 418; and
  3. Protect public health, safety and welfare.

Section 2-6-24 state’s that anyone who violates an order issued by the authority set forth in 2-6-23 commits an offense punishable by up to a $1,000 fine and up to six (6) months in jail.

According to the Order issued, “community gathering” is defined as any indoor or outdoor event or convening….that brings together or is likely to bring together ten (10) or more persons at the same time in a single room or space. The Order further explains, “For clarity, this includes, but is not limited to, weddings, religious services, parties, funerals, sporting events, social events, conferences, and other gatherings.” This word likely gives broad powers of interpretation to a local city official to arrest/charge someone who is participating in an event that is “likely” to have 10 or more persons. This also opens the door for further search/investigation which can lead to other criminal charges for offenses completely unrelated to the gathering.

Uh…I need to ride the bus (or go to the hospital/grocery store/etc.) and there are 10 people already there. Do I get on?

There are exceptions to the ban. These include critical infrastructure (airport and transit facilities); government buildings providing essential services; schools or institutions of higher learning; grocery stores and pharmacies; and hospitals and other medical facilities.

There are additional exceptions for spaces within buildings. The order “does not prohibit gatherings of people in multiple, separate enclosed spaces” within a building. As examples, the order lists: school classrooms, different floors of a multi-level office, residential buildings (such as an apartment complex) and hotels, “so long as 10 people are not present in any single space at the same time.”  Accordingly, 10 people in an individual apartment or single classroom would be a violation of the order. On the other hand, five separate classrooms containing six people in each separate classroom would be in compliance with the order.

So, what does all this mean? Even putting aside the Mayor’s order, common sense and the seriousness of the current COVID-19 crises dictate caution against large gatherings. The uproar by the general public regarding the large spring break party crowds on beaches in Florida and Texas are evidence of that. The Mayor’s order takes out a great deal of uncertainty with respect to what is appropriate under the circumstances, and on the other hand, what would now be considered criminal.

Common sense still plays a role.

Having read the excerpts and summary of the Mayor’s order, we are hopeful that the reader better understands the parameters. Can I go to the grocery store? Of course. What if I walk into the grocery store and there are 50 people in there, can I get charged with an offense? Nope. But if you go to your friend’s house for a “get together” and you walk through the front door to discover 20 people there, you may be on the hook if you don’t turn tail and head back to your car. The best approach is to err on the side of caution.

Because this order is recent, how extensively it will be enforced remains to be determined. Having said that, the seriousness of the COVID-19 crisis leads one to believe that the City will take violations very seriously.

There are several scenarios in which these illegal gatherings might come to the attention of the City:

  1. The gathering is public and obvious;
  2. The gathering is private, but loud, raucous or obvious (house party with multiple cars parked out front) and a neighbor or citizen reports it; or
  3. The gathering is private, but an attendee reports the violation.

If you or someone you know is arrested, contact us immediately to discuss the options. We believe that there’s always a legitimate argument to be made on your behalf and can almost always find a pathway to dismissal for cases relating to this.

Be smart. Stay safe. And keep your groups small.

Note: A copy of the Mayor’s order is available for review on the Austin Public Health Department website by clicking here.