Harassment

From the Law Office of Alison Grinter in Dallas, Texas

Contents 1 Degree 2 Statute(s) 3 Caselaw 4 Collateral Consequences 5 Notes

Degree

The first Harassment conviction is a Class B misdemeanor, any subsequent offenses will be charged as a Class A Misdemeanor

Statute(s)

Sec. 42.07. HARASSMENT.

(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, he:
   (1) initiates communication by telephone, in writing, or by electronic communication and in the course of the communication makes a comment, request, suggestion, or proposal that is obscene;
   (2) threatens, by telephone, in writing, or by electronic communication, in a manner reasonably likely to alarm the person receiving the threat, to inflict bodily injury on the person or to commit a felony against the person, a member of his family or household, or his property;
   (3) conveys, in a manner reasonably likely to alarm the person receiving the report, a false report, which is known by the conveyor to be false, that another person has suffered death or serious bodily injury;
   (4) causes the telephone of another to ring repeatedly or makes repeated telephone communications anonymously or in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another;
   (5) makes a telephone call and intentionally fails to hang up or disengage the connection;
   (6) knowingly permits a telephone under the person's control to be used by another to commit an offense under this section; or
   (7) sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.
(b) In this section:
   (1) "Electronic communication" means a transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system. The term includes:
      (A) a communication initiated by electronic mail, instant message, network call, or facsimile machine; and
      (B) a communication made to a pager.
   (2) "Family" and "household" have the meaning assigned by Chapter 71, Family Code.
   (3) "Obscene" means containing a patently offensive description of or a solicitation to commit an ultimate sex act, including sexual intercourse, masturbation, cunnilingus, fellatio, or anilingus, or a description of an excretory function.
(c) An offense under this section is a Class B misdemeanor, except that the offense is a Class A misdemeanor if the actor has previously been convicted under this section.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1983, 68th Leg., p. 2204, ch. 411, Sec. 1, eff. Sept. 1, 1983; Acts 1993, 73rd Leg., ch. 10, Sec. 1, eff. March 19, 1993; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1995, 74th Leg., ch. 657, Sec. 1, eff. June 14, 1995; Acts 1999, 76th Leg., ch. 62, Sec. 15.02(d), eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1222, Sec. 1, eff. Sept. 1, 2001.

Caselaw

Karenev v. State, No. 2-05-425-CR, 2008 Tex. App. LEXIS 2407 (Tex. App. – Fort Worth April 3, 2008) (not yet published).
On direct appeal from CCC1 of Denton County

The Fort Worth Court of Appeals found that TEX. PENAL CODE §42.07 (a) (7), the Texas “harassment” statute was unconstitutionally vague and hence void. The statute provides as follows:

(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, he:

(7) sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.

The Fort Worth court found that the statute “employs, in the disjunctive, a series of vague terms that are themselves susceptible to uncertainties of meaning.” As the Court held:

[W]e hold that the portions of the harassment statute making it an offense to send electronic communications that annoy or alarm are unconstitutionally vague. Additionally, because the statute still does not establish a clear standard for whose sensibilities must be offended, it is unconstitutionally vague in that the standard of conduct it specifies is dependent on each complainant's sensitivity. Also, the intent to “harass, annoy, alarm, abuse, torment, or embarrass” set out in section 42.07(a) still “do[es] nothing to limit the vagueness originally generated by annoy’ and alarm,’” and the additional terms are themselves still “susceptible to uncertainties of meaning.” We also note that although the statute requires “repeated” electronic communications, it does not define the term repeated, nor does it indicate the requisite frequency of the repeated communications.

In reaching this decision, the COA relied on Kramer v. Price, 712 F.2d 174 vacated on reh'g, 716 F.2d 284 (1983), trial court aff’d after statute repealed, 723 F.2d 1164 (1984) which had invalidated a prior version of the Texas harassment statute and on Long v. State, 931 S.W.2d 285 (Tex. Crim. App. 1996), which struck down the Texas stalking statute.

Collateral Consequences

Might be construed as a Crime of Moral Turpitude

Notes

There is significant precedant to challenge the cnstitutionality of this statute at least as applied to electronic communication. It will likely get rewritten on the next legislative session.

Discuss this offense with The Law Office of Alison Grinter