Graffiti is a relatively new crime in Texas. I say relatively new because it was added to the Texas Penal Code and became its very own crime in 1997. Before that, Graffiti was a crime that was probably prosecuted under the Criminal Mischief statute. Graffiti is closely related to Criminal Mischief because both charges deal with property damage. However, over the last twenty or thirty years, graffiti has become an indelible part of urban life. For better or for worse. It is a popular medium for artists and well, and some of it is beautiful and well crafted. Some artists are very skilled. At the heart of graffiti, there is a cultural conflict. There is often a class conflict, and usually an age conflict as well. There are big conflicts and controversies—when dealing with and discussing graffiti and what it means, what its purpose or value is. That is not what this page is about. Because, regardless of a discussion about aesthetics or urban blight, it is illegal. Graffiti is very much a crime across Texas. There are different penalties that vary based on the value of the property damaged. There are also consequences for you that you may not realize. Your driver’s license may be suspended. This page discusses aspects of the criminal charge of Graffiti, and also explains identifies what the crime means.
What Exactly is Graffiti?
Graffiti is a kind of wild-sounding word, if you stop and think about it. It makes me think of someone writing a message on the Parthenon in blood. It is an old word, with Latin and Greek roots. However, for our purposes, it is located in Section 28.08 of the Texas Penal Code. It basically means marking or drawing or painting on another person’s property, and basically you didn’t have permission to do it. Here is the language of the statute:
Section 28.08. Graffiti.
- A person commits an offense if, without the effective consent of the owner, the person intentionally or knowingly makes markings, including inscriptions, slogans, drawings, or paintings, on the tangible property or the owner with:
- an indelible marker; or
- an etching or engraving device.
The law accounts for all different kinds and ways to draw or paint something on someone’s property. What tangible property means, what indelible marker means, and what etching or engraving device means—these will be discussed in greater detail below.
What are the Penalties for Graffiti?
At its most basic level, the crime of Graffiti is about property damage. Like the other crimes in this section, Criminal Mischief and Arson, there are many different penalties depending on how much property damage is alleged to have occurred. Here are the penalties from the statute:
- Except as provided by Subsection (d), an offense under this section is:
- a Class B misdemeanor is the amount of pecuniary loss is less than $500;
- a Class A misdemeanor if the amount of pecuniary loss is $500 or more but less than $1,500
- a state jail felony if the amount of pecuniary loss is $1,500 but less than $20,000;
- a felony of the third degree if the amount of pecuniary loss is $20,000 or more but less than $100,000;
- a felony of the second degree if the amount of pecuniary loss is $100,000 or more but less than $200,000;
- a felony of the first degree if the amount of pecuniary loss is $200,000 or more.
It would be an interesting case if someone were alleged to have committed more than $200,000 worth of property damage, but there it is. Graffiti is often charged as a misdemeanor in Fort Worth. Generally, someone has spray painted some bricks. As it is discussed below, the amount of damage is something that can and should be challenged.
Can my Driver’s License get Suspended?
Yes. One aspect of a graffiti conviction is that your license will be suspended. The important word is a conviction, of course. It is important to retain a good criminal defense lawyer to avoid a conviction. This comes from the Transportation Code. Here is the relevant part of the Transportation Code:
521.320. Suspension for Certain Criminal Mischief; License Denial.
(a) A court may order the department to suspend a person’s driver’s license on conviction of an offense under Section 28.08, Penal Code
(c) The period for suspension under this section is one year after the date of a final conviction. The period of license denial is one year after the date the person applies to the department for reinstatement or issuance of a driver’s license.
So, there is some more teeth to the Graffiti statute than many people realize. It is strange that a graffiti conviction calls for a license suspension. There are only a few crimes that warrant a license suspension, chiefly driving while intoxicated and convictions for drug offenses. Fortunately, an Occupational Driver’s License is available to people who find themselves with a graffiti conviction.
How are Damages Assessed?
Sometimes the alleged value of something is exaggerated and out of touch with what something is actually worth. The primary way damages are measured, according to the Texas Penal Code, is the fair market value of the property if something is alleged to be destroyed. If something is alleged to be damaged, the primary way to establish damages is the cost to repair or restore the property. However, if the fair market value cannot be established and the property was destroyed, then it is the cost of replacement. Generally, with graffiti, property is not destroyed. Usually, we are dealing with a damage figure. Sometimes in cases involving damages, the complaint or the indictment will inflate damages beyond any reasonable semblance to reality. In these circumstances, it is important to find a lawyer who will fight to challenge the damage figures and try to get them lowered, as well as getting the charge itself lowered.
What are Indelible Markers and Etching or Engraving Devices?
Indelible marker means:
A device that makes a mark with a paint or ink product that is specifically formulated to be more difficult to erase, wash out, or remove than ordinary paint or ink products
Etching or Engraving Device means:
A device that makes a delineation or impression on tangible property, regardless of the manufacturer’s intended use for that device
These terms are broad. Indelible marker is pretty obvious: any sharpie or other marker that does not wash off or come off easily. It could be any kind of marker. Etching or engraving device could be anything like a knife that will bite into a surface so that an inscription can be made. For instance, if someone utilizes a key to write a message into the hood or door of a car, that would be an example of an engraving device.
Is Consent a Defense to Graffiti Charge?
Consent is a defense to many charges in the Texas Penal Code, and Graffiti is no different. If you had permission to use spray paint or a marker to draw or write something on a wall, or whatever the case may be, and then the owner of that property comes back and tells police that you did not have permission, there is a conflict. Your defense is going to be that the owner of the property allowed you to draw or write on their property. If you have been charged with graffiti in Fort Worth, Tarrant County, or surrounding Counties, give me a call and let’s discuss your charge and develop a defense.