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I have not been on here in years but I'm glad this is still here and I hope I get some responses. So here is the situation. On 3 separate occasions recently we have had an individual who was served with either a divorce or a protective order application who has responded by taking all of their wife/girlfriend/significant other's belongings out in the backyard and putting them in a pile and burning them. And in all 3 situations our potential victims have been told it is either a civil matter or that the property that was destroyed was community property or that no crime was committed. But aside from educating our officers, I'm trying to figure out if there is a statutory solution. There is nothing in the criminal mischief statute that really addresses this situation. I have not dug into the family code yet, but I doubt there is anything in there either. So what do y'all think? Would a domestic violence enhancement in the criminal mischief statute work? Would it take amending the family code to say that if you purposely destroy community property for the purpose of depriving the other party of it's use that the property loses it's community property character so that the offender could be prosecuted? I'm having a meeting with some other interested parties soon so I'm curious if anyone else has had any luck prosecuting these cases or if anyone has any ideas. Please feel free to discuss.
Posts: 119 | Location: Chambers County Texas | Registered: March 03, 2003Reply With QuoteReport This Post
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You'll still need to deal with the officer education issue, but I think Texas Penal Code § 28.05 should cover you on the merits:

Sec. 28.05.  ACTOR'S INTEREST IN PROPERTY.  It is no defense to prosecution under this chapter that the actor has an interest in the property damaged or destroyed if another person also has an interest that the actor is not entitled to infringe. 

Dallas and Amarillo both have unpublished opinions construing Tex. Penal Code § 28.05 as precluding a community property defense to criminal mischief:
  • Tackett v. State, No. 05-02-01338-CR, 2003 Tex. App. LEXIS 3760(Tex. App.—Dallas May 1, 2003)
  • Rosario v. State, No. 07-13-00098-CR, 2014 Tex. App. LEXIS 2652 (Tex. App.—Amarillo Mar. 6, 2014)
Posts: 3 | Registered: February 12, 2020Reply With QuoteReport This Post
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