I am a county deputy. My local DA holds that when it comes to community property, there is no crime if a husband/wife decides to damage/destroy their shared community property.

This seems to fly in the face of PC 28.05:

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.


Is there an argument to be made that a husband/wife is entitled to infringe on the interest in property of the spouse?

The other officers in my department have been told to handle cases as such, that there is no crime. I'm also of the understanding that the adjacent county handles it in the same fashion.

This attitude of "because you married them, there's no crime in them trying to destroy your life" does not sit well with me. I seen unpublished cases, such as Tackett v. State rule that community property is NOT a defense to prosecution for Criminal Mischief, upholding the spirit of 28.05. I have found their ruling refreshing.

I am in disagreement with my local DA, fellow officers, and adjacent county (where I received my initial training).

I am prepared to remain a contrary voice and push to change how we handle these cases.

How does your county handle these? Do you have any advice?

Since no one else has ventured a reply, I will offer this:

The issue you raise probably derives from the requirement that the State must prove that the alleged victim was an “owner” of the property damaged or destroyed. In other words: was a person who had “title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor.” Tex. Penal Code Ann. § 1.07(a)(35)(A). Notice that this provision is unclear about “possession.” If it involves something subject to “joint management, control, and disposition” under §3.102(b) or (c) then maybe the victim’s consent is essential to make the actor’s conduct legal. But there is always the potential confusion caused by §3.102(a)(4) of the Family Code (referring to mutations of separate property during marriage that remain as the exclusive property of one spouse) and §3.104(a) of the Family Code (referring to property that is in possession of a spouse, who appears to hold same in his or her name alone).

Prosecutors are sometimes wary of getting engaged in disputes as to title to property. That is why there has been some difficulty in enforcing trespass claims against those who enter vacant residences. But, presumably the police investigation presents on its face the fact that the parties were married. Still, there must be proof of when and perhaps how the item at issue was acquired. That brings §§3.001-3.006 of the Family Code into view and requires you to make an inquiry beyond the normal investigation.

While there are indeed cases addressing the application of §28.05 of the Penal Code, you may be in a jurisdiction where your court of appeals has made no ruling. Cf., e.g. Prentis, No. 01-23-00616-CV (8/20/24) n. 10. Thus, cases such as Tackett (5th Dist.), Rosario (7th Dist.), and Barstow (3rd Dist.) can be ignored in your county. But regard is probably due to this language in Freeman, 707 S.W.2d 597, 603: “The issue of “ownership” goes to the scope of the property interest protected by the law and is intended to protect all ownership interests in property from criminal behavior.” Still, the CCA also said: “where we have two persons who at one point in time had equal right to possession of the property, the Legislature’s effort to globally eliminate all problems at trial concerning proof of ownership has been in vain.” Id. at 604.

To me, the bottom line in your situation is that you must refer the victim to the prosecutor for an explanation, and let it go. You can ultimately try to get someone else elected to the office, perhaps with the support of disappointed victims, but that is likely the only real remedy you have available. Your victims, of course, have the right to pursue a claim for civil damages, and perhaps for relief in connection with a suit for divorce.