The Coronavirus pandemic has changed how we work, socialize, learn — and even how we punish certain crimes in Texas.
On March 13, 2020, Governor Abbott issued a disaster declaration certifying that Coronavirus poses an imminent threat of disaster for all counties in the State of Texas. In doing so, he triggered the Texas Penal Code’s disaster enhancement provision, resulting in increased punishment range for a select number of offenses. In other words, people who commit certain crimes during COVID are likely to face harsher punishment. This article will outline the consequences of committing an offense during a COVID disaster declaration in Texas.
When Gov. Abbott issued the COVID Disaster Declaration, he gave the government power to enact policies that ordinarily would not be permitted in an effort to aid local governments in the fight against the virus. Governor Abbott’s disaster declaration resulted in Executive Orders requiring social distancing, mask mandates, and business closures, among other things. The disaster declaration also triggered Texas Penal Code 12.50 which elevates the punishment for certain crimes during a disaster declaration.
Texas Penal Code 12.50 – “Penalty if Offense Committed in Disaster Area or Evacuated Area” – is the statute that increases punishment for a handful of offenses by one level if it is shown that the offense was committed in an area that was, at the time:
The following offenses are subject to a punishment enhancement as a result of Governor Abbott’s COVID disaster declaration:
Under Texas law, these disaster declarations expire after 30 days unless renewed, but Governor Abbott has continuously renewed the disaster declaration since March 13 in a continued fight against Coronavirus.
Typically, the disaster enhancement increases the punishment range one category or degree. The only exceptions are Class A misdemeanors and first-degree felonies.
The following examples illustrate how the enhancement works:
Defendants may be subject to multiple enhancements with regards to a single offense depending on the unique facts of his case. For example, an offense could be enhanced under Texas Penal Code § 12.42 if the defendant is a habitual offender and under Texas Penal Code § 12.50 if the offense is committed in a designated disaster area. Multiple enhancements may be applied to a single offense to severely increase the defendant’s punishment range. The following example illustrates how enhancements are stacked:
Texas Penal Code § 31.03: Theft
An offense under Texas Penal Code § 31.03(e)(3) is a Class A misdemeanor if the value of the property stolen is $750 or more but less than $2,500.
In the above example, the initial charge was theft of an item valued between $750 to $2,500, a Class A misdemeanor – an offense that is typically punishable by up to one year in jail, up to a $4,000 fine, or both. As a result of stacked enhancements, the defendant would now face a second-degree felony which is punishable by two to 20 years in prison, up to a $10,000 fine, or both.
There is a difference between enhanced offenses and enhanced punishment, which may result in situations where enhancements cannot be stacked against a defendant. If a statute says “punishment for the offense” is increased, then the range of punishment applicable to the primary offense increases; it does not increase the severity or grade of the primary offense. Similar to that of repeat and habitual offender enhancements, the disaster declaration enhancement increases the punishment of the offense, not the degree of the primary offense.
In Henderson v. State, the defendant was arrested for Possession of Marijuana, 4oz to 5lbs, a state jail felony which is punishable by 180 days to two years in prison, up to a $10,000 fine, or both. Henderson v. State, 582 S.W.3d 349, 350 (Tex. App. 2018). Because the defendant exhibited a deadly weapon during the commission of the crime, his punishment range was increased to that of a third-degree felony. Furthermore, under repeat and habitual offender laws, a defendant will face a second-degree punishment range if the defendant has previously been convicted of a felony other than a state jail felony. Here, despite two separate enhancements, the highest level of punishment range that the defendant faced was a second-degree felony because the primary offense remained the same, a state jail felony.
Now let’s assume that Henderson was arrested for a state jail felony theft offense, exhibited a deadly weapon during the commission of the offense, and had previously been convicted of a felony other than a state jail felony. Under this fact pattern Henderson would still be looking at a state jail felony conviction while facing a second-degree punishment range. Well, what if Henderson had committed the offense in a declared disaster area? The disaster enhancement increases the punishment range to that of the prescribed higher category of offense, in this case it would be a third-degree felony. So, just like the deadly weapon enhancement, a disaster enhancement would not have an impact on the punishment range Henderson faces because the repeat offender enhancement subjected him to a second-degree punishment range. This further illustrates how certain enhancements cannot be stacked against a defendant.
Enhancements can have a major impact on sentences, especially if faced with multiple enhancements that can be stacked against a defendant. Despite this, however, enhancements can be waived by the prosecutor or argued against, given the specific details of the case and the legislature’s intent behind the law. If you or a loved one is facing an enhanced charge stemming from a COVID disaster declaration, it is important to contract an experienced defense attorney right away.