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COVID Disaster Declaration Continues to Increase Punishment for Certain Crimes

By Benson Varghese

Last Updated: June 24th, 2021
Published on: February 9th, 2021
COVID Disaster Declaration

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.

What Happens During a COVID Disaster Declaration?

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.

What Texas Law Increases Punishment During Disaster Declarations?

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:

  • Subject to a declaration of a state of disaster made by:
    • the president of the United States under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. Section 5121 et seq.);
    • the governor under Section 418.014, Government Code; or
    • the presiding officer of the governing body of a political subdivision under Section 418.18, Government Code.

What Offenses are Subject to Disaster Enhancements?

The following offenses are subject to a punishment enhancement as a result of Governor Abbott’s COVID disaster declaration:

How Long does a Disaster Declaration Last?

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.

How Does the COVID Disaster Enhancement Work?

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:

  • A Class B misdemeanor, punishable by up to 180 days in jail and a fine of up to $2,000, is punished as a Class A misdemeanor by up to one year in jail and a fine of up to $4,000.
  • A State Jail felony, punishable by six months to two years in state jail and a fine of up to $10,000, is now punished as a third-degree felony by two to 10 years in prison and a fine of up to $10,000.
  • A third-degree felony, punishable by two to 10 years in prison and a fine of up to $10,000, is now punishable as a second-degree felony by two to 20 years in prison and a fine of up to $10,000.
  • A second-degree felony, punishable by two to 20 years in prison and a fine of up to $10,000, is now punishable as a first-degree felony by five to 99 years in prison and a fine of up to $10,000.

Exceptions:

  • Class A misdemeanor, punishable by up to one year in jail, is now punishable by 180 days to one year in jail.
  • A first-degree felony, punishable five to ninety-nine years in prison, remains the same.

Can a Defendant Face Multiple Enhancements?

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.

  • Except as provided by Texas Penal Code § 31.03(e)(4)(D), an offense under this section is a State Jail Felony if the value of the property stolen is less than $2,500 and the defendant has been previously convicted two or more times of any grade of theft
  • The offense is increased to a third-degree felony if it is shown on the trial of the offense that during the commission of the offense, the actor intentionally, knowingly, or recklessly used a shielding or deactivation instrument to prevent or attempt to prevent detection of the offense by a retail theft detector under Texas Penal Code § 31.03(f)(5)(C).
  • The offense is increased to a second-degree felony if it is shown at trial of the offense that the offense was committed in an area that was, at the time of the offense subject to a state disaster declaration made by the presiding officer of the governing body of a political subdivision under Section 418.108, Government Code under Texas Penal Code § 12.50(a)(1)(B).

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.

Can All Enhancements be Stacked?

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.

What Should You Do if Facing Disaster Declaration Enhancements?

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.

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COVID Disaster Declaration Continues to Increase Punishment for Certain Crimes
2021-06-24T10:25:30-06:00
Varghese Summersett PLLC
Varghese Summersett PLLC