Stalking in Texas

What is Stalking in Texas?

Facing stalking charges in Texas can be overwhelming and frightening. At Varghese Summersett, we understand the serious nature of these allegations and how they can impact your life, reputation, and freedom. Our experienced criminal defense attorneys have successfully defended countless clients against stalking and harassment charges throughout Texas.

Stalking in Texas is defined under Penal Code 42.072 as engaging in conduct more than once during the same course of conduct that would place a reasonable person in fear of:

• Bodily injury or death to themselves or a family member
• Damage to their property
• Offense or harm to their pet

This offense is typically charged as a third degree felony—far more serious than the misdemeanor charge of harassment. The key difference often lies in the severity and nature of the alleged conduct. While harassment might involve annoying phone calls or texts, stalking charges generally require a course of action that demonstrates a pattern of threatening or fear-inducing behavior.

Understanding the “Knowingly” Requirement

To convict someone of stalking, prosecutors must prove the defendant acted “knowingly.” Under Texas law, this means you were aware of the nature of your conduct or the circumstances surrounding it. The nature-oriented definition of knowingly is: A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist.

This mental state requirement is crucial—and often where skilled defense attorneys can challenge the prosecution’s case. The prosecutor, court, and potentially a jury, will scrutinize what the accused’s thoughts and intentions were at the time of the alleged conduct.

In Texas, stalking is defined as knowingly and repeatedly following, harassing, or threatening another person in a manner that would cause a reasonable person to feel alarmed or to suffer emotional distress. This can include physical actions such as:

• Following someone or showing up at their home or workplace
• Leaving unwanted gifts or messages
• Damaging or threatening to damage property
• Monitoring someone’s activities or movements

As well as online actions such as:

• Sending threatening or harassing messages via email, text, or social media
• Posting harassing content about the person online

Statute of Limitations for Stalking in Texas

The statute of limitations for stalking in Texas is three years from the date of the offense. This means prosecutors must file charges within three years of the alleged stalking conduct. However, it’s important to note that:

• The clock typically starts from the last act in a pattern of stalking behavior
• Certain circumstances can toll (pause) the statute of limitations
• Even if charges haven’t been filed, evidence can be gathered during this period

Understanding the statute of limitations is crucial for both defendants and alleged victims. If you’re facing allegations from conduct that occurred years ago, this could be a vital defense.

Texas Courts on the Constitutionality of the Stalking Statute

The landscape of stalking and harassment law in Texas has undergone dramatic changes, particularly regarding electronic communications. Understanding these changes and how courts interpret the statutes is essential for mounting an effective defense.

Owens v. State, No. PD-0075-24 (Court of Criminal Appeals, 2025)

In 2016, Kevin Owens began therapy with Dr. Lindsay Bira, a newly licensed psychologist in San Antonio. After eleven contentious sessions, their professional relationship ended badly. Owens cancelled his remaining appointments and told Bira never to contact him again.

Two years passed in silence.

Then, on May 13, 2018, Owens sent Bira an email that would spark a criminal prosecution and ultimately reshape how Texas courts analyze stalking and harassment cases. His message accused her of exploiting and abandoning him, mentioned his hopeless life situation, and bizarrely referenced not having “the genes that would allow me to consider a modeling career.”

Over the next fifteen weeks, Owens sent approximately three dozen more messages—emails, texts, and one Facebook message—to Bira’s professional accounts. The messages included:

• Demands for refunds of therapy fees ($1,785)
• Accusations of abuse, rape, and exploitation
• References to personal information he found online about her
• Comments about her “modeling days in a see-through top”
• Calling her “eye candy” and suggesting she might be a prostitute
• Revealing he knew her home address and personal phone number
• References to her dating relationships and personal Instagram posts

Bira felt terrified. She contacted police after the first email, eventually closed her in-person practice, switched to video-only therapy, and moved out of state. She testified that she had difficulty seeing patients during this time because she was worried Owens would show up at her office and harm her.

Owens was convicted of harassment and sentenced to 180 days in jail and a $500 fine.

But in June 2025, the Texas Court of Criminal Appeals reversed his conviction in a groundbreaking decision that fundamentally alters how prosecutors and defense attorneys must approach stalking and harassment cases involving electronic communications.

Texas Penal Code Section 42.07(a)(7) makes it a crime when someone, “with intent to harass, annoy, alarm, abuse, torment, or embarrass another,” “sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.”

The statute appears straightforward, criminalizing a specific type of conduct: repeatedly sending electronic messages in a harassing manner. But its application has proven anything but simple, especially in our digital age where electronic communication is ubiquitous.

Before Owens, Texas courts had grappled with the statute’s constitutionality through several key cases:

Ex parte Barton (2022) and Ex parte Sanders (2022) both upheld the statute’s facial constitutionality, reasoning that it regulated non-speech conduct rather than protected expression. These cases established that:

• The statute targets the act of sending repeated messages, not their content
• One could violate the statute by sending meaningless characters or empty messages
• No actual speech is required to commit the offense
• The statute’s gravamen is the manner of sending, not the message itself

The courts applied rational basis review, finding the statute served legitimate governmental interests in protecting people from invasions of privacy.

Scott v. State (2010) had earlier upheld the telephone harassment statute (Section 42.07(a)(4)) using similar reasoning—that making repeated phone calls was non-communicative conduct outside First Amendment protection.

These cases created a framework where courts analyzed electronic harassment as pure conduct, similar to:

• Playing loud music at 3 AM (manner, not message)
• Repeatedly honking a car horn outside someone’s house
• Making dozens of hang-up phone calls
• Sending empty or meaningless messages repeatedly

The theory was that the harassment came from the repetitive, intrusive nature of the conduct itself, regardless of any message conveyed. Courts reasoned that the First Amendment didn’t protect this type of non-expressive conduct.

However, this framework created an unresolved tension: What happens when prosecutors use the content of messages as evidence? What if the decision to prosecute depends entirely on what the messages say rather than how or how often they’re sent?

Several defendants had raised as-applied challenges arguing their specific prosecutions violated the First Amendment, but none had succeeded—until Owens.

What Made Owens Different?

Unlike previous cases, Owens presented unusually clear evidence that the prosecution was content-based:

1. Immediate Police Contact: Bira called police after the first email—not after receiving repeated messages. This timing proved crucial, as it showed the content itself, not the repetitive conduct, triggered law enforcement involvement.
2. Judicial Admissions: During sentencing, the trial judge explicitly stated: “Of course it’s punishment for speech… if you’re saying good morning in an e-mail, it’s not the same thing as calling someone a name like a whore in an e-mail. That’s not the same thing.” This remarkable admission confirmed what the defense had argued all along.
3. The Victim’s Testimony: When defense counsel asked Bira if she felt harassed because Owens sent her messages or because of what the messages said, she replied: “It was repeated forced contact from Kevin Owens, along with what he chose to say to me…The action of him repeatedly e-mailing me even after two cease and desists, and me saying do not. That act felt harassing, and also what he chose to say to me felt harassing.” She specifically testified she “felt abused from that very first email. Highly harassed.”
4. The “Good Morning” Hypothetical: Both Bira and the judge acknowledged that if Owens had sent the same number of messages saying “good morning” or politely requesting to talk, there would have been no prosecution. Bira testified that if Owens had initially sent an email saying “hey, I really want to chat with you. It’s been a while, but I have something that I want to discuss that’s lingering with me,” she would have said, “absolutely, let’s set up a call.”

The Court of Criminal Appeals made several crucial moves that distinguished Owens:

First, it articulated a clear test: “If it is necessary to look at the content of the speech to decide if the speaker violated the law, the regulation is content based.” This seemingly simple formulation provided a powerful tool for analyzing harassment prosecutions.

Second, it rejected the State’s attempt to blur the distinction between using speech as evidence of intent versus prosecuting speech itself. The Court acknowledged that while message content could prove Owens’s intent to harass, that didn’t justify prosecuting him for the content itself.

Third, it properly applied strict scrutiny once it determined the prosecution was content-based, finding the State had failed to show the application was narrowly tailored to serve compelling interests. The Court noted that “content-based regulations are presumptively unconstitutional and may be justified only if the government proves that it is narrowly tailored to serve compelling state interests.”

Why Context Matters in Stalking Cases

The Court’s analysis of privacy interests broke new ground by considering three critical factors:

1. Professional vs. Personal: All messages went to Bira’s professional accounts and public social media, not her personal email or home. The Court stated: “The messages were not sent to Bira’s home or her personal accounts, they were sent to her professional email and office phone that she used for communicating with patients and to her professional social media account that was public.”
2. Captive Audience Doctrine: Unlike someone trapped in their home, Bira could have blocked Owens or deleted his messages without reading them. She chose not to on police advice, but she had options. The Court noted: “She could have deleted the messages without reading them or blocked Appellant’s email address, phone number, and social media accounts, but she chose not to.”
3. Substantial Privacy Interests: The Court required more than mere annoyance or offense—there must be an invasion of substantial privacy interests in an “essentially intolerable manner.” The Court found: “Thirty-four messages sent in a span of more than three months to publicly accessible, commercial accounts controlled by a willing listener is no such invasion.”

The Practical Impact: What Actually Changed

Owens fundamentally shifts how prosecutors must approach electronic harassment cases:

Before Owens:

• Prosecutors could argue they were targeting the conduct of sending repeated messages
• Message content was freely admissible to show impact on the victim
• Courts applied rational basis review
• Defendants rarely succeeded with constitutional challenges
• The focus was on the manner of sending, not the message

After Owens:

• Prosecutors must carefully consider whether their case truly targets conduct or speech
• Content-based prosecutions face strict scrutiny
• Context matters: professional vs. personal, captive audience, privacy invasion
• As-applied challenges have real teeth
• Courts must analyze whether prosecution depends on message content

Why Owens Matters: Beyond One Case

Owens acknowledges a fundamental reality: in our digital age, the line between protected speech and criminal conduct has become increasingly blurred. Unlike making repeated hang-up calls (pure conduct), electronic messages almost always contain some expressive content. The decision recognizes that we cannot simply ignore this content when analyzing whether someone’s rights have been violated.

Importantly, Owens doesn’t give stalkers and harassers free reign. The decision preserves several important limitations:

• True threats remain unprotected
• Invasions of substantial privacy interests in the home can still be prosecuted
• Creating genuine captive audience situations remains criminal
• The manner of sending messages can still violate the law regardless of content
• Physical stalking and non-speech conduct remain fully prosecutable

Stalking Statistics in Texas

Understanding the prevalence of stalking allegations in Texas helps contextualize why these charges are so common and why experienced defense is crucial. Sam Houston State University conducted a comprehensive study on stalking in Texas that revealed striking statistics:

• Over 18% of 700 randomly selected Texas residents reported being victims of stalking
• Age demographics: Stalking victims are most likely to be under 35 years of age
• Gender distribution: Men (16%) and women (19.9%) were about equally likely to report being stalked
• Relationship to stalker: Over 50% of stalking victims were acquainted with their alleged stalkers
• Duration: Many stalking cases involve patterns of behavior lasting months or even years
• Technology use: An increasing percentage of stalking cases involve electronic communications and social media

These statistics demonstrate several important points for anyone facing stalking charges:

• Stalking allegations are extremely common in Texas
• Many cases involve people who know each other, leading to complex relationship dynamics
• The gender distribution shows anyone can be accused of stalking
• The prevalence of these allegations means prosecutors and law enforcement take them very seriously

What Level Offense is Stalking in Texas?

Understanding the severity of stalking charges is crucial for anyone facing these allegations. The penalties can be life-altering:

Third Degree Felony (Standard Stalking)

Stalking is generally charged as a third degree felony, which carries:

• 2 to 10 years in state prison
• Up to $10,000 in fines
• Permanent felony criminal record
• Loss of voting rights while incarcerated
• Loss of right to possess firearms
• Difficulty finding employment
• Challenges with housing and professional licenses

Second Degree Felony (Enhanced Stalking)

Stalking can be enhanced to a second degree felony with even more severe penalties if:

• The defendant has a previous stalking conviction
• The victim was under 18 years old
• A deadly weapon was used or exhibited

Second degree felony penalties include:

• 2 to 20 years in state prison
• Up to $10,000 in fines
• All the collateral consequences of a felony conviction

Additional Consequences

Beyond criminal penalties, stalking convictions often result in:

• Protective orders that can last for years
• Mandatory counseling or treatment programs
• Community supervision (probation) with strict conditions
• Immigration consequences for non-citizens
• Professional license revocation or suspension
• Child custody and visitation impacts

Building Your Defense: How Varghese Summersett Can Help

At Varghese Summersett, we understand that stalking charges often arise from complex personal situations, misunderstandings, or protected First Amendment activity. Our experienced attorneys know how to navigate these cases and build strong defenses.

Common Defense Strategies in Stalking Cases

Constitutional Challenges Under Owens

• Demonstrating the prosecution is content-based rather than conduct-based
• Showing messages were sent to professional or public accounts
• Proving the alleged victim wasn’t a captive audience
• Establishing the communications were protected speech

Challenging the Elements

• Lack of intent to cause fear or emotional distress
• Communications were not threatening or fear-inducing
• No reasonable person would feel threatened by the conduct
• Conduct doesn’t meet the statutory definition of stalking

Factual Defenses

• False allegations or mistaken identity
• Legitimate purpose for communications
• Consensual contact that later became disputed
• Mental health issues that negate criminal intent

Procedural Defenses

• Statute of limitations has expired
• Insufficient evidence to prove the charge
• Violations of constitutional rights during investigation
• Improper jury instructions or trial errors

The Importance of Early Intervention

If you’re under investigation for stalking or have been arrested, getting experienced legal representation immediately is crucial. Early intervention can:

• Prevent charges from being filed
• Limit the scope of the investigation
• Preserve crucial evidence for your defense
• Protect your constitutional rights
• Open negotiations with prosecutors before formal charges
• Help you understand and comply with any protective orders

Take Action to Protect Your Future

Stalking charges in Texas are serious felony offenses that can result in years in prison and lifelong consequences. But with the right defense strategy—especially leveraging recent developments like the Owens decision—these charges can be successfully challenged.

Don’t wait to get help. The prosecution is already building their case, gathering evidence, and preparing to present their version of events. You need experienced attorneys who will:

• Thoroughly investigate your case
• Identify all possible defenses
• Challenge constitutional violations
• Negotiate with prosecutors from a position of strength
• Fight for you at trial if necessary

Contact Varghese Summersett today for a confidential consultation. Our experienced criminal defense team will analyze your case, explain your options, and begin building your defense immediately. When facing stalking charges, you need attorneys who understand both the law and how to win. Let us put our knowledge, experience, and dedication to work protecting your freedom and your future.