Penal Code · §30.02

Burglary

Without effective consent of owner: (1) enters habitation or building (not then open to public) with intent to commit felony, theft, or assault; (2) remains concealed in habitation or building with such intent; OR (3) enters and commits or attempts a felony, theft, or assault.

The base classification is Varies by structure & intent, with possible enhancements depending on the conduct, victim, location, or prior history of the actor.

Key points

  • Without effective consent of owner
  • Enters a habitation or a building not then open to the public with intent to commit a felony, theft, or assault; OR remains concealed in one with that intent; OR enters and commits or attempts a felony, theft, or assault
  • Grade: state jail felony for a building; 2nd degree for a habitation; 1st degree for a habitation with intent to commit, or commission of, a felony other than felony theft (§30.02(c)–(d))
Texas Law — Charge Details
State Jail → 1st Degree Felony
Offense
Burglary
Statute
Tex. Penal Code §30.02
Classification
Varies by structure & intent

Without effective consent of owner: (1) enters habitation or building (not then open to public) with intent to commit felony, theft, or assault; (2) remains concealed in habitation or building with such intent; OR (3) enters and commits or attempts a felony, theft, or assault.

Potential Penalty Enhancements
If this condition applies…Charge escalates to
Building (not habitation)State jail felony
Habitation, intent = theft/assault/felony theft2nd degree felony
Habitation + entry/commission of felony other than felony theft1st degree felony

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Worked examples

Worked example 1

Burglary of a Habitation under §30.02 with intent to commit theft, assault, or any felony other than felony theft, is what level of offense?

  1. State jail felony
  2. 3rd degree felony
  3. 2nd degree felony Correct
  4. 1st degree felony
Why: Burglary of a habitation is a 2nd degree felony. It rises to a 1st degree felony if the actor entered with intent to commit a felony other than felony theft, or actually commits/attempts a felony other than felony theft.
Statute: Tex. Penal Code §30.02(c)–(d)
Worked example 2

Burglary of a Building (not a habitation) is what level of offense?

  1. Class A misdemeanor
  2. State jail felony Correct
  3. 3rd degree felony
  4. 2nd degree felony
Why: Burglary of a building other than a habitation is a state jail felony.
Statute: Tex. Penal Code §30.02(c)(1)
Worked example 3

A defendant pries open the back door of a single-family home that he believes is empty. He is caught inside the kitchen. The State proves he intended to steal. Charge?

  1. Criminal Trespass — Class A misdemeanor
  2. Burglary of a Building — state jail felony
  3. Burglary of a Habitation with intent to commit theft — 2nd degree felony Correct
  4. Burglary of a Habitation with intent to commit non-theft felony — 1st degree felony
Why: Entering a habitation without effective consent with intent to commit theft (or assault, or any felony) completes Burglary of a Habitation. Intent to commit theft caps it at the 2nd degree felony level. Actual taking is not required.
Statute: Tex. Penal Code §30.02(a), (c)(2), (d)