Section 28.04 is the low-level counterpart to criminal mischief. It covers property damage caused recklessly rather than intentionally, and it is always a fine-only offense — but it is still a criminal charge that leaves a record.
What the Statute Says
(a) A person commits an offense if, without the effective consent of the owner, he recklessly damages or destroys property of the owner.
(b) An offense under this section is a Class C misdemeanor.
Reckless Versus Intentional
The distinction from criminal mischief is the mental state, and it changes everything:
| Section 28.04 | Section 28.03 (Criminal Mischief) | |
|---|---|---|
| Mental state | Reckless | Intentional or knowing |
| Offense level | Always Class C | Class C through First-Degree Felony, by loss amount |
| Jail exposure | None | Up to life, depending on loss |
Because of that gap, persuading a prosecutor that conduct was reckless rather than intentional can convert a felony into a fine-only offense. That argument is available whenever damage occurred during a chaotic event — a fight, an intoxicated stumble, a driving incident, a thrown object that struck something unintended.
What "Recklessly" Requires
Under Section 6.03(c), a person acts recklessly when he is aware of a substantial and unjustifiable risk and consciously disregards it, and that disregard is a gross deviation from the standard of care an ordinary person would exercise.
That threshold defeats many charges. Genuine accident, ordinary carelessness, and unforeseeable consequences are criminal negligence at most — which this statute does not reach.
Why a Fine-Only Charge Still Deserves a Lawyer
Class C dispositions are entered as convictions when the fine is paid, and the citation or arrest appears on background checks. Employers, landlords, and licensing boards see property-damage offenses. A dismissal can be expunged and lawfully denied; a conviction generally cannot.
Defenses
Effective consent. Permission from the owner defeats the charge — relevant in roommate, family, and shared-property disputes.
Ownership. The "owner" is the person with a greater right to possession. Damage to jointly owned property is frequently miscsharged.
No damage, or pre-existing damage. Photographs and repair records often show the condition predated the incident.
Mental state. As above — accident is not recklessness.
Related
Charged in Harris County?
Brian Foley is Board Certified in Criminal Law by the Texas Board of Legal Specialization and a former Harris County Felony Chief Prosecutor; Luis Baez is a former Trial Bureau Chief. Call or text (713) 703-1718 for a free, confidential consultation.