Graffiti is graded entirely by pecuniary loss, which means the difference between a ticket and a felony is a cleanup estimate — a number that is often the most contestable part of the State's case.
What the Statute Says
(a) A person commits an offense if, without the effective consent of the owner, the person intentionally or knowingly makes markings, including inscriptions, slogans, drawings, or paintings, on the tangible property of the owner with: (1) paint; (2) an indelible marker; or (3) an etching or engraving device.
The Loss Ladder
| Pecuniary loss | Offense level |
|---|---|
| Less than $100 | Class C Misdemeanor |
| $100 to under $750 | Class B Misdemeanor |
| $750 to under $2,500 | Class A Misdemeanor |
| $2,500 to under $30,000 | State Jail Felony |
| $30,000 to under $150,000 | Third-Degree Felony |
| $150,000 to under $300,000 | Second-Degree Felony |
| $300,000 or more | First-Degree Felony |
The statute provides enhanced treatment where the markings are made on a school, an institution of higher education, a place of worship or human burial, a public monument, or a community center providing medical or social services.
Attacking the Loss Figure
Because the loss number sets the offense level, it is the first thing to examine:
- Restoration, not replacement. The measure is the cost of restoring the property to its condition before the offense. A quote to repaint an entire building when a small area was marked overstates the loss.
- Aggregation. The State may aggregate amounts from a continuing course of conduct, which is how misdemeanors become felonies. Whether the incidents genuinely form one scheme is contestable.
- Estimates versus invoices. Municipal and corporate cleanup estimates are frequently generated by formula rather than by actual cost, and the person who prepared the estimate can be cross-examined.
- Pre-existing damage. Property that was already marked or deteriorated cannot be restored at the defendant's expense beyond what he caused.
Other Defenses
Identity. Most graffiti cases have no witness. Attribution rests on stylistic comparison, social media, or a companion's statement — all of which are attackable.
Effective consent. Permission from the owner or someone with apparent authority is a complete defense, and commissioned murals are sometimes misreported.
Mental state. The conduct must be intentional or knowing.
Not a covered instrument. The statute lists paint, indelible markers, and etching or engraving devices. Markings by other means fall under criminal mischief instead, which carries its own ladder.
Resolution in Harris County
First offenders are frequently eligible for pretrial diversion or a conditional dismissal involving restitution, community service, and sometimes participation in a cleanup program. A dismissal can be expunged, which matters because a criminal mischief or graffiti conviction is a property-crime conviction that employers see.
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.