Retaliation Under the Texas Penal Code

Texas Penal Code 36.06, Obstruction or Retaliation, makes it a crime to intentionally or knowingly harm or threaten to harm another person by an unlawful act because of that person’s service or status as a public servant, witness, informant, or crime reporter. It is a third degree felony carrying two to ten years in prison and a $10,000 fine.

What is retaliation under Texas Penal Code 36.06?

Retaliation is not a general “getting even” law. The statute reaches a narrow set of people: public servants, witnesses, prospective witnesses, informants, and people who have reported a crime or who the accused knows intend to report one. The harm or threat has to be connected to that role.

Two things have to line up. First, you intentionally or knowingly harmed someone or threatened to harm them by an unlawful act. Second, you did it because of their status, or to stop or delay them from acting in that role. A threat made in the middle of a general argument, with no connection to somebody’s role as a witness or a reporting party, is not retaliation.

Two of those terms are broader than they sound. An informant is anyone who has communicated information to the government in connection with any governmental function, which reaches well past criminal cases. Public servant includes honorably retired peace officers and people who contract with the state to work in a civil commitment facility.

Is retaliation a felony in Texas?

Yes. Retaliation is a third degree felony, which carries two to ten years in prison and a fine of up to $10,000. The offense rises to a second degree felony in two situations: when the person harmed or threatened was serving as a juror, and when online posting of a public servant’s address or phone number results in bodily injury to that person or a member of their family or household. A second degree felony carries two to twenty years.

This is worth sitting with. A single sentence spoken in anger, with no one touched and no property damaged, can carry the same punishment range as a serious assault.

Can you be charged with retaliation for threatening a police officer?

Yes, and this is one of the most common ways the charge shows up. A police officer is a public servant. Words said to an officer during an arrest, in the back of a patrol car, or at the jail get charged as retaliation regularly.

The same is true of anything said about the person who called the police. If someone reports an offense and the accused says something threatening about that person afterward, the reporting status is what turns an ugly comment into a felony allegation.

What is the difference between retaliation and terroristic threat?

They look similar and they are charged differently. A terroristic threat under Penal Code 22.07 is about the purpose of the threat, usually placing someone in fear of imminent serious bodily injury. Retaliation is about who the person is and why they were targeted.

The practical difference is grading. Terroristic threat is often a misdemeanor. Retaliation starts at a third degree felony. The same set of words can be one or the other depending on whether the listener was a witness, an officer, or a reporting party.

Can you be charged with retaliation for posting someone’s address online?

Yes. Section 36.06 has a separate provision covering online conduct. Posting the home address or phone number of a public servant, or a member of their family or household, on a publicly accessible website, or sending it through an electronic communication, is an offense when it is done with intent to cause harm or a threat of harm.

The statute also creates a specific evidence rule. If the person receives a written demand not to disclose the address or number for safety reasons, and then fails to remove it within 48 hours, or reposts it anywhere within four years of the demand, that is treated as prima facie evidence of intent to cause harm. The four year window applies even if the individual is no longer a public servant.

This provision is graded more seriously than an ordinary retaliation count when the posting results in bodily injury to a public servant or a member of their family or household.

What are the defenses to a retaliation charge in Texas?

The strongest defenses usually attack the two connecting points rather than denying that anything was said.

• The threatened act was not unlawful. The statute requires a threat to harm by an unlawful act. Saying you will sue someone, report them to a licensing board, file a grievance, or tell their employer is not a threat of an unlawful act, however unwelcome it sounds.
• There is no connection to the person’s role. Anger at someone who happens to be a witness is not the same as anger because they are a witness. The State has to prove the reason.
• The words were not a threat. Venting, cursing, and conditional or vague statements are not the same as threatening harm.
• The accused did not know. When the theory is that someone intended to report a crime, the State has to prove the accused knew that.

What happens if retaliation is charged with another offense?

Retaliation is very often stacked on top of the arrest that produced it. A person is arrested for something else, says something during or after the arrest, and picks up a separate felony that was not part of the original call.

That matters, because the two charges can resolve differently. We have handled cases where a client was arrested on both a drug charge and a retaliation charge out of the same incident, and neither one resulted in a conviction. See our case results for outcomes on both charge types, including a possession of a controlled substance, penalty group 1, under one gram charge that the District Attorney declined to prosecute.

Anything said to officers during an arrest can also become the basis of a new charge, which is one reason interference with public duties and retaliation frequently appear together.

Retaliation charges in Travis, Williamson, and Bell Counties

Retaliation is a felony, so it is filed in district court. In Travis County that means the felony district courts in Austin. In Williamson County, cases are handled in Georgetown, where attorney Taylor Kacir, a former Bell County prosecutor, is based daily.

How a retaliation count is treated varies by county, and it is often the charge most open to negotiation when it was added on top of an underlying arrest. If you are facing a retaliation charge in Central Texas, call 512-369-3737.

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