Electronic Harassment in Texas
Section 42.07 of the Texas Penal Code defines harassment. Several subsections target electronic communications:
Subsection (a)(7) criminalizes sending repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another person.
Subsection (a)(8) criminalizes publishing repeated electronic communications on an Internet website or social media platform in a manner reasonably likely to cause emotional distress, abuse, or torment—unless the communications are made in connection with a matter of public concern.
Subsection (a)(9) criminalizes tracking or monitoring another person’s property or vehicle without consent, including by using a tracking application or device.
Subsection (a)(10) criminalizes obscene, intimidating, or threatening calls or electronic communications made from a temporary or disposable number provided by an Internet application.
“Electronic communication” is defined broadly: any transfer of signs, signals, writing, images, sounds, or data transmitted by wire, radio, electromagnetic, or photo-optical system. That includes email, text messages, social media, and any Internet-based communication tool.
The punishment
Electronic harassment is a Class B misdemeanor: up to 180 days in county jail and a fine of up to $2,000.
The offense is elevated to a Class A misdemeanor if the defendant has a prior harassment conviction, or if the repeated electronic communications under subsection (a)(7) or (a)(8) were directed at a child under 18 with intent that the child commit suicide or engage in conduct causing serious bodily injury.
The constitutional problem
Subsections (a)(7) and (a)(8) are content-based restrictions on speech. They criminalize repeated electronic communications based on their likely effect on the recipient—that they will “harass, annoy, alarm, abuse, torment, embarrass, or offend.” Under the First Amendment, content-based restrictions on speech are presumptively unconstitutional.
We don’t just practice law, we make it.
Bennett & Bennett has been litigating the constitutionality of this statute for over a decade. The Court of Criminal Appeals does not yet agree with us that the statute is facially unconstitutionsl, but in Owens v. State (Tex. Crim. App. 2025), we persuaded the Court that the statute was unconstitutional as applied> to our client, who had been prosecuted for sending repeated unpleasant but nonthreatening text messages to his psychotherapist. The Court agreed: the speech was constitutionally protected, and the State could not use the statute to punish it.
Owens is one of very few cases in which the Court of Criminal Appeals has held a statute unconstitutional as applied under the First Amendment. The decision limits the State’s use of section 42.07(a)(7) to punish speech that is unpleasant but does not threaten harm.
As a result of our work in Owens (and our decade of litigation preceding it) the State now has to prove the harassing nature of the speech without reference to the content of the speech. That is, repeated communications have to be harassing because they are repeated, and not because of what they say.
If you are charged with electronic harassment
Most electronic-harassment prosecutions involve speech that is constitutionally protected. If you are charged under section 42.07(a)(7) or (a)(8), the first question is whether the State can overcome the First Amendment. Talk to the criminal-defense lawyer who made this the law.