The § 42.07 framework — seven enumerated conduct categories
Texas Penal Code § 42.07 reaches seven separate conduct categories under § 42.07(a)(1)-(7), each requiring the same intent — to harass, annoy, alarm, abuse, torment, or embarrass. The statute is a Class B misdemeanor with Class A elevation for priors or minor victims.
- § 42.07(a)(1) — obscene communications
- Communications by telephone, in writing, or by electronic means in language that is obscene as defined by § 43.21 — patently offensive descriptions of sexual conduct or excretory functions appealing to the prurient interest and lacking serious literary, artistic, political, or scientific value. The obscenity definition is borrowed from the obscenity statute and incorporates the Miller v. California test. As-applied First Amendment challenges are common where the contested communication arguably has political, artistic, or other protected value.
- § 42.07(a)(2) — threats to commit a felony or inflict bodily injury
- Threats by telephone, in writing, or by electronic means to inflict bodily injury on a person or commit a felony against the person, family, household, or property. After Counterman v. Colorado, 600 U.S. 66 (2023), the State must prove the defendant had at least a reckless mental state regarding the threatening nature of the speech — actual subjective awareness that the communication could be taken as a true threat. The Counterman mens rea overlay materially raises the State's burden in pure-speech threat cases.
- § 42.07(a)(3) — false reports of death or serious bodily injury
- Communications conveying false reports — known by the actor to be false — that another person has suffered death or serious bodily injury, intending to harass, annoy, alarm, abuse, torment, or embarrass the complainant. Common in domestic disputes (false reports to family members), prank-call cases, and bad-faith use of bereavement-notification mechanisms. The State must prove the defendant's knowledge of falsity — an honest mistake about the underlying fact defeats the charge.
- § 42.07(a)(4) — repeated phone calls
- Causing the telephone of another to ring repeatedly or making repeated telephone communications anonymously or in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another. The element "reasonably likely to harass" is an objective standard — the contested issue is whether a reasonable person in the complainant's position would have been harassed by the call pattern. Number of calls, time spacing, and content drive the analysis. A few calls between former partners during a custody dispute may not satisfy the element; dozens of anonymous calls at all hours plainly does.
- § 42.07(a)(5) — calls at inconvenient hours or in offensively coarse language
- Communications by telephone or message in offensively coarse language to a person, or at hours known to be inconvenient to the recipient. The inconvenient-hours theory typically reaches calls between 11 p.m. and 7 a.m. or other times the defendant knew were inconvenient. The offensively-coarse-language theory reaches profanity, sexually explicit language, or hostile epithets directed at the recipient. Both prongs require intent to harass, annoy, alarm, abuse, torment, or embarrass — single isolated communications without surrounding context rarely satisfy the element.
- § 42.07(a)(6) — misleading emergency services calls
- Knowingly making false statements to mislead emergency-services personnel — swatting, false 911 reports, false reports of crimes in progress, or other manipulation of emergency response. The offense is narrowly drawn around statements the defendant knew were false at the time. Honest mistake — a good-faith but inaccurate report — does not satisfy the element. Many swatting cases are also charged under separate statutes (silent or abusive 911 calls under § 42.061, false report to peace officer under § 37.08, terroristic threat under § 22.07) that may carry higher punishments.
- § 42.07(a)(7) — repeated electronic communications
- Sending repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another. "Electronic communication" under § 42.07(b)(1) reaches telephone, fax, modem, email, text message, social media, and other digital transmissions. The breadth of the subsection — capturing text messages, DMs, tweets, comments, and other digital speech — has prompted repeated First Amendment challenges. Ex parte Barton, 662 S.W.3d 876 (Tex. Crim. App. 2022), narrowed the subsection to specific-person directed speech with a culpable mens rea, preserving the statute while constraining prosecutorial reach.
Texas Penal Code § 42.07 is the workhorse harassment statute — comparatively low-grade as a Class B misdemeanor but heavily charged in domestic disputes, custody battles, online conflicts, and former-relationship breakdowns. Every modern prosecution under the statute requires the State to prove three connected propositions: (1) the defendant engaged in one of the seven enumerated conduct categories under § 42.07(a); (2) the defendant did so with the intent to harass, annoy, alarm, abuse, torment, or embarrass another; and (3) where the category includes a "reasonably likely to harass" element (categories (4) and (7) most prominently), an objective reasonable-person standard is also satisfied. The intent element is the universal contested issue; the conduct-category proof and the objective standard each create additional defense leverage.
The seven categories were not enacted simultaneously. The original 1973 codification reached obscene communications, threats, and false reports. The repeated-phone-calls and inconvenient-hours categories were added in 1979 and 1983, respectively, as the telephone became the dominant harassment medium. The misleading emergency-services category arrived in 1989 in response to early-internet-era swatting precedents. The § 42.07(a)(7) electronic-communications subsection — by far the most heavily litigated — was added in 2001 and amended in 2013 to broaden the definition of "electronic communication" beyond email and to cover social media. Each addition created new constitutional litigation as the statute reached new categories of expression.
Elements and the contested intent standard
Every § 42.07 prosecution requires proof of intent to harass, annoy, alarm, abuse, torment, or embarrass. The State must prove this subjective mental state — not merely that the conduct was likely to produce one of those reactions in the complainant.
The intent element is the single most-contested issue in modern § 42.07 practice. The statute requires that the defendant act with intent to harass, annoy, alarm, abuse, torment, or embarrass another — six specific mental states joined disjunctively. The State satisfies the element by proving any one of the six, but each is a subjective conscious-objective inquiry — what did the defendant actually intend, not what a reasonable person would have intended in the defendant's circumstances. Wilson v. State, 448 S.W.3d 418 (Tex. Crim. App. 2014), is the leading recent decision on sufficiency review of the intent element. The Court of Criminal Appeals emphasized that mere annoyance to the complainant is not enough — the State must prove the defendant's purpose in the communication was to annoy (or one of the other listed states).
The defense routinely contests the intent element through circumstantial-inference analysis. What were the parties' prior relations? Did the communications occur within a continuing dispute (a divorce, a child-custody battle, a business breakdown) where ordinary communication is expected, even if heated? Did the defendant have a legitimate purpose — a request for information, a custody-coordination concern, a debt-collection inquiry — that overlapped with content the complainant found unwelcome? Where the communications served a recognized non-harassment purpose, the State's intent proof is weakened even if the complainant subjectively felt harassed. Texas courts have repeatedly emphasized that personal animosity in family disputes, by itself, does not equate to harassment intent.
The reasonable-person objective standard built into categories (4) and (7) operates separately from the intent element. Even where the State has proved subjective intent to harass, the prosecution must additionally show — for repeated-phone-call and electronic-communication cases — that the conduct was "in a manner reasonably likely to harass." This is an objective standard measured from the perspective of a reasonable person in the complainant's position. Calls between former intimates during the immediate aftermath of a relationship breakdown, repeated outreach during a documented custody dispute, or communications about a contested business matter may not satisfy the objective standard even if the complainant subjectively felt harassed. This creates a second layer of defense argument in the heaviest-charged subsections.
The Counterman v. Colorado overlay added a new mens rea floor for threat-based § 42.07(a)(2) prosecutions. The Supreme Court held in 2023 that the First Amendment requires the State to prove a defendant charged with a true-threats offense had at least a reckless mental state regarding the threatening nature of the speech — subjective awareness that the communication could be taken as a threat to commit violence. Negligence is no longer enough. The Counterman rule applies directly to § 42.07(a)(2) and informs the broader First Amendment analysis of (a)(7) electronic-communications cases, particularly where the communications are alleged to contain implicit threats. Post-Counterman defense strategy in threat-based harassment cases routinely focuses on the subjective-awareness element through cross-examination of the complainant and through expert linguistic or psychological analysis of the communications in context.
§ 42.07(a)(7) electronic communications after Barton
Ex parte Barton, 662 S.W.3d 876 (Tex. Crim. App. 2022), upheld § 42.07(a)(7) against facial overbreadth and vagueness challenges by narrowing the statute to specific-person directed speech with a culpable mens rea. The decision preserves the subsection while sharply constraining its prosecutorial reach.
Section 42.07(a)(7) is the most heavily litigated subsection of the harassment statute. The subsection criminalizes sending repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another. "Electronic communication" under § 42.07(b)(1) reaches telephone, fax, modem, email, text message, social media, and other digital transmissions. The breadth of the subsection — capturing tweets, Facebook posts, comments, DMs, text messages, and other digital speech — combined with the broad list of disjunctive mental states (annoy, alarm, abuse, torment, embarrass, or offend) prompted a generation of facial overbreadth and vagueness challenges.
The Texas Court of Criminal Appeals in Ex parte Barton, 662 S.W.3d 876 (Tex. Crim. App. 2022), resolved the central constitutional question. The Court upheld § 42.07(a)(7) against facial overbreadth and vagueness challenges by reading the statute to require both (1) speech directed at a specific person — not generalized public commentary — and (2) a culpable mens rea (intent to harass, annoy, alarm, abuse, torment, or embarrass). Construed that way, the subsection reaches non-protected harassing communication directed at a specific target rather than political or social commentary on a public matter. The Barton narrowing preserved the statute while sharply constraining its prosecutorial reach — and created the modern as-applied framework for defending § 42.07(a)(7) cases.
As-applied First Amendment challenges remain available after Barton. The defense routinely argues that the contested communications, in context, addressed a matter of public concern, were directed at the public rather than at a specific person, or otherwise involved protected expression that the statute as narrowed by Barton does not reach. Cases involving political speech, criticism of public figures, social-media commentary on public events, or genre-of-criticism speech (consumer reviews, journalistic reporting, online debate) regularly produce as-applied challenges that survive Barton's facial-validity holding. The litigation posture is fact-intensive: the defense identifies record evidence supporting protected-speech characterization, the State emphasizes the targeted nature of the communications, and the trial court resolves the as-applied question on the specific record.
Pre-Barton history matters because lower courts in Texas had reached divergent conclusions before the Court of Criminal Appeals spoke. Several Texas courts of appeal had held the subsection unconstitutionally vague or overbroad as applied to particular records before Barton resolved the facial question. Karenev v. State, 281 S.W.3d 428 (Tex. Crim. App. 2009), governs the preservation issue: facial constitutional challenges to a statute must generally be raised before trial; failure to do so can waive the issue on direct appeal. Defense counsel handling § 42.07(a)(7) cases must therefore preserve constitutional challenges through pretrial motion practice — typically a motion to quash the information or indictment — even after Barton, particularly where the facts present a colorable as-applied challenge.
First Amendment overlay — Counterman and protected speech
Counterman v. Colorado, 600 U.S. 66 (2023), held that the First Amendment requires at least a reckless mens rea for true-threat prosecutions — actual subjective awareness that speech could be taken as threatening violence. The decision reshapes Texas § 42.07(a)(2) threats analysis and informs § 42.07(a)(7) electronic-communications cases.
The United States Supreme Court's 2023 decision in Counterman v. Colorado, 600 U.S. 66 (2023), restructured First Amendment doctrine for threat-based criminal prosecutions. The Court held that the State must prove a defendant charged with a true-threats offense had at least a reckless mental state regarding the threatening nature of the speech — actual subjective awareness that the communication could be taken as a true threat to commit violence. The Court rejected purely objective tests (would a reasonable person understand the communication as a threat) as insufficient under the First Amendment. The mental-state floor protects speakers from criminal liability for misunderstood expression while still permitting prosecution of speech the defendant knew, or recklessly disregarded the risk, would be taken as threatening.
Counterman applies directly to Texas § 42.07(a)(2) threats prosecutions. Where the State alleges the defendant communicated a threat to inflict bodily injury or commit a felony, the State now must prove the defendant's subjective awareness of the threatening nature of the communication — not merely that a reasonable recipient would have perceived it as threatening. The change materially increases the State's burden in pure-speech threat cases. Cases that turned on the recipient's subjective reaction or on objective-reasonable-person tests now require additional proof of the defendant's state of mind regarding the communication's threatening character.
The Counterman framework also informs § 42.07(a)(7) electronic-communications cases where threats are alleged as part of the harassment course of conduct. Although Counterman addressed a stalking statute, its First Amendment reasoning extends to any criminal prosecution turning on protected expression. Where § 42.07(a)(7) is charged based on communications that the State characterizes as threatening — even if technically subsumed within the broader (a)(7) "reasonably likely to harass" framework — the Counterman mens rea requirement applies. Defense strategy in these cases focuses on cross-examination establishing context, ambiguity, and the absence of evidence supporting subjective awareness of the threatening nature of the speech.
True threats remain unprotected under the First Amendment — but only true threats. Speech that is hyperbolic, satirical, conditional, or context-dependent rarely qualifies as a true threat even where the recipient subjectively felt threatened. Watts v. United States, 394 U.S. 705 (1969), established the political-hyperbole exclusion for threats against public officials. Virginia v. Black, 538 U.S. 343 (2003), confirmed that the speaker must have communicated a serious expression of an intent to commit an act of unlawful violence. Counterman added the subjective-mens-rea floor on top of these objective requirements. The defense in any threat-based § 42.07 prosecution develops the full First Amendment record — objective characterization of the speech, subjective state of mind, contextual interpretation, alternative readings that exclude a violent-intent interpretation.
Defense strategies for § 42.07 prosecutions
Harassment defense in Texas turns on intent rebuttal, the objective reasonable-person standard, identification disputes in account-hijack cases, single-incident challenges to the "repeated" element, and First Amendment Counterman/Barton challenges to subsection (a)(7) prosecutions.
Intent rebuttal is the foundational defense in nearly every § 42.07 prosecution. The State must prove the defendant acted with the specific purpose of harassing, annoying, alarming, abusing, tormenting, or embarrassing the complainant. Where the communications had a legitimate non-harassment purpose — coordinating shared parenting, conducting legitimate business, pursuing legal rights, addressing a documented dispute — the State's intent proof is vulnerable. The defense develops the legitimate-purpose narrative through the defendant's testimony, contemporaneous documentation (texts, emails, voicemails establishing the context), corroborating-witness testimony, and timeline reconstruction. Even where the communications were unwelcome to the complainant, the defense argues that unwelcome is not equivalent to intended-to-harass.
The reasonable-person objective standard built into § 42.07(a)(4) repeated phone calls and § 42.07(a)(7) electronic communications creates a second tier of attack. Even where the State proves intent, the prosecution must show the communications were "reasonably likely to harass" — measured objectively from the perspective of a reasonable person in the complainant's position. The defense routinely cross-examines the complainant about the context, the parties' prior history, communications the complainant initiated or responded to, periods of normal interaction, and circumstances suggesting the complainant did not consistently treat the communications as harassing. Cell-phone records showing the complainant's reciprocal communications often undermine the objective standard.
Identification defense — particularly in account-hijack scenarios — is increasingly common in § 42.07(a)(7) electronic-communications cases. The State must prove the defendant, not someone else, sent the communications. Where the communications came from a shared device, an account whose password was widely known, or a hacked account, the defense develops the alternative-source narrative through digital forensics. Computer or phone-forensic experts examine login records, IP addresses, device-specific identifiers, and metadata establishing who actually used the account at the relevant times. Cantu v. State, 395 S.W.3d 202 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd), addresses authentication of electronic communications in Texas; the State's authentication burden is a real one and is regularly contested.
The "repeated" element in § 42.07(a)(4) and (a)(7) creates a third defense angle. Both subsections require repeated communications — a single phone call or a single text message, no matter how offensive, does not satisfy the element. The defense argues for narrow readings of "repeated" — typically requiring multiple distinct communications within a discernible time period — and contests the State's aggregation of communications into a course of conduct. Cases involving a single text exchange that extended over several minutes, or a single email thread with multiple messages, often present meritorious "single-incident" challenges that the State has misframed as "repeated" communications.
Stalking under § 42.072 — overlap and distinction
Texas stalking under § 42.072 is a 3rd-degree felony (2-10 years) — orders of magnitude higher than harassment. The two statutes overlap considerably, and overcharge dynamics are common. Scott v. State, 322 S.W.3d 662 (Tex. Crim. App. 2010), addresses the statutory boundary.
Texas Penal Code § 42.072 stalking is the most consequential adjacent offense to § 42.07 harassment. Stalking is a 3rd-degree felony — 2 to 10 years in TDCJ — for a first offense and a 2nd-degree felony (2 to 20 years) for repeat offenders under § 42.072(b). The elements are: (1) a course of conduct on more than one occasion directed specifically at another person; (2) that the actor knows or reasonably should know the other will regard as threatening bodily injury, death, or an offense involving property damage; (3) that would cause a reasonable person to fear bodily injury, death, or property damage; and (4) that does cause the complainant such fear. The statute requires a threatening-conduct course and a reasonable-fear element absent from § 42.07 — but in practice the two statutes overlap substantially.
The overcharge dynamic is a recurring issue. Prosecutors faced with persistent harassment patterns — particularly in domestic-violence or former-partner contexts — frequently file the case as stalking under § 42.072 rather than harassment under § 42.07. The decision dramatically increases the defendant's exposure (from up to 1 year on a Class A misdemeanor harassment to up to 10 years on a 3rd-degree felony stalking). The defense pushes the case down to § 42.07 by emphasizing the absence of the threatening-conduct course or the reasonable-fear element — where the communications were unwelcome but not threatening, or where the complainant's fear was not objectively reasonable, the case fits § 42.07 rather than § 42.072.
Scott v. State, 322 S.W.3d 662 (Tex. Crim. App. 2010), addressed the constitutional and statutory boundary between the two statutes. The Court of Criminal Appeals upheld the stalking statute against vagueness challenges by emphasizing the threatening-conduct and reasonable-fear elements that distinguish stalking from harassment. Cathey v. State, 992 S.W.2d 460 (Tex. Crim. App. 1999), addressed the constitutional analysis of an earlier version of the stalking statute. Defense strategy in close cases involves both substantive argument about whether the elements of stalking are met and procedural argument about whether the State should be permitted to elevate a harassment-pattern case to a felony stalking charge — particularly where the complainant's fear is grounded in animosity rather than objective threat.
Plea-negotiation dynamics commonly involve reduction from § 42.072 to § 42.07. A defendant indicted on stalking with a credible recklessness or absence-of-threatening-conduct narrative can sometimes negotiate a plea to harassment — moving from a 3rd-degree felony (2-10) to a Class B or Class A misdemeanor (up to 1 year maximum). The reduction has significant collateral consequences: avoidance of felony record, restoration of firearms rights (assuming no other disqualifier), reduced background-check impact, and shorter probationary supervision. The defense develops the trial record toward the harassment-not-stalking framing through cross-examination of the complainant about fear, communication content analysis, and contextual evidence undermining the reasonable-fear element.
Local DFW practice — Collin, Dallas, Denton, Tarrant
Frisco-based harassment cases route to Collin County criminal courts, with venue-specific procedural variations across the four-county DFW area. Local practice norms — body-cam discovery, electronic-communications subpoena procedures, plea-negotiation conventions — vary by county.
Harassment cases in the DFW area route to the criminal courts of the county where the offense occurred — typically the county where the defendant transmitted the communications or, in cross-county cases, the county where the complainant received them. For Frisco residents, that almost always means the Collin County Court at Law system. The Collin County DA's Office handles misdemeanor harassment prosecutions through its misdemeanor division; the trial dockets run through the County Courts at Law at the Russell A. Steindam Courts Building in McKinney. Dallas County cases route to the Dallas County Court at Law system at the Frank Crowley Courts Building; Denton County cases route to the Denton County Court at Law division in Denton; Tarrant County cases route to the Tim Curry Justice Center in Fort Worth.
Local practice varies on key procedural points. Discovery practice under article 39.14 (Michael Morton Act) is largely uniform across the four-county area, but production timelines and prosecutor responsiveness vary. Body-cam and electronic-communications discovery is typically straightforward in cases initiated by police report, but communications-platform evidence (Facebook, Instagram, Twitter, Discord, etc.) requires subpoena practice that the prosecutor may or may not initiate proactively. Defense counsel routinely subpoenas communications-platform records directly under the Stored Communications Act framework where the prosecution's subpoena is delayed or incomplete.
Plea-negotiation conventions also vary. Collin County, in our experience, is comparatively willing to consider deferred-disposition outcomes on first-offense harassment cases where the parties have agreed to no-contact terms and the defendant has demonstrated insight through completion of anger-management or appropriate counseling. Dallas County and Tarrant County misdemeanor courts more commonly require a plea with probation rather than dismissal-based outcomes, even on first-offense cases. Denton County practice tends to track Collin County. Defense strategy in any specific case turns on the assigned prosecutor, the assigned judge, and the complainant's position on resolution — local knowledge materially affects the available plea-negotiation paths.
Companion charges are common. Many harassment cases arrive with companion charges under § 22.01 assault, § 22.07 terroristic threat, § 42.072 stalking (in heavier cases), § 42.062 abuse of 911 (where the misleading-emergency-services subsection is implicated), § 42.061 silent or abusive calls to 911, or § 33.07 online impersonation (where account-hijack-type conduct is involved). Each companion charge requires separate analysis — element-by-element review, mens-rea overlap analysis, double-jeopardy review where the same conduct underlies multiple counts. Aggressive defense strategy on the lead harassment charge often produces companion-charge dismissals as part of an integrated resolution.
When to retain counsel
Retain experienced harassment defense counsel immediately on arrest, on first contact by a police investigator, on receipt of a protective-order petition that recites § 42.07 conduct, or on service of a grand jury subpoena. Early intervention is the single highest-impact decision in modern § 42.07 practice.
The single most important moment in any harassment case is the moment of first contact. Police investigators routinely seek to interview the suspect before formal charges are filed — a "voluntary interview," a "statement to clear things up," a recorded conversation framed as informal. Anything the suspect says in that interview becomes State evidence at trial. The Fifth Amendment privilege against self-incrimination applies — the right to remain silent — but it must be invoked to be effective. Defense counsel retained before the interview can shut down the police-interview process entirely, controlling the timing and content of any defendant statement, or substituting a written defense response that protects the defendant's position.
Protective-order proceedings often precede or run parallel to criminal harassment cases. A petition under Chapter 7B of the Texas Code of Criminal Procedure (protective orders for victims of stalking, sexual assault, trafficking, or family violence) or under Chapter 85 of the Texas Family Code (family-violence protective orders) frequently recites the same conduct that the State will later pursue as a § 42.07 harassment charge. The respondent's testimony at the protective-order hearing is admissible in the criminal case. Strategic coordination between the protective-order defense and the criminal-harassment defense is critical; missteps at the protective-order stage routinely produce trial-altering admissions in the criminal case.
Grand jury subpoenas in felony-elevated harassment cases (Class A elevation, stalking overcharge to § 42.072, or companion-charge elevation under § 33.07 online impersonation or § 22.07 terroristic threat) require immediate counsel. The Fifth Amendment privilege extends to testimony before a grand jury; counsel cannot accompany the witness into the grand jury room, but counsel sits outside and is available for consultation. A witness who appears at the grand jury without counsel routinely makes statements that the State exploits at trial; a witness who appears with counsel — and who has been thoroughly prepared on the privilege — preserves all available defenses.
The cost of early intervention is significantly lower than the cost of late intervention. A pre-charge consultation may resolve through a no-charge outcome (the prosecutor declines to file based on early-stage defense advocacy), through a misdemeanor-disposition outcome (the State agrees to file as a Class B misdemeanor with deferred disposition), or through an investigative resolution (no companion charges filed even where the underlying facts would support them). A post-charge engagement — particularly after a defendant has given a recorded statement to police or has testified at a protective-order hearing without counsel — narrows the available options and increases the litigation cost dramatically. The first-30-days posture in any harassment case shapes everything that follows.
