How L and L Law Group defends a § 32.51 case
Because the punishment under § 32.51 turns on counting items, the defense starts with the count — and with the two questions every case shares: can the State prove each item it alleges, and can it prove intent to harm or defraud rather than innocent possession?
Most people call it identity theft. The Texas statute calls it fraudulent use or possession of identifying information, and the conduct it reaches is broad on purpose — but the punishment is not. Section 32.51(c) ties the felony grade directly to the number of "items" of identifying information the State can prove, so the count is the whole ballgame. Our job is to make the State prove each item it charged, to test the intent evidence, and to determine how the information ever came into the client's hands. If the punishment turns on counting, the defense starts with the count.
We start by mapping the indictment's alleged items against the actual evidence — stripping out bare names, duplicate entries, and data that does not identify a person or an account under Cortez v. State and Bodden — because dropping below a tier threshold can change the entire exposure. We separate possession from use, develop any consent or lawful-purpose explanation, and where the § 32.51(b-1) three-or-more-persons presumption is in play, we build the rebuttal. From there the strategy splits depending on posture: a pre-indictment investigation calls for quiet advocacy with the screening prosecutor; a returned indictment calls for a hard look at how the items are described and what the device extractions actually show. Co-founding partners Reggie London and Njeri London handle these matters directly rather than passing them to a screener, and the firm defends identifying-information cases across the DFW area from its single Frisco office. For where this offense sits in the larger fraud landscape, see our white collar and fraud defense overview and our identity theft defense practice page; for the neutral statutory reference, see the fraudulent use of identifying information charge encyclopedia entry.
What is § 32.51, and what must the State prove?
Texas Penal Code § 32.51 is committed by obtaining, possessing, transferring, or using an item of another person's identifying information, without consent, with intent to harm or defraud another. No completed fraud, financial loss, or profit is required — the crime is complete when the conduct meets the intent.
Most people call it identity theft. The Texas statute calls it fraudulent use or possession of identifying information, and it lives in Penal Code § 32.51. A person commits the offense by obtaining, possessing, transferring, or using an item of another person's identifying information, without that person's consent, and with the intent to harm or defraud another. Notice what is missing from that list: there is no requirement that anyone actually lose money, that a fraudulent transaction be completed, or that the accused ever profit. The crime is complete the moment the prohibited conduct meets the prohibited intent. "Identifying information" is defined in § 32.51(a)(1) far more broadly than the everyday sense — it reaches a name paired with a date of birth; unique biometric data such as a fingerprint, voice print, or retina or iris image; a unique electronic identification number, address, routing code, or financial-institution account number; telecommunication identifying information or an access device; and a Social Security number or other government-issued identification number. Because the definition is a list rather than a single concept, the same wallet or spreadsheet can contain many separate pieces of covered information — the point that drives the entire punishment scheme.
To convict under § 32.51(b)(1), the State must prove each of the following beyond a reasonable doubt — and every one is a place a defense can be built:
- A culpable act
- The accused obtained, possessed, transferred, or used the information. Any one of these verbs is enough — the State need not prove all four, but it must prove at least one as to each item.
- An item of identifying information
- Each piece counted must fit the statutory definition in § 32.51(a)(1). This is the single most contested element, because the felony grade is built on how many qualifying items the State can prove.
- Belonging to another person
- The information must identify a real person other than the accused. Fabricated identities of fictional people are handled differently — that is usually forgery territory, not § 32.51.
- Without consent
- The owner did not give consent or effective consent. Authorization — for example, a business partner permitted to use account credentials — can defeat this element entirely.
- Intent to harm or defraud
- At the time of the conduct, the accused intended to harm or defraud someone. Possession without that purpose is not the crime. This mental-state element is the heart of most contested cases.
The Court of Criminal Appeals has described the statute's purpose plainly: "The general purpose of criminalizing this conduct is to prevent identity theft." Jones v. State, 396 S.W.3d 558, 562 (Tex. Crim. App. 2013). That purpose matters in litigation, because it frames how courts read the statute's reach — and where they stop.
What are the penalties, and how does item count set the grade?
There is no misdemeanor version of § 32.51 — even the smallest case is a felony. Section 32.51(c) ties the degree directly to the number of items the State proves: fewer than five is a state jail felony, five to nine a third-degree, ten to forty-nine a second-degree, and fifty or more a first-degree felony.
There is no misdemeanor version of this offense. Even the smallest case is a felony. What changes is the degree, and § 32.51(c) ties the degree directly to the number of items of identifying information the State proves. The punishment-range table at the top of this page sets out the entire sentencing logic of the statute in one place.
Two features of this ladder change how a case is fought. First, the lines between grades are narrow. A single contested item can move a case from third-degree to state-jail exposure, or from second-degree to third. Second, the elderly enhancement in § 32.51(c-1) raises the grade to the next higher category — so a second-degree fact pattern against an elderly individual becomes a first-degree felony. Confinement and fine ranges reflect the general felony punishment ranges in Penal Code Chapter 12.
Because grade drives everything — probation eligibility, record-clearing options, and bargaining posture all turn on it — much of the defense work happens before any plea is discussed. For the full sentencing picture across offense levels, our Texas punishment ranges guide lays out each grade in detail.
How does the item count actually get litigated?
If the punishment turns on counting, the defense starts with the count. In Cortez v. State the Court of Criminal Appeals held an "item" is each single piece of data — not the card or document containing it — and a bare name is not an item unless paired with a date of birth.
If the punishment turns on counting, the defense starts with the count. And on this question, Texas's highest criminal court has given defendants real tools. In Cortez v. State, 469 S.W.3d 593 (Tex. Crim. App. 2015), the Court of Criminal Appeals settled what an "item" is. It held that "the phrase 'item of identifying information' refers to any single piece of personal, identifying information enumerated in the definition of 'identifying information' … as opposed to a thing that may contain a group of pieces of information identifying a person, such as a license, credit card, or document." In other words, the unit is the data point, not the plastic card or the sheet of paper it sits on. A single driver's license can hold several items; a single check can too.
That cuts both ways, and the defense leverages the limits the Court drew. Cortez also held, reading § 32.51(a)(1)(A), that "a person's name alone is inadequate to constitute an item of identifying information." The name has to be paired with something — under that subsection, a date of birth — before it counts. When an indictment pads the count by treating bare names as items, that is a sufficiency problem the defense can press.
The Court of Criminal Appeals returned to the counting question in Bodden, 707 S.W.3d 399 (Tex. Crim. App. 2024). It reaffirmed that "for purposes of counting the items of identifying information, it is immaterial whether they are possessed in a single tangible document or in multiple separate documents," and clarified that "the only pertinent inquiry under the statute is whether the piece or pieces of information possessed by the defendant are sufficient to 'identif[y] a person' (or, a person's accounts)." It also confirmed the § 32.51(a)(1)(A) pairing rule, holding that "Subsection (a)(1)(A) plainly requires that the two pieces of information (name and date of birth) be taken together to constitute 'identifying information.'" The practical payoff in Bodden matters as much as the rule: because the State was held to the items it actually alleged and proved, the Court reformed the judgment down from a higher felony to a second-degree conviction and remanded for a new punishment hearing. That is the entire defense theory of these cases in miniature — force the State to prove each item it charged, and the grade can fall.
Hypothetical for illustration only. Suppose a person is found with a folder holding a coworker's name and date of birth, that coworker's bank account number, and a printout listing four other names with no other data attached. An indictment might allege six items and charge a third-degree felony. Under Cortez and Bodden, the four bare names likely do not count, and the realistic count is two items — a state jail felony. Same evidence, two grades apart. The facts of any real case will differ, and nothing here predicts a result.
How do prosecutors prove intent to harm or defraud?
Intent is rarely proved with a confession; it is built from circumstances. The statute also gives the State a shortcut: under § 32.51(b-1), possessing the identifying information of three or more people creates a rebuttable presumption of intent to harm or defraud.
Intent is rarely proved with a confession. It is almost always built from circumstances — how the information was stored, what else was found with it, search history, messages, and the relationship between the accused and the named person. Texas courts allow this: circumstantial evidence is "as probative as direct evidence in establishing the guilt of an actor." But circumstantial proof is also where reasonable doubt lives, because innocent explanations are common and the State carries the burden the whole way.
The statute gives prosecutors a shortcut the defense has to confront directly. Under § 32.51(b-1), a person is presumed to have intended to harm or defraud if they possess the identifying information of three or more other people. This is a rebuttable statutory presumption, not an automatic conviction. As one court of appeals described the mechanism, "the actor is presumed to have the intent to harm or defraud another if the actor possesses the identifying information of three or more other persons." A presumption like this still goes to the jury under the rules in Penal Code § 2.05, and the State still has to prove the underlying facts. Rebutting it — with a lawful reason the information was held, evidence of consent, or proof the accused never knew the data was there — is frequently the central battle of the case.
What defenses work, and can the charge be dismissed or expunged?
There is no single template — the right approach depends on the items, the intent evidence, and how the information came into the accused's hands. The most common realistic win in a chargeable case is reducing the felony grade by litigating the item count down a tier.
There is no single template. The right approach depends on the items, the intent evidence, and how the information came into the accused's hands. These are the defense theories L and L Law Group examines in identifying-information cases:
- Attack the item count. Apply Cortez and Bodden to strip out bare names, duplicate entries, and data that does not actually identify a person or an account. Dropping below a tier threshold can change the entire exposure.
- Negate intent to harm or defraud. Possession with a lawful or innocent purpose — holding a family member's documents, storing a client file, keeping old employer records — is not the offense. Where the § 32.51(b-1) presumption is in play, build the rebuttal.
- Possession versus use. Where the State cannot tie the accused to any use, the case is a possession case, which narrows the evidence and often the count.
- Consent or effective consent. Authorization to hold or use the information defeats the "without consent" element.
- Lack of knowing possession. Information found on a shared device, in a shared vehicle, or in a co-occupied space may not be knowingly possessed by the accused under Penal Code § 6.03.
- Suppression of the search. Identifying-information cases are evidence-heavy — phones, laptops, cloud accounts. A defective warrant, an overbroad search, or a bad stop can suppress the data the count is built on under Article 38.23.
- Mistaken identity in a data-ring allegation. When the State charges a broad identity-theft "ring," the defense isolates what each individual actually possessed or did, rather than letting the accused absorb the conduct of others.
That last point deserves emphasis. Many of these cases are charged as organized schemes — multiple defendants, a shared stash of data, and a theory that everyone is responsible for everything. The defense response is to demand item-by-item, person-by-person proof. Bodden is the appellate confirmation that this works: the State is bound to the items it alleges and proves, not the size of the overall operation.
Can a § 32.51 charge be dismissed or expunged?
Sometimes, and the path depends on the result. The most common realistic win in a chargeable case is reducing the felony grade by litigating the item count down a tier, because the difference between grades can be one or two items. Beyond that, outcomes are case-specific and turn on the evidence, the county, and the accused's history. A prosecutor may agree to a reduction, a pretrial diversion, or in some cases dismissal where proof of intent is weak.
Record relief follows the disposition. If a case ends in dismissal or acquittal, the accused is generally eligible to seek an expunction under Chapter 55 of the Code of Criminal Procedure, which destroys the records of the arrest. If a case is resolved with deferred adjudication community supervision and completed successfully, an order of nondisclosure under Government Code Chapter 411 may later seal the record from public view, subject to waiting periods and eligibility rules. A straight felony conviction is not expungeable, which is exactly why grade reduction and disposition strategy matter from day one. Our expunction versus nondisclosure guide walks through which relief applies to which outcome.
What happens after arrest, and what are the collateral consequences?
Knowing the sequence helps you see where decisions get made — from magistration through the charging instrument (which sets the item count and the grade), discovery and forensics, pretrial motions, and resolution. A § 32.51 conviction also reaches well past the courtroom.
Knowing the sequence helps you see where decisions get made.
- Arrest and magistration. Within 48 hours, the accused is taken before a magistrate, told the charge, and given the statutory warnings. Bond is set here.
- Bond and pretrial release. Conditions may include no-contact orders and surrender of devices. Counsel can move to reduce bond or modify conditions; our case-process guidebook explains the stages in detail.
- Charging instrument. A felony proceeds by indictment from a grand jury or by waiver to an information. The number of items alleged here sets the felony grade — and it is the first thing the defense scrutinizes.
- Discovery and forensics. Under Article 39.14, the defense obtains the State's evidence: device extractions, financial records, and the underlying data. Independent forensic review often reshapes the count.
- Pretrial motions. Suppression challenges, motions to quash a defective indictment, and challenges to the item count are litigated before trial.
- Resolution. Negotiated reduction, dismissal, diversion, plea, or trial. Because grade drives everything, much of the work happens before a plea is ever discussed.
For a deeper walkthrough of motions, deadlines, and how a Texas felony moves through the courts, see our Texas criminal procedure master guide and the page on fighting a charge. A § 32.51 conviction reaches well past the courtroom, and for many clients the collateral effects are the real stakes:
- Employment and licensing. A fraud-related felony is disqualifying for many financial, healthcare, and government roles, and it can trigger professional-license review.
- Immigration. Offenses involving fraud or deceit can be treated as crimes involving moral turpitude or, depending on loss amount and structure, as aggravated felonies under federal immigration law — with potential removal consequences. Non-citizens should have counsel coordinate the criminal and immigration analysis before any plea.
- Firearms. A felony conviction triggers both the Texas firearm prohibition in Penal Code § 46.04 and the federal prohibition in 18 U.S.C. § 922(g).
- Restitution. Courts routinely order restitution to victims for documented losses, which can be substantial in multi-victim cases.
- Parallel federal exposure. Cases involving many victims, financial institutions, or interstate transmission can draw a federal indictment, including aggravated identity theft under 18 U.S.C. § 1028A, which adds a mandatory two-year sentence to run consecutively. See our federal fraud defense page.
