Texas Stalking & Revenge Porn Defense Guide

The Texas Stalking Framework — Section 42.072

Texas stalking is codified at Penal Code § 42.072. The offense requires a course of conduct — two or more acts — that the actor knows or reasonably should know will cause a reasonable person to fear bodily injury, death, or an offense against a family member, household member, dating partner, or property; and that does in fact cause that reasonable person to fear those consequences or to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended.

Three statutory elements drive every Texas stalking prosecution. First, the “course of conduct” requirement: a single instance is never stalking. The State must prove two or more separate acts that, taken together, form a pattern. Second, the “reasonable person” standard: the State must show that an ordinary and prudent person in the complainant’s circumstances would have experienced the requisite fear. Third, the actual fear or distress requirement: the complainant must in fact have experienced one of the enumerated emotional states.

Stalking is a third-degree felony (2–10 years, up to $10,000 fine). It enhances to a second-degree felony if the actor has a prior stalking conviction. Conviction triggers federal firearms disability under 18 U.S.C. §922(g)(9) where the underlying conduct involved a dating partner, family member, or person with whom the actor shares a household. The collateral consequences — protective orders, no-contact directives, employment impact, immigration consequences — often exceed the criminal sentence in long-term significance.

For interactive intake screening and statutory element analysis, see our satellites on Texas stalking 42.072 elements and the related blog post on bad breakups and criminal stalking in Texas.

Course of Conduct — The Two-Act Threshold

The course-of-conduct element is the most commonly-litigated piece of a Texas stalking prosecution. The statute defines it as conduct that occurs on at least two occasions and constitutes following, calling, or other contact with the complainant, or constitutes communicating with or about the complainant to a third person, or constitutes property damage or violence toward a household member.

Two practical implications. First, the State must prove each of the two predicate acts beyond a reasonable doubt; failure to prove one of them defeats the entire stalking charge. Second, the predicate acts can occur over a substantial period — weeks, months, even years. The temporal spacing of the acts is relevant to the jury’s reasonable-fear analysis but does not categorically defeat the charge.

The defense’s most common course-of-conduct challenge is to recharacterize one of the predicate acts. A late-night text message, in isolation, may be characterized as a desperate but lawful communication. A series of three text messages over six hours may be characterized as an emotional response to an ongoing dispute rather than a stalking pattern. The factual recharacterization requires careful preservation of the surrounding communications — the complainant’s preceding messages, the larger conversation context, the relationship history.

For analysis of the course-of-conduct element in cyberstalking contexts, see our satellite on cyberstalking online behavior.

The Reasonable-Person Standard and Subjective Fear

The reasonable-person element under § 42.072 has both objective and subjective components. Objectively, the State must show that an ordinary and prudent person in the complainant’s circumstances would have experienced fear of injury, death, or an offense against a family member or property. Subjectively, the State must show that the complainant in fact experienced one of the enumerated emotional states.

The objective component is often the most defense-favorable. The State’s case typically rests on the complainant’s testimony about how the conduct affected her; the defense’s counter is to focus the jury on the surrounding circumstances and ask whether an ordinary person would have responded the same way. Where the parties had a recent intimate relationship and the conduct (multiple calls, multiple texts, attempted reconciliation visits) reflects a desperate or grieving response rather than a threatening pattern, the reasonable-person standard provides the analytical framework for the not-guilty verdict.

The subjective component is rarely a winnable defense at trial — the complainant’s sworn testimony that she experienced fear is generally sufficient. The defense’s leverage here is at the pre-charging stage, where careful interview and documentation of the complainant’s actual response (e.g., contemporaneous communications showing the complainant engaged voluntarily with the actor) can prevent the case from being filed at all.

Harassment vs Stalking — Sections 42.07 vs 42.072

Section 42.07 criminalizes harassment. The offense requires that the actor intend to harass, annoy, alarm, abuse, torment, or embarrass another, and engage in conduct that includes initiating repeated electronic communications, making false reports of serious bodily injury or death, conveying threats of serious bodily injury, or sending obscene communications.

Harassment is generally a Class B misdemeanor (up to 180 days, $2,000 fine). It enhances to a Class A misdemeanor if the defendant has previously been convicted of harassment of the same victim, or if the conduct involves a person under 18 the actor knows is at risk of suicide. Conviction does not trigger the federal firearms disability that stalking conviction triggers.

The strategic distinction between harassment and stalking matters because the negotiating outcome is significantly different. A negotiated plea to misdemeanor harassment carries materially lower long-term consequences than a stalking conviction. The defense should evaluate at the outset whether the State’s case actually supports the stalking element (the course-of-conduct + reasonable-fear elements) or whether the case is functionally a harassment case being overcharged. For analysis, see our satellite on online harassment under § 42.07.

Revenge Porn and Unlawful Disclosure — Section 21.16

Penal Code § 21.16 criminalizes the unlawful disclosure or promotion of intimate visual material. The offense requires that the actor (1) without the depicted person’s effective consent disclose visual material depicting the person’s intimate parts exposed or engaged in sexual conduct, (2) the disclosure occurs without the depicted person’s consent, (3) the visual material was obtained under circumstances in which the depicted person had a reasonable expectation that the material would remain private, and (4) the disclosure causes harm to the depicted person.

Section 21.16 is a state-jail felony (180 days to 2 years, up to $10,000 fine). The offense was added to the Penal Code in 2015 to address the gap between traditional harassment and stalking statutes and the modern phenomenon of intimate-image distribution. The statute survived constitutional challenge on First Amendment grounds in Ex parte Jones, 605 S.W.3d 661 (Tex. App. 2020), pet. ref’d — the Texas Court of Criminal Appeals declined to review, leaving the statute intact.

Civil remedies are also available under Tex. CPRC § 98B, which authorizes private suit for actual damages, exemplary damages, court costs, and attorney’s fees. The civil remedy operates in parallel with the criminal prosecution; the civil case’s preponderance-of-the-evidence standard is meaningfully easier for the plaintiff to meet than the criminal beyond-reasonable-doubt standard. For the civil-criminal interaction, see our satellite on revenge porn civil remedy under CPRC 98B and our blog post on Texas revenge porn criminal and civil consequences.

Cyberstalking and Online Conduct

Modern stalking prosecutions are predominantly cyberstalking. The course-of-conduct element typically rests on text messages, social media posts, email, and other electronic communications. The defense’s evidentiary battles correspondingly turn on (1) the authentication of the communications under Tex. R. Evid. 901; (2) the application of Section 42.072’s elements to digital conduct; and (3) the First Amendment limits on criminalizing online speech.

The First Amendment overlay matters most in social-media-post cases. Where the defendant’s conduct consists of public posts on Twitter, Instagram, or TikTok mentioning or referencing the complainant, the defense should evaluate whether the conduct is core protected speech (commentary, criticism, or public-figure communication) or unprotected harassment (true threats, targeted intimidation). The Texas Court of Criminal Appeals has issued rulings on the First Amendment dimensions of the harassment and stalking statutes; the law continues to develop.

Tex. Penal Code § 33.07 (online impersonation) and § 33.02 (breach of computer security) sometimes overlap with stalking and harassment in cyberstalking prosecutions. The State occasionally charges all three in a single indictment. The defense should evaluate whether the charges are factually distinct or whether the State is double-counting; the Texas Code of Criminal Procedure’s carving-statute analysis under Aekins v. State, 447 S.W.3d 270 (Tex. Crim. App. 2014), provides the framework for double-jeopardy challenges.

For satellites on the federal stalking analog (18 U.S.C. § 2261A) and the federal-state overlap, see our pieces on federal interstate stalking under 2261A and cyberstalking and CFAA overlap.

Protective Orders and No-Contact Directives

Stalking and harassment prosecutions are often accompanied by protective orders under Tex. Code Crim. Proc. art. 7B (formerly Family Code Title 4) or Tex. Code Crim. Proc. art. 17.292 (criminal-court magistrate’s emergency protective orders). The protective order operates independently of the criminal prosecution and can be issued before any criminal charge is filed.

Three protective-order frameworks commonly apply.

1. Emergency protective order under Art. 17.292. Issued by a magistrate at the time of arrest. Term up to 91 days. Restricts contact, presence at residence, and possession of firearms.
2. Civil protective order under Tex. Code Crim. Proc. art. 7B. Issued by a court after notice and hearing. Term up to two years for stalking-related offenses; lifetime in certain aggravated cases. Restricts contact, presence at residence, employment location, and firearms possession.
3. Family Code protective order. For cases involving family or household members. Term typically two years; renewable.

Violating a protective order is a separate criminal offense under Tex. Penal Code § 25.07 — Class A misdemeanor (up to one year, $4,000 fine); enhances to a third-degree felony for repeat violations or specified aggravating factors. The defense should obtain the protective order at the outset of any stalking representation and document the precise scope of the prohibitions.

For analysis of protective-order interactions with stalking prosecutions, see our satellite on protective orders in stalking cases.

Bond Conditions and Pretrial Restrictions

Stalking and harassment cases routinely produce restrictive bond conditions at the initial arraignment. Common conditions include no-contact directives, GPS monitoring, social-media bans, firearms surrender, residence restrictions (no presence within a defined radius of the complainant’s home or work), and contact restrictions extending to family members and witnesses.

The defense should evaluate each bond condition at arraignment and object to conditions that are overbroad, vague, or punitive. A no-contact directive is appropriate; a categorical social-media ban that prevents the defendant from communicating with anyone may be overbroad. A residence restriction is appropriate where the complainant has demonstrated fear of contact; a residence restriction that prevents the defendant from returning to his own home requires a more focused justification.

Violations of bond conditions trigger bond revocation under Tex. Code Crim. Proc. art. 17.40 and the immediate detention of the defendant pending a hearing. The defense should counsel the client carefully on the scope of each condition and document compliance proactively.

For analysis of bond conditions in stalking cases specifically, see our satellite on bond conditions in stalking cases.

First Amendment Defenses

The First Amendment provides limited but real protection in stalking, harassment, and revenge-porn prosecutions. The framework rests on the distinction between protected speech (commentary, criticism, satire, public-figure communication) and unprotected speech (true threats, fighting words, incitement to imminent lawless action, certain categories of obscenity).

The defense most commonly invokes the First Amendment in three contexts. First, where the defendant’s conduct consists of public posts criticizing or commenting on the complainant. The defense argues the speech is core First Amendment activity not subject to criminal regulation. Second, where the defendant’s conduct consists of attempts to communicate with the complainant about a matter of public concern. The defense argues that the protected nature of the underlying communication insulates the conduct from criminalization. Third, where the criminalized conduct is artistic, journalistic, or scholarly in nature. The defense argues the conduct falls within a protected category.

The Texas Court of Criminal Appeals has refined the First Amendment framework over the past decade. Current authority generally holds that the harassment statute’s “intent to harass” element provides sufficient narrowing to survive First Amendment challenge in most applications. The stalking statute’s “reasonable person would fear” element similarly provides a limiting principle. The defense’s First Amendment argument is most effective where the State’s evidence rests on speech rather than on conduct.

For deeper analysis, see our satellite on First Amendment defenses in stalking cases.

Federal Stalking Statutes — 18 U.S.C. § 2261A

Federal stalking under 18 U.S.C. § 2261A applies where the defendant uses any “facility of interstate commerce” (telephone, internet, mail) to engage in a course of conduct that places another person in reasonable fear of death or serious bodily injury, or causes substantial emotional distress. The interstate-commerce element is nearly always satisfied where the conduct involves text messages, email, social media, or telephone calls.

Penalties under federal law are significantly higher than Texas state penalties. The basic offense is up to five years; aggravated forms (causing death, involving a minor, causing serious bodily injury) increase the maximum substantially. Federal prosecutors increasingly file stalking charges where the conduct crosses state lines or involves federal interstate communication facilities.

The strategic implication for Texas defendants: where the State has filed stalking charges and the federal government has not yet declined prosecution, the defense should assume parallel federal exposure. Statements made in the state Title IX / state criminal proceeding may be referred to federal investigators. Coordinated federal and state defense from the outset is essential.

Defense Strategy at Trial

Effective Texas stalking defense usually rests on three pillars: (1) a careful course-of-conduct attack arguing that the State has failed to prove two qualifying acts beyond reasonable doubt; (2) a reasonable-person attack arguing that an ordinary person would not have experienced the requisite fear under the circumstances; and (3) a relationship-context defense placing the conduct within a documented history that explains and lawfully justifies the communications.

The course-of-conduct attack begins with the indictment. Each charged act should be itemized and individually evaluated. Where one of the predicate acts is weak — ambiguous in intent, supported only by the complainant’s testimony, or contradicted by contemporaneous documentation — that act becomes the focus of cross-examination at trial. A jury unable to find one of the predicate acts beyond reasonable doubt cannot convict on stalking.

The reasonable-person attack often turns on the communications immediately preceding the charged conduct. Where the complainant invited the contact, responded warmly to the actor’s outreach, or initiated reconciliation, the jury sees a different picture than the State’s narrative. Discovery of the complainant’s side of the communication record is essential; the defense should subpoena social-media records, phone records, and any other communication archives that document the relationship trajectory.

The relationship-context defense locates the charged conduct within a documented arc — a long-term dating relationship that ended badly, a co-parenting dispute, a financial entanglement, a recent break-up. The defense’s narrative places the communications within an ordinary post-relationship pattern rather than within a stalking pattern. The jury’s common-life experience cuts in favor of the defense where the conduct is recognizable as ordinary post-breakup grieving or attempted reconciliation.

Plea Negotiation and Diversion in Stalking Cases

Most Texas stalking cases that do not proceed to trial resolve through plea negotiation. The most common negotiated outcomes are reduction to a misdemeanor harassment charge under § 42.07, deferred adjudication on the stalking charge with structured probation, or pretrial diversion where the prosecutor’s office offers it.

Reduction to misdemeanor harassment is the most favorable negotiated outcome where the State’s evidence supports it. The harassment conviction does not carry the federal firearms disability that stalking carries, does not produce the third-degree felony record, and is generally eligible for non-disclosure under Tex. Gov. Code § 411.0716. The defense should evaluate whether the State’s case actually meets the stalking elements before accepting the original charge as the starting point of negotiation.

Deferred adjudication is available for stalking under Tex. Code Crim. Proc. art. 42A.102 in most cases. The conditions are typically structured: no-contact directives, GPS monitoring, treatment programs (often anger management or relationship counseling), firearms surrender, and the duration is typically 5–10 years for a third-degree felony. Successful completion produces no conviction; non-disclosure is available after the waiting period.

Pretrial diversion offered by the prosecutor’s office is rare in stalking cases — most DA offices treat stalking as too serious for the standard first-offender diversion track. Counsel should evaluate the local DA’s policies and submit a written diversion application where appropriate.

Frequently Asked Questions

What is the difference between stalking and harassment in Texas?

Stalking under § 42.072 requires a course of conduct (two or more acts) that causes reasonable fear of bodily injury, death, or offense against a family member or property — and is a third-degree felony. Harassment under § 42.07 requires conduct intended to harass, annoy, alarm, abuse, torment, or embarrass another — and is a Class B misdemeanor. The two offenses share factual overlap but have different elements, different penalties, and different collateral consequences.

Can sending text messages constitute stalking?

Yes, where the messages are part of a course of conduct (two or more acts) that meets the reasonable-person-fear element. A single text is generally insufficient. A pattern of texts after the complainant has indicated she does not want contact, particularly where the texts contain explicit threats or escalating language, can support a stalking charge.

What happens if a protective order is filed against me?

You will be served with the order specifying the restrictions and the duration. You should immediately retain counsel, comply with all restrictions, and document compliance. Violating the order is an independent criminal offense under § 25.07. The protective-order hearing offers an opportunity to challenge the scope of the order; the defense should appear at the hearing represented by counsel.

Can I be charged with revenge porn for sending photos to one person?

Yes, in some circumstances. Section 21.16 requires that the disclosure occur without the depicted person’s consent and that the visual material was obtained under circumstances in which the depicted person had a reasonable expectation of privacy. Sending intimate images of a former partner to a third party without consent generally satisfies the statute, even if the recipient is a single person.

Is a stalking conviction expungeable in Texas?

Stalking convictions are generally not expungeable under Tex. Code Crim. Proc. ch. 55. Order of nondisclosure under Tex. Gov. Code ch. 411 may be available in narrow circumstances for cases that did not result in conviction. The defense should evaluate the records-sealing posture at the outset of any negotiation.

Does a stalking conviction affect my right to own firearms?

It depends on the relationship between the defendant and the complainant. Under 18 U.S.C. § 922(g)(8) and (g)(9), a stalking conviction involving a current or former dating partner, family member, or household member triggers federal firearms disability. A stalking conviction not involving such a relationship may not trigger the federal disability but may still trigger collateral consequences under state law and licensed-employment regulations.

Can I be charged with stalking if my conduct was online only?

Yes. Texas Penal Code § 42.072 expressly includes electronic communications within its definition of conduct subject to the statute. Online-only patterns of conduct — social media posts, repeated direct messages, text messages, email, online comments — can constitute the predicate acts for a stalking course of conduct. Federal stalking under 18 U.S.C. § 2261A similarly reaches purely online conduct given the interstate-commerce element of the statute.

Does Texas have a stalking-by-proxy theory?

Yes, to a limited extent. Where the actor enlists or directs third parties to engage in the course of conduct on the actor’s behalf, the conduct can be attributed to the actor under accomplice-liability principles. The State must prove that the actor solicited, encouraged, directed, aided, or attempted to aid the third party in performing the predicate acts. The defense should evaluate whether the third party’s conduct was independently motivated rather than directed by the actor.

What is the statute of limitations for Texas stalking?

Three years under Tex. Code Crim. Proc. art. 12.01. For the stalking offense, the limitation period runs from the date of the most recent act in the course of conduct. For harassment, the limitation period is generally two years.

Sentencing and Collateral Consequences in Detail

A stalking conviction in Texas carries a range of sentencing options shaped by the statutory classification and the facts of the case. The third-degree felony classification (or second-degree on enhancement) produces both direct and collateral consequences that often outlast the sentence itself.

Direct sentencing options. The judge or jury determines punishment from 2 to 10 years (third-degree) or 2 to 20 years (second-degree), with a maximum fine of 0,000. The judge may suspend imposition of sentence and place the defendant on probation (community supervision) under Tex. Code Crim. Proc. art. 42A. Deferred adjudication probation is available; on successful completion, no conviction results. Where probation is denied or terminated unsuccessfully, the original sentence is imposed.

Probation conditions. Standard conditions include monthly reporting, employment requirements, drug testing, treatment programs (typically batterer’s intervention programs or psychological counseling), no-contact directives, GPS monitoring, firearms surrender, and substantial financial obligations (supervision fees, court costs, restitution to the complainant). Specialized conditions can include social-media bans, residence restrictions, employment restrictions, and travel limitations. Each condition is enforceable through bond revocation or probation modification.

Federal collateral consequences. The federal firearms disability under 18 U.S.C. § 922(g)(8) and (g)(9) applies where the conviction involves an intimate or family relationship. The disability is lifetime and is enforced by federal background checks. The defense should evaluate the federal-firearms-disability analysis at the negotiation stage; a negotiated reduction to harassment avoids the federal disability, while a stalking conviction triggers it permanently.

Immigration consequences. Stalking convictions are categorized as crimes of moral turpitude under Immigration and Nationality Act § 237(a)(2)(A). Non-citizens convicted of stalking face deportation, inadmissibility for re-entry, and bars to naturalization. The defense should consult an immigration attorney as part of the plea evaluation; the immigration consequences may exceed the criminal consequences for non-citizen defendants.

Employment consequences. Texas does not categorically prohibit employment of persons convicted of stalking, but specific industries (education, child care, healthcare, financial services, law enforcement) often have categorical bars. Professional licensing boards typically have a separate disciplinary process triggered by the conviction. Counsel should evaluate the employment and licensing impact specific to the client’s circumstances.

Workplace Stalking and Continued-Pattern Cases

Workplace stalking occupies a distinct corner of Texas stalking practice. Where the actor and the complainant are co-workers or have prior workplace contact, the prosecution typically rests on a course-of-conduct that includes workplace visits, communications to the workplace, and threats against the complainant’s employment. The pattern may extend over months or years and may involve multiple jurisdictions if the workplace has multiple locations.

The strategic considerations are significant. First, the workplace context typically generates a robust documentary record — visitor logs, badge-access records, security camera footage, supervisor email threads. The defense should immediately preserve all such records through subpoena before the employer’s ordinary records-retention period elapses. Second, the complainant’s employment-related grievances against the actor (workplace harassment complaints, performance disputes, prior allegations) often surface in discovery; their relevance to the criminal case is sometimes contested. Third, civil parallel proceedings — Title VII workplace harassment, defamation, intentional infliction of emotional distress — often accompany the criminal case. Statements made in the criminal proceeding can be subpoenaed for the civil case and vice versa.

For the workplace-specific framework, see our satellite on workplace stalking in Texas.

Recognizing Complainant Safety Concerns — The Defense’s Ethical Obligation

Effective stalking defense recognizes that some stalking charges are factually accurate, that some complainants genuinely fear for their safety, and that the defense’s strategic goals must include preventing further harm regardless of the litigation outcome. The defense’s ethical obligation under Texas Disciplinary Rules of Professional Conduct includes counseling the client to refrain from conduct that exposes the client to additional criminal charges and to honor protective orders in fact and not merely in form.

In practical terms, counsel should evaluate at intake whether the underlying factual pattern presents genuine safety concerns. Where it does, the defense’s counsel to the client should emphasize compliance with protective orders, avoidance of all contact (including indirect contact through third parties), and engagement with counseling or therapy. Where the case involves a recent intimate relationship that ended badly, the defense may recommend that the client temporarily relocate to reduce the likelihood of inadvertent contact.

The defense’s ethical framework here is consistent with the strategic framework. Compliance with the protective order eliminates one of the most common bases for bond revocation and additional charges. Engagement with counseling demonstrates good faith for the negotiating prosecutor and judge. Avoiding additional contact reduces the State’s evidentiary record for any subsequent prosecution.

For the ethical and strategic framework in cases involving genuine safety concerns, the defense should consult Tex. Disciplinary R. Prof. Conduct 3.04 (Fairness in Adjudicatory Proceedings) and 3.05 (Maintaining Impartiality of Tribunal) before advising the client.

Recent Developments

Deepfake legislation. Tex. Penal Code § 21.165 criminalizes the unlawful production of deepfake sexual visual material. The statute parallels § 21.16 and addresses the specific phenomenon of AI-generated content depicting identifiable individuals. The First Amendment analysis remains under active development at both state and federal levels, with several cases pending in the Texas appellate courts and a related federal challenge under consideration in the Fifth Circuit.

Continued First Amendment litigation. The Texas Court of Criminal Appeals continues to refine the constitutional limits on the stalking and harassment statutes. Counsel should consult current authority before advancing a First Amendment defense and should preserve the constitutional issue at every stage of the proceeding to permit subsequent appellate or habeas review.

Federal prosecution emphasis. U.S. Attorney’s Offices in the Northern, Southern, Eastern, and Western Districts of Texas have increased emphasis on federal stalking prosecutions, particularly in cases involving sophisticated technology, interstate elements, or aggravated facts. The federal stalking statute under 18 U.S.C. § 2261A is more frequently charged where the conduct crosses state lines, involves repeated electronic communications across multiple jurisdictions, or involves sophisticated stalkerware or surveillance technology. Counsel should assume potential federal exposure in any stalking case involving substantial digital activity.

Next Steps

If you are charged or being investigated for stalking, harassment, revenge porn, online impersonation, or related offenses, consult with experienced counsel as early as possible.

• Call (972) 370-5060
• Email info@landllawgroup.com