Obstruction or Retaliation in Texas Penal Code §36.06
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Table of Contents
The §36.06 elements
Penal Code §36.06 makes it a third-degree felony to:
Intentionally or knowingly harm or threaten to harm another, or report another's identity or location, by an unlawful act in retaliation for or on account of the service or status of another as:
- Public servant, witness, prospective witness, informant
- Person who has reported or who the actor knows intends to report the occurrence of a crime
- Public servant, juror, witness in a criminal proceeding
- Honorably retired public servant, judge, prosecutor
The offense requires both: (1) conduct directed at the protected person, and (2) the protected person's status as the motivation.
Penalty enhancements:
- Standard: Third-degree felony
- Enhanced if conduct is against witness who has actually testified: Second-degree felony
- Enhanced if conduct involves specific dangerous methods or causes injury: Various
Common scenarios
Typical obstruction/retaliation cases:
Threats against domestic violence witnesses. Common during pending DV cases — defendant communicates with victim, family, or witnesses with intent to influence testimony.
Threats against police officers. Statements made to officers during arrest or investigation indicating retaliation. Often charged alongside underlying offenses.
Threats against judges, prosecutors. Communications threatening judges or prosecutors handling specific cases. May overlap with terroristic threat charges.
Retaliation after acquittal. Even where the underlying case dismissed, retaliation against witnesses or officials post-case can produce charges.
Witness identification disclosure. Reporting a witness's identity or location with intent to harm or facilitate harm against them.
Defense strategy
Defenses to obstruction or retaliation:
Lack of retaliatory intent. The statute requires the protected status to motivate the conduct. Where conduct occurred for unrelated reasons, the connection element fails.
No threat or harm. The conduct must constitute a threat or actual harm. Communications that don't meet threat threshold may not support charges.
Constitutional protection. Some communications (criticism of public servants, political speech) may be First Amendment protected.
Identity issues. Establishing the defendant as the source of communications, particularly anonymous or electronic, can be contested.
Mutual conflict. Where exchange was mutual rather than one-way targeting, the statute application may not fit.
Texas Penalty Group 1 Charges by Weight
Texas Health & Safety Code § 481.115 charges escalate by weight:
| Weight | Offense | Range | Fine |
|---|---|---|---|
| Under 1 g | State jail felony | 180 days-2 years state jail | $10,000 |
| 1-4 g | 3rd degree felony | 2-10 years TDCJ | $10,000 |
| 4-200 g | 2nd degree felony | 2-20 years TDCJ | $10,000 |
| 200-400 g | 1st degree felony | 5-99 years/life TDCJ | $100,000 |
| 400 g+ | Enhanced 1st degree | 10-99 years/life TDCJ | $100,000 |
Have a Texas legal question?
Call L and L Law Group for a free, confidential consultation. We handle criminal defense across Collin, Dallas, Denton, and Tarrant counties.
Call (972) 370-5060In our practice defending Texas criminal cases, we have represented clients in Collin, Dallas, Denton, and Tarrant County criminal courts on the full Texas Penal Code and Health & Safety Code spectrum. Reggie's prosecutor background in Dallas County means we know the State's evidentiary playbook; Njeri's trial-trained motion practice anchors the suppression-driven defense work.
Key Legal Terms
- Penalty Group
- Texas Health & Safety Code § 481.102-481.105 classification of controlled substances by abuse potential and accepted medical use. Determines weight tiers and punishment ranges.
- Article 38.23
- Texas Code of Criminal Procedure exclusionary rule. Evidence obtained in violation of any federal or Texas constitutional or statutory provision is inadmissible against the accused.
- Aggregation
- Texas H&S § 481.002(5) rule that the total weight of any controlled substance, including adulterants and dilutants, counts toward the offense weight tier.
- 3g Offense
- CCP Article 42A.054 list of offenses ineligible for judicial probation and requiring 50% sentence served before parole eligibility (formerly Article 42.12 § 3g).
- Pretrial Diversion
- Pre-charge alternative under CCP Article 32.02 in which the prosecution agrees to dismiss charges upon successful completion of conditions (counseling, community service, restitution).
Frequently Asked Questions
Can I be charged for criticizing a judge?
Pure criticism is First Amendment protected. Threats of harm against a judge crosses into obstruction/retaliation. The line is fact-specific. Statements like "this judge is biased" are protected; statements like "this judge will pay" can support charges.
What if I just want to get my side of the story to the witness?
Communicating with witnesses can be lawful (defense investigation) or unlawful (witness tampering, retaliation) depending on context. Defense investigators routinely interview witnesses with no legal issue. Defendants directly contacting witnesses, particularly with implicit pressure, can produce charges. Best practice is to have communication go through defense counsel.
Does the threat have to be of physical harm?
No. The statute covers harm or threat of harm broadly. Economic harm, reputational harm, threats against family members, threats against property all qualify. The statute is intentionally broad to protect witnesses and public servants.
Is it obstruction to discuss a case with my codefendant?
Discussing the case is generally permissible (subject to specific court orders). Coordinating false testimony, suborning perjury, or threatening witnesses is not. Some discussions require attorney supervision to avoid creating obstruction or other offenses. When in doubt, route through defense counsel.
Can social media posts count as retaliation?
Yes. Posts targeting witnesses or public servants with threatening content can support obstruction/retaliation charges. Even posts that don't directly threaten can support charges if they incite others or facilitate harm. Modern obstruction/retaliation prosecutions increasingly involve social media evidence.
