The Common Law
Halloween mischief – is pumpkin smashing or toilet papering legal?
"I spent all evening carving pumpkins and set them out on my front porch. The next morning I walked outside and found that someone had smashed them into pieces. I know this is a common Halloween prank, but is it legal?"
No. According to Texas Penal Code Section 28.03, a person commits the offense of criminal mischief if he or she, "without the effective consent of the owner ... intentionally or knowingly damages or destroys the tangible property of the owner." Criminal mischief is typically punishable as either a class A, B, or C misdemeanor, depending on the monetary loss inflicted by the damage. Destroying someone's pumpkins is likely only a class C misdemeanor, which occurs if the damaged property was worth less than $100. This means that the hooligans who obliterated your jack-o'-lanterns probably won't be facing jail time, as the maximum penalty for a class C misdemeanor is only a $500 fine. Causing damages between $100 and $750 results in a class B misdemeanor which is punishable by up to 180 days in county jail, but perhaps you should consider why you're spending so much money on pumpkins before trying to put the neighborhood youth behind bars.
"What about toilet papering someone's house and trees? I did it all the time as a kid, and it doesn't cause permanent damage to anyone's property."
While there are no specific laws in Texas prohibiting you from covering someone else's home and trees in toilet paper, you can still be charged with criminal mischief for doing so. Section 28.03 of the Texas Penal Code also defines criminal mischief as, "intentionally or knowingly [tampering] with the tangible property of the owner and [causing] ... substantial inconvenience to the owner." Anyone who has had to pull toilet paper out of a tree knows it's a pain in the neck (i.e., substantial inconvenience). Try to restrict your Halloween hijinks to ways that neither tamper with nor destroy other people's property, and focus on collecting candy, not criminal charges.
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Marrs, Ellis & Hodge LLP, www.jmehlaw.com.
The material in this column is for informational purposes only. It does not constitute, nor is it a substitute for, legal advice. For advice on your specific facts and circumstances, consult a licensed attorney. You may wish to contact the Lawyer Referral Service of Central Texas, a non-profit public service of the Austin Bar Association, at 512-472-8303 or www.austinlrs.com.