Texas stalking is a third-degree felony carrying 2 to 10 years, rising to a second-degree felony at 2 to 20 years if you have a prior stalking conviction. Defending the charge starts with the structure of the statute, because Section 42.072 requires the State to prove three separate things: that you engaged in qualifying conduct on more than one occasion under the same scheme, that the conduct actually caused the other person to fear or feel harassed, and that a reasonable person in their position would have felt the same way. Fail on any one element and the charge does not stand.

In 2025, the Texas Court of Criminal Appeals decided Owens v. State, which held that prosecuting someone for the content of electronic messages can violate the First Amendment. For stalking cases built on texts, emails, and social media, that decision changed the landscape.

What Does the State Have to Prove for Stalking in Texas?

Section 42.072 is more demanding than most people assume. The State must establish that you, on more than one occasion and pursuant to the same scheme or course of conduct directed at a specific person, knowingly engaged in conduct that:

  1. Constitutes harassment under Section 42.07, or that you knew or reasonably should have known the person would regard as threatening bodily injury or death to them, their family or household member, or their dating partner, or threatening an offense against their property; and
  2. Actually caused that person to be placed in fear of bodily injury, death, or an offense against property, or to feel harassed, terrified, intimidated, annoyed, alarmed, abused, tormented, embarrassed, or offended; and
  3. Would cause a reasonable person in similar circumstances to feel that way

That third element is the objective check, and it is the most useful one for the defense. A complainant who is unusually sensitive does not convert lawful contact into a felony. The full statutory text sets out each element.

One provision cuts against the defense. Subsection (c) permits the jury to find that different types of conduct, engaged in on more than one occasion, together constitute the same scheme. So a phone call, a drive-by, and a message to a mutual friend can be aggregated even though none resembles the others.

How Did Owens v. State Change Stalking Defense?

This is the most important recent development in this area.

Kevin Owens sent roughly three dozen electronic messages to his former therapist over about fifteen weeks, addressed to her professional accounts. He was convicted on two counts of harassment under Section 42.07(a)(7), the provision covering repeated electronic communications, and sentenced to 180 days in jail plus a $500 fine. The court of appeals affirmed, reasoning that the statute regulates conduct rather than speech and that his words were integral to criminal conduct.

The Court of Criminal Appeals reversed and remanded for dismissal of the indictment. Judge Keel, writing for the majority, concluded that Owens had in fact been prosecuted for the content of his messages, which made the application of the statute a content-based restriction on speech that could not survive strict scrutiny. As the Court put it, protecting people from unwelcome communications is not by itself a compelling state interest

Two limits matter:

  • Owens was an as-applied holding, not a facial one. Section 42.07(a)(7) remains on the books. Ex parte Barton and Ex parte Sanders, both decided in 2022, upheld its facial constitutionality and were not overruled
  • The analysis turned on the evidence in that record, including that the messages went to professional accounts

Still, the practical effect is real. Because stalking under Section 42.072(a)(1) can be predicated on Section 42.07 harassment conduct, an as-applied First Amendment challenge is now a live strategy in any Texas stalking case built primarily on the content of electronic messages. Even the Texas District and County Attorneys Association flagged the decision as a significant shift for prosecutors.

What Are the Strongest Defenses to a Texas Stalking Charge?

No qualifying threat or harassment. If the underlying conduct does not satisfy Section 42.07 and was not something you knew or should have known would be regarded as threatening, element one fails. Angry, rude, or persistent is not automatically threatening.

Failure of the reasonable person standard. This is frequently the best available argument. The question is not whether the complainant felt alarmed but whether a reasonable person in their circumstances would have. Context matters enormously: an ongoing business dispute, a custody exchange, a debt collection effort.

No single scheme or course of conduct. Prosecutors often assemble unrelated incidents spread over months into one alleged course of conduct. If the incidents have different purposes and no connecting thread, the aggregation can be challenged.

Legitimate purpose for the contact. Contact regarding shared children, a pending lawsuit, a business relationship, or the retrieval of property has a lawful basis.

First Amendment, as applied. Post-Owens, where the prosecution rests on what you said rather than on conduct independent of the speech.

Identity and authentication. Digital evidence requires proof that you sent it. Shared accounts, spoofed numbers, and unattributed anonymous messages create genuine gaps.

Fabrication or motive. Stalking allegations surface disproportionately during contested divorces and custody fights, where an allegation carries strategic advantage.

How Do Stalking Charges Interact With Protective Orders?

They travel together, and the protective order usually moves first.

A protective order proceeding is civil, uses a lower standard of proof, and is often decided before the criminal case develops. That creates two traps:

  • Testimony in the protective order hearing can be used against you in the criminal case. Many defendants testify there without counsel and hand the State a transcript
  • Violating the order creates a new offense under Section 25.07, independent of the stalking case, and gives prosecutors an easier conviction

Treat the protective order hearing as part of the criminal defense, not a separate nuisance. Our guide on fighting a protection order covers the general framework.

What Are the Consequences Beyond Prison?

  • Felony record with the accompanying employment and licensing barriers
  • Loss of firearm rights under federal law
  • Custody consequences, since a stalking finding weighs heavily in Texas conservatorship decisions
  • Immigration exposure for non-citizens
  • Protective orders that can restrict where you live and work
  • Limited sealing options, since felony convictions generally cannot be expunged in Texas

Texas Stalking Defense FAQs

Is stalking always a felony in Texas?

Yes. Section 42.072 is a third degree felony at minimum, and a second degree felony with a prior conviction under the section or a substantially similar law.

Can I be charged for contact the person initially welcomed?

Yes, if contact continued after they made clear it was unwanted. But the earlier consent is relevant to your knowledge and intent.

Does blocking me end the case?

Not necessarily. Investigators sometimes advise complainants not to block, in order to document escalation. Continued messages after being blocked are strong evidence of the scheme element.

Can stalking be reduced to harassment?

Yes. Reduction to a misdemeanor harassment charge under Section 42.07 is the most common favorable resolution.

Building a Defense Before Your Next Court Date

Digital evidence disappears and testimony gets locked in early. Move now.

  1. Preserve the complete communication history, including the parts that show context and the complainant’s own messages
  2. Say nothing to police, and do not send a message explaining yourself
  3. Stop all contact immediately, including through friends and family, which can be charged as part of the scheme
  4. Get counsel before the protective order hearing, not after
  5. Document any legitimate purpose for the contact, such as custody exchanges or a business matter
  6. Raise the First Amendment issue early if the case rests on message content, since preservation matters on appeal

Flatiron Legal Advisors defends stalking, harassment, and protective order matters through our Texas criminal defense team. Because these allegations so often arise alongside a divorce or custody case, we can coordinate the family law side in the same firm.

Schedule a confidential consultation today.

Reviewed by the Flatiron Legal Advisors criminal defense team. This article is general information, not legal advice for your specific case.