Texas identity theft under Penal Code § 32.51 is a state jail felony for 1-5 items of identifying information, third-degree felony for 5-10, second-degree felony for 10-50, and first-degree felony for 50+. Federal aggravated identity theft under 18 U.S.C. § 1028A carries a mandatory 2-year consecutive sentence on top of any underlying crime.
Identity theft charges can be prosecuted by Texas state courts or federal courts — and the aggregate penalties can exceed 25 years. Here is how identity theft works in both systems.
Texas Identity Theft — Penal Code § 32.51
Under § 32.51, a person commits identity theft if they obtain, possess, transfer, or use an item of:
- Identifying information of another person without consent, OR
- Identifying information of a deceased person with intent to harm or defraud, OR
- Telecommunications access device
With intent to harm or defraud another.
What Counts as "Identifying Information"?
- Name combined with SSN, DOB, or other identifiers
- Government-issued identification (driver's license, passport)
- Financial account information
- Credit or debit card information
- Biometric data (fingerprints, photos, DNA)
- Electronic identification numbers
Texas Penalties by Number of Items
The offense grade scales with the number of identifying information items:
- 1-4 items: State jail felony — 180 days to 2 years state jail
- 5-9 items: Third-degree felony — 2 to 10 years TDCJ
- 10-49 items: Second-degree felony — 2 to 20 years TDCJ
- 50+ items: First-degree felony — 5 to 99 years TDCJ
Enhancements apply when the victim is elderly.
Federal Aggravated Identity Theft — 18 U.S.C. § 1028A
Federal § 1028A applies when a person, during and in relation to certain felonies, knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person. The penalty:
- Mandatory consecutive 2 years in federal prison (5 years for terrorism-related offenses)
- Cannot be reduced through safety valve, cooperation, or variances
- Applied on top of the underlying offense sentence
See Dubin v. United States, 599 U.S. 110 (2023), which narrowed the “use” element — the means of identification must be at the crux of the criminal conduct, not merely ancillary.
Common Identity Theft Schemes
- Stolen mail/tax returns — filing fraudulent returns with stolen SSNs
- Account takeover — obtaining access to existing financial accounts
- Synthetic identity — combining real SSN with fake name/DOB
- Medical identity theft — using another's insurance information
- Employment fraud — working under another's SSN
- Child identity theft — using minor's information before credit history develops
Defense Strategies
Lack of Intent
The State must prove intent to harm or defraud. Mere possession without intent defeats the statute.
Consent
Actual consent from the person whose information was used is a defense. Family, spousal, and business relationships often involve implied consent that negates the statute.
Challenging "Use" Under Dubin
For federal § 1028A charges, Dubin (2023) narrowed the use element. The identification must be at the crux of the criminal conduct, not just tangentially involved.
Computer Forensics Challenges
Identity theft cases often depend on computer evidence — IP addresses, login logs, financial records. Forensic experts can challenge chain of custody, hash verification, and attribution.
Multiple Defendants / Accomplice Issues
Large identity theft operations involve multiple participants. Defense often focuses on distinguishing the defendant's role from more culpable actors.
Restitution and Credit Repair
Identity theft restitution includes:
- Direct financial losses to victims
- Costs of credit monitoring and repair services
- Lost time and emotional distress (in some federal cases)
- Costs incurred by financial institutions
Restitution in federal cases is mandatory under 18 U.S.C. § 3663A. Orders can reach hundreds of thousands of dollars in large schemes.
Frequently Asked Questions
How many items triggers a third-degree felony?
5-9 items of identifying information, under Penal Code § 32.51(c)(2). A single stolen wallet with driver's license, credit card, SSN card, and insurance card could hit the third-degree threshold.
Can federal and state both prosecute identity theft?
Yes. Dual sovereignty permits parallel prosecution, though coordination is common and parallel prosecutions are rare.
What's the mandatory minimum for federal § 1028A?
2 years consecutive to the underlying offense. It cannot be reduced through cooperation, safety valve, or downward variance.
What if the identity belongs to a family member?
Consent is a defense. Spousal, parental, and family relationships often involve implied consent — specific facts matter significantly.
Can identity theft be reduced to misdemeanor theft?
In some cases, yes — particularly when only one item is involved and specific intent is weak. Negotiation success depends on the facts.
Speak With a Frisco Criminal Defense Attorney
If you or a loved one is facing identity theft charges in Frisco, Collin County, or anywhere in the Dallas-Fort Worth metroplex, the time to act is now. L and L Law Group attorneys are available 24 hours a day, 7 days a week. Call (214) 466-1398 for a free, confidential consultation, or submit your case online and a licensed attorney will contact you directly.
This article is general information, not legal advice. Texas criminal law is complex and fact-specific — please consult a licensed Texas attorney about your particular situation. Past results do not guarantee future outcomes.