Stats Show Racial Inequities for Organized Retail Theft Arrests Statewide

Let’s say I wanted to steal an Xbox from Fry’s (or any other retail store). Maybe it’s for a thrill, a dare, voices in my head, or maybe I just want to eat Cheetos all day and play video games on my sofa. Whatever the reason, it is unimportant.

I have committed theft—this is obvious. But, were you aware I also committed Organized Retail Theft (“ORT”)? TEX. PEN. C. 31.16(b) provides:

A person commits an offense if the person intentionally conducts, promotes, or facilitates an activity in which the person receives, possesses, conceals, stores, barters, sells or disposal of . . . (1) stolen retail merchandise.

Arrests for ORT under these circumstances aren’t theoretical, either. Dr. Michael Braun is a statistics professor from SMU’s Cox School of Business. He recently completed a comprehensive study published in the Journal of Empirical Legal Studies (JELS) which found not only were there thousands and thousands of arrests made for organized retail theft where the amount stolen was consistent with ordinary shoplifting—but also racial minorities are bearing a disproportional share of the arrests.

Dr. Braun studied over 110,000 organized retail theft arrests and ordinary thefts through open records from police agencies around the state. He found an African American is twice as likely as a white person to be arrested for ORT. His research found that African-American females are 160% as likely as a white person to be arrested for ORT. At least 30 police agencies showed racial disparities in their arrests based on Dr. Braun’s statistics and research.

There were unsuccessful attempts made this past session in the Texas House and Senate to make the Penal Code consistent with other states’ treatment of Organized Retail Theft. State Representative Jessica Gonzalez (D–Dallas) and State Senator Royce West (D–Dallas) filed bills in the House and Senate to amend the definition of ORT. However, Lieutenant Governor Patrick did not allow Senator West’s bill to reach the Senate Floor, thereby effectively killing it for this session. The proposed fix would install a $2,500 threshold to ORT amounts and would also require the stolen property to be possessed with the intent for the property to be re-distributed.

The Court of Criminal Appeals has weighed in on the issue, too, holding ordinary shoplifting, in and of itself, cannot be organized retail theft even with the bizarre language under 31.16(b). See Lang v. State, 561 S.W.3d 174 (Tex. Crim. App. 11/22/2018). This opinion expounds the need for the statute to be fixed.

Dr. Braun’s full article can be read at the following link: shorturl.at/iuET5.

Jeremy Rosenthal
Jeremy Rosenthal
Jeremy Rosenthal is the managing partner of Rosenthal & Wadas, PLLC, the largest criminal defense law firm in Collin County. Jeremy has done over 200 jury trials and is a former prosecutor in Collin County. He is the past president of the McKinney Bar Association, a Board Member of TCDLA, where he also serves as co-chairm of the Technology Committee, and the editor of the Voice for the Defense Blog. He graduated from SMU School of Law in 2000 and earned his undergraduate degree from Texas Tech in 1997. He can be reached at .
Kyle Therrian
Kyle Therrian
Kyle practices law in Collin County (McKinney, Texas). He represents individuals on all levels of criminal defense in both state and federal court. A significant segment of his practice is dedicated to criminal appellate litigation, where he has handled more than two dozen appellate matters before the Courts of Appeal and the Texas Court of Criminal Appeals. Kyle is a member of TCDLA’s Amicus Committee and the secretary-treasurer of TCDLEI. He is the former president of the McKinney Bar Association, a 2019 Super Lawyers Rising Star, and 2018 D Magazine “Best Under 40.” When he isn’t practicing law, Kyle plays goalie on his local adult beer-league hockey team—where both cops and people with DWI convictions all “play for the same team.” He can be reached at .
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