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Burglary, Breaking and Entering & Theft? What Is the Difference?

There are many legal terms that people are familiar with even if they do not understand the exact meaning. “Burglary” and “theft” are two examples. Although you might think they are the same thing, they refer to different categories of criminal offenses, at least under Texas law.


Let’s start with theft. The Texas Penal Code broadly defines theft as “unlawfully” appropriating the property of another “with intent to deprive the owner of property.” In other words, you take something that does not belong to you—and you have no intention of giving it back to the rightful owner.

The severity of a criminal theft charge depends on the value of the stolen property. If a person steals property worth less than $100, it is a Class C misdemeanor, which carries a maximum fine of $500 but no jail time. Over $100 but less than $750, theft is a Class B misdemeanor, and a person risks jail time of up to 180 days.

Theft becomes a state jail felony once the value of the stolen property reaches $2,500. There are also some special cases where theft is a state jail felony regardless of value, such as stealing a firearm or taking property for a human grave. Conviction of a state jail felony is punishable by 180 days to 2 years in jail and a maximum fine of $10,000.

Burglary & Breaking and Entering

The main difference between theft and burglary is the latter typically involves “breaking and entering.” More specifically, the Texas Penal Code defines burglary as entering a habitation “not then open to the public, with the intent to commit a felony, theft, or an assault.” This means that burglary usually involves theft, even though not all theft is burglary. And even if a person does not commit theft or another felony, breaking and entering can be considered criminal trespass, which is a misdemeanor.

Burglary is a more complex criminal charge in that a prosecutor must prove both that the defendant illegally entered a place and that he or she intended to commit theft or another felony once there. It is not necessary to prove the defendant completed said crime, only that there was evidence of intent to do so. So if a person breaks into a jewelry store at night but is caught before she can get away with the diamonds, she may still be guilty of burglary even if she did not complete the theft.

Unlike theft, the severity of a burglary charge is not tied to the value of any stolen property. Burglary committed in a “habitation,” i.e. a home or other residence, is a second-degree felony in Texas, punishable by up to 20 years in prison. Burglary involving a non-habitation, i.e. a business, is considered a state jail felony.

Do Not Face a Burglary Charge Alone

Burglary is clearly a serious criminal matter. If you are suspected of, or have been arrested for, burglary or any felony charge, it is important you speak with an experienced Galveston burglary attorney. Contact the Law Offices of Tad Nelson & Associates today if you need experienced representation from a dedicated theft lawyer. We serve clients in Houston, Galveston, League City, and the surrounding areas.