Tex. Civ. Prac. & Rem. Code §§ 134.002, 134.003, 134.005; § 16.003(a)
The Texas Theft Liability Act — mandatory fees that run both ways
A claim in Texas district and county courts · Last verified August 26, 2026
The Theft Liability Act is a short statute with one enormous feature. It lets a property owner sue civilly for conduct the Penal Code defines as theft, and § 134.005(b) says that each person who prevails shall be awarded court costs and reasonable and necessary attorney's fees.
Read that sentence twice. It does not say a prevailing plaintiff. A defendant who defeats the claim recovers fees too, which makes Chapter 134 the highest-risk claim on most Texas pleading checklists — and the reason it is worth thinking hard about before adding it to a petition.
What the claim is
Someone stole your property or obtained your services without paying, and you are suing them for it in civil court rather than waiting for a prosecution.
Where the right comes from
Statute — Civil Practice and Remedies Code chapter 134, which borrows its definition of theft from the Penal Code. § 134.002 defines theft as unlawfully appropriating property or obtaining services as described by the listed Penal Code provisions, including § 31.03 (theft), § 31.04 (theft of service), and others.
What a plaintiff has to prove
- The plaintiff had a possessory right to property, or was the provider of services.
- The defendant unlawfully appropriated the property or obtained the services in a manner described by one of the enumerated Penal Code sections.
- The defendant acted with the required intent — for ordinary theft, the intent to deprive the owner of the property.
- The plaintiff sustained damages as a result.
Sections 134.002 and 134.003. No conviction is required, and the civil burden of proof is the ordinary preponderance standard — but the conduct must satisfy a criminal definition, and that is where these claims are won and lost.
How long you have to file
Two years, under CPRC § 16.003(a).
What has to happen before you file
Nothing. There is no notice requirement and no presentment.
What the claim pays
Actual damages found by the trier of fact.
Statutory damages up to $1,000 in addition, under § 134.005(a)(1).
Up to $5,000 from a parent or other person with the duty of control over a child, in an action brought under § 134.003(b).
Court costs and reasonable and necessary attorney's fees to each person who prevails, under § 134.005(b). The verb is "shall": the award is mandatory, not discretionary.
The two-way fee award — the point of the statute
Most Texas fee statutes run one way, to a claimant. Chapter 134 does not.
The consequence is that adding a theft count to a business dispute puts the plaintiff's own fee exposure on the table. A defendant who shows there was no criminal intent — that the dispute is about an unpaid invoice, a disagreement over ownership, or a contract gone wrong — prevails on the theft claim and collects, even if the plaintiff wins on conversion or breach of contract.
Texas courts have also treated a defendant as a prevailing party when a plaintiff nonsuits the theft claim, so dropping it late does not necessarily escape the exposure.
Who can be sued
The person who committed the theft, on the ordinary claim under § 134.003(a).
A parent or other person with the duty of control and reasonable discipline of a child, under § 134.003(b), where the child committed the theft. Recovery from a parent is capped at $5,000 in actual damages.
A corporate officer or employee who personally participated in the theft, on ordinary agency principles — a company's liability does not shield the individual who did the act.
Proving a Penal Code theft in a civil case
This is the work of the claim, and it is more than showing the defendant has your property.
Unlawful appropriation means appropriation without the owner's effective consent, or of property the defendant knew was stolen.
Intent to deprive means intent to withhold the property permanently or for so long that a major portion of its value is lost, to restore it only on payment of a reward, or to dispose of it in a way that makes recovery unlikely.
The second element is where a business dispute usually fails. A defendant who took goods believing it had a right to them, or who kept them because of a disagreement about payment, did not intend to deprive in the criminal sense — and that finding delivers the defendant its attorney's fees.
Common defenses
- No intent to deprive. The defense that wins: this was a civil dispute, not a theft.
- Claim of right. The defendant believed it was entitled to the property.
- Consent to the taking or the use.
- The claim is a breach of contract. Nonpayment under an agreement is not theft.
- Limitations.
What people get wrong
The fee award is not a plaintiff's tool. It is a rule about prevailing parties, and defendants use it as often as claimants.
Nonpayment is not theft. A customer who does not pay an invoice has breached a contract. Turning that into a Chapter 134 claim requires proof of criminal-grade intent from the outset.
Nonsuiting does not always avoid the fees. A defendant who has been put to the expense of defending may still be a prevailing party.
Trade secrets moved out. Chapter 134 was heavily used for trade secret misappropriation until the Texas Uniform Trade Secrets Act took over that ground in 2013, and the amendment that year removed trade secrets from the Act's reach.
Where it came from
The Legislature enacted the Theft Liability Act in 1989 to give theft victims a civil remedy that did not depend on a prosecutor's charging decision. The mandatory fee award was designed to make small theft claims economically viable.
The two-way form of that award was a deliberate balance: if a statute is going to make it worth suing over a $900 theft, it should also make it costly to accuse someone of theft without a basis. In practice the second half has shaped Texas commercial litigation more than the first, because it gives defendants in ordinary business disputes a fee claim they would not otherwise have.
The 2013 amendment removed trade secret misappropriation from the Act, at the same session that adopted the Texas Uniform Trade Secrets Act with its own fee provision.
Common questions
How long do I have to file a Theft Liability Act claim?
Two years from the theft.
Do I have to wait for a criminal case?
No. There is no requirement of a conviction, a charge, or even a police report. The civil case proves the conduct by a preponderance of the evidence.
Can I recover attorney's fees?
Yes, if you prevail — and the defendant can recover them from you if you do not.
What is the risk of adding this claim?
Real. If the court finds the dispute was contractual rather than a theft, the defendant is entitled to its fees for defending against the theft count.
How much can I recover?
Actual damages, plus statutory damages up to $1,000, plus costs and fees. A claim against a parent for a child's theft is capped at $5,000 in actual damages.
Is unpaid rent or an unpaid invoice theft?
Generally not. Theft requires the intent to deprive at the time of the appropriation, not a later failure to pay.