§ 124.001.Suspected Theft of Property or Attempted Theft of Property

Two unrelated provisions in one section — an old common law privilege, and a 2019 addition about diversion.

Subsection (a) is the shopkeeper’s privilege. A person who reasonably believes another has stolen or is attempting to steal property is privileged to detain that person in a reasonable manner and for a reasonable time to investigate ownership of the property.

Three reasonableness requirements, and each is a separate way to lose the privilege: a reasonable belief, a reasonable manner, and a reasonable time. The purpose is fixed too — to investigate ownership, not to punish, interrogate, or extract payment.

The privilege answers what would otherwise be false imprisonment. Without it, a merchant who detained someone who turned out to be innocent would be liable however reasonable the suspicion.

Note that it is not confined to merchants. Subsection (a) says "a person", so it reaches anyone with a reasonable belief that their property is being taken.

Subsections (b) to (e) are the theft education alternative. A merchant may offer a suspected shoplifter the chance to complete a program instead of reporting the suspected offense.

Three duties attach to making that offer: notify the person of the opportunity; inform them of the civil and criminal remedies available, including that the merchant retains the right to report if the program is not completed; and maintain records for at least two years of the criteria used, the terms of each offer, and the name of each person offered one.

The records must be produced to a prosecutor on request, which is the safeguard: a merchant choosing who to divert and who to report is making a decision prosecutors can inspect.