Burglary of a Habitation in Texas- Does the garage count?

What is burglary of a habitation in Texas?

Burglary of a habitation is a 2nd-degree (2-20 TDC) felony in Texas. The law forbids entering a  “habitation” without permission from the owner and then attempting or committing theft. See TEX. PENAL CODE § 30.02(a).

What is a habitation?

“Habitation” means “a structure or vehicle that is adapted for the overnight accommodation of persons,” including “each separately secured or occupied portion of the structure or vehicle” and “each structure appurtenant to or connected with the structure or vehicle.” TEX. PENAL CODE 30.01(1).

Does a garage count as part of the habitation?

Let’s say you break into the garage to steal a lawnmower, and the garage is not attached to the house, have you committed burglary of a habitation? In Texas, this issue has been litigated on appeal a few times, most recently in Dallas, where the court held that yes, garages are part of the habitation.

How did they reach that decision? By using the “appurtenant to” part of the definition of habitation. Here is where the court cites an earlier opinion they wrote on the issue. This is from a recent case- Martinez v State No. 05-19-01549-CR.

Although the penal code does not define the phrase “appurtenant to,” we explained in Jones v. State that it means “belonging to; accessory or incident to; adjunct, appended or annexed to,” noting that “[a] thing is ‘appurtenant’ to something else when it stands in relation of an incident to a principal and is necessarily connected with the use and enjoyment of the latter.” 690 S.W.2d 318, 319 (Tex. App.—Dallas 1985, pet. ref’d) (quoting Appurtenant, Black’s Law Dictionary 94 (rev. 5th ed. 1979)). Using that definition, we held that a detached residential garage was “a structure appurtenant to” a residence, thus falling within the statutory definition of a “habitation.

So if you do break into a garage in Texas, the State can charge you with Burg Hab.



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