Arson in Texas Penal Code: Felony Tiers, Penalties, and Defense

Arson penalties in Texas run from 180 days in a state jail to life in prison, and every arson offense is a felony. Where a particular case lands on that scale depends on three things: which subsection of Penal Code Section 28.02 the prosecutor charges, what kind of property burned, and whether anyone was hurt. A fire in an empty commercial building with no injuries is a very different case from the same fire in an occupied home, even though both fall under the same statute.

The Penalty Tiers at a Glance

Texas Penal Code Section 28.02 feeds into four different punishment ranges under the general felony sentencing statutes. Each tier has its own prison range and a maximum fine of $10,000.

First-Degree Felony: 5 to 99 Years or Life

The most serious arson charge carries 5 to 99 years in prison, or life, plus a possible fine of up to $10,000.¹ A Subsection (a) arson case gets elevated to this tier if the prosecution proves either of two aggravating facts: that someone suffered bodily injury or death because of the fire, or that the property the defendant intended to damage was a habitation, a place of assembly, or a place of worship.²

“Habitation” is defined broadly. It reaches any structure or vehicle set up for overnight accommodation, including each separately secured portion and attached structures like garages or porches.³ An RV, a converted garage apartment, or a separately occupied portion of a duplex all qualify. That definition is what drives many arson cases into the first-degree range.

Second-Degree Felony: 2 to 20 Years

The standard penalty for intentional arson under Subsection (a), without any aggravating factors, is a second-degree felony punishable by 2 to 20 years in prison and a fine of up to $10,000.⁴ Fires involving commercial buildings, unoccupied structures, or vehicles typically land here when no one is injured.

Third-Degree Felony: 2 to 10 Years

Drug lab arson under Subsection (a-1) gets bumped from a state jail felony up to a third-degree felony if someone suffers bodily injury or death.² A third-degree felony carries 2 to 10 years in prison and a fine of up to $10,000.⁵

State Jail Felony: 180 Days to 2 Years

Both the drug lab offense under Subsection (a-1) and the reckless arson offense under Subsection (a-2) start as state jail felonies. The range is 180 days to 2 years in a state jail facility and a fine of up to $10,000.⁶ These are the lowest felony tier in Texas, but they’re still felonies, with all the long-term consequences that follow.

Under Section 12.35(c), a state jail felony can be punished as a third-degree felony if the defendant used a deadly weapon during the offense or has a prior conviction for certain serious felonies.⁶ That enhancement moves the range from 180 days to 2 years up to 2 to 10 years.

Which Offense You’re Charged With Sets the Starting Tier

Section 28.02 contains three distinct arson offenses, and which one the prosecutor uses determines where sentencing begins before any enhancement.

Subsection (a) covers intentional arson: someone starts a fire or causes an explosion on purpose to damage or destroy property. It applies to vegetation, fences, or structures on open-space land, and to any building, home, or vehicle where the person also knows one of several specific facts about it (that it sits within city or town limits, that it carries insurance, that it’s under a mortgage or security interest, that it’s on someone else’s land, or that it contains someone else’s belongings).² There’s also a catch-all: the offense applies if you start a fire or cause an explosion while being reckless about whether it will endanger someone’s life or another person’s property. Subsection (a) is a second-degree felony by default and a first-degree felony with the aggravators above.

Subsection (a-1) targets fires or explosions caused during drug manufacturing. If someone recklessly starts a fire while making or trying to make a controlled substance, and the fire damages a building, home, or vehicle, that’s arson.² This offense doesn’t require intent to cause the fire. Reckless drug cooking that gets out of control is enough. State jail felony, or third degree if someone is hurt.

Subsection (a-2) covers reckless outcomes from an intentional fire. Two scenarios qualify: recklessly damaging or destroying a building that belongs to someone else, or recklessly causing bodily injury or death to another person.² Someone who intentionally lights a bonfire on their own property but lets it spread carelessly to a neighbor’s house falls here. State jail felony.

Proving mental state is where most arson cases turn. People rarely announce their intentions before starting a fire, so prosecutors work from circumstantial evidence: purchases of accelerants, financial motives like insurance policies or pending foreclosures, prior threats, presence at the scene, and behavior after the fire. Texas courts have consistently allowed intent to be inferred from the surrounding circumstances rather than requiring a direct admission.

Charges That Commonly Stack on Top

Arson rarely comes as a single charge. What follows can add years to a sentence beyond the arson count itself.

When explosives are involved, prosecutors often add a charge under Texas Penal Code Section 46.05 for possessing a prohibited weapon. That statute covers explosive weapons and improvised explosive devices, and unregistered possession is a third-degree felony carrying 2 to 10 years in prison.⁷⁵ This runs alongside the arson charge, not instead of it.

Setting fire to your own property to collect insurance is one of the specific knowledge elements that triggers a Subsection (a) charge.² Texas Penal Code Section 35.02 separately criminalizes insurance fraud, and prosecutors routinely add that charge on top of the arson when the financial trail supports it. Law enforcement works with the State Fire Marshal’s Office and insurance investigators on these cases.

Fires set to destroy evidence of another crime bring their own layered exposure: the underlying offense the defendant was trying to conceal, plus evidence tampering, plus the arson itself.

Federal Arson Exposure

Some Texas fires trigger federal charges on top of state prosecution. Under 18 U.S.C. § 844(i), anyone who maliciously damages or destroys property by fire or explosive faces federal prosecution if the property was used in or affected interstate commerce.⁸ That commerce connection is read broadly and can reach rental properties, businesses, and buildings with federally backed mortgages.

Federal penalties are steep. The base sentence is 5 to 20 years. If anyone is injured, that range jumps to 7 to 40 years. If someone dies, the defendant faces up to life imprisonment or the death penalty.⁸ Federal cases involving explosives often bring in the Bureau of Alcohol, Tobacco, Firearms and Explosives, and dual state-federal prosecution is a real possibility for the same fire.

Restitution and Financial Liability

A criminal sentence doesn’t end the financial exposure. Texas courts can order defendants convicted of arson to pay restitution under Article 42.037 of the Code of Criminal Procedure. The court can require payment equal to the value of the property that was damaged or destroyed, and if the offense caused personal injury, the defendant may also owe the victim’s medical and related expenses.⁹

These payments can stretch for years. If the court orders probation, restitution must be completed before probation ends. If the defendant serves prison time, the court can require payments for up to five years after release.⁹ On top of court-ordered restitution, insurance companies that paid claims on the damaged property routinely file civil lawsuits to recover those payouts from the person responsible.

Collateral Consequences of a Felony Conviction

Because every arson offense in Texas is a felony, the effects outlast the sentence itself.

Federal law prohibits anyone convicted of a crime punishable by more than one year of imprisonment from possessing firearms or ammunition. It’s a lifetime ban unless the conviction is expunged or pardoned, and violating it is a separate federal crime.¹⁰
Texas suspends voting rights during incarceration, parole, and any period of community supervision. Once the full sentence is completed, voting eligibility is restored automatically, but you must re-register.¹¹
A felony arson conviction appears on background checks and can disqualify candidates from jobs in education, healthcare, law enforcement, finance, and any field requiring state professional licensing.
Private landlords and many public housing programs run background checks, and an arson conviction is particularly hard to overcome given that the crime involves destroying property.

Statute of Limitations

Texas gives prosecutors 10 years from the date of the offense to file arson charges. That’s a longer window than most property crimes receive. Fire investigations can take months or years to complete: evidence must be reconstructed from ash and debris, insurance claims analyzed, and witnesses located. An investigation may be active long after the fire itself has faded from public attention.

Talking to a Lawyer

If you’re under investigation for arson in Texas, fire investigators and law enforcement often begin building a case before you know you’re a suspect, pulling insurance records, interviewing neighbors, and analyzing residue from the scene. Anything you say during this period, including casual conversations with investigators who haven’t yet read you your rights, can become evidence. Given that even the lowest arson charge is a felony with lifelong consequences, an experienced criminal defense attorney should be involved early, before you talk to investigators and before charging decisions are made.

1
State of Texas. Texas Penal Code 12.32 – First Degree Felony Punishment
2
State of Texas. Texas Penal Code 28.02 – Arson
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State of Texas. Texas Penal Code 28.01 – Definitions
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State of Texas. Texas Penal Code 12.33 – Second Degree Felony Punishment
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State of Texas. Texas Penal Code 12.34 – Third Degree Felony Punishment
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State of Texas. Texas Penal Code 12.35 – State Jail Felony Punishment
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State of Texas. Texas Penal Code 46.05 – Prohibited Weapons
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Office of the Law Revision Counsel. 18 USC 844 – Penalties
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State of Texas. Texas Code of Criminal Procedure Art. 42.037 – Restitution
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Office of the Law Revision Counsel. 18 USC 922 – Unlawful Acts
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Texas Secretary of State. Effect of Felony Conviction on Voter Registration