A first offense of burglary of a habitation in Texas is a second-degree felony punishable by 2 to 20 years in prison and a fine up to $10,000.1State of Texas. Texas Penal Code Section 12.33 – Second Degree Felony Punishment A clean record helps, but it doesn’t lower the charge. What it can do is open the door to probation or deferred adjudication instead of a prison term, and shape how a judge or jury uses the wide range the statute allows.
What Counts as Burglary of Habitation
Texas Penal Code Section 30.02 defines the offense three ways. You can be charged if, without the owner’s consent, you entered a habitation intending to commit a felony, theft, or assault. You can also be charged if you hid inside a habitation with that same intent, or if you entered and then committed or attempted any of those crimes once inside.2State of Texas. Texas Penal Code PENAL 30.02 – Burglary That third path matters. Prosecutors don’t always have to prove you planned to steal before walking through the door; entering and then attempting a theft is enough.
“Habitation” is broader than a house. Under Section 30.01, it covers any structure or vehicle set up for people to sleep in, so RVs, mobile homes, individual apartment units, and attached garages or porches all qualify.3State of Texas. Texas Penal Code Section 30.01 – Definitions “Entry” is broad too. Any part of your body crossing the threshold counts, and so does any physical object connected to your body. Reaching a hand through a window or pushing a tool through a doorway is enough.
To convict, the state has to prove entry (or concealment), lack of effective consent, and criminal intent, all beyond a reasonable doubt. Consent obtained through lies or threats doesn’t count as “effective consent.” Intent is where most cases are fought, because it usually has to be inferred from circumstances: tools used in break-ins, items taken from the home, statements to police, forced locks, broken windows, entry at night.
The Prison Range and Fine for a First Offense
Second-degree felony punishment is 2 to 20 years in the Texas Department of Criminal Justice, with a fine up to $10,000.1State of Texas. Texas Penal Code Section 12.33 – Second Degree Felony Punishment For a first offense with no aggravating circumstances, sentences on the lower end of that range are more common, but a judge has full discretion within the statutory range.
Restitution is a separate hit. Under Article 42.037 of the Texas Code of Criminal Procedure, the court can require you to return stolen property or pay the victim an amount equal to what was damaged, lost, or destroyed. If the victim was hurt during the burglary, the court can order you to cover those expenses too. When a judge decides not to order restitution, the law requires that the reasons be stated on the record.4State of Texas. Texas Code of Criminal Procedure Article 42.037 – Restitution
When a First Offense Becomes First-Degree
The charge escalates to a first-degree felony when any participant entered the habitation intending to commit a felony other than theft, or actually committed or attempted a felony other than theft while inside.2State of Texas. Texas Penal Code PENAL 30.02 – Burglary In practical terms, entering a home to commit assault, sexual assault, kidnapping, or any other felony besides stealing triggers the higher charge. A straightforward break-in to steal property stays at the second-degree level.
The penalty jump is dramatic. First-degree punishment is 5 to 99 years, or life, plus a fine up to $10,000.5State of Texas. Texas Penal Code Section 12.32 – First Degree Felony Punishment A first offense does not shield you from this if the underlying facts fit.
Probation and Deferred Adjudication
Not everyone convicted of burglary of habitation goes to prison, and this is where a clean record actually pays off. Texas law provides two routes that can keep a first-time offender out of a cell.
If your case goes to trial and the jury convicts, the jury itself can recommend community supervision instead of prison. To qualify, you have to file a sworn statement before trial that you’ve never been convicted of a felony in any state. If the jury recommends supervision, the judge is required to grant it.6State of Texas. Texas Code of Criminal Procedure Article 42A.055 – Jury-Recommended Community Supervision A judge can also place a defendant on community supervision as part of a plea deal without a jury recommendation.
Deferred adjudication is a separate option. You plead guilty, but the judge holds off on entering a formal conviction. Complete the supervision period successfully and you avoid a final conviction on your record. Burglary of habitation is not among the offenses Texas law bars from deferred adjudication, so it remains available at the judge’s discretion.
Community supervision for a second-degree felony typically lasts between 2 and 10 years. Standard conditions include regular meetings with a supervision officer, drug testing, maintaining employment, travel restrictions, community service, and paying any ordered restitution or fees. Violating those conditions can lead to revocation and imposition of the original prison sentence.
Consequences That Outlast the Sentence
The prison range is only part of what a first conviction costs. Several consequences kick in the moment the case is over and stay long after any supervision ends.
Firearm Rights
Texas and federal law both restrict gun ownership after a felony conviction, and they don’t line up. Under Texas Penal Code Section 46.04, you cannot possess a firearm for five years after your release from confinement or community supervision, whichever comes later. After that five-year period, you can possess a firearm only at the place where you live.7State of Texas. Texas Penal Code PENAL 46.04 – Unlawful Possession of Firearm Violating that restriction is itself a third-degree felony.
Federal law is stricter. Under 18 U.S.C. § 922(g), anyone convicted of a crime punishable by more than one year in prison is permanently prohibited from possessing firearms or ammunition.8Office of the Law Revision Counsel. 18 USC 922 – Unlawful Acts Burglary of habitation carries up to 20 years, so the federal ban applies. Texas may allow limited possession after five years, but federal law does not. Federal prosecution for felon-in-possession is not theoretical; the average sentence in these cases runs about six years.
Voting
A felony conviction in Texas suspends your right to vote for the duration of your sentence, including incarceration, parole, and probation. Once you’ve fully completed every part of your sentence, your voting eligibility is automatically restored and you can re-register immediately.9Texas State Law Library. Can a Person Convicted of a Felony Vote in Texas?
Immigration
If you’re not a U.S. citizen, this conviction can trigger removal. Burglary is widely treated as a crime involving moral turpitude. Under federal immigration law, a noncitizen convicted of such a crime within five years of admission, where a sentence of one year or more could be imposed, is deportable.10Office of the Law Revision Counsel. 8 USC 1227 – Deportable Aliens Since burglary of habitation carries a minimum of two years, the sentence threshold is automatically met. Lawful permanent residents with decades of U.S. residence can face removal proceedings after a conviction like this.
Jobs and Housing
Most employers run background checks, and federal law does not limit how far back employers can look at criminal convictions, though some states impose a seven-year reporting window for consumer reporting agencies. Many Texas professional licenses require background checks, and regulatory boards can deny or revoke a license based on a felony record.
Housing follows a similar pattern. HUD does not impose a blanket ban on people with felony records living in public housing or using Housing Choice Vouchers, but local public housing authorities have broad discretion to deny applicants based on criminal history.11HUD Exchange. HUD Exchange FAQ – Public Housing and Voucher Program Eligibility Regarding Felony Records Private landlords can, and routinely do, reject applicants with felony convictions.
Defenses That Come Up in First-Offense Cases
Every burglary case has pressure points, and a defense attorney’s first job is to find the weakest element in the state’s case.
Lack of intent. If prosecutors can’t prove you intended to commit a felony, theft, or assault, the burglary charge fails. Someone who enters a home mistakenly believing it’s their own, or who walks into a friend’s unlocked house to wait for them, hasn’t formed the intent the statute requires. Intent is usually inferred from circumstances, which makes it vulnerable to alternative explanations.
Consent. If you had the owner’s permission to enter, there’s no burglary. This comes up when the defendant had a prior relationship with the homeowner, had been given a key, or was invited in. Consent obtained through deception or intimidation doesn’t count, and it can be withdrawn at any time.
Challenging entry. The state has to prove that part of your body or a connected object physically crossed into the habitation. Inconclusive surveillance footage, or evidence that puts you near but not inside the structure, can put that element in doubt.
Mistaken identity. Burglaries often happen at night or when the homeowner is away. Camera footage can be grainy, descriptions vague, and physical evidence circumstantial. Alibi evidence, cell phone location data, or challenges to eyewitness reliability can undermine identification.
Suppression. If police obtained evidence through an illegal search, stopped you without reasonable suspicion, or violated your rights during interrogation, a motion to suppress can knock out key evidence. Losing stolen property found during an unlawful car search, or a confession obtained without Miranda warnings, can gut the state’s case and sometimes force a dismissal.
Cleaning the Record Afterward
Texas offers a limited path to keep a burglary-related record off most background checks. An order of nondisclosure prevents most private entities from accessing your criminal history, though law enforcement and certain government agencies can still see it.
Burglary of habitation is not listed among the offenses permanently barred from nondisclosure under Texas Government Code Section 411.074.12State of Texas. Texas Government Code GOV’T 411.074 Nondisclosure may be available, particularly if you received deferred adjudication and completed supervision. For a standard conviction with prison time, the path is narrower and the waiting periods are longer.
Full expunction, which erases the record entirely, is generally not available after a conviction. It’s reserved for cases that were dismissed, resulted in acquittal, or involved certain pardons. If your burglary charge is dismissed or you’re found not guilty, expunction becomes worth pursuing immediately.