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First- vs. Second-Degree Habitation Burglary in Texas
Understand when Texas burglary of a habitation can be first degree under section 30.02(d), rather than the general second-degree classification.
In short: Burglary of a habitation is generally a second-degree felony. Section 30.02(d) provides first degree when a party entered with intent to commit a felony other than felony theft, or committed or attempted such a felony. The intended or accompanying offense must be identified precisely.
Explore this page 9 sections
Does any theft allegation make habitation burglary first degree?
No. The first-degree provision expressly distinguishes a felony other than felony theft. Do not infer the grade merely from the value of missing property.
Can another participant’s alleged conduct matter?
Yes. Subsection (d) refers to any party to the offense. Counsel should examine both the alleged additional felony and the legal basis connecting the accused to the offense, rather than assume everyone present is a party.
How should sentencing exposure be checked?
Review the indictment, alleged underlying felony, party theory and enhancements. Confirm that the premises meet the habitation definition. A general online penalty chart cannot replace this element-by-element analysis of the actual charge.
A practical example and questions for counsel
Hypothetical example: Suppose the indictment alleges entry into a habitation and an additional felony. Counsel should verify whether that felony is one other than felony theft and whether the alleged conduct satisfies subsection (d). The analysis also requires attention to who is legally a party, not just who was present. A sentencing discussion should identify the facts that distinguish the first-degree route from the general second-degree route. If the allegation changes, update that discussion instead of assuming that the original booking classification permanently determines the case.
How this fits Texas law
Burglary of a habitation under section 30.02 involves entry or remaining concealed without effective consent and the specified criminal intent or conduct. A habitation is defined by adaptation for overnight accommodation, with additional included areas. It is generally second degree; subsection (d) provides a first-degree route involving a felony other than felony theft.
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Last updated October 2026
Common questions
Does any theft allegation make habitation burglary first degree?
No.
Can another participant’s alleged conduct matter?
Yes.
How should sentencing exposure be checked?
Review the indictment, alleged underlying felony, party theory and enhancements.
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This page provides general information about Texas law. It is not legal advice, and reading it does not create an attorney-client relationship.