Cyberbullying and Cyberstalking Laws in Texas

Young people have always encountered bullying, but cyberbullying—bullying that occurs in an electronic format—has become more prevalent than ever before. This phenomenon is more common due to the use of texting, messaging, and social media sites, such as Facebook and Twitter, as integral parts of social interaction among teens. But, what many don't realize is that cyberbullying can lead to criminal charges.

This article discusses Texas' criminal laws that prohibit acts of cyberbullying and cyberstalking, as well as state-mandated anti-bullying policies for schools.

What Laws Prohibit Cyberbullying or Cyberstalking in Texas?

A person who engages in cyberbullying can face charges for harassment, stalking, or online impersonation. These crimes can occur online and through electronic communications, such as email, texting, and messaging on social media applications. In certain situations, the penalties for conviction carry the potential of incarceration.

Harassment: Crime and Penalties

A person commits criminal harassment by sending or publishing online repeat electronic communications with the intent and in a manner likely to harass, annoy, alarm, abuse, torment, distress, or embarrass another.

It's also criminal harassment to do any of the following with the intent to harass, annoy, alarm, torment, or embarrass another:

• initiate communication and then make an obscene comment
• threaten to physically harm someone or commit a felony against them, their property, or their family or a household member, or
• convey a false report that someone died or suffered serious bodily injury.

Generally, harassment constitutes a class B misdemeanor, which carries penalties of up to 180 days in jail and a $2,000 fine. However, under certain conditions, prosecutors charge this crime as a class A misdemeanor. Examples include when the defendant has a previous harassment conviction or intended to pressure a child into committing self-harm or suicide. A defendant guilty of a class A misdemeanor faces to up to one year in jail and a $4,000 fine.

Stalking: Crime and Penalties

The crime of stalking occurs when an offender engages in a repeated course of conduct that the victim will regard as threatening and that would cause a reasonable person to fear bodily injury or death to themselves or a family member or damage to their property. For example, repeatedly engaging in any of the conduct described as harassment can qualify as stalking.

This offense is classified as a third-degree felony. A guilty defendant faces a fine of up to $10,000 and imprisonment ranging from two to 10 years. An offender with a previous stalking conviction (in Texas or any other state) commits a second-degree felony. The punishment for a felony of the second degree is two to 20 years in prison and a $10,000 fine.

Online Impersonation: Crime and Penalties

Cyberbullying can be charged as online impersonation when an offender, without permission and acting with intent to harm, defraud, or intimidate, uses someone's name or persona to create a webpage or post or send messages online. This offense also makes it unlawful to send electronic communications revealing personal, identifying information of another person without consent and with the intent to harm or defraud another.

Online impersonation can be either a felony or misdemeanor, depending on the circumstances. Creating a webpage or posting a message constitutes a third-degree felony, which carries two to ten years in prison and a $10,000 fine. Revealing someone's personal information constitutes a class A misdemeanor, which subjects the offender to up to one year in jail and a $4,000 fine.

Possible Defenses to Cyberbullying and Cyberstalking

As discussed above, cyberbullying and cyberstalking may be criminally prosecuted under several state laws. Depending on the charge, one or more defenses may apply to each case, including the following.

Free Speech

Free speech is a fundamental yet limited right protected by the U.S. Constitution. The government can punish speech (words and related actions) when it is likely to be immediately dangerous to others. Examples are falsely yelling "fire!" in a crowded theatre and issuing what are sometimes referred to as terrorist threats. The line between protected and illegal speech isn't always clear, though, meaning that it may be appropriate under certain circumstances to explore a free-speech defense.

Unreasonable Reaction of Fear

As explained above, stalking requires that the bully's behavior cause a victim to reasonably fear for their or their family's safety. In other words, if the victim was hypersensitive to behavior that would not have bothered an average, reasonable person, the behavior in question is unlikely to legally qualify as stalking. Because of this reasonable fear requirement, a defendant may be acquitted of these charges if their actions were not serious enough to bother a reasonable person in the victim's position.

Will Teenagers Facing Criminal Charges Be Heard in Juvenile or Adult Court?

Both minors and adults can be charged with cyberbullying or stalking, but they will be prosecuted in different courts based on age. Teenagers ages 17 to 19 will face charges in adult criminal court, whereas most juveniles ages 10 to 16 fall under the jurisdiction of the state's juvenile justice system. Texas law allows a minor who is 14 or older to be transferred to adult court under certain circumstances.

Juvenile court judges generally have more discretion than adult court judges in sentencing, as the juvenile justice system focuses more on rehabilitation rather than punishment. Within the juvenile system, sentencing options may include counseling, community service or work program, educational program, or detention in a juvenile facility. In juvenile court, the minor receives an adjudication of delinquency rather than a criminal conviction.

State-Mandated School Anti-Bullying Policies

Bullying within the meaning of Texas's Educational Code occurs when a student engages in any verbal or written statement, electronic communication, or physical act that results in:

• physical harm to a student or their property, or
• a student experiencing a reasonable fear of harm.

Bullying also includes any ongoing, severe, and persistent statements or physical acts that create an abusive educational environment for a student. If the conduct interferes with a student's education, substantially disrupts school, or exploits an imbalance of power between the victim and the perpetrator, it's considered bullying. Texas enacted David's Law to provide tools for school districts to combat bullying and cyberbullying in their schools.

Students who engage in bullying can face school disciplinary actions. Acts of bullying or cyberbullying can result in significant punishment depending on the circumstances. In addition to suspension, expulsion from school, and other administrative punishments, a student convicted of a crime could face juvenile or adult criminal penalties. School-imposed sanctions do not stop the victim from also seeking remedies in both civil and criminal court.

Civil Lawsuits

Someone who bullies or cyberbullies may also face the possibility of civil liability. Unlike criminal actions, civil lawsuits don't involve the possibility of incarceration or related punishment. A private citizen (usually the victim) can sue the offender in civil court for money damages for the harm caused by bullying.

Talk to a Lawyer

Cyberbullying and cyberstalking can incur serious fines and substantial incarceration time for a guilty defendant. If you've been arrested for or charged with a related crime, contact a local criminal defense attorney right away. A qualified lawyer can give you sound legal advice and recommend the best course of action for the unique circumstances of your case.

(Tex. Educ. Code §§ 37.0052, -.0832, -.123; Tex. Fam. Code §§ 51.02, -.041; Tex. Penal Code §§ 12.21, -.22, -.33, -.34; 33.07; 42.07, -.072 (2021).)