Can a Texas store offer a suspected shoplifter a theft deterrent class instead of calling the police?

Plain-English summary

Some retailers have started offering theft deterrent classes, modeled on defensive driving courses, as a way to handle low-level shoplifting without tying up the store's, the police's, and the courts' time on charges. The chair of the House Committee on Agriculture and Livestock asked whether a merchant acting under the "shopkeeper's privilege" in Civil Practice and Remedies Code section 124.001 may offer such a course in lieu of arrest and prosecution.

The AG drew a careful line. Section 124.001 is narrow. It says a person who reasonably believes another has stolen or is attempting to steal property "is privileged to detain that person in a reasonable manner and for a reasonable time to investigate ownership of the property." The only stated purpose is investigating ownership. The statute does not authorize detaining someone to pitch an educational theft deterrent program, so the shopkeeper's privilege itself is not the source of authority for that practice.

That is not the end of the analysis, though. The AG noted that whether to involve law enforcement is the merchant's call. There is no common-law duty to report a crime, and a merchant's threat to call the police, standing alone, is generally lawful. The actual decision to arrest and prosecute belongs to the State, not the store. Putting those pieces together, the AG found no Texas law that prohibits a merchant from offering a suspected shoplifter the option of a theft deterrent program instead of referring the matter to police.

So the bottom line is a "not prohibited," not a "specifically authorized." The opinion stops short of endorsing any particular program or resolving the broader questions in the request about whether running such a course exposes a merchant or an educational provider to civil or criminal liability.

What this means for you

If you own or manage a retail store

Based on this opinion, the shopkeeper's privilege does not by itself give you authority to detain a suspected shoplifter for the purpose of offering a class; that privilege is limited to investigating ownership of the property. But the decision whether to call the police is yours, and the AG found no Texas law prohibiting you from offering a suspected shoplifter the option of a theft deterrent program rather than referring the matter for prosecution.

If you run loss prevention or design a deterrent program

The AG confirmed the framing the request used (programs "similar to defensive driving courses") is not specifically authorized by section 124.001, but it is not specifically prohibited either. The opinion did not address the civil or criminal liability that the request asked about for merchants or educational providers, so that risk side of the question remains open and is not answered here.

If you are a prosecutor or law enforcement officer

The opinion reaffirms that whether and how to arrest and prosecute a suspected shoplifter is the State's decision and within officer and prosecutor discretion, not the merchant's. A merchant declining to refer a matter does not bind the State if a case otherwise comes to its attention.

Common questions

Q: Does the shopkeeper's privilege let a store detain me to sign me up for a class?
A: No. Section 124.001 only privileges detaining a suspected shoplifter in a reasonable manner and for a reasonable time to investigate ownership of the property. It does not authorize detention to offer an educational program.

Q: Can a store legally let me take a theft deterrent course instead of pressing charges?
A: The AG found no Texas law prohibiting a merchant from offering that option. Deciding whether to report shoplifting to police is the merchant's call, since there is no common-law duty to report a crime.

Q: Does the store get to decide whether I'm prosecuted?
A: No. The AG noted that the State, not the merchant, decides whether to arrest and prosecute. Officers and prosecutors have broad discretion over those decisions.

Q: Did the AG say these programs are legally safe to run?
A: No. The opinion concluded only that no Texas law specifically prohibits offering such a program. It did not resolve the request's questions about civil or criminal liability for a merchant or an educational provider.

Background and statutory framework

The Penal Code treats shoplifting as a form of theft (section 31.02, consolidating theft offenses), with seriousness keyed largely to the value of the property taken, from a Class B misdemeanor for less than $100 up to felonies at $2,500 or more (section 31.03(e)). A merchant victimized by shoplifting may sue for actual and special damages, costs, and attorney's fees (Civil Practice and Remedies Code section 134.005). But the decision to arrest and prosecute rests with the State (Dallas Area Rapid Transit v. Carr, "If, how, and when to arrest a suspect is within a police officer's discretion"; Neal v. State, "prosecutors have broad discretion in deciding which cases to prosecute").

The shopkeeper's privilege in section 124.001 provides that a person who reasonably believes another has stolen or is attempting to steal property "is privileged to detain that person in a reasonable manner and for a reasonable time to investigate ownership of the property." The only stated purpose is investigating ownership, and the statute does not address detentions to offer an educational theft deterrent program. Separately, a merchant has discretion to refrain from reporting shoplifting, because no common-law duty to report a crime exists (San Benito Bank & Tr. Co. v. Landair Travels), and a merchant's threat to call the police, without more, is likely lawful (Fojtik v. Charter Med. Corp., "Threats to call the police are not ordinarily sufficient in themselves to effect an unlawful imprisonment"). Because the choice to refer the matter to law enforcement belongs to the merchant, the AG found no Texas law prohibiting a merchant from offering a suspected shoplifter the option of a theft deterrent program in lieu of referral.

Citations and references

Statutes:

• Tex. Civ. Prac. & Rem. Code § 124.001 — shopkeeper's privilege to detain to investigate ownership
• Tex. Penal Code § 31.03 — theft, graded by value of property stolen
• Tex. Civ. Prac. & Rem. Code § 134.005 — civil liability for theft

Key cases:

• Dallas Area Rapid Transit v. Carr, 309 S.W.3d 174 (Tex. App.—Dallas 2010, pet. denied) — arrest decisions are within police discretion
• Neal v. State, 150 S.W.3d 169 (Tex. Crim. App. 2004) — prosecutors have broad charging discretion
• San Benito Bank & Tr. Co. v. Landair Travels, 31 S.W.3d 312 (Tex. App.—Corpus Christi 2000, no pet.) — no common-law duty to report a crime

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0419
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2022/kp-0419.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

October 18, 2022

The Honorable DeWayne Burns
Chair, House Committee on Agriculture and Livestock
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. KP-0419

Re: Whether a merchant may offer a theft deterrent course in lieu of arrest and prosecution and whether doing so would expose a merchant or educational provider to civil or criminal liability (RQ-0444-KP)

Dear Representative Burns:

Section 124.001 of the Civil Practice and Remedies Code, known as the shopkeeper's privilege, gives merchants a limited privilege to detain a person suspected of shoplifting. See TEX. CIV. PRAC. & REM. CODE § 124.001. You tell us that theft deterrent "[p]rograms similar to defensive driving courses . . . are being offered by merchants as a way to help free up time and resources" of the merchant, law enforcement, and the courts that would otherwise have been spent pursuing shoplifting charges.¹ You ask "whether a merchant, operating under the authority of Section 124.001 . . . may offer a theft deterrent course in lieu of arrest and prosecution . . . ." Request Letter at 2.

Background

The Penal Code classifies shoplifting as a species of theft. See TEX. PENAL CODE § 31.02 (consolidating theft offenses). The seriousness of the offense depends in large part on the value of the item taken, ranging from a Class B misdemeanor when the value of the property stolen is less than $100, to various degrees of felonies when the value is $2,500 or more. See id. § 31.03(e). A merchant who is a victim of shoplifting may sue the perpetrator for actual and special damages, costs, and attorney's fees. See TEX. CIV. PRAC. & REM. CODE § 134.005. Strictly speaking, the State, not the merchant, decides whether to arrest and prosecute a person suspected of shoplifting. See Dallas Area Rapid Transit v. Carr, 309 S.W.3d 174, 178 (Tex. App.—Dallas 2010, pet. denied) ("If, how, and when to arrest a suspect is within a police officer's discretion.") (citation omitted); Neal v. State, 150 S.W.3d 169, 173 (Tex. Crim. App. 2004) (stating "prosecutors have broad discretion in deciding which cases to prosecute").

Shopkeeper's privilege

You ask specifically about the authority granted by the shopkeeper's privilege in section 124.001. Request Letter at 2. The shopkeeper's privilege to investigate theft provides: "A person who reasonably believes that another has stolen or is attempting to steal property is privileged to detain that person in a reasonable manner and for a reasonable time to investigate ownership of the property." TEX. CIV. PRAC. & REM. CODE § 124.001 (emphasis added). The only stated purpose of the privilege is "to investigate ownership of the property." Id. The statute does not specifically address detentions to offer an educational theft deterrent program. See id.

That said, a merchant has the discretion to refrain from reporting shoplifting to law enforcement, as no duty to report a crime exists at common law. See San Benito Bank & Tr. Co. v. Landair Travels, 31 S.W.3d 312, 322 (Tex. App.—Corpus Christi 2000, no pet.). Also, a merchant's threat to call the police, without more, is likely lawful. See Fojtik v. Charter Med. Corp., 985 S.W.2d 625, 629 (Tex. App.—Corpus Christi 1999, pet. denied) ("Threats to call the police are not ordinarily sufficient in themselves to effect an unlawful imprisonment.") (citations omitted). Thus, the decision whether to refer the matter to law enforcement belongs to the merchant. We find no Texas law that prohibits a merchant from offering a person suspected of shoplifting the option of participating in a theft deterrent program in lieu of referring the matter to law enforcement.

S U M M A R Y

The shopkeeper's privilege in section 124.001 of the Civil Practice and Remedies Code authorizes a merchant to detain a person suspected of shoplifting to investigate ownership of the property. While that statute does not supply authority for a merchant to offer a theft deterrent course in lieu of referral to law enforcement for arrest and prosecution, we find no other Texas law that specifically prohibits such a practice.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

D. FORREST BRUMBAUGH
Deputy Attorney General for Legal Counsel

CHARLOTTE M. HARPER
Acting Chair, Opinion Committee

¹ See Letter from Honorable DeWayne Burns, Chair, House Comm. on Ag. & Livestock, to Honorable Ken Paxton, Tex. Att'y Gen. at 2 (Jan. 11, 2022), https://texasattorneygeneral.gov/sites/default/files/request-files/request/2022/RQ0444KP.pdf ("Request Letter").