Shoplifting: The “Shopkeeper’s Privilege” in Texas and Civil Personal Injury Claims

The retail industry in the United States has yet to solve its growing problem of “retail shrink,” which is defined as “the difference between the amount of merchandise (or inventory) that the retail company owns on its books, and the results of a physical count of the merchandise.”  In 2019, $49 Billion was lost in this country to retail shrink, which involves loss from theft, shoplifting, error, or fraud.  Read, “Inventory Shrink Cost the US Retail Industry $46.8 Billion,” written by TJ McCue and published in Forbes on January 31, 2019.

A large portion of the industry’s astronomical annual retail shrink can be attributed to shoplifting.  According to the National Association of Shoplifting Prevention (NASP), stores lose over $45,000,000 each day to shoplifting alone.

The National Retail Foundation warns that the problem is escalating, too.  From NRF Vice President for Research Development and Industry Analysis Mark Mathews:

“Between an increase in incidents and new ways to steal, shrink is at an all-time high. Loss prevention experts are facing unprecedented challenges from individual shoplifters to organized gangs to highly skilled cybercriminals. Retailers are responding with both traditional methods and the latest technology, but this is an ongoing challenge that can only be won with the support of lawmakers and law enforcement.”

The escalating trend in retail shrink means that stores across Texas and elsewhere in this country are becoming more and more focused on ways to stop people from taking merchandise without paying for it.  Not only are local police or sheriff’s deputies going to be called to businesses in response to a complaint about someone being caught taking things, but store employees and management are going to be constantly on the lookout for potential thieves on their premises.

What is Shoplifting?

At one time, Texas law defined “shoplifting” in Article 1436e of the Vernon’s Texas Penal Code as follows:

“Section 1. Any person while legally in a retail business establishment as an invitee or licensee who removes from its place, goods, edible meat or other corporeal personal property of any kind or character kept, stored or displayed for sale with the intent to fraudulently take and to deprive the owner of the value of the same and to appropriate the same to the use and benefit of the person taking is guilty of shoplifting.”

See, Edwards v. Ideal Food Stores, 499 S.W.2d 343 (Tex. Civ. App. 1973).

In 1974, that law was changed.  Texas Penal Code 31.02 combined the crime of shoplifting with other illegal takings to create an overall theft statute:

Sec. 31.02.  CONSOLIDATION OF THEFT OFFENSES.  Theft as defined in Section 31.03 constitutes a single offense superseding the separate offenses previously known as theft, theft by false pretext, conversion by a bailee, theft from the person, shoplifting, acquisition of property by threat, swindling, swindling by worthless check, embezzlement, extortion, receiving or concealing embezzled property, and receiving or concealing stolen property.

Today, shoplifting is considered a type of theft, where intent to deprive the store of its property is the key element for conviction. Shoplifting convictions can result in misdemeanor or felony charges.

The Shopkeeper’s Privilege

The problem for many stores and businesses is that shoplifters are rarely identified when a member of law enforcement is present.  If the store waits for the police, then will the alleged shoplifter simply leave with the merchandise before the officers can get there?

As a result, in Texas, as is true in many other states, legislation has been passed to protect stores and businesses from theft by their customers and clients called the “Shopkeeper’s Privilege” law.  It is found in Texas Civil Practice and Remedies Code §124.001 and 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.

One common tool used in conformity with this statute is the “receipt checker,” who is an employee placed at store exits with the job of checking customer’s receipts against their purchases.  While there is no legal duty placed upon a customer to show that receipt (unless they are in a membership store like Sam’s Club or Costco), the refusal to comply may give the store a legal right to detain that customer.  The refusal may be argued as forming a “reasonable belief” that the customer “has stolen or is attempting to steal property” under the Shopkeeper’s Privilege law.

Exceeding the Boundaries: Shopkeeper’s Liability for Civil Injury Claims

Store management particularly obsessed with the huge amount of losses they face from retail shrink, may become overzealous in their attempts to use the Shopkeeper’s Privilege law.  When that happens, the customer may have a civil injury claim for monetary damages against the store based upon a variety of causes of action, such as assault, negligence, negligent supervision, defamation, malicious prosecution, intentional infliction of emotional distress, and false imprisonment.

These cases can result in huge damage awards, given the particular circumstances.  In one case, a Texas jury awarded $15,000 per hour in false imprisonment damages to the store customer and the award was upheld as reasonable on appeal. Dayton Hudson Corp. v. Altus, 715 S.W.2d 670 (Tex. App. 1986).

False Imprisonment

The most common cause of action based upon a store’s improper use of the Shopkeeper’s Privilege law involves civil injury claims for damages based upon the civil tort of false imprisonment.  Stores that fail to operate within specific boundaries as they suspect and detain an individual for potential shoplifting can be found liable for false imprisonment damages.  Wal-Mart Stores, Inc. v. Resendez, 962 S.W.2d 539, 540 (Tex. 1998).

False imprisonment involves the following elements, with the plaintiff having the burden of proving each element with a preponderance of the evidence:

(1) willful detention;

(2) without consent; and

(3) without authority of law.

Willful Detention

Willful detention involves violence, threats, or anything else (even words alone) that restrains a person from moving from one place to another. Martinez v. Goodyear Tire & Rubber Co., 651 S.W.2d 18, 20 (Tex.App.—San Antonio 1983, no writ). Where it is alleged that a detention is accomplished solely by a threat, the plaintiff must demonstrate that the threat would have inspired in the threatened person a justified fear of injury to her person, reputation, or property. Black v. Kroger Co., 527 S.W.2d 794, 796 (Tex.Civ.App.— Houston [1st Dist.] 1975, writ dism’d).

No Consent

The plaintiff must establish that he or she did not consent to being held back by the store while investigations were made.  There must be some facts to support the contention that the person targeted by the store employee did not voluntarily submit or otherwise agree to being detained in any manner. Wal-Mart Stores, Inc. v. Odem, 929 S.W.2d 513, 519 (Tex. App. —San Antonio 1996, writ denied.

Without Authority of Law

As for the third element, legal authority or legal justification is proven with either (1) evidence of an arrest warrant or (2) by facts establishing probable cause. Avalos v. Mejia, 788 S.W.2d 645, 646 (Tex.App.—Corpus Christi 1990, no writ); Tandy v. McGregor, 520*520 527 S.W.2d 246, 248 (Tex.Civ.App.—Texarkana 1975, writ ref’d n.r.e.); Meyer v. Monnig Dry Goods Co., 189 S.W. 80, 81 (Tex.Civ. App.1916, writ ref’d).

Absent an arrest, the key is reasonableness in the store’s actions; without it, the store has acted outside the scope of the Shopkeeper’s Privilege statute and therefore “without authority of law.”  Sears, Roebuck & Co. v. Castillo, 693 S.W.2d 374, 375 (Tex.1985).

To prove this final element of the claim of false imprisonment, the plaintiff needs to show through admissible evidence that the store acted unreasonably in order to establish a right to damages.  The particular circumstances of the case must show that the store employee failed to have a reasonable belief of a theft or potential theft. Resendez, 962 S.W.2d at 540. If no arrest warrant for shoplifted resulted in the case, then the facts surrounding the store’s activities must be shown to lack a reasonable basis to detain the plaintiff.

Time Detained

One way to show unreasonable action by the store is to consider the amount of time that the plaintiff was detained by the store’s employee(s).  Texas courts have held that a few minutes is an acceptable period of time to detain someone under the Shopkeeper’s Privilege statute. See Dominguez v. Globe Discount City, Inc., 470 S.W.2d 919, 920 (Tex.Civ.App.—El Paso 1971, no writ) (five to six minute detention was legal).

Damages for False Imprisonment

As explained in Dayton Hudson Corp., 715 S.W.2d at 674, “there is no certain measure of damages for the varying degrees of harm incurred by a person who has been maliciously prosecuted or falsely imprisoned.” It is left to the jury to decide what damages should be awarded to the victim of false imprisonment as a result of the overzealous application of the Shopkeeper’s Privilege by a store.  Dahl v. Akin, 645 S.W.2d 506, 521 (Tex.App.Amarillo 1982), aff’d, 661 S.W.2d 917 (Tex.1983), cert. denied, 466 U.S. 938, 104 S.Ct. 1911, 80 L.Ed.2d 460 (1984).

The only limits placed upon the jury’s decision will be that if the amount is so high that it is clearly “…the result of passion, prejudice or other improper motive, or is so excessive as to shock an appellate court’s sense of justice” that the courts will not respect the jury’s decision and let it stand. Dayton Hudson Corp., 715 S.W.2d at 674.

Defamation

Defamation involves either libel or slander and has been defined as a “false statement about a plaintiff published to a third person without legal excuse which damages the plaintiff’s reputation.” Doe v. Mobile Video Tapes, Inc., 43 S.W.3d 40, 48 (Tex.App.-Corpus Christi 2001, no pet.). Libel is defamation in written or other graphic form. See Tex. Civ. Prac. & Rem.Code  § 73.001.

As explained in Gray v. HEB Food Store No. 4., 941 S.W.2d 327, 329 (Tex.App.-Corpus Christi 1997, pet. denied), slander is a defamatory statement that is orally communicated or published to a third person without legal excuse and it will constitute slander per se (slander as a matter of law), if it falls within one of four categories: (1) imputation of a crime, (2) imputation of a loathsome disease, (3) injury to a person’s office, business, profession, or calling, and (4) imputation of sexual misconduct.

As Gray explains, an allegation that someone has been shoplifting “squarely fits under the first category of slander per se.”  If the statement is slander per se, no independent proof of damage to the plaintiff’s reputation or of mental anguish is required, as the slander itself gives rise to a presumption of damages.  Leyendecker & Assocs., Inc. v. Wechter, 683 S.W.2d 369, 374 (Tex.1984) (op. on reh’g).

Moreover, the shopkeeper’s privilege statute cannot bar a defamation claim brought against the store. See Odem, 929 S.W.2d at 520.

The elements of a defamation cause of action to be proven by someone wrongfully accused of being a shoplifter or thief are that the store’s agents or representatives:

(1) published a statement;

(2) that was defamatory concerning the plaintiff; and

(3) while acting with negligence regarding the truth of that statement.

WFAA TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998).

As with false imprisonment, the jury can decide the amount of damages to be awarded for libel or slander, and this will be respected by the courts unless the award itself appears to be excessive or the jury appears to have acted out of passion, prejudice or other improper influence. Frank B. Hall & Co. v. Buck, 678 S.W.2d at 630; Bolling v. Baker, 671 S.W.2d 559, 571 (Tex.App.—San Antonio 1984, writ dism’d w.o.j.), cert. denied, 474 U.S. 824, 106 S.Ct. 79, 88 L.Ed.2d 64 (1985); Winkel v. Hankins, 585 S.W.2d 889 (Tex.Civ. App.—Eastland 1979, writ dism’d).

Shoplifting Civil Injury Claims in Texas Courts

Stores are zealous to sniff out and prosecute people who are taking things from their shelves without paying for them.  These businesses are losing lots of money to theft and they are aggressively working to lower that loss.  However, in their zeal to rein in their losses, they may well overstep their legal bounds as they are defined under the Texas Shopkeeper Privilege law.

Victims will be illegally detained and accused of being shoplifters or thieves and as a result may suffer damages that are compensable under Texas personal injury laws.

When someone is accused of shoplifting, they may have claims against their accusers for false imprisonment and defamation as well as a variety of other causes of action, including assault, intentional infliction of emotional distress, negligence, negligent supervision, and more.

The harm these victims may suffer can be considerable, particularly if they are teenagers or young adults.  When teenagers or minor children have been stopped by a store employee and detained on suspicion of being a shoplifter, their parents have a legal right to investigate the potential civil injury claims that can be brought on their behalf.

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article, ”Steal Property And Get Life Behind Bars:  Life Sentences For Theft In Texas.”