Texas Penal Code § 42.072(a)(1) allows a stalking conviction when the accused “reasonably should know” that another person would regard their conduct as threatening. That language raises a constitutional question under Counterman v. Colorado, 600 U.S. 66 (2023), in which the U.S. Supreme Court held that negligence is not enough to establish a true threat when the First Amendment applies.
No Texas court has yet squarely held this alternative unconstitutional. However, the distinction between what someone actually knew and what they reasonably should have known creates an argument worth raising in an appropriate stalking case.
Why Does Texas Penal Code § 42.072 Raise First Amendment Concerns?
The potential conflict comes from the language of Texas Penal Code § 42.072(a)(1). The statute covers conduct that constitutes an offense under § 42.07 or that the accused “knows or reasonably should know” another person will regard as threatening.
In Counterman v. Colorado, 600 U.S. 66 (2023), the Supreme Court established that a true-threats prosecution requires proof of at least recklessness concerning whether the accused’s statements would be understood as threatening.
The Court distinguished four mental states:
- Purpose: The person wants their words to be received as threats. This satisfies the constitutional standard.
- Knowledge: The person knows their words will be understood as threats. This also satisfies the standard.
- Recklessness: The person consciously disregards a substantial risk that their words will be understood as threats. This is the minimum constitutional standard.
- Negligence: The person should recognize the risk but is not actually aware of it. This does not satisfy the standard.
Footnote 5 of Counterman specifically rejects negligence as an objective standard because it bases liability on what a reasonable person would think rather than the speaker’s own awareness.
This distinction matters because § 42.072(a)(1) expressly includes the phrase “reasonably should know.” That language potentially permits a conviction without proof that the accused actually recognized the threatening nature of their conduct.
The parallel is particularly relevant because Counterman itself arose from a stalking prosecution.
Why Does “Reasonably Should Know” Amount to Criminal Negligence Under Texas Law?
Texas law distinguishes between recklessness and criminal negligence based on whether the accused was actually aware of a risk. That distinction is central to the constitutional argument against Texas Penal Code § 42.072(a)(1).
Under Texas Penal Code § 6.03, the two mental states differ in important ways:
- Recklessness (§ 6.03(c)): The person is aware of a substantial and unjustifiable risk but consciously disregards it.
- Criminal negligence (§ 6.03(d)): The person ought to be aware of a substantial and unjustifiable risk but fails to recognize it.
The phrase “reasonably should know” in § 42.072(a)(1) closely tracks the negligence standard. Texas courts have repeatedly distinguished what a person actually knew from what they should have known.
Recklessness Requires Actual Awareness of the Risk
Several Texas appellate decisions explain the distinction between recklessness and criminal negligence:
- Ormsby v. State (Tex. Crim. App. 1979): Distinguished recklessness as conscious risk creation from criminal negligence as inattentive risk creation.
- Tello v. State, 180 S.W.3d 150, 158–59 (Tex. Crim. App. 2005): Explained that criminal negligence does not require proof that the accused was subjectively aware of the risk.
- Queeman v. State, 520 S.W.3d 616, 623 (Tex. Crim. App. 2017): Emphasized that criminal negligence involves failing to perceive a risk rather than consciously disregarding it.
- Graham v. State, 657 S.W.2d 99, 101 (Tex. Crim. App. 1983): Described criminal negligence in terms of failing to perceive a risk.
- Williams v. State, 235 S.W.3d 742, 750–53 (Tex. Crim. App. 2007): Distinguished criminal recklessness from the lesser mental state of criminal negligence.
This distinction also affected the result in Brasse v. State (Tex. App.—San Antonio 2012). The appellate court reversed a conviction because the evidence showed that the defendant should have known about the risk, but did not establish the subjective awareness required for recklessness.
That is the concern with § 42.072(a)(1). By allowing a stalking conviction when someone “reasonably should know” their conduct would be regarded as threatening, the statute appears to permit the same objective mental state that Counterman rejected for true-threats prosecutions.
How Do Texas Law and Counterman Define Criminal Negligence?
Both Counterman and Texas Penal Code § 6.03(d) define negligence based on what a person should have recognized rather than what they actually knew. In Counterman, this meant failing to recognize the risk that others would interpret a statement as threatening. Texas law similarly defines criminal negligence as failing to perceive a substantial and unjustifiable risk.
The Supreme Court rejected this objective standard for true-threats prosecutions because liability cannot rest solely on what a reasonable person would think. Instead, the accused must have consciously disregarded the risk that their statements would be understood as threats.
Texas Penal Code § 42.072(a)(1) raises the same concern. Its “reasonably should know” language may allow a jury to convict without finding the actual awareness required by Counterman, even when the statute also provides a knowledge alternative.
How Might the State Respond to This Argument?
The State may argue that “reasonably should know” is not a separate mental state under Texas Penal Code § 6.03. Instead, prosecutors may claim that § 42.072(a) already requires the accused to “knowingly” engage in the conduct.
There are three responses to that argument:
- The phrase addresses awareness of a threat: Regardless of its label, “reasonably should know” concerns whether the accused recognized that their conduct would be regarded as threatening. That is the issue Counterman addresses.
- Texas law distinguishes knowledge from negligence: Section 6.03(d) defines criminal negligence through what a person “ought to be aware” of, which Texas courts describe as what someone should have known.
- The statute allows alternative findings: Section 6.02(e) permits proof of a higher mental state to establish a lower one. However, § 42.072(a)(1) allows conviction based on either knowledge or what the accused reasonably should have known.
The concern is that a jury could convict without finding that the accused consciously recognized the risk that their conduct would be understood as threatening, as Counterman requires in true-threats prosecutions.
How Do Texas and Colorado Stalking Laws Compare?
The Texas and Colorado stalking statutes share several features, but their requirements for proving the accused’s mental state differ. Texas Penal Code § 42.072 includes a knowledge requirement while also allowing conviction when the accused “reasonably should know” their conduct would be regarded as threatening.
The statutes can be compared through several elements:
- Repeated conduct: Colorado’s statute addressed repeated communications. Texas requires conduct occurring on more than one occasion as part of the same scheme or course of conduct.
- Awareness of threatening conduct: Colorado did not require proof that the accused recognized the threatening nature of their communications. Texas § 42.072(a)(1) requires that the accused “knows or reasonably should know” how the conduct would be regarded.
- Objective standard: Colorado considered whether the communications would cause a reasonable person serious emotional distress. Texas § 42.072(a)(3) considers whether a reasonable person in similar circumstances would fear injury or death or experience harassment, alarm, or other specified effects.
- Actual effects: Colorado required proof of serious emotional distress. Texas § 42.072(a)(2) addresses whether the complainant actually experienced the fear or other effects described in the statute.
- Knowledge of the conduct: Texas expressly requires that the accused “knowingly engages in conduct,” a requirement separate from awareness of its threatening nature.
In Counterman, the Supreme Court overturned the Colorado conviction because the prosecution was not required to prove that the accused recognized the risk that their statements would be understood as threats.
Texas includes an additional mental-state requirement, but the constitutional question remains whether its “reasonably should know” alternative satisfies Counterman. When a stalking prosecution rests on true threats, that negligence alternative appears to fall below the required recklessness standard.
Why Don’t the Other Elements of Texas Stalking Law Resolve the Constitutional Issue?
Texas Penal Code § 42.072 contains additional requirements for a stalking conviction, but those elements do not necessarily resolve the First Amendment concern raised by Counterman.
Three distinctions are important:
- Knowingly engaging in conduct is not the same as knowingly making a threat: Section 42.072(a) requires the accused to knowingly engage in the conduct. However, Counterman distinguishes awareness of a communication’s contents from awareness that others may interpret it as threatening. Knowing that you sent a message does not establish that you recognized its threatening nature.
- The reasonable-person elements address harm, not awareness: Sections 42.072(a)(2) and (a)(3) address the complainant’s actual response and how a reasonable person would react. Counterman does not prohibit these objective requirements, but they cannot replace proof of the accused’s subjective awareness in a true-threats prosecution.
- The alternative mental states create the constitutional concern: Section 42.072(a)(1) permits proof that the accused either “knows” or “reasonably should know” the conduct would be regarded as threatening. The second alternative may allow a conviction without establishing the recklessness required by Counterman.
The Texas District and County Attorneys Association has also discussed the distinction between knowingly making a statement and recognizing its threatening nature in connection with Texas Penal Code § 22.01(a)(2), which addresses assault by threat.
The central issue is not whether Texas stalking law contains a knowledge requirement. It is whether that requirement establishes awareness of the threatening nature of the conduct, rather than merely awareness of the conduct itself.
Does Ex Parte Barton Prevent a First Amendment Challenge to Texas Stalking Law?
The State may argue that Counterman does not apply because Texas courts have treated certain harassment offenses as conduct rather than speech protected by the First Amendment.
In Ex parte Barton, 662 S.W.3d 876 (Tex. Crim. App. 2022), the Court of Criminal Appeals held that Texas Penal Code § 42.07(a)(7), addressing electronic harassment, does not implicate the First Amendment. Ex parte Sanders, 663 S.W.3d 197 (Tex. Crim. App. 2022), reached a similar conclusion. Following Counterman, the Fourteenth Court of Appeals maintained that distinction in Ex parte Ordonez and State v. Chen.
However, those decisions do not necessarily resolve a challenge to § 42.072(a)(1) when a stalking charge involves threatening communications.
The State may also cite Justice Sotomayor’s partial concurrence in Counterman. She agreed that recklessness was sufficient in the stalking case before the Court but questioned whether a higher mental state should be required in other true-threats prosecutions. She also observed that stalking cases not involving the content of communications raise fewer First Amendment concerns.
These distinctions matter when the alleged stalking consists of messages, posts, or other expressive conduct.
Challenging Stalking Charges Under the First Amendment
There are three reasons the existing Texas harassment decisions may not defeat a challenge under Counterman:
- Barton addressed a different statute. The decision concerned electronic harassment under § 42.07(a)(7), not the threatening-conduct alternative in § 42.072(a)(1). A stalking prosecution based on threats of death or bodily injury raises a different First Amendment question.
- Owens v. State recognizes an as-applied constitutional challenge. In Owens v. State, No. PD-0075-24 (Tex. Crim. App. June 4, 2025), the court held § 42.07(a)(7) unconstitutional as applied. The decision shows why the particular conduct underlying a charge matters when evaluating First Amendment protections.
- A prosecution based entirely on communications raises distinct concerns. When the alleged stalking consists of messages, posts, or calls, the State’s characterization of the offense as conduct may not fully address the constitutional protection afforded to speech.
The key distinction is between stalking charges based on nonexpressive conduct and those based on allegedly threatening communications. When the prosecution relies on the content of speech, Counterman provides a basis for challenging whether § 42.072(a)(1)’s negligence alternative satisfies the First Amendment.
Contact Chiles McGuire Criminal Law To Schedule a Free Consultation With a Texas Criminal Defense Attorney
Counterman v. Colorado provides a potential defense when Texas stalking charges involve allegedly threatening communications. The “reasonably should know” language in § 42.072(a)(1) may fall below the constitutional requirement of recklessness, although Texas courts have not definitively resolved the issue.
If you face stalking charges in Texas, contact Chiles McGuire Criminal Law to discuss your case and potential defenses. We offer a free consultation with a Texas criminal defense lawyer.
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