Not all fake IDs are created – or punished – equally.

Due to the rise of identity theft and the Legislature’s desire to increase the punishments of these types of crimes, the consequences of obtaining a fake ID to buy beer may be far more serious than expected. There are a number of offenses related to the punishment of possession or using a fake ID. Previously, this mischievous conduct was prosecuted as a Class C misdemeanor, but the more frequent trend is for prosecution for far more serious crimes. The biggest complication is that there is tremendous overlap between offenses in the Penal Code, the Transportation Code and the Alcoholic Beverage Code. Unless the Legislature cleans up a number of these redundant positions, a police officer or prosecutor has fairly broad latitude in charging a person of a Class C ticket up to a 3d Degree Felony with only minute differences in the conduct that would support a tremendous variance in punishment. Furthermore, while the unlawful intent may be the same (obtaining beer while underage) a minor that alters an actual Texas license is in far more serious trouble than one that goes through the trouble of procuring a black market fake ID. This seems counterintuitive.

On its face, the offense of Fraudulent Use or Possession of Identifying Information was not intended to prosecute mischievous teenage convenience store capers. Most of the statute is clearly aimed at prosecuting identity theft. However, the language in the statute is very broad: a person commits an offense if they possess or use another person’s identifying information without their consent and with the intent to defraud another. If a younger sister takes her older sister’s ID without permission, does she defraud the bar when she holds herself out to be over 21? If the office making the arrest believes so, the punishment is a state jail felony. (However, the doctrine of in pari materia should preclude prosecution under this general statute because the Legislature has passed more specific laws related to fake IDs used for the sole purpose of obtaining alcohol).

Assume that the younger sister instead decides to alter her Texas Driver’s license or create a fake ID. Depending upon how it was used or created, in a prosecution for Tampering with Government Record the punishment range could be anywhere from a Class B misdemeanor or up to a 3rd Degree Felony.

What if you carry both your real ID and your sister’s ID? What if you lend another person your driver’s license? What if you make a false application to obtain a driver’s license? Or represent that you’re over 21 using a fake ID? The Legislature punishes every single one of these types of false representations under the crime of General License Violations.  Any offense under this section is prosecuted as a Class A misdemeanor.

The most specific statutes directed at proscribing the conduct of those under 21 are the offenses of Fictitious License (fake identification) and Misrepresentation of Age by a Minor.  The offense of Fictitious License occurs when a person under 21 possesses, with the intent to represent that he is 21 years or older, a document that is deceptively similar to a driver’s license or identification. This offense would apply to people from age 18 to 20. For people under 18, the offense of Misrepresentation of Age by a Minor is committed merely by falsely stating that he is 21 years of age or older, or presenting any document that indicates the same. Both of these offenses are punishable as Class C misdemeanors.

The situation is so confusing that we have created the following chart:

 

Conduct	Offense	Punishment Range
Manufactures forged or counterfeit instrument with intent to sell, distribute or deliver	521.456 Transportation Code, Delivery or Manufacture of Counterfeit Identification	3d Degree
False alteration of a governmental record	37.10 Penal Code; Tampering with Governmental Record	3d Degree
Destroys, conceals, removes or impairs the verity, legibility, or availability of a governmental record	37.10 Penal Code; Tampering with Governmental Record	3d Degree
Possesses, sells, or offers to sell a blank governmental record form with intent that it be used unlawfully	37.10 Penal Code; Tampering with Governmental Record	3d Degree
Possesses, sells, or offers to sell a blank governmental record form with knowledge that it was obtained unlawfully	37.10 Penal Code; Tampering with Governmental Record	3d Degree
Possesses forged or counterfeit instrument with intent to sell, distribute or deliver	521.456 Transportation Code, Delivery or Manufacture of Counterfeit Identification	Class A
Makes, presents, or uses any record, document or thing with knowledge of its falsity and with intent that it be taken as a genuine governmental record	37.10 Penal Code; Tampering with Governmental Record	Class B
Makes, presents, or uses a governmental record with knowledge of its falsity	37.10 Penal Code; Tampering with Governmental Record	Class B
Minor falsely states over 21 years old	106.07 Alcoholic Beverage Code, Misrepresentation of Age	Class C
Minor present document falsely claiming that person is over 21 years old	106.07 Alcoholic Beverage Code, Misrepresentation of Age	Class C
A person under 21 possesses a document deceptively similar to a driver’s license or ID with intent to represent that they are over 21	521.453 Transportation Code, Fictitious License or Certificate	Class C
Possesses, circulates or passes a forged or counterfeit instrument that is not made by the appropriate authority	521.456 Transportation Code, Delivery or Manufacture of Counterfeit Instrument	Class C