Hi, My name is Philip. I am an attorney with over 16 years experience. Hopefully I can help you with your legal question.
It may well be theft.
The problem you face is you must convince the prosecutor to bring charges.
And what you describe? It is not likely going to happen. That is, it is unlikely that a prosecutor will bring criminal
charges in a case like this and will, instead, tell you that you can use the civil courts system for recourse.
This is because the county prosecutor has "discretion'. They have the final say on if they will prosecute a case or not.
Under Texas law, there a variety of ways that a prosecutor can use to prove theft...but each revolve around proof of the "mens rea" or intent required. Theft is a specific intent crime. In order to convict, the prosecutor must prove, beyond a reasonable doubt, that the defendant intended to deprive the victim of their property permanently.
What you describe, it sounds like you had an agreement for this person to perform work.
And that he never performed the work.
But to prove theft, the prosecutor must present evidence to prove that this person not only did not do the work when promised (that is not criminal theft) but that when they entered into the agreement they intended to never perform the work at all.
Unless you have other victims who have suffered similarly, or unless there is evidence to prove that this person clearly entered into the agreement never intending to do any work, the prosecutor is not going to bring this to trial
BotXXXXX XXXXXne: You clearly have a small claims case. But I suspect you have an uphill battle to convince the prosecutor to take the case.
All that said, you can certainly report this to law enforcement and request that they bring charges.
Let me know if you have more questions, happy to help if I can