The Romeo and Juliet Law in Texas

This guide explains the Texas close-in-age rules and how those charges are defended. It is part of our guide to Dallas sexual offense defense. Peter M. Barrett has been licensed in Texas since 1994 and has tried more than 150 jury trials. He is a Past President of the Dallas Criminal Defense Lawyers Association (2005).

A nickname, not a statute

No Texas statute carries the name. The phrase refers to separate defenses, each tied to one charge. None makes sexual contact with a minor lawful. Each is raised after a charge is filed.

The age of consent in Texas is 17

The statutes covered here do not use the phrase "age of consent." The sexual assault statute defines a "child" as a person younger than 17 (Penal Code §22.011(c)(1)). Indecency with a child uses the same age (§21.11(a)).

The child section, §22.011(a)(2), does not require proof that the act was without consent. It applies "regardless of whether the person knows the age of the child." For adults, see consent laws in Texas.

A defense is not permission

Most of these rules are "affirmative defenses" under Penal Code §2.04. The prosecutor does not have to disprove one in the charging papers (§2.04(b)). A jury considers it only if supporting evidence is admitted. The defendant must then prove it by a preponderance of the evidence (§2.04(c), (d)). For rules labeled simply "a defense," a reasonable doubt on the issue requires acquittal (§2.03(d)).

Sexual assault of a child: the three-year defense

Penal Code §22.011(e)(2) is the rule most people mean. It applies only to the child section, (a)(2), not to sexual assault without consent. As written, it requires that:

• the actor "was not more than three years older than the victim";
• at the time, the actor was not required to register for life under Chapter 62, "or" had no reportable conviction or adjudication under §22.011;
• the victim "was a child of 14 years of age or older"; and
• the victim was not someone the actor was barred from marrying, or living with as if married, under §25.01 (bigamy), or a relative listed in §25.02, such as a sibling or cousin.

The statute does not say how to measure "three years older," so exact birth dates matter. Section 22.011(e)(1) adds a spouse defense. See sexual assault charges.

Indecency with a child: the three-year defense

Penal Code §21.11(b) makes it an affirmative defense if the actor:

• "was not more than three years older than the victim and of the opposite sex";
• "did not use duress, force, or a threat against the victim at the time of the offense"; and
• at the time, was not required to register for life, "or" had no reportable conviction or adjudication under §21.11.

The words "of the opposite sex" remain in the text of §21.11(b)(1). Section 22.011(e)(2) does not contain them. Section 21.11(b) sets no minimum age for the younger person. See indecency with a child.

Other close-in-age defenses

Online solicitation (§33.021(e)). This rule is labeled "a defense." A "minor" is anyone younger than 17, or believed to be (§33.021(a)(1)). It looks to when "conduct described by Subsection (c)" occurred: soliciting a minor online or by text to meet for sexual contact or intercourse. The actor must then have been married to the minor, or not more than three years older with the minor having "consented to the conduct." See online solicitation of a minor.

Continuous sexual abuse (§21.02(g)). When every victim is a child younger than 14, an affirmative defense applies if the actor was not more than five years older than the victim, or the youngest victim. The actor also must not have used duress, force, or a threat, and must meet registration conditions in §21.02(g)(3).

Sexual performance by a child (§43.25(f)(3)). This law covers anyone younger than 18, and a "performance" includes a photograph (§43.25(a)). It is an affirmative defense that "the defendant is not more than two years older than the child."

Close-in-age rules at a glance

Examples using clear ages

These show only whether the age terms fit. Every other condition still applies. None describes conduct as legal.

• 18 and 16. An 18-year-old is less than three years older than a 16-year-old, and 16 meets the minimum of 14. The age terms of §22.011(e)(2) fit.
• 19 and 15, or 20 and 16. The older person is more than three years older, so the three-year defenses do not fit. Birth dates decide whether the four-year registration finding could.
• A child of 13. The §22.011(e)(2) defense requires a child 14 or older, so it does not apply.

Sexting between teens: Penal Code §43.261

Penal Code §43.261 applies only when the accused is a minor, meaning younger than 18. It covers sharing sexual images of a minor with another minor electronically, or possessing such images of another minor electronically. The actor must have produced the images or know another minor did (§43.261(a)(2), (b)).

Grading. Both acts start as a Class C misdemeanor. Prior convictions under the section raise the level to Class B or A (§43.261(c), (d)). Sharing to harass, annoy, alarm, abuse, torment, embarrass, or offend is Class B (§43.261(c)(1)(A)).

Defenses. It is an affirmative defense if the images showed only the actor or one other minor, and passed only between them. That minor must have been the actor's spouse, or "not more than two years older or younger" and dating the actor (§43.261(e)). For possession, it is also a defense if the actor did not produce or solicit the images, got them from another minor, and destroyed them within a reasonable time (§43.261(f)).

Section 43.261 is not on the registration list in art. 62.001(5). The same conduct can also be prosecuted under another law (§43.261(g)).

The young adult registration exemption

Sexual assault and indecency with a child are reportable, even after deferred adjudication (Tex. Code Crim. Proc. art. 62.001(5)(A)). For an offender 17 or older, sexual assault and indecency by contact generally mean lifetime registration (arts. 62.001(6)(A), 62.101(a)(1)). Article 62.301 creates a narrow exemption:

• Who may ask: a person required to register, by petition to the court with jurisdiction over the case (art. 62.301(a)).
• Single offense: the duty must rest on a single reportable conviction or adjudication, other than an adjudication of delinquent conduct (art. 62.301(b)(1)).
• Age finding: the judge found the defendant was not more than four years older, the victim was at least 15, and the case rested solely on their ages (arts. 62.301(b)(2), 42.017, 42A.105(c)).
• Court findings: after a hearing, the court may grant it if a preponderance of the evidence shows no threat to public safety and conduct that was not without consent under §22.011(b). The exemption must also be "in the best interest" of the victim and of justice (art. 62.301(d)).

The order does not expire, but a later reportable conviction or adjudication requires its withdrawal (art. 62.301(e)). See also sex offender deregistration in Texas and Texas sex offender registration.

If a parent threatens charges or police call

• Do not explain or apologize. Calls and messages can be saved and given to police.
• Decline any interview until you have a lawyer.
• Stop all contact with the young person and the family.
• Do not delete messages, and do not send or show images to anyone. Ask a lawyer before doing anything with the phone.
• Write down birth dates and a timeline for your lawyer only.

Common questions

This guide is general legal information about Texas law, not legal advice about your case. Reading it does not create an attorney-client relationship. Laws change, so confirm the current rule with a licensed Texas criminal defense attorney about your specific facts. Request a free, confidential case review.