What counts as consent under Texas law?
Texas defines consent as assent in fact, whether express or apparent (Penal Code §1.07). The sexual assault statute, §22.011(b), lists 14 situations where sexual contact is without consent, including force, threats, a person who is unconscious or unaware, and a person the actor knows is too intoxicated or impaired to consent. A child younger than 17 cannot legally consent.
- Consent in Texas means assent in fact, whether express or apparent.
- Penal Code §22.011(b) lists 14 situations where sexual contact is legally without consent.
- That includes anyone the actor knows is too intoxicated or impaired by a substance to consent, however the intoxication happened.
- The age of consent in Texas is 17, with a narrow defense when the actor is no more than three years older, the younger person is at least 14, and other conditions are met.
- Consent is often the central issue in an adult sexual assault case.
What is Considered Consent in Texas?
Texas law defines consent as “assent in fact, whether express or apparent” (Penal Code §1.07), and the sexual assault statute lists the situations in which sexual contact is legally without consent. Consent is a very important aspect of sex-related criminal cases, especially in cases where an alleged offender is charged with sexual assault. In this article, we will discuss important laws and information concerning consent in Texas.
When Is Consent Unable to Be Given (Legally)?
In some cases, it is a possible defense that the supposed victim did consent to the sexual act; however, in other cases, even if the victim did consent, they are not legally able to give their consent. Specifically, the following individuals cannot give consent:
- A child younger than 17
- If they are acting under duress or after compulsion
- Persons who are considered physically helpless or mentally incapacitated
Under Texas Penal Code § 22.011, a person commits sexual assault without the consent of the supposed victim if:
- The supposed offender uses physical force, violence, or coercion to force the other party to participate or submit.
- The supposed offender uses the threat of physical violence, force, or harm and the other party believes they are capable of such an act.
- The supposed offender threatens force or violence against any other person, and the other party believes the threat can be carried out.
- The supposed offender knows that, because of a mental disease or defect, the other person cannot understand the nature of the act or resist it.
- The other person is unconscious or physically unable to resist and has not consented.
- The other person has not provided consent, and the supposed offender knows the other party is not aware that a sexual assault is occurring.
- The supposed offender knows the other person is intoxicated or impaired by any substance to the extent that the other person cannot consent, however the intoxication happened.
- The supposed offender is a public servant and uses their position to coerce the other party to participate or submit.
- The supposed offender is a mental health service provider or health care service provider and uses their patient’s emotional dependency on them to compel them to participate or submit.
- The supposed offender is a clergyman and uses their position as a spiritual advisor or the other party’s emotional dependency on them to compel the other party to participate or submit.
- The supposed offender is an employee of the establishment where the other party is a resident, excluding instances where the employee and resident are formally or informally married to one another (see Chapter 2, Texas Family Code).
- The supposed offender is a healthcare provider and uses human reproductive material from a donor without their express consent during the course of performing an assisted reproduction procedure.
- The supposed offender is a tutor or coach who uses their influence, power, or position to compel the other party to participate or submit.
- The supposed offender is a caregiver that was hired to assist the other person with daily tasks and activities and uses that position or the other person’s dependency on them to compel the other party to participate or consent.
As it relates to the aforementioned consent law, here are the legal definitions concerning how certain positions/individuals are defined.
- Healthcare service providers include the following persons: licensed physicians, chiropractors, physical therapists, physician’s assistants, and registered, vocational, or advanced practice nurses, and licensed massage therapists.
- Mental health services providers include a licensed or unlicensed person who performs mental health services including (but not limited to) social workers, counselors, family therapists, clergymen, chemical dependency counselors, psychologists, psychiatrists, and special officers for mental health assignments.
- Employees of a facility can include any person who provides a facility with services for compensation, including contract laborers and employees defined in Texas Health & Safety Code § 250.001.
How Does Alcohol Affect Consent?
As outlined in the law, you cannot have intercourse with a person who is unconscious or too drunk to give consent. However, cases can become complicated if the person gives consent while they are “blacked out.” Blackouts can cause memory loss, and the person may be walking and talking but not fully conscious of their actions. However, someone who is blackout drunk may give consent and the other party is unaware that the consenting party is blacked out, which can complicate the case and consent issues.
Common questions
What is the age of consent in Texas?
17. A person younger than 17 cannot legally consent to sexual contact, although Texas law has a narrow defense when the actor is no more than three years older, the younger person is at least 14, and other conditions are met.
Can someone consent if they have been drinking?
It depends on how impaired they are. Texas law treats sexual contact as without consent when the actor knows the other person is intoxicated or impaired by any substance to the extent that they are incapable of consenting.
Does it matter who caused the intoxication?
Not under the current statute. The earlier version focused on a person the actor had impaired without their knowledge. Since a 2025 change, the question is whether the actor knew the person was too intoxicated or impaired to consent.
Can a position of trust make sexual contact nonconsensual?
Yes. The statute covers public servants who coerce, mental health and health care providers who exploit a patient's emotional dependency, clergy, facility employees with residents, and coaches, tutors and hired caregivers who exploit a dependency.
The law this article describes, at the source. Every figure above can be checked against it.
This article 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 case review.