Manslaughter Charges in Texas

A family has lost someone, and no article can speak to that. This guide sets out what Texas law says, because the line between one homicide offense and another decides what follows. 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). Our Dallas violent crime defense page explains how these cases are handled.

What Texas law calls manslaughter

Penal Code §19.04(a) is one sentence: "A person commits an offense if he recklessly causes the death of an individual." There are two elements: the person acted recklessly, and that conduct caused a death. Nothing requires a weapon, a plan, or a wish that anyone die.

§19.04(b) sets the grade. The offense "is a felony of the second degree, except that the offense is a felony of the first degree if it is shown on the trial of the offense that the defendant committed an offense under Section 28.09 and that conduct caused the death of an individual." Section 28.09 covers damaging a critical infrastructure facility so as to cause an extended power outage, so that exception is narrow.

Section 19.01(b) names the four homicide offenses. There is no Texas offense called voluntary, involuntary, or vehicular manslaughter. A reckless killing is manslaughter whatever the instrument was.

Reckless or criminally negligent: the line that decides the charge

Both words are defined in §6.03. The difference is one idea: awareness.

Recklessly, §6.03(c): a person is reckless as to a result "when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur." The disregard must be "a gross deviation from the standard of care that an ordinary person would exercise," judged from the actor's standpoint.

Criminal negligence, §6.03(d): a person is criminally negligent "when he ought to be aware of a substantial and unjustifiable risk." The failure to perceive it must itself be "a gross deviation from the standard of care that an ordinary person would exercise."

Reckless means the person saw the risk and went ahead. Criminally negligent means he did not see a risk he should have seen. §19.05(a) makes it an offense to cause "the death of an individual by criminal negligence," and §19.05(b) makes that a state jail felony. So the same death can be a second degree felony or a state jail felony.

Murder, sudden passion, and capital murder

§19.02(b) gives four routes to murder. The main two are intentionally or knowingly causing a death, and intending serious bodily injury and committing an act clearly dangerous to human life that causes a death. Under §19.02(c), murder is a first degree felony except as subsection (d) provides.

§19.02(d) is the sudden passion issue, and it is not a defense. At the punishment stage the defendant may raise whether he caused the death "under the immediate influence of sudden passion arising from an adequate cause." If he proves that by a preponderance of the evidence, "the offense is a felony of the second degree." Section 19.02(a) defines adequate cause as cause that would commonly produce anger, rage, resentment, or terror in a person of ordinary temper.

Capital murder, §19.03, is murder under section 19.02(b)(1) plus one of ten listed circumstances, such as killing a peace officer on duty. Section 19.03(b) makes it a capital felony, punished under section 12.31(a) by life without parole or death.

Intoxication manslaughter

§49.08(a) is a separate offense with its own structure. A person commits it by operating a motor vehicle in a public place, an aircraft, a watercraft, or an amusement ride, or assembling a mobile amusement ride, while "intoxicated and by reason of that intoxication causes the death of another by accident or mistake." Under §49.08(b), and except as section 49.09 provides, it is a felony of the second degree.

Read subsection (a)(2) closely. A death by accident or mistake is part of the offense charged, not an answer to it.

Probation is not a clean escape either. Art. 42A.401(a)(5) requires a judge granting community supervision on a section 49.08 conviction to impose "a term of confinement of not less than 120 days" as a condition. Under article 42A.401(b), that time is not credited against a sentence imposed later on revocation.

The homicide offenses side by side

One wrinkle: under §12.35(c), a state jail felony is punished as a third degree felony, 2 to 10 years under section 12.34, if a deadly weapon was used or the person has certain prior felonies.

Probation: what the statutes allow and block

Texas calls probation community supervision. Art. 42A.054(a) lists the offenses a judge may not place on it. Murder and capital murder are on that list. Manslaughter, criminally negligent homicide, and intoxication manslaughter are not.

But art. 42A.054(b) removes judge-ordered supervision a second way. It applies when a deadly weapon under section 1.07 was used or exhibited during a felony or immediate flight, and the defendant used it or was a party who knew it would be used. Article 42A.054(c) says the court shall enter that finding in the judgment, and (d) adds a separate finding for a firearm. Section 1.07(a)(17)(B) defines a deadly weapon as "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Whether the State can prove it is one of the most consequential fights in the case.

A jury can also recommend supervision. Art. 42A.056 makes a defendant ineligible if sentenced to more than 10 years, or adjudged guilty of murder under section 19.02. The other homicide offenses are not named, so the 10-year limit usually controls.

Parole eligibility on a homicide sentence

Parole eligibility is not release. It is the earliest date the board may consider a person. Government Code §508.145 sets it.

Section 508.145(d)(1) covers an inmate serving a sentence for an offense described by article 42A.054(a), other than capital murder and certain trafficking offenses, and any offense whose judgment carries an affirmative finding under article 42A.054(c) or (d). Murder falls in the first group. Manslaughter or intoxication manslaughter with a deadly weapon finding falls in the second. Section 508.145(d)(2) bars parole until actual calendar time served, with no credit for good conduct time, equals half the sentence or 30 calendar years, whichever is less, and never sooner than two calendar years.

Without such a finding, section 508.145(f) applies: eligibility comes when actual calendar time plus good conduct time equals one-fourth of the sentence or 15 years, whichever is less. That gap is why the finding matters early.

How these cases are defended

Every case turns on its facts, and no lawyer can promise an outcome. The work usually runs along these lines.

• Causation. Each section requires that the conduct caused the death. Section 49.08(a)(2) puts it as causing death "by reason of that intoxication." Medical records, autopsy findings, and the timeline all bear on that link.
• The mental state. Often the whole case. Section 6.03(c) requires actual awareness of the risk. If the evidence shows a failure to perceive rather than a conscious disregard, that is section 6.03(d), and section 19.05 is a state jail felony instead.
• Accident. A genuine accident may not meet the gross deviation standard both parts of section 6.03 require. Section 49.08 is the exception, since accident or mistake is written into that offense.
• Self-defense. Section 9.31(a) justifies force the actor reasonably believes is immediately necessary to protect against another's use or attempted use of unlawful force. Section 9.32(a) justifies deadly force when the actor would be justified under section 9.31 and reasonably believes it is immediately necessary against unlawful deadly force, or to prevent an imminent murder, sexual assault, robbery, or aggravated robbery. Sections 9.31(e) and 9.32(c) remove any duty to retreat for a person who had a right to be there, did not provoke the other, and was not engaged in criminal activity.
• The scientific evidence. Accident reconstruction, blood testing, and forensic analysis rest on assumptions. The inputs, the methods, the chain of custody, and the analyst's qualifications can all be examined, and the raw data is often worth an independent review.

If you have been contacted about a death investigation, say nothing until you have a lawyer. Read about your right to remain silent, the first 48 hours after an arrest, and bail in Dallas County. The office number is (214) 526-0555. Related: aggravated assault charges and penalties for assault.

Common questions

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, confidential case review.