Indecency with a Child in Texas

If you or someone close to you has been accused of indecency with a child, this page explains the Texas law in plain terms. It is part of our guide to Dallas sexual offense defense. Peter M. Barrett has been licensed in Texas since 1994, has tried more than 150 jury trials, and is a Past President of the Dallas Criminal Defense Lawyers Association (2005). An accusation is not a conviction.

Indecency by contact vs. indecency by exposure

Texas Penal Code §21.11 covers conduct with a child younger than 17, whether the child is of the same or the opposite sex, and whether or not the accused knew the child's age.

By contact. Engaging in sexual contact with the child, or causing the child to engage in it. The statute defines sexual contact as touching of intimate areas (it lists the anus, breast, and genitals), including through clothing, whether those areas belong to the child or the other person.

By exposure. No touching is involved. It applies when a person exposes their own anus or genitals knowing a child is present, or causes the child to expose theirs.

Both versions require intent to arouse or gratify the sexual desire of any person. Intent is often where the real dispute lies.

Penalties for indecency with a child

Offense levels come from §21.11(d); ranges from Penal Code §§12.33 and 12.34. Registration, covered below, can last for life.

Probation and deferred adjudication

Texas law calls probation "community supervision." For this charge, it is limited in three ways:

• No judge-ordered community supervision after a guilty finding. Tex. Code Crim. Proc. art. 42A.054(a)(7) lists indecency with a child among the offenses where a judge may not grant it to a defendant adjudged guilty.
• No jury-recommended community supervision if the child was under 14 (art. 42A.056(4)).
• Deferred adjudication only with a finding about the victim. A judge may grant it only after finding in open court that it is "in the best interest of the victim" (art. 42A.102(a)). It is not available at all if the person was previously placed on community supervision for indecency with a child or another listed offense (art. 42A.102(b)(2)).

Deferred adjudication avoids a conviction, but it still counts as a reportable adjudication for sex offender registration (art. 62.001(5)).

Sex offender registration

• Contact: lifetime. Indecency by contact committed by a person 17 or older is a "sexually violent offense" (art. 62.001(6)(A)), and the duty to register ends only at death (art. 62.101(a)(1)).
• Exposure: 10 years. The duty ends on the 10th anniversary of the latest of release from prison, discharge of community supervision, or dismissal and discharge (art. 62.101(c)(2)). It becomes lifetime if the person has another reportable conviction or adjudication (art. 62.101(a)(4)).

Our guide to Texas sex offender registration explains the duty in more detail.

No statute of limitations

Most Texas felonies must be charged within a set number of years. Indecency with a child is not one of them: Tex. Code Crim. Proc. art. 12.01(1)(E) lists it among the offenses with no limitation. An allegation can surface years later, when memories have faded and records may be gone, which makes early work on the timeline important.

How these cases are proven

Texas has several evidence rules written for sexual offense cases involving children.

The outcry witness rule (art. 38.072)

The hearsay rule normally keeps a witness from repeating what someone else said out of court. Article 38.072 makes an exception for the "outcry witness": the first person 18 or older, other than the defendant, whom the child told about the alleged offense. That person may repeat the child's statement if the side offering it gives at least 14 days' notice with the witness's name and a written summary, the judge finds the statement reliable at a hearing outside the jury's presence, and the child testifies or is available to testify. More than one outcry statement can be admitted if each describes different conduct.

Testimony without corroboration (art. 38.07)

A conviction for a Chapter 21 sexual offense can rest on the alleged victim's testimony alone. The usual requirement that the person told someone within one year does not apply when the alleged victim was 17 or younger.

Other alleged acts (art. 38.37)

Evidence of other alleged acts against the same child can be admitted on matters including the state of mind of the defendant and the child and their relationship. Evidence that the defendant committed certain separate child sex offenses can also be admitted, even on character, but only after the judge holds a hearing outside the jury's presence and finds it adequate to support a finding beyond a reasonable doubt. The State must give notice at least 30 days before trial.

Bond conditions when the accuser is a child

When the alleged victim is under 18, Tex. Code Crim. Proc. art. 17.41 requires the magistrate to order, as a bond condition, that the defendant not directly communicate with the child and not go near the child's home, school, or other places described in the bond. The magistrate may allow supervised access. If these conditions conflict with an existing court order on possession of or access to a child, the bond conditions control for a period the magistrate sets, up to 90 days. In a family case, that can keep a parent out of the home. Follow every condition exactly.

The close-in-age defense, as written

Section 21.11(b) creates an affirmative defense. As written, it applies if the accused:

• 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 of the offense, was not required under Chapter 62 to register for life as a sex offender, or was not a person who under Chapter 62 had a reportable conviction or adjudication for an offense under §21.11.

Section 21.11(b-1) also makes it an affirmative defense that the accused was the child's spouse at the time of the offense.

What to do if you are accused or contacted by police or CPS

Many people first hear of an allegation when a detective or CPS caseworker asks to hear their side. Treat that call seriously.

• Do not discuss the allegation without a lawyer, including with police, CPS, or the child's family. You have your right to remain silent in Texas; use it politely.
• Do not contact the child or the person who reported, directly or through others.
• Do not delete anything from your phone or accounts.
• Write down dates, places, and who was present, and share it only with your lawyer.

How Peter Barrett approaches these cases

In indecency cases, the work usually starts in three places:

• Forensic interview review. If the child gave a recorded interview, we study how questions were asked, what was said first, and how the account developed.
• Timeline. We rebuild where everyone was, custody and school schedules, and when and to whom the allegation was first made, which also identifies the outcry witness.
• Digital records. Texts, social media, photos, location data, and call logs can confirm or contradict an account. We move to preserve them early.

Every case is different. Past results do not guarantee future outcomes.

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. Request a free, confidential case review.