Sexual Assault in Texas (Penal Code §22.011)

If you or someone close to you faces a sexual assault accusation, this page explains 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 and has tried more than 150 jury trials. He is a Past President of the Dallas Criminal Defense Lawyers Association (2005). Accusations of sexual assault are serious, and people who report deserve to be heard. An accusation is still not a conviction.

What Texas Penal Code §22.011 prohibits

Tex. Penal Code §22.011 has two versions. Both require acting intentionally or knowingly.

Without consent: §22.011(a)(1). This version protects a person of any age. It covers:

• penetration of another person's anus or sexual organ by any means, without consent;
• penetration of another person's mouth by the accused's sexual organ, without consent; or
• causing another person's sexual organ, without consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the accused.

A child: §22.011(a)(2). A child is anyone younger than 17 (§22.011(c)(1)). This version covers penetration of a child and several kinds of sexual contact with a child. It applies whether or not the accused knew the child's age. It has no consent element, so the child's agreement is not a defense.

Some allegations are charged as aggravated sexual assault, a separate offense.

When the law treats sex as without consent

Texas defines consent as "assent in fact, whether express or apparent" (Penal Code §1.07(a)(11)). Section 22.011(c)(1-a) uses that definition. Section 22.011(b) lists 14 situations where an act under (a)(1) is without consent. In short, the accused:

• used physical force, violence, or coercion ((b)(1));
• threatened force or violence against anyone, or harm to the other person, who believed the threat could be carried out ((b)(2), (b)(7));
• knew the person was unconscious, physically unable to resist, or unaware of the act, and the person had not consented ((b)(3), (b)(5));
• knew a mental disease or defect left the person unable to understand or resist the act ((b)(4));
• knew the person was too intoxicated or impaired by any substance to consent ((b)(6));
• was a public servant who coerced the person ((b)(8));
• exploited a role the statute names: health care or mental health provider, clergy member, coach or tutor, or hired caregiver ((b)(9), (b)(10), (b)(13), (b)(14));
• worked at a facility where the person lived, unless the two were married ((b)(11)); or
• as a health care provider, used a donor's material in assisted reproduction, knowing the patient had not expressly consented to that donor ((b)(12)).

An older version of (b)(6) covered only an accused who secretly gave the person a substance. The current text asks whether the accused knew the person was too impaired to consent. See our guide to consent laws in Texas.

Penalties for sexual assault in Texas

Ranges come from Penal Code §§12.32, 12.33, and 12.35.

When it becomes first degree. Section 22.011(f)(1) raises the offense in two situations. One is when Penal Code §25.01, the bigamy statute, barred the accused from marrying the other person. The same applies if it barred them from living together as if married. In practice, this can apply when the accused was already legally married to someone else. The other is when Penal Code §25.02 bars sex between the two. That list covers ancestors and descendants, current or former stepparents and stepchildren, siblings, aunts and uncles, nieces and nephews, and first cousins.

The spouse and close-in-age defenses, as written

Section 22.011(e) creates affirmative defenses to the child version, (a)(2), only. One is that the accused was the child's spouse at the time. The other applies only if all of these were true:

• the accused was not more than three years older than the child;
• at the time, the accused was not required to register for life under Chapter 62, or had no reportable conviction or adjudication under §22.011;
• the child was 14 or older; and
• the child was not a person covered by §25.01 or §25.02.

Neither defense applies to a charge under (a)(1). See our guide to the Romeo and Juliet law in Texas.

Probation and deferred adjudication

Texas calls probation "community supervision." For sexual assault, it is limited:

• No judge-ordered community supervision after a guilty finding (Tex. Code Crim. Proc. art. 42A.054(a)(8)).
• No jury-recommended community supervision if the victim was younger than 14 (art. 42A.056(4)), or if the sentence is more than 10 years (art. 42A.056(1)).
• Deferred adjudication needs a finding about the victim. The judge must find in open court that it is "in the best interest of the victim" (art. 42A.102(a)). It is barred after prior community supervision for sexual assault or another listed offense (art. 42A.102(b)(2)).

Lifetime sex offender registration

Both a conviction and a deferred adjudication for sexual assault are reportable (Tex. Code Crim. Proc. art. 62.001(5)(A)). If the person was 17 or older, sexual assault is a "sexually violent offense" (art. 62.001(6)(A)). For that category, the duty to register generally ends only at death (art. 62.101(a)(1)). Narrow exceptions exist, such as for certain cases transferred from juvenile court (art. 62.101(b)).

Statute of limitations for sexual assault in Texas

Tex. Code Crim. Proc. art. 12.01 sets these deadlines for an indictment:

• Child victim under (a)(2): no limit (art. 12.01(1)(B)).
• Adult victim: 10 years from the offense (art. 12.01(2)(E)), with the exceptions below.
• No limit in an adult case if collected biological matter has not been DNA tested (art. 12.01(1)(C)(i)).
• No limit if testing shows it does not match the victim or anyone else whose identity is readily ascertained (same subsection).
• No limit if there is probable cause the accused committed the same or a similar sex offense against five or more victims (art. 12.01(1)(C)(ii)).
• Donor-material state jail felony: 2 years from discovery (art. 12.01(10)).

See our guide to the statute of limitations for sex crimes in Texas.

Can testimony alone support a conviction?

It can. Under Tex. Code Crim. Proc. art. 38.07(a), a sexual assault conviction can rest on the complainant's testimony alone. The condition is that the complainant told someone other than the defendant within one year. Under art. 38.07(b), that condition does not apply if the complainant was 17 or younger, or 65 or older, at the time. It also does not apply to an adult who was substantially unable to meet basic needs or stay safe. The inability must come from age, disease, defect, or injury.

What to do if police contact you

Many people first hear of an allegation when a detective asks for their side.

• Do not discuss the allegation without a lawyer. Use your right to remain silent in Texas, politely.
• Do not contact the person who reported, directly or through others.
• Do not delete anything from your phone or accounts.
• Write down dates, places, and witnesses, and share that only with your lawyer.

If you believe the accusation is untrue, read our page on being falsely accused of sexual assault.

How Peter Barrett approaches these cases

Most sexual assault cases turn on one of three questions. Each calls for different work, and no lawyer can promise a result.

• Consent. Often both sides agree contact happened. The issue is consent as Texas defines it, and whether a §22.011(b) situation applies. Several depend on what the accused knew. Messages, witnesses, and the timeline matter.
• Identity. Who was involved? We examine how biological evidence was collected, stored, and tested, and what DNA results show. Location data and alibi records matter too.
• Fabrication. The accused says the event never happened. We compare the complainant's statements over time and rebuild the timeline from records. Motive alone is not proof.

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

Common questions

This page 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.