In Texas, the offense of injury to a child, elderly, or disabled is a felony that can be classified as a first degree, second degree, third degree, or a state jail felony. The degree of punishment depends on the circumstances of the offense. For example, intentionally or knowingly causing serious bodily injury or death to a child under 15 is a first degree felony, meaning a person can be sent to prison for life. On the other hand, causing serious bodily injury through criminal negligence is a state jail felony, punishable by up to two years in state jail.
Injury to a child is also unique because the offense can be charged due to the “omission of” or failure to perform certain duties. This is unlike most offenses which required the “commission of” certain acts in order for the offense to be charged.
Injury to a Child in Texas
Section 22.04 of the Texas Penal Code provides that a person commits this offense if, through act or omission of an act, he intentionally, knowingly, or recklessly causes a child:
- Serious bodily injury;
- Serious mental deficiency, impairment, or injury; or
- Bodily injury.
What is a “Child” for Purposes of Injury to a Child?
Under the Texas Penal Code, a child is a person under the age of 15.
Degrees of Injury
The degree of injury to the victim may determine the level of the offense. Bodily injury may be very slight.
What is Serious Bodily Injury?
Bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of function bodily member or organ. Tex. Pen. Code §1.07(a)(46)
What is Bodily Injury?
Physical pain, illness, or any impairment of physical condition. Tex. Pen. Code §1.07(a)(8).
What’s the Difference between Bodily Injury and Serious Bodily Injury?
Bodily injury just means “it hurt.” That could be anything from mere pain without bruising, to significant visible injuries like black eyes. An injury becomes “serious bodily injury” when there is an injury so significant that it causes the person to lose functioning of an organ or limb for some time.
What’s the Difference between Capital Murder and Injury to a Child Causing Death?
For murder to be charged as a capital offense based on the victim being a child, the victim would have to be under the age of 10. For purposes of injury to a child causing death, the child must have been under 15. The major punishment difference between capital murder and injury to a child is a person charged with capital murder faces the death penalty or life in prison with no possibility of parole. If the state doesn’t seek the death penalty, the defendant will receive an automatic life sentence with no possibility of parole if convicted. A person who receives a life sentence after being convicted of injury to a child is eligible for parole in 30 years.
Criminal negligence is composed of two requirements: a substantial and unjustifiable risk exists and the person should have been aware of that risk.
The Texas Penal Code provides that a person acts with criminal negligence if he “ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur.” It goes on to state that the risk must be of such nature and degree that a failure to perceive it would constitute a gross deviation from the standard of care an ordinary person would have exercised under the same circumstances.
Tex. Pen. Code §6.03(d).
An omission constituting an offense under this section is one that causes injury as provided under the statute, and the actor has:
- A legal duty to act;
- A statutory duty to act; or
- Assumed care, custody, or control of a child, elderly, or disabled individual.
Tex. Pen. Code §22.04(a).
Responsibilities for Owners, Operators, or Employees of Certain Facilities
The Penal Code also sets out additional responsibilities for “owners, operators, or employees” of a facility for the care of a child, elderly or disabled individual. Such individuals commit an offense if, by omission, they cause a child, elderly or disabled individual to suffer injuries as listed above. Tex. Pen. Code §22.04(a-1).
Owners, operators, and employees of:
- group nursing facilities,
- assisted living facilities,
- intermediate care facilities for persons with mental retardation, or
- any other institutional care facility
can commit offenses if by omission and through criminal negligence they cause an injury to a child. Tex. Pen. Code §22.04(a-1).
A person who is not an owner, operator, or employee of a facility cannot be charged by omission under the criminal negligence standard for his actions to be considered an offense. Tex. Pen. Code §22.04(a).
Care, Custody, or Control
A person assumes care, custody, or control if—by his actions, words, or conduct—causes a reasonable person to conclude he has accepted responsibility for the protection, food, shelter, and medical care for a child, elderly, or disabled individual. Tex. Pen. Code §22.04(d).
Owners, operators, or employees are presumed to accept responsibility for the above for purposes of the care, custody, or control requirement. Tex. Pen. Code §22.04(d).
Punishment for Injury to a Child in Texas
The following chart lists the level of the offense with the corresponding punishment for each. Each offense is subject to a potential fine in addition to imprisonment.
|Mental State||Injury||Offense Level||Punishment Range||Potential Fine|
|Intentionally or Knowingly Caused||Serious Bodily Injury||First Degree||5-99 years or Life||Up to $10,000|
|Intentionally or Knowingly Caused||Serious mental deficiency, impairment or injury||First Degree||5-99 years or Life||Up to $10,000|
|Recklessly Caused||Serious Bodily Injury||Second Degree||2-20 years||Up to $10,000|
|Recklessly Caused||Serious mental deficiency, impairment or injury||Second Degree||2-20 years||Up to $10,000|
|Intentionally or Knowingly Caused||Bodily Injury to a Child||Third Degree||2-10 years||Up to $10,000|
|Recklessly Caused||Bodily Injury to a Child||State Jail Felony||180 days - 2 years||Up to $10,000|
|Negligently Caused||Serious Bodily Injury||State Jail Felony||180 days - 2 years||Up to $10,000|
|Negligently Caused||Serious mental deficiency, impairment or injury||State Jail Felony||180 days - 2 years||Up to $10,000|
Is Injury to a Child a 3G Offense?
Injury to a child is a 3G offense when the offense is punishable as a felony of the first degree. Learn more about 3G offenses.
Affirmative Defenses to Injury to a Child in Texas
Notification of termination of care
It is an affirmative defense if the actor, before the offense occurs, notified the child in person and the child’s parents (or person acting as parent) in writing that the actor would no longer provide care. Tex. Pen. Code §22.04(i).
It is also an affirmative defense if before the offense occurred, the actor notified the Department of Protective and Regulatory Services in writing that he would no longer provide care to the child. Tex. Pen. Code §22.04(i).
In order to be effective, written notification must contain:
- The name and address of the actor;
- The name and address of the child; and
- The date the care is to be discontinued.
Tex. Pen. Code §22.04(j).
It is a defense if the actor’s act or omission was considered: reasonable medical care as directed by a licensed physician; or emergency medical care was given in good faith and with reasonable care by an unlicensed person. Tex. Pen. Code §22.04(k).
It is an affirmative defense that the act or omission was based on treatment as provided by a “recognized religious method of healing.” Tex. Pen. Code §22.04(l)(1).
Victims of Family Violence
If a person is charged with an act of omission causing serious injury or bodily injury to a child, it is a defense if:
- There is no evidence that, before the date of injury, the person was aware of an incident of injury to the child and failed to report the incident; and
- The person was a victim of family violence, he did not cause the injury, and he did not reasonably believe that an effort to prevent the injury would have an effect.
Tex. Pen. Code §22.04(l)(2).
Actor Close in Age to Victim
It is an affirmative defense if the actor was no more than three (3) years older than the victim at the time of the offense and the victim was a child at the time of the offense. Tex. Pen. Code §22.04(l)(3).
False Reports of Injury to a Child in Texas
Family Code Section 261.107 makes it a criminal offense to make a false report of child abuse or neglect. Specifically, a person can be charged with making a false report if with the intent to deceive the person made a report of child abuse that was false. A first offense is a State Jail Felony punishable by up to two years in State Jail and a $10,000 fine. A subsequent offense is a third degree felony punishable by two to ten years in prison.
If you or a loved one is facing charges of injury to a child, it’s imperative that you contact as skilled defense attorney immediately. Our team is made up of board certified criminal law attorneys and former prosecutors who specialized in child cases. We can help.
Call for a complimentary strategy session. During this call we will:
- Discuss the facts of your case;
- Discuss the legal issues involved, including the direct and collateral consequences of the allegation; and
- Discuss the defenses that apply to your plan and in general terms discuss our approach to your case.
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