Mistake of Law as an Affirmative Defense in Texas

 In Criminal

Mistake of Law

You may have heard the adage, “ignorance of the law is no excuse.” In fact, in Texas a person is presumed to have knowledge of the law. There are, however, exceptions to that rule. Despite this, Texas recognizes a limited number of situations where a mistake of the law can actually be raised as a defense. In order to prevail on a mistake of fact affirmative defense in Texas, the accused must show that he reasonably believed his actions were not criminal in nature and that he reasonably relied on:

  1. a written, official statement of the law from an administrative agency or
  2. public official charged with responsibility for interpreting the law, or
  3. a written opinion of a court of record interpreting the law.

In other words, if a person relies on a written statement from a government agency, a public official or a court, and the person’s belief in that statement is reasonable, then the person may not be criminally responsible for his otherwise criminal actions.

For example, if the Office of the Attorney General put out a statement that marijuana is legal in Texas, a person might reasonably rely on that misstatement of the law and might escape the criminal penalty. Notice that even relying on an official misstatement of law might not be enough if the fact finder does not believe reliance on the misstatement was reasonable.

It is worth pointing out there is no exception for a person’s mistaken reliance on their attorney’s legal advice. The statement must be in writing, made by one of the entities listed above, and one that was reasonable relied upon.

Mistake of Law is laid out as an affirmative defense under Section 8.03 of the Penal Code:

§ 8.03. MISTAKE OF LAW

(a) It is no defense to prosecution that the actor was ignorant of the provisions of any law after the law has taken effect.

(b) It is an affirmative defense to prosecution that the actor reasonably believed the conduct charged did not constitute a crime and that he acted in reasonable reliance upon:

(1) an official statement of the law contained in a written order or grant of permission by an administrative agency charged by law with responsibility for interpreting the law in question; or

(2) a written interpretation of the law contained in an opinion of a court of record or made by a public official charged by law with responsibility for interpreting the law in question.

(c) Although an actor’s mistake of law may constitute a defense to the offense charged, he may nevertheless be convicted of a lesser-included offense of which he would be guilty if the law were, as he believed.

Section 1.07 (42) of the Penal Code defines “reasonable belief.”

Reasonable belief means a belief that would be held by an ordinary and prudent man in the same circumstances as the actor.

Contact Us

If you have been charged with an offense where you believe mistake of law might be an issue, be sure to contact an experienced criminal defense attorney. For example, it is important to know that a person’s mistake of law might constitute a defense to the offense charged, but the person may still be convicted of any lesser included offense of which they would be guilty if the law were as they believed. If you have been charged with a criminal offense in the north Texas area, call Varghese Summersett PLLC today at (817) 203-2220 or online:


Also published on Medium.

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