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Unlawful restraint is the act of restraining another person (who is not a relative under the age of 14, where the sole intent is to assume lawful control on the child.) In Texas, Unlawful Restraint is generally a Class A misdemeanor, but it can become a State Jail Felony or a Third Degree Felony depending on the facts. Unlawful restraint is the least serious among the kidnapping offenses identified in the Texas Penal Code. A person who intentionally or knowingly restrains another person has committed the offense of unlawful restraint. This is generally a Class A misdemeanor, but the felony versions of the offense are also described below.
What does “restrain” mean?
In Texas, “restrain” means to restrict a person’s movements without consent so as to interfere substantially with the person’s liberty by moving the person from one place to another, or by confining the person. See Penal Code Section 20.01(1).
This definition is a little counterintuitive because it seems to cover a lot more than just restraint. For example, if a defendant places this woman in the trunk of his car without her consent, and then either keeps her there, or drives off with her, the defendant has restrained her according to the penal code definition. Restraint without consent is accomplished by force, intimidation, or deception. Restraint without consent is also accomplished by any means, including acquiescence or agreement of the victim if it is a child, 14 or younger, or an incompetent person and the parent or guardian has not agreed to the movement or confinement. Restraint without consent is also accomplished by any means including acquiescence. Notice that you don’t have to physically move someone from one place to another in order to abduct them. You merely need to hold them in a place where they’re not likely to be found.
The Penal Code identifies an affirmative defense to unlawful restraint to reconcile situations where a parent or legal guardian is exercising their parental rights. The penal code states it is an affirmative defense to unlawful restraint if the person is 14 or younger, the actor was a relative of the child, and the actor’s sole intent was to assume lawful control of the child. The Penal Code also has language to reconcile situations between juveniles and younger adults that might arise and that we would consider less serious than a full-blown adult offense. The Penal Code states it is an affirmative defense to unlawful restraint if the person restrained was 14 to 17 years old, the actor was not more than three years older than that person, and the actor doesn’t restrain them by force, intimidation, or deception. Finally, the Penal Code sets forth an exception for law enforcement officers by stating it is not an offense to detain or move another as part of a lawful arrest or detention.
Unlawful Restraint – Felony
A person who recklessly exposes the victim to a substantial risk of serious bodily injury in the course of committing unlawful restraint, has committed a felony of the third degree. If the victim is a known public servant on duty, or if the actor was in custody of law enforcement, it is also a felony of the third degree. If the victim is 17 or younger, the offense is a state jail felony.
When does Unlawful Restraint become a Felony?
Unlawful Restraint is a felony if the restraint is of a public servant working in official capacity, of a child under 17, or if the victim is exposed to a substantial risk of serious bodily injury.
Have you or a loved one been arrested for Unlawful Restraint?
Call us at (817) 203-2220 for a complimentary strategy session. Our team of former prosecutors and Board Certified Criminal Lawyers are here to help. 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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(a) A person commits an offense if he intentionally or knowingly restrains another person.
(b) It is an affirmative defense to prosecution under this section that:
(1) the person restrained was a child younger than 14 years of age;
(2) the actor was a relative of the child; and
(3) the actor’s sole intent was to assume lawful control of the child.
(c) An offense under this section is a Class A misdemeanor, except that the offense is:
(1) a state jail felony if the person restrained was a child younger than 17 years of age; or
(2) a felony of the third degree if:
(A) the actor recklessly exposes the victim to a substantial risk of serious bodily injury;
(B) the actor restrains an individual the actor knows is a public servant while the public servant is lawfully discharging an official duty or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant; or
(C) the actor while in custody restrains any other person.
(d) It is no offense to detain or move another under this section when it is for the purpose of effecting a lawful arrest or detaining an individual lawfully arrested.
(e) It is an affirmative defense to prosecution under this section that:
(1) the person restrained was a child who is 14 years of age or older and younger than 17 years of age;
(2) the actor does not restrain the child by force, intimidation, or deception; and
(3) the actor is not more than three years older than the child.