Texas violation of civil rights of person in custody
Texas violation of civil rights of person in custody is a criminal offense under Penal Code § 39.04. Base conduct is classified as a state jail felony; enhancements and aggravators can move the punishment range higher. Below: the controlling statute text, the full punishment range, common defense theories, and what to do if you have been charged in Collin, Dallas, Denton, or Tarrant County.
Classification: Class A misdemeanor or third-degree felony to first-degree felony
Punishment range: Civil-rights denial under § 39.04(a)(1): a Class A misdemeanor (up to 1 year + $4,000) under the S.B. 312 version, or a third-degree felony (2–10 years + $10,000) under the conflicting H.B. 3157 version. Improper sexual activity under § 39.04(a)(2): a second-degree felony (2–20 years + $10,000), or a first-degree felony (5–99 years or life) if committed against an individual in a juvenile facility or the Texas Juvenile Justice Department. Sexual activity with a person under supervision under § 39.04(f): a state jail felony
The controlling statute
Texas Penal Code § 39.04 criminalizes intentionally denying or impeding a person in custody from exercising a constitutional, statutory, or legal right — and separately criminalizes sexual contact or sexual activity between officials and persons under their custody or supervision. The sexual-contact branch under § 39.04(b) is a strict-liability provision elevated to second-degree felony precisely because of the power imbalance involved. Consent is not a defense, recognizing that persons in custody cannot freely consent to sexual activity with their captors.
Classification & punishment range
| Element | Detail |
|---|---|
| Statute | Texas § 39.04 |
| Cluster | Obstruction of Justice |
| Classification | Class A misdemeanor or third-degree felony to first-degree felony |
| Range | Civil-rights denial under § 39.04(a)(1): a Class A misdemeanor (up to 1 year + $4,000) under the S.B. 312 version, or a third-degree felony (2–10 years + $10,000) under the conflicting H.B. 3157 version. Improper sexual activity under § 39.04(a)(2): a second-degree felony (2–20 years + $10,000), or a first-degree felony (5–99 years or life) if committed against an individual in a juvenile facility or the Texas Juvenile Justice Department. Sexual activity with a person under supervision under § 39.04(f): a state jail felony |
| Last reviewed | 2026-05-15 |
Elements the State must prove
To convict on a Texas § 39.04 charge, the State must prove every element beyond a reasonable doubt:
- Defendant was an official, employee, or agent of a custodial facility or correctional institution
- The victim was a person in custody under defendant's care or supervision
- Defendant intentionally denied or impeded the victim's exercise of a right (§ 39.04(a))
- (Alternative) Defendant engaged in sexual contact, sexual intercourse, or deviate sexual intercourse with the victim (§ 39.04(b))
Defense strategies
L and L Law Group, PLLC develops the following defense strategies on every Violation of Civil Rights of Person in Custody case:
- No custodial relationship — defendant was not in a position of authority over the alleged victim
- Mistaken identity in sexual-contact cases — common where multiple officers had access
- Suppression of statements obtained in violation of Garrity protections during internal affairs interviews
- Constitutional challenges to strict-liability application of § 39.04(b) (consistently rejected by Texas courts)
- Lack of intent under § 39.04(a) — denial of rights must be intentional, not negligent
- Statute of limitations — generally three years for the felony version under Article 12.01
Enhancements & collateral consequences
Second-degree felony under § 39.04(b) for any sexual contact between officials and persons in custody — consent of the person in custody is not a defense. Parallel federal exposure under 18 U.S.C. § 242 (Color of Law) carries enhanced sentences for sexual abuse — up to life imprisonment for serious bodily injury or death. Civil 42 U.S.C. § 1983 suits commonly accompany state prosecutions.
Key Legal Terms
- Person in Custody (§ 1.07(a)(11))
- An individual detained or imprisoned under authority of law; includes inmates, pretrial detainees, persons on community supervision, and persons under arrest.
- Strict Liability (§ 39.04(b))
- No consent or mens rea defense available; sexual contact between official and person in custody is itself the offense regardless of mutual intent.
- Garrity Protection
- Constitutional doctrine from Garrity v. New Jersey; statements compelled in internal-affairs investigations cannot be used in criminal prosecutions.
Frequently Asked Questions
Is consent a defense to sex with an inmate?
Does § 39.04 cover parole and probation officers?
What rights are protected under § 39.04(a)?
Can I sue civilly even if no criminal charges are filed?
Does the statute cover detention by police officers?
References & Authoritative Sources
About the Authors
Reggie London
Co-Founding Partner · Texas Bar No. 24043514
Reggie London co-founded L and L Law Group with a focus on federal criminal defense, complex felony defense, and TEA/SBEC matters. Licensed in Texas, admitted to TXND and TXED.
Njeri London
Co-Founding Partner · Texas Bar No. 24043266
Njeri London co-founded L and L Law Group with a focus on DWI defense, family violence cases, and juvenile defense. Licensed in Texas, admitted to TXND and TXED.
Charged with Violation of Civil Rights of Person in Custody? Talk to L and L Law Group.
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