Criminal nonsupport under Texas Penal Code § 25.05 is a state jail felony — 180 days to two years plus up to a $10,000 fine — for intentionally or knowingly failing to support your child. Arrears alone are not automatically criminal; inability to pay is an affirmative defense. Below: penalties, proof, defenses, and DFW county practice.
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Texas Penal Code § 25.05(a) defines the offense in a single sentence: an individual commits criminal nonsupport if the individual "intentionally or knowingly fails to provide support for the individual's child younger than 18 years of age, or for the individual's child who is the subject of a court order requiring the individual to support the child." The statute sits in Chapter 25 of the Penal Code — Offenses Against the Family — alongside bigamy, interference with child custody, and violation of protective orders.
Read it carefully and two separate paths to prosecution emerge. The first prong covers any child of yours younger than 18 — no court order required. A parent who has never been through a divorce or paternity suit can still be charged. The second prong covers a child "who is the subject of a court order requiring the individual to support the child," and that prong carries no age cap. Texas courts can order support past a child's 18th birthday — through high-school graduation under Family Code § 154.002, or indefinitely for an adult disabled child under § 154.302 — so a willful failure to pay under one of those orders can be charged under § 25.05 even though the "child" is legally an adult.
Section 25.05(b) extends the duty to a child born out of wedlock, but only where paternity "has either been acknowledged by the actor or has been established in a civil suit under the Family Code or the law of another state." An acknowledgment of paternity signed under Family Code Chapter 160 satisfies the statute; so does a parentage adjudication from another state's courts.
The offense has been on the books since the modern Penal Code took effect in 1974, but its architecture changed in a way that still controls how these cases are tried. As originally enacted, the State had to prove the parent failed to provide support "that he can provide" — ability to pay was part of the State's case. The Legislature restructured the offense (Acts 1987, 70th Leg., 2nd C.S., ch. 73), removing ability from the elements and recasting inability as the affirmative defense now codified at § 25.05(d). Today the prosecutor proves the failure; the defense proves the inability.
No — and that distinction matters more than anything else on this page. Texas enforces child support through three separate tracks, and the felony statute is the narrowest of them. Arrears by themselves prove a debt. Section 25.05 requires proof of a culpable mental state: an intentional or knowing failure to support. A parent can owe tens of thousands of dollars and never see a criminal charge while the civil machinery — contempt, license suspension, liens, wage withholding — does the collecting.
| Enforcement track | Who brings it | Authority | Maximum exposure |
|---|---|---|---|
| Civil enforcement & contempt | Custodial parent or the Attorney General, in family court | Fam. Code ch. 157 | Up to 6 months county jail per violation plus a $500 fine (Gov't Code § 21.002(b)); arrears judgment with interest; attorney's fees — no felony record |
| Administrative IV-D enforcement | OAG Child Support Division | Fam. Code chs. 231–232 | Suspension of driver's, professional, and recreational licenses; liens; credit reporting; tax-refund intercepts |
| Criminal nonsupport | District attorney, criminal court | Penal Code § 25.05 | State jail felony — 180 days to 2 years in a state jail facility plus a fine up to $10,000 |
| Federal interstate nonsupport | U.S. Attorney | 18 U.S.C. § 228 | Up to 6 months; up to 2 years where the obligation went unpaid more than 2 years or exceeds $10,000 (interstate cases only) |
The civil and criminal tracks even treat inability to pay differently. In a contempt proceeding, Family Code § 157.008(c) makes the obligor prove four things conjunctively — that he lacked the ability to pay in the amount ordered, lacked property that could be sold or pledged, tried and failed to borrow the funds, and knew of no other lawful source for the money. The criminal affirmative defense in § 25.05(d) is worded far more simply: that the actor "could not provide support." Counsel handling parallel proceedings should never assume a showing that fails in family court automatically fails in criminal court, or the reverse.
Criminal referrals tend to reach the district attorney late in the story — after wage withholding produced nothing, after a contempt commitment or two, after years of zero entries on the payment registry. Across the DFW counties, § 25.05 generally functions as the tool of last resort for sustained, documented, willful nonpayment rather than a response to a parent who is merely behind.
Criminal nonsupport is a state jail felony under § 25.05(f). The range comes from Penal Code § 12.35: 180 days to two years in a state jail facility and an optional fine of up to $10,000. State jail time is served essentially day for day — there is no parole from a state jail facility, and early-release credit is limited to the diligent-participation credits the Code of Criminal Procedure authorizes.
| Scenario | Classification | Confinement | Fine cap |
|---|---|---|---|
| Criminal nonsupport — base offense, § 25.05(f) | State jail felony | 180 days–2 years, state jail facility | $10,000 |
| Punishment reduced under § 12.44(a) | Felony conviction, misdemeanor punishment | Up to 1 year, county jail | $4,000 |
| Prosecuted as Class A with State's consent, § 12.44(b) | Class A misdemeanor conviction | Up to 1 year, county jail | $4,000 |
| Community supervision or deferred adjudication (CCP ch. 42A) | Supervision in lieu of confinement | 2–5 years of supervision, with payment and employment conditions | Fine, costs, and arrears conditions |
The two halves of § 12.44 look similar and are worlds apart. Under § 12.44(a) the judge imposes Class A punishment but the conviction stays a felony; under § 12.44(b), with the prosecutor's consent, the case is prosecuted as a Class A misdemeanor and the felony never attaches. In a nonsupport case where the defendant has resumed paying, subsection (b) is frequently the negotiating target, because a felony record is the most direct threat to the earning capacity the support order depends on.
When community supervision is part of the outcome — and in nonsupport cases it usually is — Code of Criminal Procedure Chapter 42A lets the court make payment of current support and arrears an express condition, alongside employment requirements. Deferred adjudication under art. 42A.101 is available for § 25.05, which matters for record sealing later. Court costs and fees stack on top of any fine; our Texas court cost calculator shows how those totals build.
To convict under § 25.05, the State must prove every element beyond a reasonable doubt:
These are paper-heavy prosecutions. The core exhibits are usually the support order itself, the official payment record from the state disbursement unit, wage-withholding history, and the defendant's own statements from civil enforcement hearings. Employer records and tax filings get subpoenaed when the defense signals an inability claim.
Section 25.05(c) contains a rule most clients have never heard of: a conviction "may be had on the uncorroborated testimony of a party to the offense." In plain terms, the other parent's testimony, standing alone, can legally support a guilty verdict — no ledger and no forensic accountant required. The Legislature wrote that corroboration shortcut into the statute itself, which is unusual in Texas criminal law and raises the stakes of cross-examination.
On mental state, the State leans on notice. In Belcher v. State, 962 S.W.2d 653 (Tex. App. 1998), letters informing the defendant of his arrearage — combined with his threat to withhold support unless charges were dropped — were enough for a rational jury to find a knowing and intentional failure to support. The court also rejected the argument that the defendant had to know the precise amount owed: the statute requires only knowledge that he was not providing all the support required.
Because the offense is committed by omission and "continu[es] so long as the neglect continues without excuse," as the Austin Court of Appeals put it in Belcher, charging instruments frame it as a running course of conduct rather than a single missed payment. Criminal nonsupport is not on the list of felonies with extended limitation periods, so the default three-year window in Code of Criminal Procedure article 12.01 applies — but the continuing-offense character means the window is measured against ongoing neglect, not just the first missed payment.
Expect the State to front-load income evidence as well. Prosecutors know the affirmative defense is coming, and they build the rebuttal into their case-in-chief: side income, cash work, benefit payments, anything that shows money existed and went elsewhere.
The affirmative defense in § 25.05(d) — that the actor "could not provide support" — is the center of gravity in most contested nonsupport trials. Two rules frame it, and both come straight from the case law. The State does not bear the burden of proving the defendant's ability to pay, and the defendant must prove the affirmative defense by a preponderance of the evidence. Howard v. State, 145 S.W.3d 327 (Tex. App. 2004).
Howard also shows how the defense is lost. The jury there heard that the defendant collected supplemental security income, drew $600 to $1,000 a month from rental property, and took cash for odd jobs — and it rejected his inability claim. The lesson cuts both ways: a genuine inability defense is built on documents, not assertions. Job-loss paperwork and a real search trail, medical records for a disabling condition, account statements showing exhausted savings, and evidence of failed attempts to borrow all move the needle. Lifestyle spending the jury can see — vehicles, vacations, new leases — sinks it.
Beyond inability, the defense lanes track the elements:
Many § 25.05 cases resolve without trial: structured catch-up agreements, deferred adjudication with payment conditions, or a § 12.44(b) misdemeanor disposition. Cost should not decide whether you contest a felony — our payment plans page explains how we structure fees for exactly these situations.
Dismissals happen, but they are discretionary. Resuming payment and retiring arrears often shapes the State's posture — yet § 25.05(e) makes clear the criminal case and the civil support case run on separate tracks: "the pendency of a prosecution under this section does not affect the power of a court to enter an order for child support under the Family Code." Paying off the arrearage after indictment does not erase an offense that was already complete, although it frequently drives the negotiated outcome.
The record consequences ladder looks like this. An acquittal or a dismissal without conviction can support expunction under Code of Criminal Procedure Chapter 55A. Successfully completed deferred adjudication does not qualify for expunction, but it can support a petition for an order of nondisclosure under Government Code § 411.0725 after the five-year felony waiting period — and § 25.05 is not among the offenses Government Code § 411.074 categorically excludes, though a disqualifying history elsewhere can still defeat the petition. A straight state jail felony conviction is permanent: no expunction, no nondisclosure. A § 12.44(b) Class A conviction changes the analysis and may open misdemeanor-record options a felony forecloses; eligibility there is fact-specific.
The order of operations matters enormously. The plea paperwork signed in month one decides what record relief exists in year six, so the sealing analysis belongs at the front of the representation, not the end. Our expunction and record sealing practice page walks through the full framework.
Collin County. Indictments returned by Collin County grand juries are heard in the district courts at the Collin County Courthouse, 2100 Bloomdale Road in McKinney. Arrests out of Frisco, Plano, McKinney, or Allen route through county magistration, while the Attorney General's IV-D child support dockets run separately on the civil side. Defendants commonly carry both files at once — a criminal cause number in McKinney and an enforcement docket in the IV-D court.
Dallas County. Felony prosecutions are heard at the Frank Crowley Courts Building on Riverfront Boulevard. The civil enforcement universe — family district courts and IV-D associate judges — sits in separate courthouses, and the two systems do not automatically talk to each other. Counsel who reconciles the criminal file with the OAG payment record early often finds ledger errors worth litigating.
Denton County. State jail felony cases proceed in the district courts at the Denton County Courts Building, 1450 East McKinney Street in Denton. Bond conditions requiring resumed monthly payments are a routine feature of pretrial release in support cases.
Tarrant County. Criminal district courts at the Tim Curry Criminal Justice Center on West Belknap Street in Fort Worth handle § 25.05 indictments. As elsewhere, referrals tend to follow long civil enforcement histories rather than first-time delinquencies.
None of the four counties treats criminal nonsupport as a volume docket. The cases that get filed are typically the ones with years of documented nonpayment and visible ability evidence — and payment-driven dispositions dominate the outcomes.
Many defendants learn about a § 25.05 case from a warrant, not a knock at the door: these prosecutions frequently begin with a grand jury indictment, and the arrest follows. From there the sequence runs like any Texas felony, with support-specific wrinkles at each step.
A state jail felony conviction follows you long after the case closes. Employment screening and professional licensing boards apply the framework in Occupations Code Chapter 53 to felony records; housing applications and education funding can be affected as well. For noncitizens, any conviction in this family-offense cluster deserves immigration-specific advice before a plea is entered.
Firearms are a hard stop: a final felony conviction triggers the possession restrictions of Penal Code § 46.04 and the lifetime federal prohibition of 18 U.S.C. § 922(g)(1).
And the debt survives. Section 25.05(e) keeps the civil case alive through the prosecution, so the arrears judgment, accrued interest, and Family Code Chapter 232 license-suspension machinery all continue regardless of the criminal outcome. There is a built-in irony the courts understand: a felony conviction can impair the very earning power the support order depends on, which is a large part of why payment-centered probation dispositions dominate this docket.
Chapter 25 collects the family offenses, and prosecutors pick among them based on the conduct alleged. Interference with child custody (§ 25.03) punishes taking or keeping a child in violation of a custody order — possession of the child, not money. Violation of certain court orders (§ 25.07) covers protective orders and family-violence bond conditions; it does not reach support orders, so skipping payments is never a § 25.07 case. Continuous violence against the family (§ 25.11) aggregates assaults, and bigamy (§ 25.01) rounds out the chapter's marriage offenses. Enticing a child (§ 25.04) and harboring a runaway (§ 25.06) sit nearby but involve physical custody and concealment rather than financial duty.
Outside Chapter 25, the closest confusion points are abandoning or endangering a child (§ 22.041), which targets conduct exposing a child to physical risk, and leaving a child in a vehicle (§ 22.10). Criminal nonsupport is the only one aimed purely at the failure to provide financial support.
The federal counterpart, 18 U.S.C. § 228, requires an interstate element — the child resides in another state — plus willful nonpayment lasting longer than a year or exceeding $5,000 (a misdemeanor), escalating to a two-year felony where the arrearage runs past two years or $10,000. Federal referrals are uncommon and typically reserved for parents who cross state lines to evade well-documented obligations.
Both examples are hypothetical illustrations only. They are not real cases, real clients, or predictions about any outcome.
Example A — the documented layoff. A Denton warehouse supervisor is laid off in a regional downsizing. He files for unemployment the same week, applies to dozens of jobs and keeps the rejection emails, sells his second vehicle, and pays partial support whenever a temp assignment lands. Eighteen months of arrears accumulate anyway, and after a civil contempt setting the file is referred for prosecution. His § 25.05(d) defense is built before arraignment: the layoff letter, the search trail, the bank statements, the partial payments. That is the profile of an inability defense with a realistic chance — sustained effort, documented incapacity, nothing hidden.
Example B — the cash economy. A self-employed Dallas contractor stops paying entirely for two years while the registry ledger reads zero. He works cash remodeling jobs, posts lake-weekend photos, finances a new truck, and tells his ex-wife she will see money when she "drops the drama." At trial the State needs little more than the ledger and her testimony — which § 25.05(c) lets the jury credit without corroboration — plus the lifestyle evidence to defeat any inability claim, the same pattern that doomed the defense in Howard. The mental-state element is carried by his own messages.
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.
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.
Co-founding partners Reggie London and Njeri London personally handle every case. Free consultation. Frisco, Texas.
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