Texas improper sexual activity with person in custody
Texas improper sexual activity with person in custody is a criminal offense under Penal Code § 39.04. Base conduct is classified as a second-degree felony; when the person in custody is a juvenile in the custody of the Texas Juvenile Justice Department or a juvenile facility, the offense is a first-degree felony. 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: Second-degree felony (first-degree felony when the person in custody is a juvenile)
Punishment range: 2 to 20 years in prison and up to $10,000 fine under § 12.33 (a first-degree felony of 5 to 99 years or life under § 12.32 applies when the person in custody is a juvenile in the custody of the Texas Juvenile Justice Department or a juvenile facility); mandatory sex-offender registration in many circumstances; loss of TCOLE certification for peace officers; immigration consequences for non-citizens
The controlling statute
Texas Penal Code § 39.04 punishes sexual contact or activity between a custodial employee and a person in their custody — covering jails, prisons, halfway houses, state hospitals, juvenile facilities, and other institutions of confinement. Because the inmate's consent is legally irrelevant under the power imbalance, the offense applies even to apparently 'consensual' encounters. Conviction can end professional careers in corrections, law enforcement, and licensed treatment fields.
Classification & punishment range
| Element | Detail |
|---|---|
| Statute | Texas § 39.04 |
| Cluster | Sex Crimes |
| Classification | Second-degree felony (first-degree if the person in custody is a juvenile) |
| Range | 2 to 20 years in prison and up to $10,000 fine under § 12.33 (a first-degree felony of 5 to 99 years or life under § 12.32 applies when the person in custody is a juvenile in the custody of the Texas Juvenile Justice Department or a juvenile facility); mandatory sex-offender registration in many circumstances; loss of TCOLE certification for peace officers; immigration consequences for non-citizens |
| 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 employee of a correctional or detention facility under § 39.04(a)(1)
- Complainant was in the custody of that facility at the time of the conduct
- Defendant engaged in sexual contact, intercourse, or deviate sexual intercourse with the complainant
- Defendant acted knowingly with respect to the custodial relationship and conduct
Defense strategies
L and L Law Group, PLLC develops the following defense strategies on every Improper Sexual Activity with Person in Custody case:
- No custodial relationship — defendant was not an employee of the relevant facility under § 39.04(a)(1)
- Complainant was not in custody — released or never in custody at time of conduct
- Mistaken identity — challenge whose conduct is alleged via surveillance and access logs
- Constitutional defense to mandatory registration as cruel and unusual punishment under U.S. Const. Amend. VIII
- Suppression of statements obtained without Garrity warnings to officer-defendants
- Affirmative defense for legally married spouses under § 39.04(b) where applicable
Enhancements & collateral consequences
Section 39.04 improper sexual activity is a second-degree felony, elevated to a first-degree felony when the person in custody is a juvenile in the custody of the Texas Juvenile Justice Department or a juvenile facility, but parallel charges can compound exposure: official oppression under § 39.03, sexual assault under § 22.011 (2nd-degree felony), and aggravated sexual assault under § 22.021 (1st-degree felony) often follow the same fact pattern. Federal civil rights deprivation under 18 U.S.C. § 242 can apply when defendant acted under color of law.
Key Legal Terms
- Custodial Employee (§ 39.04(a)(1))
- Employee, contractor, or volunteer with supervisory or custodial responsibility over persons in detention or treatment facilities, including peace officers, correctional officers, medical staff, and treatment providers.
- Sexual Contact (§ 21.01(2))
- Touching of the anus, breast, or any part of the genitals of another with intent to arouse or gratify the sexual desire of any person.
- Person in Custody
- Individual lawfully detained in a correctional, detention, mental health, or juvenile facility, including pretrial detainees, sentenced inmates, and persons subject to civil commitment.
Frequently Asked Questions
Does the inmate's consent matter under § 39.04?
Who counts as a 'custodial employee'?
Will conviction trigger sex offender registration?
Can a peace officer be charged under § 39.04?
Is the spousal defense available?
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 Improper Sexual Activity with Person in Custody? Talk to L and L Law Group.
Co-founding partners Reggie London and Njeri London personally handle every case. Free consultation. Frisco, Texas.
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