Prohibited sexual conduct is the Texas incest offense. Penal Code § 25.02 makes it a felony to engage in sexual intercourse or deviate sexual intercourse with a person you know to be a close relative — including a current or former stepchild, a sibling, or a first cousin. Most cases are third-degree felonies; ancestor-descendant cases are second-degree. Conviction triggers sex-offender registration.
Tell us what happened. A defense attorney reviews every submission — usually within the hour during business hours.
Independent peer-review ratings recognizing legal ability and ethical standards.
Awards reflect peer-reviewed ratings only. Past results do not guarantee future outcomes.
Prohibited sexual conduct — Texas Penal Code § 25.02 — is the State’s incest statute. A person commits the offense by engaging in sexual intercourse or deviate sexual intercourse with another person the actor knows to be, in the statute’s words, “without regard to legitimacy,” one of six listed relatives:
The statute defines its two prohibited acts precisely. “Sexual intercourse” means any penetration of the female sex organ by the male sex organ. § 25.02(b)(2). “Deviate sexual intercourse” means any contact between the genitals of one person and the mouth or anus of another person, with intent to arouse or gratify the sexual desire of any person. § 25.02(b)(1). Those two definitions are the entire universe of conduct § 25.02 reaches — a point with real defense value, because alleged conduct fitting neither definition is not prohibited sexual conduct, whatever else the State may call it.
Three structural features separate § 25.02 from the sexual-assault offenses most people picture. First, it sits in Title 6 of the Penal Code, “Offenses Against the Family” — the Court of Criminal Appeals noted in Ramos v. State that it is the only offense in Chapter 25 with the word “sexual” in its name. The Legislature frames it as a crime against the family unit, not a crime of violence. Second, consent is irrelevant: there is no consent element and no consent defense, because the relationship itself is what the statute condemns. Third, the culpable mental state attaches to the relationship — the State must prove the actor knew the other person was a listed relative.
The phrase “without regard to legitimacy” closes what would otherwise be an obvious loophole: blood relationships count whether or not the relatives were ever connected through a marriage. A biological father and his adult daughter born outside marriage are within (a)(1) even if he never appeared on a birth certificate, so long as the State can prove the relationship and his knowledge of it.
Section 25.02 has been on the books since the 1974 Penal Code took effect, and the Legislature has broadened it since — amendments effective in 1994, 2005, and 2009 produced the current text. Two modern features deserve attention because they trap people who assume the statute mirrors common intuition: coverage of former step-relationships, and coverage of first cousins under (a)(6). Both are discussed below.
Every element must be proved beyond a reasonable doubt. Broken out the way a Texas jury charge would present them:
One element conspicuously absent: age. Ramos noted (citing the Dallas Court of Appeals) that a stepchild’s age is not an element of § 25.02(a)(2) — the statute applies to adult relatives just as fully as to minors. When the other person is under 17, prosecutors usually reach first for Chapter 21 and 22 child-sex offenses with heavier ranges; § 25.02 is the charge that still fits when both people are adults.
Section 25.02(c) sets a two-tier grading scheme keyed to the relationship category:
| Relationship category | Classification | Prison range | Fine cap |
|---|---|---|---|
| Stepchild or stepparent (current or former), aunt or uncle, sibling, niece or nephew, first cousin — § 25.02(a)(2)–(6) | Third-degree felony | 2–10 years TDCJ (§ 12.34) | Up to $10,000 |
| Ancestor or descendant by blood or adoption — § 25.02(a)(1) | Second-degree felony | 2–20 years TDCJ (§ 12.33) | Up to $10,000 |
| One prior (non-state-jail) felony conviction | Punished one grade higher (§ 12.42(a)–(b)) | Third-degree tried as second-degree; second-degree as first-degree (5–99 years or life) | Up to $10,000 |
| Two prior sequential felony convictions (habitual) | § 12.42(d) | 25–99 years or life | — |
The grade split is itself an insight into how Texas ranks these cases: parent-child and grandparent-grandchild incest — (a)(1) — is the only category the Legislature elevated to second-degree, while every collateral and step relationship stays third-degree. Sentencing options follow the usual felony menu — prison, community supervision where the law and the judge allow it, or deferred adjudication on a guilty plea — but every route that ends in a conviction or a deferred adjudication carries the registration consequences covered below, which in practice dominate the negotiation.
A § 25.02 prosecution is really two proof problems stacked together: proving the act, and proving the family tree.
Proving the relationship. Birth certificates, adoption decrees, and marriage records establish blood and step lines; family-member testimony fills gaps. Step-relationship counts add a wrinkle — the State must connect the marriage that created the step-relationship to the actor and the complainant, and because the statute reaches “current or former” step-relationships, the timing of a divorce does not defeat the count. Defense counsel should still force strict proof: the relationship element is fertile ground for sufficiency challenges when records are thin, names changed, or the family history runs through informal unions rather than documented marriages.
Proving the act. The State typically builds on complainant testimony, corroborated where possible by electronic messages, photographs, hotel or travel records, and — in cases where a pregnancy resulted — DNA or paternity evidence. Forensic interviews and outcry witnesses appear when the allegations reach back into childhood. The quality of this proof varies enormously, which is why the corroboration rules discussed in the defenses section carry so much weight in adult-relationship cases.
Charging patterns worth knowing. When the complainant was under 17 at the time of the conduct, DFW prosecutors rarely lead with § 25.02; they charge sexual assault, indecency with a child, aggravated sexual assault, or continuous sexual abuse, and add § 25.02 as a companion count. Ramos blessed that stacking: the Court of Criminal Appeals held that convictions for both continuous sexual abuse of a child under § 21.02 and prohibited sexual conduct under § 25.02 — same victim, same time period — do not violate the Double Jeopardy Clause, because the two offenses have different elements and different gravamens. Ramos v. State, 636 S.W.3d 646 (Tex. Crim. App. 2021). The practical consequence for the defense: a plea that resolves the Chapter 21 count does not automatically resolve the § 25.02 count, and dismissal language must be negotiated count by count.
1. The accomplice-witness rule — the signature § 25.02 trial issue. Under Code of Criminal Procedure article 38.14, a conviction cannot rest on the uncorroborated testimony of an accomplice. For most of a century, Texas courts presumed that an adult who consented to an incestuous relationship was an accomplice whose testimony required corroboration. The modern rule flipped that presumption. In Phelps v. State, 532 S.W.3d 437 (Tex. App.—Texarkana 2017), the court traced the history and held that the 1973 overhaul of the incest statute eliminated the old presumption: today the defendant must point to record evidence affirmatively establishing that the complaining witness was an accomplice — some affirmative act promoting the offense — before the corroboration requirement applies, and evidence that the complainant was an adult who failed to complain or resist is not enough. Phelps also confirms the trial court has no duty to give an accomplice-as-a-matter-of-law instruction unless there is no doubt about accomplice status. For the defense, that means building the accomplice record deliberately — through cross-examination on initiation, planning, and voluntary participation — and then demanding the article 38.14 instruction and attacking the State’s corroboration as insufficient.
2. No knowledge of the relationship. Because knowledge is the culpable mental state, genuine ignorance defeats the charge. The defense arises more often than outsiders expect: adoptions that severed and sealed family lines, fathers never identified on birth records, relatives who met as adults through ancestry-DNA services or social media. A hypothetical illustrates the line: two adults meet online, begin a relationship, and a consumer DNA test later reveals they are first cousins. Conduct before the discovery lacks the knowledge element; conduct after the discovery falls squarely within (a)(6). The dates of knowledge become the whole case.
3. The relationship is not actually within the statute. The six categories are exclusive, and several relationships people assume are covered are not. In-laws are not listed — a mother-in-law or brother-in-law is outside § 25.02. Foster relationships without adoption are outside it. Most notably, step-siblings are not covered: the statute names stepchild and stepparent but says nothing about the children each spouse brings to a blended marriage. Charging decisions occasionally miss these boundaries, and an indictment built on a non-covered relationship is a motion practice opportunity, not a trial problem.
4. The act does not meet the statutory definitions. Subsections (b)(1) and (b)(2) are narrower than ordinary speech. The State must prove penetration as defined, or genital-to-mouth/anus contact with intent to arouse or gratify. Touching, exposure, or other conduct outside those definitions cannot support a § 25.02 conviction — though it may expose a defendant to other charges — and a careful jury charge holds the State to the definition pleaded.
5. False-allegation and motive defenses. Incest allegations frequently surface inside divorces, custody fights, inheritance disputes, and family estrangements. The defense investigates who first raised the allegation, what was happening in the family’s civil litigation at the time, how forensic interviews were conducted, and whether the account has grown or shifted across retellings. None of that disrespects genuine victims; it reflects that the stakes — a felony plus lifetime-tier registration exposure — demand that the account be tested.
6. Suppression. These investigations lean on recorded interviews and phone extractions. Statements taken in custody without proper warnings are challengeable under article 38.22 and Miranda; phone and cloud-account searches rise or fall on the warrant’s particularity. Suppressing a confession in a case with no physical evidence and a contested accomplice witness can be outcome-determinative.
Dismissals happen at identifiable pressure points. Because § 25.02 is a felony, the case must pass through a grand jury, and a no-bill is a realistic target when the relationship proof is thin or the allegation arrives wrapped in a custody war — the defense can submit a grand-jury packet through counsel laying out the documentary gaps. After indictment, the levers are the ones described above: a failed relationship element, a missing knowledge showing, an accomplice-corroboration gap, or a suppressed confession. Prosecutors also re-evaluate when the complaining witness — often a family member with ongoing ties to the defendant — declines to cooperate, though no Texas prosecutor is obligated to dismiss on that basis alone.
Record relief tracks the outcome. An acquittal, dismissal, or no-bill can support expunction under Code of Criminal Procedure Chapter 55A — see our expunction guide. A conviction can never be expunged. And nondisclosure (record sealing) is off the table for this offense even after successful deferred adjudication, because Texas nondisclosure law excludes offenses requiring Chapter 62 sex-offender registration — our nondisclosure eligibility page walks through the disqualifiers. That asymmetry drives defense strategy: the difference between a dismissal and a deferred plea is not cosmetic; it is the difference between a sealable past and a permanent, registry-linked record.
Registration is the consequence that reorders lives. Article 62.001(5)(A) of the Code of Criminal Procedure defines “reportable conviction or adjudication” to include a violation of § 25.02 — listed alongside continuous sexual abuse, indecency with a child, sexual assault, and aggravated sexual assault — and the definition expressly sweeps in deferred adjudication. A defendant who completes deferred without a conviction still registers. The mechanics live at our registry requirements page, and the criminal exposure for slipping is covered at failure to register.
Duration is the second question, and it is where counsel earns the fee before any plea. Article 62.101(a) ends the duty to register only “when the person dies” for the chapter’s most serious tier — offenses classified as “sexually violent” under article 62.001(6), a definition keyed to listed offenses committed by a person 17 or older — while less serious reportable convictions carry a term of years after discharge. Which tier a particular § 25.02 case lands in must be verified against the current statutory lists before any plea is signed, because the spread between the tiers is the spread between a registration period that ends and one that does not.
Beyond the registry, a felony conviction strips firearm rights — state law restricts possession after a felony under Penal Code § 46.04, and federal law bars it under 18 U.S.C. § 922(g)(1). Family-law fallout runs in parallel: allegations of this kind routinely trigger DFPS/CPS investigations, and findings can reshape custody and possession orders or support termination proceedings entirely apart from the criminal verdict. Employment screening, professional licensing boards, housing applications, and — for non-citizens — immigration status are all implicated; a conviction in this family of offenses can carry removal consequences, so non-citizen clients need parallel immigration advice before any plea. The registry itself is public on the DPS website, which is why the negotiation frontier in these cases is almost always the registration line, not the months of confinement.
Prohibited sexual conduct overlaps with — and is regularly confused with — several neighboring offenses. The boundaries matter because they determine the punishment range, the registration tier, and the defenses available:
One more distinction with practical bite: § 25.02 reaches “current or former” step-relationships, a breadth most people do not anticipate. A hypothetical shows why it matters. A man divorces; two years later he begins a relationship with his former wife’s adult daughter — his former stepdaughter — and both are consenting adults. Intuition says the family tie dissolved with the marriage. The statute says otherwise: (a)(2) applies to former stepchildren, so the relationship remains chargeable, and the realistic defense questions become whether the State can document the step-relationship chain and whether the corroboration rule can be brought into play.
These cases rarely begin with a street arrest. The typical sequence starts with a report — an outcry to a family member, a CPS intake, or an allegation surfacing in a divorce or custody filing — followed by a detective’s investigation, an attempted “voluntary” interview of the suspect, and an arrest warrant. From there the felony track runs: magistration under Code of Criminal Procedure article 15.17, where a magistrate sets bond and conditions; release on bond, almost always with no-contact and child-contact restrictions in this category of case; grand-jury presentation, since a felony prosecution proceeds by indictment unless the defendant waives it; arraignment in a district court; discovery under article 39.14 (the Michael Morton Act), which obligates the State to open its file; pretrial motions — suppression, accomplice-witness litigation, relationship-proof challenges; and resolution by dismissal, negotiated plea, or trial.
County mechanics in the four counties we appear in most:
Expect the bond conditions, not the courtroom dates, to dominate the first months. Because complainant and accused frequently share a family — sometimes a household — no-contact orders can exile a defendant from home, children, and family finances overnight. Conditions can be litigated and modified; that is usually the first concrete fight defense counsel takes on, well before the indictment lands. From our Frisco office, L and L Law Group defends § 25.02 allegations across all four counties — if you are facing an accusation or an investigator’s interview request, the time to involve sex-crimes defense counsel is before any statement, not after.
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.
Call (972) 370-5060L&L Law Group represents clients across North Texas counties for DWI, assault, drug crimes, juvenile defense, outstanding warrants, bond reduction, and expunction matters.
