Texas sale or purchase of a child — Penal Code § 25.08

Sale or purchase of a child is a criminal offense under Texas Penal Code § 25.08. It is a third-degree felony to accept or offer a thing of value for delivering a child for adoption, or to give a thing of value to acquire a child for adoption. The offense becomes a second-degree felony when it is committed with intent to traffic the child or to commit a related prostitution or sexual-performance offense. Below: the controlling statute text, the full punishment range, what separates a lawful adoption fee from a criminal payment, the defenses that work, and what to do if you have been charged in Collin, Dallas, Denton, or Tarrant County.

The controlling statute

Texas Penal Code § 25.08 sits in Chapter 25, Offenses Against the Family. It criminalizes two sides of the same transaction: the person who takes money for a child, and the person who pays money for a child, when the exchange is tied to adoption. The statute is written so that no completed adoption, and no completed transfer of the child, is required — the offer or the agreement is enough.

Under subsection (a)(1), a person commits an offense if he “possesses a child younger than 18 years of age or has the custody, conservatorship, or guardianship of a child younger than 18 years of age, whether or not he has actual possession of the child, and he offers to accept, agrees to accept, or accepts a thing of value for the delivery of the child to another or for the possession of the child by another for purposes of adoption.” That is the seller’s side — the birth parent, relative, or guardian who takes payment to hand a child over.

Under subsection (a)(2), a person commits an offense if he “offers to give, agrees to give, or gives a thing of value to another for acquiring or maintaining the possession of a child for the purpose of adoption.” That is the buyer’s side — the prospective adoptive parent, or an intermediary, who pays to obtain a child. Texas appellate courts have applied both sides in the same case: in DeJesus v. State, the birth mother was prosecuted for selling her children and her co-defendant, an attorney, was prosecuted for purchasing them. See DeJesus v. State, 889 S.W.2d 373, 377 (Tex. App.—Houston [14th Dist.] 1994, pet. ref’d).

The phrase “a thing of value” is broad. Cash is the obvious example, but rent paid on someone’s behalf, a car, forgiveness of a debt, or any other benefit can qualify. The statutory focus is not the label put on the payment; it is whether value moved in exchange for the child. Because the term “sale” is not separately defined in the Penal Code, Texas courts interpreting related sale offenses look to its ordinary meaning — a transfer of property for a price — and § 25.08 mirrors that logic in the adoption context.

Classification & punishment range

Section 25.08(c) sets the grading. The baseline offense is a third-degree felony. It steps up to a second-degree felony — doubling the ceiling of the prison range — when the actor commits the offense with intent to commit an offense under Section 20A.02 (trafficking of persons), Section 43.021 (solicitation of prostitution), Section 43.05 (compelling prostitution), or Section 43.25 (sexual performance by a child). The enhancement is about the actor’s purpose, not about whether the further offense is ever completed.

A third-degree felony conviction can carry community supervision (probation) in appropriate cases, but the exposure on paper is state prison. Because § 25.08 is not on the list of 3g / Article 42A.054 offenses in most charging postures, judge-ordered probation may be available — a fact worth pressing early. If the second-degree enhancement is alleged because of trafficking or sexual-exploitation intent, both the range and the collateral consequences change dramatically, and any related trafficking count under Chapter 20A should be evaluated on its own terms.

Elements the State must prove

To convict under § 25.08, the State must prove every element beyond a reasonable doubt. The elements differ slightly depending on whether the defendant is charged as the seller (a)(1) or the buyer (a)(2):

1. Seller theory (a)(1): the defendant possessed a child under 18, or had custody, conservatorship, or guardianship of the child (actual physical possession is not required);
2. the defendant offered to accept, agreed to accept, or accepted a thing of value;
3. the value was for the delivery of the child to another, or for the possession of the child by another, for purposes of adoption.
4. Buyer theory (a)(2): the defendant offered to give, agreed to give, or gave a thing of value to another;
5. the value was for acquiring or maintaining possession of a child for the purpose of adoption.
6. Enhancement (c), if alleged: the defendant committed the offense with intent to commit an offense under § 20A.02, § 43.021, § 43.05, or § 43.25.

The Fourteenth Court of Appeals stated the seller elements plainly: a person commits sale of a child if she “possess[es] a child or has custody, conservatorship or guardianship of a child, whether or not she has actual possession of the child; and . . . offers to accept, agrees to accept or accepts a thing of value for the delivery of the child or for the possession of the child by another for purposes of adoption.” DeJesus, 889 S.W.2d at 377. The mirror-image buyer elements were stated in the companion case: a person commits purchase of a child if she “offers to give, agrees to give, or gives a thing of value to another for acquiring or maintaining the possession of a child for the purpose of adoption.” Thacker v. State, 889 S.W.2d 380, 383 (Tex. App.—Houston [14th Dist.] 1994, no pet.).

Lawful adoption fees vs. a criminal payment

This is where most § 25.08 cases are won or lost, because Texas law does not forbid paying money in an adoption — it forbids paying money for the child. Subsection (b) lists the payments that do not violate the statute. A thing of value is an exception when it is:

• a fee or reimbursement paid to a child-placing agency as authorized by law;
• a fee paid to an attorney, social worker, mental-health professional, or physician for services rendered in the usual course of legal or medical practice or in providing adoption counseling;
• a reimbursement of legal or medical expenses incurred by a person for the benefit of the child; or
• a necessary pregnancy-related expense paid by a child-placing agency for the benefit of the child’s parent during the pregnancy or after the birth of the child.

Those categories are exclusive, and Texas courts read them strictly. In Thacker, the buyer argued the cash she paid a birth mother was really for the mother’s living expenses. The court rejected the theory as a misstatement of the law, holding that “[t]he statute contains no exceptions relating to payments intended for housing costs, food, utilities, clothing, personal hygiene products, or transportation.” Thacker, 889 S.W.2d at 384. The companion opinion put it just as bluntly: “[i]t is not an exception to the penal code that a birth mother can accept money as reimbursement for reasonable housing costs, food, utilities, clothing, personal hygiene products, or transportation.” DeJesus, 889 S.W.2d at 383.

The practical rule that follows: money should flow to the agency, the attorney, the physician, or the counselor for a documented service, or as reimbursement of the child’s own legal or medical expenses — not directly to a birth parent as a lump sum. Texas licensing regulators view “cash up front” and “lump sum, retroactive” payments to birth mothers as constituting undue pressure, a construction the Texas Supreme Court has endorsed. See In re Thacker, 881 S.W.2d 307, 309 (Tex. 1994). Section 25.08 “was adopted to deter the potentially coercive effect of payments to expectant mothers at a time when the . . . interests of the child . . . are most likely to be subordinated by greed or other ulterior motives.” Id. Documentation — a written fee agreement, itemized invoices, and payments routed through a licensed agency or professional trust account — is the strongest protection against a § 25.08 charge and the strongest defense if one is filed.

How informal custody and adoption arrangements get charged

Section 25.08 is not limited to organized baby-selling rings. In our experience the charge more often grows out of well-meaning but undocumented private arrangements. A few recurring fact patterns:

• Direct private placement. A birth parent and a hopeful adoptive family find each other on their own and agree on a cash figure to “help out” in exchange for the parent signing over the child. Once the money is characterized as the price of the child, both sides face exposure.
• Kinship or church-community handoffs. A relative or a member of a faith community agrees to take a child, and money changes hands to seal the arrangement. The good motive does not create an exception; only the (b) categories do.
• Cash dressed up as expenses. The parties know the direct-payment rule and try to label the cash as rent, groceries, or gas. As Thacker and DeJesus show, that label does not fit any statutory exception.
• Advertising and brokering. Related offenses in the same chapter — advertising to place or obtain a child (§ 25.09) and sale or purchase (§ 25.08) — frequently appear together when an intermediary tries to match parents for a fee outside a licensed agency.

Consider a hypothetical: a couple pays a pregnant acquaintance $8,000 in cash, framed as “living help,” and she relinquishes the newborn to them for adoption. Even if every dollar truly went to rent and groceries, that arrangement matches the pattern the Fourteenth Court rejected in Thacker, because those categories are not statutory exceptions and the money was tied to obtaining the child. This example is illustrative only and is not a prediction about any real case.

How § 25.08 differs from trafficking and custody offenses

Section 25.08 lives near several offenses that sound similar but protect different interests. Understanding the lines matters, because charging decisions and defenses turn on them.

Versus trafficking of persons (§ 20A.02)

Trafficking under Chapter 20A targets trafficking a person for forced labor or a sex act and carries much heavier punishment, including first-degree exposure in child cases. Section 25.08 targets the money-for-a-child exchange in the adoption context. The two intersect precisely at the § 25.08(c) enhancement: a sale committed with trafficking intent is what converts § 25.08 into a second-degree felony, and prosecutors routinely charge the trafficking count alongside it.

Versus interference with child custody (§ 25.03)

Interference with child custody punishes taking or retaining a child in violation of a judgment or order, or fleeing with a child to evade a pending custody proceeding. It is about defying a custody decision. Section 25.08 is about selling or buying the child. A single episode can involve both — for instance, a non-custodial parent who pays to obtain and keep a child in defiance of an order — but the elements and the harms are distinct.

Versus agreement to abduct and harboring a runaway

Agreement to abduct from custody (§ 25.031) criminalizes the agreement itself to abduct a child from lawful custody, while harboring a runaway child (§ 25.06) criminalizes knowingly harboring a child who has escaped custody or run away. Neither requires a money-for-a-child exchange, and neither is tied to adoption. Section 25.08 is the only one in this cluster built specifically around paying or being paid for a child. When a case involves a physical taking as well, counsel must map each count to the right statute, because a defense that defeats one may not touch another.

Defense strategies

L and L Law Group, PLLC develops a defense theory on every sale-or-purchase-of-a-child case around the specific weak point in the State’s proof. Common approaches include:

• Every payment fit a statutory exception. The single most powerful defense is documentary: fee agreements, invoices, and trust-account records showing that money went to a licensed agency, an attorney, physician, social worker, or counselor for services, or as reimbursement of the child’s legal or medical expenses under § 25.08(b).
• No “thing of value” for the child. If value moved for a genuine, independent reason — not as consideration for delivering or acquiring the child — the transaction falls outside the statute. The State must connect the payment to the child, not merely to the relationship.
• No adoption purpose. Both subsections require that the exchange be tied to adoption (delivery/possession “for purposes of adoption,” or acquiring possession “for the purpose of adoption”). A transfer for temporary caretaking, guardianship for medical reasons, or a Family Code kinship arrangement may not satisfy that element.
• No custody or possession (seller theory). The (a)(1) theory requires the defendant to possess the child or hold custody, conservatorship, or guardianship. Where that status is absent, the seller theory fails.
• Attacking the enhancement. The second-degree enhancement requires intent to commit a § 20A.02, § 43.021, § 43.05, or § 43.25 offense. Defeating that intent element keeps the case a third-degree felony even if the base offense stands.
• Suppression. Where the State’s case rests on recorded calls, messages, or a search, we examine whether the evidence was obtained lawfully under Code of Criminal Procedure Chapter 18A and the Fourth Amendment, and move to suppress what was not.
• Entrapment and sting issues. In undercover operations, we scrutinize whether officers induced conduct the defendant was not otherwise disposed to commit.

The process & county practice notes

A § 25.08 case follows the standard Texas felony path with a few offense-specific wrinkles. After arrest, a magistrate sets bond and conditions; because a child is involved, expect conditions addressing contact with the child and any co-parties. The case is presented to a grand jury, which returns an indictment if it finds probable cause. Discovery under Article 39.14 follows, then pretrial motions, plea negotiation, and trial if the case does not resolve. Financial records, adoption paperwork, and any agency file are usually central, so the early document fight often decides the case.

These felonies are heard in the district courts of the county of prosecution. In Collin County, felony cases are handled at the Collin County courthouse complex in McKinney. Dallas County felony matters are heard at the Frank Crowley Courts Building. Tarrant County cases run through the Tim Curry Criminal Justice Center in Fort Worth, and Denton County matters are heard at the Denton County courts complex. Filing practices, grand-jury scheduling, and diversion availability differ by county, and we tailor strategy to the court where the case actually sits. We defend § 25.08 cases across all four counties from our Frisco office; the firm does not maintain a separate office in any of those cities.

Enhancements & collateral consequences

Beyond the second-degree enhancement in § 25.08(c), a single episode frequently generates parallel counts that multiply exposure. Where a physical taking occurred, interference with child custody (§ 25.03) or kidnapping under Chapter 20 may be added. Where an intermediary advertised, § 25.09 may apply. Where the purpose was exploitation, a trafficking (§ 20A.02), compelling prostitution (§ 43.05), or sexual-performance count can run alongside the sale charge. General felony enhancement under § 12.42 can raise the range further for defendants with prior felony convictions.

The collateral consequences of any felony conviction are serious: loss of firearm rights under Penal Code § 46.04 and federal law (18 U.S.C. § 922(g)); immigration consequences up to and including removal for non-citizens; barriers to professional licensing, employment, and housing; and, critically in this context, adverse findings in any related family-court or CPS proceeding involving the same child. A § 25.08 conviction is a felony conviction, which is not eligible for expunction or an order of nondisclosure — another reason resolving the charge before conviction is so important. Where children are involved, the family-law and criminal cases must be defended in coordination.