Statutory framework — Penal Code §21.02
Penal Code §21.02 was added by the 80th Legislature in 2007 to address a category of long-running offenses against children that prosecutors had difficulty charging discretely. The statute provides that a person commits the offense of continuous sexual abuse of a young child or disabled individual if, during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse against a victim or victims younger than 14 years of age or who is a disabled individual as defined in §22.04(c)(3); and at the time of the commission of each act, the actor is 17 years of age or older.
Section 21.02(c) defines "act of sexual abuse" by reference to specific underlying penal-code offenses, including indecency with a child under §21.11(a)(1) (contact, but not exposure); sexual assault under §22.011; aggravated sexual assault under §22.021; sexual performance by a child under §43.25; aggravated kidnapping in defined circumstances under §20.04(a)(4); and specified additional offenses. The §21.02(c) list is exclusive — only acts that fall within the enumerated underlying offenses count toward the two-act threshold.
The grade is fixed by §21.02(h): a first-degree felony with a punishment range of imprisonment for life or for a term of not more than 99 years or less than 25 years. The 25-year floor is the most significant statutory feature of the offense — it overrides the Penal Code §12.32 default first-degree range of 5 to 99 years. A defendant convicted under §21.02 is also ineligible for community supervision from the court under CCP Article 42A.054(a) and ineligible for early parole under Government Code §508.145(a).
An indictment under Texas Penal Code §21.02 — continuous sexual abuse of a young child or disabled individual — is among the most consequential charges in Texas criminal practice. The statute creates a first-degree felony with a 25-year mandatory minimum confinement floor, eliminates parole eligibility for that period under Government Code §508.145(a), removes the offense from the deferred-adjudication catalog under Code of Criminal Procedure Article 42A.054, and is exempt from any statute of limitations under CCP Article 12.01(1).
The §21.02 architecture is also unusual in another respect: the statute permits jury non-unanimity on the specific acts of sexual abuse alleged. Section 21.02(d) requires only that the jurors agree unanimously that the defendant committed two or more acts of sexual abuse during a period of 30 or more days; the jurors need not agree on which specific acts, or on the exact dates. The Texas courts of appeals — beginning with McMillian v. State, 388 S.W.3d 866 (Tex. App. 2012), and extending through subsequent opinions — have rejected constitutional challenges to this framework. L and L Law Group, PLLC defends §21.02 cases across the nine DFW counties we serve: Collin, Dallas, Denton, Tarrant, Rockwall, Kaufman, Ellis, Johnson, and Hunt.
The §21.02(d) jury-unanimity rule and the McMillian line of authority
Section 21.02(d) provides that, if a jury is the trier of fact, members of the jury are not required to agree unanimously on which specific acts of sexual abuse were committed by the defendant or the exact date when those acts were committed. The jury must agree unanimously that the defendant, during a period that is 30 or more days in duration, committed two or more acts of sexual abuse.
This statutory framework was constitutionally challenged in the years following the 2007 enactment. The Texas courts of appeals — in McMillian v. State, 388 S.W.3d 866 (Tex. App.—Houston [14th Dist.] 2012), and in a series of subsequent opinions — have rejected those challenges. The courts have reasoned that the element on which unanimity is required is the pattern of behavior — the commission of two or more acts during the requisite period — and that the specific underlying acts are the manner and means of commission rather than separate elements requiring unanimity.
The practical implications for defense practice are substantial. A §21.02 jury charge will typically authorize conviction if the jurors find unanimously that the defendant committed two or more enumerated acts of sexual abuse during the period alleged, without requiring agreement on the identity of the specific acts. Defense response often focuses on whether the State has proved, beyond a reasonable doubt, that any qualifying act occurred within the time period — because failure to establish two qualifying acts within the §21.02 period defeats the offense, regardless of how many acts outside the period are testified to.
Lesser-included instructions in §21.02 cases are also litigated. Defense may request lesser-included instructions on the underlying §22.011, §22.021, or §21.11 offenses where the evidence raises them. Whether the lesser-included analysis under Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007), supports the requested charge is a fact-specific question.
No statute of limitations under CCP Article 12.01(1)
Code of Criminal Procedure Article 12.01(1) lists offenses for which prosecution is not subject to any statute of limitations. Continuous sexual abuse of a young child or disabled individual under Penal Code §21.02 appears on that list. A §21.02 indictment may be returned at any time after the alleged conduct.
This feature distinguishes §21.02 from many of the underlying offenses enumerated in §21.02(c). Some underlying offenses — for example, certain configurations of indecency with a child under §21.11(a)(1) — also lack a limitation period under separate §12.01 provisions; others carry extended periods. A §21.02 indictment, however, is uniformly free of any limitation bar.
The defense implications relate to the practical evidentiary record rather than to a limitations defense. Cases charged years or decades after the alleged conduct typically involve adult complaining-witness testimony about childhood events; physical and documentary evidence may be limited or absent; and outcry-witness testimony under Code of Criminal Procedure Article 38.072 frequently plays a central role. Defense response often focuses on the §38.072 outcry-witness designation, the reliability of memory after extended periods, and the absence of contemporaneous corroboration.
25-year mandatory minimum and parole ineligibility
The §21.02(h) punishment range — life or 25 to 99 years — creates a 25-year mandatory minimum confinement floor. The court has no statutory authority to sentence below 25 years on a §21.02 conviction. Government Code §508.145(a) further provides that an inmate serving a sentence for §21.02 is not eligible for release on parole until the actual calendar time the inmate has served, without consideration of good conduct time, equals 35 years or the term to which the inmate was sentenced, whichever is less; the inmate is not eligible for release to mandatory supervision.
The collateral effect of this framework is that a §21.02 sentence is, functionally, a multi-decade confinement event. A defendant aged 30 at the time of conviction who receives the statutory minimum 25-year sentence will not be parole-eligible until age 55 at the earliest under §508.145(a); the longest possible sentences carry parole eligibility at 35 years served.
Strategic implications for plea negotiation are immediate. The State's leverage in a §21.02 prosecution is substantially enhanced by the 25-year floor. Defense response often includes evaluating whether a plea to a non-§21.02 offense — most commonly to one or more counts of an underlying §22.021 or §21.11 charge — produces a materially different statutory posture. Section 22.021 (aggravated sexual assault of a child) is itself a first-degree felony with a 25-year floor under §22.021(f) where the victim is under 6 or under 14 with specified aggravating circumstances; the practical relief from a plea reduction depends on the specific configuration alleged.
Outcry-witness testimony under CCP Article 38.072
Code of Criminal Procedure Article 38.072 governs the admission of out-of-court statements by certain child and disabled-individual complainants describing the alleged offense. The statute permits the first adult, other than the defendant, to whom the child made a statement about the offense to testify to the statement notwithstanding the hearsay rule, subject to procedural prerequisites: notice from the State within the time specified in §38.072(b)(1), a hearing outside the presence of the jury to determine reliability, and an affirmative finding by the court that the statement is reliable.
The §38.072 reliability hearing is a focal point of §21.02 defense practice. The court weighs factors including the contemporaneity of the statement, the spontaneity versus prompting, the consistency of the statement with other evidence, the developmental capacity of the complainant at the time, and the relationship between the complainant and the outcry witness. Defense response may include subpoenaing the outcry witness for an examination at the hearing, developing inconsistencies between the outcry statement and the complainant's subsequent trial testimony, and challenging the identification of the proper outcry witness where multiple adults may have heard related statements.
Article 38.071 — separate from §38.072 — governs the admission of recorded forensic-interview statements of complainants under specified circumstances. §21.02 cases often involve forensic interviews conducted at children's advocacy centers; the admissibility analysis under §38.071, where invoked, is distinct from the outcry analysis under §38.072.
Deferred-adjudication exclusion and sex-offender registration
Code of Criminal Procedure Article 42A.054 expressly excludes Penal Code §21.02 from deferred adjudication. The exclusion is categorical: there is no subsection-specific carve-out. The practical effect for defense practice is that the pretrial off-ramp most commonly used in Texas felony cases — a plea to deferred adjudication that ends in dismissal on successful completion — is foreclosed by statute for §21.02 indictments. Available dispositions narrow to jury trial, negotiated plea to a non-§21.02 lesser offense, or a §21.02 conviction with sentence within the §21.02(h) range.
Conviction under §21.02 also carries mandatory sex-offender registration under Code of Criminal Procedure Chapter 62. Article 62.001(5) classifies §21.02 as a reportable conviction or adjudication. The registration duration under Article 62.101 for §21.02 convictions is lifetime registration. Early termination under Article 62.404 is unavailable for §21.02 — the federal SORNA tier classification analysis that supports early-termination relief in some cases does not yield a tier lower than the Texas tier for §21.02 convictions.
Counsel should incorporate Chapter 62 registration counseling into every plea conference where a §21.02 plea or plea to an underlying §22.021 or §21.11 count is contemplated. The lifetime nature of the registration obligation, the residency restrictions some municipalities impose, the online-identifier reporting requirements under Article 62.0551, and the federal SORNA tier classification are all material to the plea decision.
Evidence and expert testimony in §21.02 cases
The evidentiary record in a §21.02 case typically includes: (1) the complainant's trial testimony; (2) outcry-witness testimony under Article 38.072 from the first adult other than the defendant to whom the complainant made a statement about the offense; (3) recorded forensic-interview testimony under Article 38.071 where applicable; (4) medical or SANE-examination evidence; (5) testimony from family members, teachers, counselors, or other lay witnesses about contextual indicators and behavioral changes; (6) any documentary evidence including text messages, photographs, journal entries, or digital records; and (7) testimony from a State's expert addressing common dynamics of child sexual abuse reporting.
Defense expert testimony in §21.02 cases typically addresses memory research (particularly as applied to childhood events and delayed reporting), suggestive-interview methodology, and the limits of forensic-medical findings. The admissibility of defense expert testimony is governed by Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992), and Rule 702 of the Texas Rules of Evidence; the trial court determines reliability based on the qualifications of the expert, the methodology employed, and the fit between the methodology and the facts of the case.
Discovery in §21.02 cases proceeds under the Michael Morton Act, Code of Criminal Procedure Article 39.14. The State has a continuing duty to disclose including exculpatory and impeachment material under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny.
What L and L Law Group does on a §21.02 case
L and L Law Group, PLLC defends continuous sexual abuse cases under Penal Code §21.02 across the nine DFW counties we serve. Co-founding partners Reggie London (Texas Bar #24043514) and Njeri London (Texas Bar #24043266) — both licensed Texas attorneys since 2005 — handle these cases personally from indictment through resolution.
Defense work in a §21.02 case typically includes: (1) immediate review of the indictment against the §21.02(c) underlying-offense list and the §21.02 timing allegations; (2) Michael Morton Act discovery for all complainant statements, outcry-witness identification, forensic-interview recordings, medical and SANE-examination reports, and any communications or digital evidence; (3) §38.072 reliability-hearing preparation and litigation; (4) evaluation of lesser-included instructions under Hall v. State; (5) defense expert consultation on memory, interview methodology, and forensic findings; (6) plea-negotiation analysis comparing §21.02 exposure to potential pleas to underlying §22.021 or §21.11 counts; (7) Chapter 62 registration counseling at every plea conference; and (8) trial preparation including jury-selection strategy in a category of case that places particular weight on voir-dire under Code of Criminal Procedure Chapter 35.
Free initial consultations are standard. The firm is at 5899 Preston Rd, Suite 101, Frisco, TX 75034. Telephone (972) 370-5060. Email info@landllawgroup.com.