Texas prohibited sexual conduct defense

What is prohibited sexual conduct under Texas law?

Prohibited sexual conduct is the formal name Texas gives to the crime most people call incest. Penal Code § 25.02 makes it a felony to engage in sexual intercourse or deviate sexual intercourse with a person the actor knows to be a close relative on a defined list. It is a third-degree felony, or a second-degree felony for an ancestor or descendant.

Two defined acts — § 25.02(b)

The conduct element requires sexual intercourse or deviate sexual intercourse. Two definitions in subsection (b) do real work in court: "sexual intercourse" means any penetration of the female sex organ by the male sex organ, and "deviate sexual intercourse" means any contact between the genitals of one person and the mouth or anus of another with intent to arouse or gratify sexual desire. The conduct alleged in the indictment must match the statutory definition; vague or shifting descriptions of the act can be challenged.

A defined family relationship — § 25.02(a)

The complainant must actually fall within one of the six relationship categories the statute lists — ancestor or descendant by blood or adoption; current or former stepchild or stepparent; the actor's parent's sibling; the actor's sibling of the whole or half blood or by adoption; a niece or nephew; or a first cousin. Proof of kinship is not assumed — it must be established with evidence, whether that is testimony, birth and marriage records, or, where contested, biological evidence. The blood categories track the consanguinity definitions in Family Code § 6.201.

Knowledge of the relationship — § 25.02(a)

The actor must have known the other person was the listed relative. The Court of Criminal Appeals has explained that sexual intercourse "is not an inherently culpable act" and is "criminally actionable under Section 25.02(a)(2) … only if the actor knows that the person with whom he is having intercourse is (or was) his stepchild." This knowledge element is the legal hinge of the offense, and genuine ignorance of the relationship — after adoption, donor conception, or lifelong estrangement — can negate it.

Grade under § 25.02(c)

Prohibited sexual conduct is a third-degree felony — 2 to 10 years in prison and a fine up to $10,000 under § 12.34 — unless it is committed under subsection (a)(1) (an ancestor or descendant by blood or adoption), in which event it is a second-degree felony, 2 to 20 years under § 12.33. The offense is a reportable conviction that triggers sex-offender registration under Code Crim. Proc. ch. 62 — and because the definition of a reportable adjudication includes deferred adjudication, a deferred plea does not by itself keep a person off the registry.

What makes § 25.02 unusual among Texas sex offenses is that it does not require force, threat, or a child victim. The conduct can be entirely consensual and between two adults, and it is still a crime if the two people fall within a prohibited degree of kinship. That is the feature defendants and their families most often misunderstand, and it shapes every strategic decision that follows. Because the offense is built around a status — the family relationship — the defense is, too: the contested question in most § 25.02 trials is not whether sex occurred but whether the State can prove the specific relationship the indictment alleges and prove the accused knew of it.

One practical consequence of that structure matters from day one: the named complainant and the accused are usually relatives, and when both are adults, the State's main witness is frequently a participant in the very act charged. That overlap drives a defense doctrine — the accomplice-witness corroboration rule of Code of Criminal Procedure article 38.14 — that has no equivalent in an ordinary stranger-on-stranger sex case. It is often the single most powerful tool available, and it is addressed in detail in the defenses section below.

Which relationships does § 25.02 cover?

Section 25.02(a) lists the covered relationships precisely. The list is broader than many people expect and reaches several degrees of kinship other states leave out — ancestors and descendants, current or former stepchildren and stepparents, aunts and uncles, siblings, nieces and nephews, and first cousins.

A Texas appellate court reciting the statute described the covered relationships as the actor’s ancestor or descendant by blood or adoption; the actor’s current or former stepchild or stepparent; the actor’s parent’s brother or sister of the whole or half blood; the actor’s brother or sister of the whole or half blood or by adoption; the children of the actor’s brother or sister of the whole or half blood or by adoption; and the son or daughter of the actor’s aunt or uncle of the whole or half blood or by adoption.

Translated into plain English, the six categories are: (a)(1) ancestors and descendants by blood or adoption — parents, grandparents, children, and grandchildren, the only category that raises the felony grade; (a)(2) a current or former stepchild or stepparent, where "former" means a divorce that ended the marriage does not end criminal exposure; (a)(3) a parent’s sibling — aunts and uncles of the whole or half blood; (a)(4) the actor’s siblings — brothers and sisters of the whole or half blood, or by adoption; (a)(5) nieces and nephews — the children of the actor’s brother or sister; and (a)(6) first cousins — the son or daughter of the actor’s aunt or uncle. Many people who grew up in states whose incest laws stop at closer kin are surprised Texas reaches first cousins.

The blood-relationship categories track the consanguinity definitions Texas uses in Family Code § 6.201, the same kinship framework that governs who may not marry. That cross-reference is more than trivia: when a relationship is established by adoption rather than blood, or when the alleged kinship runs through a half-sibling or a step-link, the defense can hold the State to the exact category pleaded and test whether the documentary and testimonial proof actually fits it.

Because the categories are precise, the defense often begins by mapping the indictment’s alleged relationship against the actual family tree. A pleading that alleges a blood relationship the records do not support, a step-relationship that had already dissolved in a way the statute does not reach, or a kinship degree outside the six listed categories can be challenged for legal sufficiency. The relationship element is not a formality — it is the core of the offense, and it must be proven, not assumed.

What are the penalties? The grade ladder

The penalty turns entirely on which relationship category applies. Under § 25.02(c), prohibited sexual conduct is a third-degree felony (2–10 years, fine up to $10,000) — unless committed against an ancestor or descendant by blood or adoption under (a)(1), in which case it is a second-degree felony (2–20 years).

Under § 25.02(c), prohibited sexual conduct is a third-degree felony — unless it is committed under subsection (a)(1), in which event it is a second-degree felony. In other words, the second-degree enhancement applies only when the relative is an ancestor or descendant by blood or adoption. A Texas appellate court has explained that this enhancement, added by the Legislature, raises the offense "from a third degree felony to a second degree felony when the victim was an ancestor or descendant by blood or adoption," and that the enhancement "is due solely to the biological relationship between the victim and perpetrator."

This is the point people get wrong most often, so it is worth stating bluntly: a stepchild case is not a second-degree felony. A current or former stepchild falls under subsection (a)(2), and (a)(2) is not on the (a)(1) enhancement list. A stepchild case therefore remains a third-degree felony, even though the relationship is emotionally charged in the same way a biological-descendant case is. The same is true of sibling, aunt/uncle, niece/nephew, and first-cousin cases — all third-degree.

Two cautions about the table. First, these are the statutory ranges for the § 25.02 offense itself; prior felony convictions can raise the available punishment under the habitual-offender provisions of Penal Code § 12.42. Second, the same conduct is frequently charged alongside other offenses — most often when a complainant was a child — and those companion counts carry their own, often far heavier, ranges. A § 25.02 charge rarely travels alone, which is why an early, whole-case assessment matters.

Getting the grade right early shapes everything that follows — bond posture, plea exposure, and the trial-versus-resolution decision. Because the (a)(1) enhancement is the single line between a second- and third-degree exposure, the defense scrutinizes whether the State has actually pleaded and can prove an ancestor-or-descendant relationship, or whether the case in truth involves a step, sibling, or collateral relationship that keeps the offense at the third-degree level.

What must the State prove?

To convict under § 25.02, the State must prove beyond a reasonable doubt a defined sexual act, the specific family relationship the indictment alleges, the defendant’s knowledge of that relationship, and the required intentional-or-knowing mental state. The relationship and knowledge elements are where these cases are won or lost.

To convict under § 25.02(a)(1) or (a)(2), the State must prove each element beyond a reasonable doubt. Using a stepchild theory as the model, the Thirteenth Court of Appeals described the hypothetically correct charge as requiring proof that the defendant (1) engaged in sexual intercourse (2) with the named person, (3) who was the defendant’s stepchild, and (4) that the defendant knew that person was his stepchild. The blood-relative theories follow the same four-part shape, substituting the pleaded kinship for "stepchild."

1. A defined sexual act

The State must prove sexual intercourse or deviate sexual intercourse as those terms are defined in § 25.02(b). The conduct alleged in the indictment must match the statutory definition; vague or shifting descriptions of the act can be challenged.

2. The specific family relationship

The complainant must actually fall within the exact category the indictment pleads. Proof of kinship is not assumed — it must be established with evidence, whether that is testimony, birth and marriage records, or, where contested, biological evidence.

3. The defendant’s knowledge of the relationship

The actor must have known the other person was the listed relative. The Court of Criminal Appeals has explained that sexual intercourse "is not an inherently culpable act" and is "criminally actionable under Section 25.02(a)(2) … only if the actor knows that the person with whom he is having intercourse is (or was) his stepchild." This knowledge element is the legal hinge of the offense.

4. The required mental state

The act must be intentional or knowing under Penal Code § 6.03. Identity and authorship of the act, like every element, remain the State’s burden.

An important point the Court of Criminal Appeals settled in Ramos: the other person in a § 25.02 case "need not actually be a 'child.'" The statute reaches adult relatives. That is what separates this offense from child-specific crimes and is the reason consent is irrelevant — the gravamen, in the court’s words, "is … sexual intercourse with a stepchild," not the absence of consent. Ramos v. State, 636 S.W.3d 646, 656 (Tex. Crim. App. 2021).

Because each element is a separate burden, a § 25.02 prosecution can fail even where the State proves that a sexual act occurred. If the documentary and testimonial proof does not establish the precise relationship pleaded, or if the State cannot show the defendant actually knew of the kinship, the conviction cannot stand. The defense develops the record on both fronts — family and adoption records, the history of contact (or estrangement) between the parties, and any evidence bearing on what the accused understood about the relationship at the time.

How is § 25.02 different from sexual assault under § 22.011?

Sexual assault under § 22.011 punishes non-consensual contact or contact with a child who cannot legally consent. Prohibited sexual conduct under § 25.02 punishes the family relationship itself, even between consenting adults. A Texas appellate court has described the difference as the age and ability to consent of the complainant.

This distinction matters enormously, because the same family facts can be charged very differently depending on the complainant’s age. Sexual assault under § 22.011 punishes sexual contact that is non-consensual, or that involves a child who cannot legally consent. Prohibited sexual conduct under § 25.02 punishes the relationship itself, even where both people are consenting adults. As the Thirteenth Court of Appeals put it, "the difference between the offenses of sexual assault of a child and prohibited sexual conduct is the age and ability to consent of the complainant."

The practical takeaway for an accused person and their family: when the other relative is a legal adult, § 25.02 is typically the operative statute and consent is off the table as a defense — but registration and felony exposure are squarely in play. When the other relative is a child, the State usually has heavier child-specific charges available, such as indecency or aggravated sexual assault, and § 25.02 may appear as a companion count rather than the lead charge. Sorting out which statute actually governs is one of the first things a defense lawyer does, because it dictates the realistic range of exposure and the defenses that are available. If your situation involves a minor, the analysis shifts to our pages on sexual assault defense, indecency with a child, and aggravated sexual assault.

What defenses work against a § 25.02 charge?

Because the offense is defined by relationship and knowledge, the strongest defenses attack those two elements directly. Recurring lines of attack our firm evaluates include holding the State to the exact relationship category pleaded; negating knowledge of the relationship where relatives were separated by adoption, donor conception, or lifelong estrangement; the accomplice-witness corroboration rule of article 38.14 when a willing adult participant testifies for the State; challenging the sufficiency of proof on the sexual act itself; identity and false-allegation defenses where custody, inheritance, or retaliation motives exist; and constitutional, limitations, indictment-defect, double-jeopardy, and suppression challenges that can narrow or end a case before a jury hears it.

The two verified appellate decisions cited above — Ramos v. State, 636 S.W.3d 646 (Tex. Crim. App. 2021), and Arteaga v. State, 511 S.W.3d 675 (Tex. App.—Corpus Christi–Edinburg 2015, pet. ref’d) — are not promises of any outcome. They illustrate how Texas courts have analyzed the relationship and knowledge elements and the grade ladder, and they show where a disciplined defense applies pressure.

When the same conduct can fit more than one statute, charge selection becomes a strategic question in its own right. The defense tests whether the State has chosen the right offense for the facts, whether overlapping counts raise double-jeopardy concerns, and whether a § 25.02 count is doing real work in the indictment or is a makeweight added to a child-specific lead charge. That analysis shapes plea posture and trial strategy alike.

Identifying the controlling statute early also tells the client the truth about what is — and is not — a defense. In an adult § 25.02 case, "it was consensual" is not a defense, and a lawyer who frames the case that way misleads the client. The honest analysis focuses where the law actually puts the contest: the relationship, the knowledge of it, and the corroboration of any participating witness.

Registration & collateral consequences

A § 25.02 conviction is a registrable sex offense. Article 62.001(5) lists prohibited sexual conduct among the reportable convictions and adjudications that trigger Chapter 62 registration — and because the definition includes deferred adjudication, accepting a deferred plea does not by itself keep a person off the registry.

A § 25.02 conviction is a registrable sex offense. Code of Criminal Procedure article 62.001(5) lists prohibited sexual conduct among the reportable convictions and adjudications that trigger Chapter 62 sex-offender registration. Crucially, the statutory definition of a reportable conviction or adjudication includes deferred adjudication — so accepting a deferred plea does not, by itself, keep a person off the registry. Many people assume "no final conviction" means "no registration," and on this offense that assumption is wrong.

Registration is rarely the only collateral consequence. A felony conviction can cost a person their firearm rights under Penal Code § 46.04 and federal law, can carry serious immigration consequences for non-citizens, can end or bar professional licenses, and follows a person through every background check for housing and employment. Registration itself imposes residency rules, public listing, and reporting duties that reshape daily life. Because the stakes reach so far beyond the courtroom, the defense plan has to weigh trial risk against these lifelong consequences from the very first meeting.

For clients whose careers depend on a clean record — educators, healthcare professionals, licensed tradespeople, and government-cleared employees — the collateral exposure can be as serious as the prison range. A felony sex-offense conviction routinely triggers licensing-board review and can end a certification regardless of the sentence imposed. The defense addresses these consequences from the outset, because the right resolution of the criminal case is the one that also accounts for the client’s livelihood.

For non-citizens, a felony sex-offense conviction can be among the most serious of all collateral consequences, potentially triggering removability or inadmissibility. The analysis is jurisdiction- and status-specific, and Padilla v. Kentucky, 559 U.S. 356 (2010), requires defense counsel to advise non-citizen clients of the immigration consequences of a plea. Any client who is not a U.S. citizen should have an immigration specialist consulted before entering any plea on a § 25.02 charge.

Because § 25.02 is a registrable sex offense, the usual record-clearing tools are sharply limited. A result without a conviction — a dismissal or acquittal — can support an expunction, but a conviction cannot be expunged, and an order of nondisclosure is not available for a registrable sex offense. That is why early, relationship-element and corroboration challenges matter so much: on this charge, keeping the case from ending in any conviction or deferred adjudication is often the only path to a record that can later be cleared. For more on clearing a record where the case ends without conviction, see expunction versus nondisclosure and our sex-offender registration overview.

DFW court practice: Collin, Dallas, Denton, Tarrant

Because § 25.02 is a felony, these cases are heard in the district courts of the county where the offense is alleged to have occurred, and grand-jury review applies. Where a case is filed shapes the practical rhythm of the defense across the four core DFW counties.

L and L Law Group, PLLC defends prohibited sexual conduct cases across North Texas from our Frisco office. Because § 25.02 is a felony, these cases are heard in the district courts of the county where the offense is alleged to have occurred, and grand-jury review applies. Frisco-area arrests typically route to Collin County, where felony cases are handled at the Collin County Courthouse (Russell A. Steindam Courts Building) in McKinney, where the district courts and the district attorney’s office sit.

In Dallas County, felony matters are heard at the Frank Crowley Courts Building in Dallas, which houses the criminal district courts and the district attorney’s intake. Denton County cases proceed through the district courts at the Denton County Courts complex in Denton, and Tarrant County felony cases are handled at the Tim Curry Criminal Justice Center in Fort Worth.

These are general observations about where felony sex cases are heard, not predictions about any prosecutor or court. What is consistent across all four counties is that § 25.02 cases are document- and testimony-intensive: the relationship element invites records work, and the knowledge element invites careful witness preparation and cross-examination.

We serve the surrounding counties as well; see our pages for Collin County, Dallas County, Denton County, and Tarrant County. Knowing the practical rhythm of the district court where a § 25.02 case is pending — grand-jury timing, discovery practice, and how contested relationship-and-corroboration issues are litigated — lets the defense tailor strategy to the forum.

What happens after a prohibited sexual conduct arrest

A § 25.02 case generally moves through the same felony stages — arrest and magistration, bond and conditions, grand-jury investigation and indictment, pretrial litigation, and resolution — each with offense-specific wrinkles around the relationship and corroboration questions.

A § 25.02 case generally moves through the same felony stages, each with offense-specific wrinkles. At arrest and magistration, within roughly 48 hours, a magistrate reviews probable cause, sets bond, and gives statutory warnings; sex-offense allegations frequently draw bond conditions restricting contact with the complainant and, where a child is involved, with minors generally. At the bond and conditions stage, conditions can be negotiated and revisited — early counsel matters here, because the no-contact order in an intra-family case can also displace a person from their home. See Texas bond conditions.

At investigation and indictment, a felony proceeds by grand-jury indictment, and the pre-indictment window is when a defense investigation — gathering family records, identifying motive to fabricate, and assessing the corroboration picture — can change the trajectory of the case. During pretrial litigation, motions to suppress statements, challenges to the indictment’s relationship allegation, discovery, and expert work happen here; many § 25.02 cases are won or substantially narrowed before trial on the relationship or corroboration questions. At resolution, a case can end in dismissal, acquittal, a negotiated outcome, or trial — and because registration attaches even to deferred adjudication, every proposed resolution must be weighed against its lifelong consequences, not just its jail exposure. See fighting a charge and the procedure master guide.

Two illustrative (hypothetical) scenarios. Consider an adult brought home through adoption as an infant who, decades later, forms an adult relationship with a person they did not know was a biological half-sibling; knowledge of the relationship is squarely in dispute. Or consider two estranged adult relatives at the center of a bitter inheritance fight, where the only evidence is one relative’s accusation and the corroboration rule of article 38.14 takes center stage. These scenarios are hypothetical and are offered to show how the elements operate, not to describe any client or predict any result. L and L Law Group represents clients facing § 25.02 charges across Collin, Dallas, Denton, and Tarrant counties; co-founding partners Reggie London and Njeri London personally handle these cases. Free initial consultations are available at (972) 370-5060 or info@landllawgroup.com.