Is Adultery Illegal in Texas? Civil and Criminal Implications

No criminal liability

Texas has not criminalized adultery for decades. The Texas Penal Code contains no provision making extramarital sex a crime. Despite popular belief and occasional misinformation about "old laws still on the books," there is no current criminal exposure for adultery in Texas regardless of:

• Marital status of either party
• Whether the spouse knew or consented
• Whether the conduct occurred in public or private
• Whether the parties are Texas residents

The only criminal exposures that touch on extramarital relationships in Texas are:

• Bigamy — Penal Code §25.01 (third-degree felony) for purporting to marry while already married. This is about the marriage ceremony, not the relationship.
• Sexual offenses with minors — if the extramarital partner is underage, multiple Penal Code provisions apply regardless of marital status.
• Statutory rape — Penal Code §22.011 and related provisions for sexual conduct with minors.

None of these criminalize adult-with-adult adultery itself.

Civil divorce consequences

Texas Family Code §6.003 lists adultery as one of seven "fault grounds" for divorce. The fault grounds are:

• Cruelty (§6.002)
• Adultery (§6.003)
• Conviction of felony (§6.004)
• Abandonment (§6.005)
• Living apart (§6.006)
• Confinement in mental hospital (§6.007)
• Insupportability (§6.001) — the no-fault ground

Filing on adultery as a fault ground (rather than the usual no-fault "insupportability") gives the petitioning spouse leverage in property division and spousal maintenance proceedings.

Practical effects:

• Property division. Texas is a community property state, but divisions don't have to be 50-50. Texas Family Code §7.001 directs the court to make a "just and right" division. Fault, including adultery, is one of the factors a court can consider in awarding the wronged spouse a larger share of the community estate.
• Spousal maintenance. Adultery is a factor in the court's discretion to award spousal maintenance under Family Code Chapter 8.
• Child custody and conservatorship. Adultery alone does not affect custody determinations — the test is "best interest of the child" under §153.002. But the circumstances of an affair (involving children, exposing children to the affair, etc.) can affect custody.
• Wasted community assets. Money spent on an affair partner (gifts, hotel rooms, trips) is treated as "constructive fraud" and can be reimbursed to the wronged spouse from the offending spouse's share.

How adultery is proved in divorce

Texas requires "clear and positive" evidence of adultery for fault-ground divorce purposes. Direct evidence (eyewitness testimony) is rarely available; most cases rely on circumstantial evidence:

• Romantic communications (texts, emails, social media)
• Hotel records, travel records, financial records showing spending consistent with an affair
• Witness testimony about behavior consistent with romantic involvement
• Photographic or video evidence
• Phone records showing extensive communication
• Admissions or confessions

The "clear and positive" standard is higher than the "preponderance of evidence" standard typically applied in civil cases — reflecting Texas's historical approach to fault-based divorce. Most adultery proof comes from documentary evidence rather than testimony.

Texas does not allow private investigators to violate state laws (wiretapping, stalking, trespass) to gather evidence. Improperly obtained evidence may be inadmissible and may itself create criminal liability for the spouse who hired the investigator.