Texas Penal Code §21.11 Indecency With a Child

Statutory elements — § 21.11(a)(1) and (a)(2)

Texas Penal Code § 21.11(a) creates two distinct offenses against a single class of victim — a child younger than 17 who is not the spouse of the defendant.

§ 21.11(a)(1) — Indecency by Sexual Contact. A person commits the offense if, with a child younger than 17, the person engages in sexual contact with the child or causes the child to engage in sexual contact. "Sexual contact" is defined in § 21.11(c) — and the § 21.11(c) definition is broader than the general § 21.01(2) definition that governs adult sex offenses. Under § 21.11(c) it includes any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; OR any touching of any part of the body of a child with the anus, breast, or any part of the genitals of a person. The intent requirement is intent to arouse or gratify sexual desire of any person.

§ 21.11(a)(2) — Indecency by Exposure. A person commits the offense if, with intent to arouse or gratify the sexual desire of any person, the person: (A) exposes the person's anus or any part of the genitals, knowing the child is present; or (B) causes the child to expose the child's anus or any part of the genitals.

The age elements. The victim must be under 17. The defendant must be a person — the statute does not by its terms require the defendant to be an adult, though the affirmative defense in § 21.11(b) creates a close-age exception for younger defendants. Mistake of fact about the victim's age is not a defense; Texas treats victim age as a strict-liability element when the defendant is over 17.

Penalty framework, registration, and the 3g designation

Sexual contact — second-degree felony. § 21.11(d) sets § 21.11(a)(1) as a second-degree felony. Penal Code § 12.33 makes the range of punishment 2 to 20 years in the Texas Department of Criminal Justice plus a fine up to $10,000.

Exposure — third-degree felony. § 21.11(a)(2) is a third-degree felony. Under § 12.34 the range is 2 to 10 years TDCJ plus a fine up to $10,000.

Probation availability. Probation is generally available on a § 21.11 conviction (it is not categorically excluded by the 3g list for indecency-by-contact in the same way some aggravated offenses are), but the practical availability is fact-specific. Judges and juries each have probation authority; the disposition depends heavily on the facts, the victim impact, and the plea-versus-trial posture. Deferred adjudication is also available — and is often a more achievable disposition than straight probation in these cases.

Mandatory lifetime sex-offender registration. Both § 21.11(a)(1) and § 21.11(a)(2) are reportable convictions under CCP Article 62.001(5). Registration is lifetime — not 10-year — under CCP Article 62.101(a)(1) because indecency with a child is enumerated in the lifetime-registration list. The defendant's name, address, employer, vehicles, internet identifiers, and photograph become part of the public DPS sex-offender database.

3g status — parole eligibility limited. § 21.11(a)(1) is included in the "3g offense" list under CCP Article 42A.054(a). For 3g offenses, the defendant is not eligible for release on parole until the actual time served equals one-half of the sentence imposed, without consideration of good conduct time. A 20-year sentence carries a 10-year minimum service. Good-conduct time still counts toward mandatory supervision in some configurations but the 50%-of-flat-time rule shapes plea analysis at every offer.

Statute of limitations. Under CCP Article 12.01, prosecutions for § 21.11 offenses against a child generally have no limitations period when the victim is identified through DNA; for other § 21.11 offenses against a child, the limitations period runs to the victim's 38th birthday (20 years from the 18th birthday). Defense counsel should never assume the case is time-barred without checking the specific subdivisions and any DNA evidence.

The Romeo-and-Juliet affirmative defense — § 21.11(b)

Texas Penal Code § 21.11(b) creates an affirmative defense that applies to both (a)(1) and (a)(2) prosecutions when three conjunctive conditions are met: (1) the defendant was not more than three years older than the victim and the victim was at the time of the offense 14 years of age or older; (2) the defendant did not use duress, force, or a threat against the victim at the time of the offense; and (3) at the time of the offense the defendant was not required to register as a sex offender for a reportable conviction or adjudication, and was not a person with a reportable conviction or adjudication for an offense under § 21.11.

"Not more than three years older." The age gap is computed by date, not by age category. A defendant who turned 17 the day before the offense and a victim who was 14 the day of the offense fit within three years. A defendant who is 17 and a victim who turned 14 four months later may not, depending on the precise offense date.

"Victim at least 14." The affirmative defense is not available if the victim was younger than 14. This is the bright line; consensual teenage relationships involving victims aged 12 or 13 do not qualify regardless of the defendant's age.

"No duress, force, or threat." The state will frequently dispute this element. Defense counsel should anticipate testimony about the dynamics of the relationship and prepare cross-examination on the actual circumstances of the offense.

Procedural posture. § 21.11(b) is an affirmative defense — the defendant has the burden of producing evidence and persuading by a preponderance. The instruction is given when the evidence raises the issue; counsel should request it whenever the close-age facts even arguably exist.

The 2009 amendment narrowing. Earlier versions of § 21.11(b) included a same-sex restriction; the legislature removed that requirement. The current statute applies regardless of the gender of victim and defendant.

The evidence rules that define these prosecutions

Texas treats sex-offense prosecutions involving children differently from other criminal cases. Four evidence rules govern most of what happens at trial and most of what defense counsel fights in pretrial motions.

CCP Article 38.07 — uncorroborated victim testimony. A conviction under § 21.11 may be supported by the uncorroborated testimony of the victim. There is no corroboration requirement. This rule shapes every charging decision — the state does not need DNA, forensic evidence, eyewitnesses, or admissions.

CCP Article 38.072 — outcry exception. The first adult to whom the child made a statement about the offense — the "outcry witness" — may testify substantively to the child's statements. This is a hearsay exception unique to child-victim cases. The choice of outcry witness is consequential and worth contesting at the pretrial outcry hearing. Multiple outcry witnesses are possible if statements address different events.

CCP Article 38.37 — extraneous offenses. This is the rule that most damages defendants in § 21.11 prosecutions. § 38.37 § 2 allows the state to introduce evidence of separate offenses committed by the defendant against the child victim or other children — including prior acts that did not result in conviction — for the purpose of showing the defendant's character and propensity. The pretrial hearing under § 2-a determines admissibility. Defense counsel should expect § 38.37 evidence and prepare a § 403 balancing argument focused on the specific prior acts.

Texas Rule of Evidence 412 — Rape Shield. Rule 412 limits cross-examination of the child victim about specific prior sexual conduct. The exceptions — past acts directly relating to the motive or bias, or prior allegations shown to be false — are narrow. Defense counsel should preserve Rule 412 challenges at the in camera hearing.

SANE exam preservation. Under CCP Article 38.43, biological evidence from a sexual assault nurse examination is preserved indefinitely. Defense counsel can request independent testing through Article 38.43 motions.

Case patterns and how prosecutions are built

Texas indecency-with-child prosecutions cluster around several recurring fact patterns. Each presents a distinct defense problem.

Family-member allegations. The most common pattern. Allegations made by a child against a parent, step-parent, sibling, or extended-family member. Outcry is often to the non-offending parent, a teacher, or a school counselor. Pretrial dynamics frequently involve family court — custody disputes, divorce proceedings — and motivation evidence becomes contested. Defense counsel should map the family timeline carefully.

Educator and youth-leader cases. Allegations against teachers, coaches, religious leaders, scout leaders. § 21.12 (Improper Relationship Between Educator and Student) is a parallel offense; charging decisions often involve overlapping statutes. Workplace records, communications, and chaperone configurations matter.

Stepfather and live-in-partner cases. Allegations made months or years after a relationship has ended, often after the non-offending parent's new partner becomes a competitive figure. Statute-of-limitations analysis under CCP Article 12.01 is critical.

Friend-of-the-family cases. Allegations against adult friends, neighbors, or family acquaintances who had child-supervisory access. Access, opportunity, and corroborating witness evidence shape these prosecutions.

Multiple-victim cases. When the state alleges conduct against more than one child, § 38.37 propensity evidence runs both directions — the allegations themselves become mutually corroborating. Severance motions under CCP Article 21.24 should be filed in every multi-victim indictment.

Delayed-outcry cases. Many § 21.11 prosecutions arrive years after the alleged conduct, particularly when the victim discloses in adolescence or adulthood. Memory science, suggestibility research, and the dynamics of repressed-and-recovered memory all become potential defense considerations.

Defense strategy — what works in real cases

Charging-decision dialogue. The earliest defense priority on a § 21.11 case is the charging decision. Whether the allegation is filed as (a)(1) contact (second-degree, 2–20 years) or (a)(2) exposure (third-degree, 2–10 years) is a 10-year difference in maximum exposure. Pre-filing dialogue with the prosecutor, when feasible, can substantially affect the indictment.

Identification. In any case where identification is contestable — delayed outcry, suggestive interviews, multi-perpetrator settings — defense counsel should preserve identification challenges. DNA, alibi, and digital-location evidence are the corroborating tools.

The contact-versus-exposure element. The most consequential element-level fight is whether the alleged conduct was actually "sexual contact" under § 21.11(c) or whether it falls short — into exposure only, or into no offense at all. Charging counts that survive trial as (a)(2) rather than (a)(1) cut the felony level by one degree and the maximum sentence in half.

Outcry contests. The pretrial outcry hearing under § 38.072 § 2 determines which adult may testify substantively to the child's statements. Defense counsel should contest which witness qualifies as outcry, particularly when the child made earlier, partial, or inconsistent statements to other adults.

§ 38.37 motions in limine. Defense counsel must address propensity evidence pretrial — the § 2-a hearing and any § 403 balancing argument. Successful exclusion of even some § 38.37 evidence reshapes the trial substantially.

Forensic interview challenges. Children's advocacy center (CAC) forensic interviews are the standard intake tool for child-witness cases. The interview protocol, suggestibility analysis, and competency questions are reviewable. Defense experts on child interview methodology are sometimes warranted on close cases.

Negotiated dispositions. When trial risk is unmanageable, defense counsel can sometimes negotiate (a)(1) charges down to (a)(2), or (a)(2) charges down to Class A injury to a child (§ 22.04) where the facts allow — substantially reducing both the penalty range and the registration consequences.

First 30 days — what to do when the allegation surfaces

Days 1–3. Retain counsel immediately. Do not speak with police, CPS investigators, school officials, or any other authority figure about the allegation. Texas CPS investigators frequently appear before formal criminal charges are filed; statements to CPS are admissible in the criminal case under Texas Family Code § 261 and related authority. Counsel coordinates the CPS response and the criminal response together.

Days 3–10. Counsel issues preservation letters for digital evidence — text messages, photos, app data, social media communications between defendant and victim, family communications around the time of outcry, and any phone or computer records that may contain exculpatory information. Counsel obtains copies of any CAC forensic interview recordings and supporting documentation.

Days 10–20. Counsel reviews the offense report, the outcry timeline, the CPS investigation file (where available), and the digital evidence. Defense priorities are identified: identification, contact-versus-exposure, affirmative defense applicability, and any factual inconsistencies in the outcry timeline.

Days 20–30. Counsel evaluates the charging trajectory and opens pre-indictment dialogue with the prosecutor where appropriate. For cases with serious factual problems for the state, this dialogue can produce dismissal, no-bill, or reduced charging. For cases where the trajectory is to indictment, defense counsel begins expert retention — forensic interviewer reviewers, memory specialists, medical reviewers of SANE exams.

Indecency-with-child cases are the most consequential criminal allegations a defendant can face. The first 30 days set the trajectory; counsel selected early can sometimes prevent indictment, and selected late can rarely reverse one.