Improper Relationship Between Educator and Student: Texas Penal Code §21.12

The Texas Improper Relationship Between Educator and Student law gives police the right to arrest you if they believe you you are an employee of a primary or secondary school, and you engaged in either sexual contact with or the online solicitation of: a student at your school, a student in the same school district, or a student participating in an educational activity sponsored by a school.

This law criminalizes sexual relationships between teachers and their students regardless of the age. This has the effect of criminalizing sex between consenting adults. In Lawrence v. Texas the United States Supreme Court held that adults have a fundamental right to keep the government out of sexual relations, setting forth important freedoms that we all share regarding our sexual partners. The Improper Relationship Between Educator and Student statute stands in violation of this basic principle of freedom.

The Texas legislature codified this criminal offense in Texas Penal Code Section 21.12. The law was not amended in 2023. However, the law was amended in 2017 and then again in 2021.

As described in more detail below, the law that covers offenses occurring prior to September 1, 2017, describes three different ways in which a school employee can be charged with this offense. Subsection (a)(1) prohibits sexual contact between employees and students where the employee works. Subsection (a)(2) prohibits sexual contact between members of the certified members of the “helping professions” licensed under Education Code Section 21.003(b) and students the person knows attend school in the same school district or particpates in school sponsored activities in the same school district or the person provides services to the student. Subsection (a)(3) prohibits school employees from engaging in Online Solicitation of a Minor under the same circumstances described by Subsections (a) and (b).

The amendments passed in 2017 expand the coverage of subsection (a)(2) to include people who are uncertificated members of the helping professions, adds coverage to private schools, eliminates the requirement that the employee provide education services to participants in activities and that they are in the same school district.

The Penal Code classifies the Texas Improper Relationship Between Educator and Student law under Title 5 “Offenses Against the Person,” Chapter 21 “Sexual Offenses.” Learn more about the Texas offense of Improper Relationship Between Educator and Student below.

What is the current Texas law about Improper Relationship Between Educator and Student?

The Texas Improper Relationship Between Educator and Student crime is described in Section 21.12 of the Texas Penal Code, and the current law is as follows:^[1]

(a) An employee of a public or private primary or secondary school commits an offense if the employee:

(1) engages in sexual contact, sexual intercourse, or deviate sexual intercourse with a person who is enrolled in a public or private primary or secondary school at which the employee works;

(2) holds a position described by Section 21.003(a) or (b), Education Code, regardless of whether the employee holds the appropriate certificate, permit, license, or credential for the position, and engages in sexual contact, sexual intercourse, or deviate sexual intercourse with a person the employee knows is:

(A) enrolled in a public or private primary or secondary school, other than a school described by Subdivision (1); or

(B) a student participant in an educational activity that is sponsored by a school district or a public or private primary or secondary school, if students enrolled in a public or private primary or secondary school are the primary participants in the activity; or

(3) engages in conduct described by Section 33.021, with a person described by Subdivision (1), or a person the employee knows is a person described by Subdivision (2)(A) or (B), regardless of the age of that person.

The law was amended by the state legislature in both 2017 and 2021.

Amendments effective in 2017

The law in effect until September 1, 2017 (and covering all offenses alleged to have occurred prior to that date), was as follows:^[2]

(a) An employee of a public or private primary or secondary school commits an offense if the employee:

(1) engages in sexual contact, sexual intercourse, or deviate sexual intercourse with a person who is enrolled in a public or private primary or secondary school at which the employee works;

(2) holds a certificate or permit issued as provided by Subchapter B, Chapter 21, Education Code, or is a person who is required to be licensed by a state agency as provided by Section 21.003(b), Education Code, and engages in sexual contact, sexual intercourse, or deviate sexual intercourse with a person the employee knows is:

(A) enrolled in a public primary or secondary school in the same school district as the school at which the employee works; or

(B) a student participant in an educational activity that is sponsored by a school district or a public or private primary or secondary school, if:

(i) students enrolled in a public or private primary or secondary school are the primary participants in the activity; and

(ii) the employee provides education services to those participants; or

(3) engages in conduct described by Section 33.021, with a person described by Subdivision (1), or a person the employee knows is a person described by Subdivision (2)(A) or (B), regardless of the age of that person.

Amendments effective in 2021

The bill passed by the legislature in 2021 did not make any changes to subsection (a), but it created a new definition for sexual contact for the purpose of this statute and prohibited schools from releasing the name of any accused employee until the employee has been indicted. These were added as subsections (d-1) and (e).^[3]

What age differences are prohibited?

Subsection (b-1)(2) provides an affirmative defense that would allow you to avoid conviction if you can show that you were “not more than three years older” than the student, and at the time that the sexual activity took place, you and the student were in a relationship that began before your employment at the school.

What changes were made in 2021?

In 2021, the legislature added a definition of sexual contact and prohibited schools from releasing the names of teachers accused of this offense unless and until they are indicted.^[4] These changes were codified in subsections (d-1) and (e).

What rights do educators have if they’ve been accused of misconduct?

In Texas, an educator implicated in alleged misconduct (involving termination, resignation, abuse, unlawful acts with a student or minor, or engagement in romantic or sexual contact with a student or minor) is entitled to a hearing to contest these allegations.^[5] When such a report is forwarded by the superintendent or designated personnel to the Texas Education Agency (TEA), the agency must promptly notify the educator, giving them 10 days to request a hearing and submit a written response.^[6]

Should the educator fail to respond, TEA will indicate via an online portal that the educator is under investigation. Without a timely hearing request, the commissioner will decide based on the provided report.^[7] If found guilty, the educator’s name will be added to the do-not-hire registry. Conversely, if a hearing is held and the educator is found not to have committed the misconduct, TEA will remove any indication of the ongoing investigation from the portal.

How can I be charged with an Improper Relationship Between Educator and Student offense in Texas?

You can be charged with Improper Relationship Between Educator and Student in Texas if the state’s attorneys believe that each of the elements of either 21.12(a)(1), 21.12(a)(2), or 21.12(a)(3), as described in the section above have been met.

Each of those subdivions (a)(1), (a)(2), and (a)(3), is a separate way in which you can be charged with this crime.

What is the statute of limitation for Improper Relationship Between Educator and Student in Texas?

Improper Relationship Between Educator and Student offenses have a three-year limitations period.^[8]

Can you get probation for Improper Relationship Between Educator and Student in Texas?

The Texas Code of Criminal Procedure allows both judges and juries to grant probation for Improper Relationship Between Educator and Student, and judges are also allowed to accept deferred adjudication plea deals.^[9]

Note, however, that no matter the offense, neither judges nor juries may recommend community supervision for any suspended sentence of over 10 years.^[10] Also, judges may not grant community supervision after a conviction if (1) the defendant used or exhibited a deadly weapon during the commission of the felony or immediate flight thereafter and (2) the defendant used or exhibited the deadly weapon himself or was a party to the offense and knew that a deadly weapon would be used or exhibited.^[11]

Do I have to register as a sex offender in Texas if guilty of Improper Relationship Between Educator and Student?

The Improper Relationship Between Educator and Student offense does not appear on the list of offenses requiring registration under Chapter 62 of the Texas Code of Criminal Procedure.^[12]

However, the legislature can add this offense to the list at any time. If that happens, people convicted of Improper Relationship Between Educator and Student would have to register, even if the offense did not appear on the list at the time they accepted a deferred adjudication plea (even if later dismissed), pled guilty or were founty guilty.

What level of crime is Improper Relationship Between Educator and Student in Texas?

The Texas Penal Code classifies the Improper Relationship Between Educator and Student offense as a second degree felony.

Learn more about the penalty range for this offense in the section above.

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Legal References:

^1. Texas Penal Code §21.12. This law is current as of 2024.^2. See SB 7, 85th Texas Legislature, Section 1, effective September 1, 2017 (effective date provisions are in Sections 18 & 22)^3. HB 246, 87th Texas Legislature, Section 1,^4. HB 246, 87th Texas Legislature, Section 1^5. Texas Education Code §22.094^6. Texas Education Code §22.094(c)^7. Texas Education Code §22.094(e)^8. See Code of Criminal Procedure 12.01(9)^9. See Chapter 42, Texas Code of Criminal Procedure, Art. 42A.054, Art. 42A.056, Art. 42A.102 .^10. Art. 42A.053(c), Texas Code of Criminal Procedure^11. Art. 42A.054(b), Texas Code of Criminal Procedure^12 Code of Criminal Procedure, Article 62.001