Criminal Nonsupport: Texas Penal Code §25.05

The Texas Criminal Nonsupport law criminalizes the refusal to pay child support.

The Texas legislature codified this criminal offense in Texas Penal Code Section 25.05. The law was not updated in 2023. In fact, this law has not been amended since 2001.

Prosecutors generally charge people with Criminal Nonsupport when a parent fails to provide the monetary support and the parent of the child who the money is intended to go to notifies law enforcement.

The law requires that the failure to pay child support was done “intentionally” or “knowingly,” but a person who mistakenly believes they are done with their child support payments may be charged with the offense if the state’s attorneys believe that you are actually refusing to pay. A Criminal Nonsupport conviction can land you in state jail.

The Texas Criminal Nonsupport law has not been updated in many years.

The Penal Code classifies the Texas Criminal Nonsupport law under Title 6 “Offenses Against The Family,” Chapter 25 “Offenses Against The Family.” This chapter includes crimes that focus on familial, parent, and spousal relationships. Some of the offenses relate to sexual or violent behavior, while others deal with custody and possession of children. Learn more about the Texas offense of Criminal Nonsupport below.

What is the current Texas law about Criminal Nonsupport?

The current Texas law defines the offense of Criminal Nonsupport in Penal Code Section §25.05 as follows:^[1]

(a) An individual commits an offense if the individual intentionally or knowingly fails to provide support for the individual’s child younger than 18 years of age, or for the individual’s child who is the subject of a court order requiring the individual to support the child.

Simply put, this law makes it a crime to intentionally not make court-ordered child support payments for one’s child. It is important to review the court’s child support order with your attorney to ensure that you are fully aware of your obligations and responsibilities towards the child.

I didn’t know that the money wasn’t being sent or received. Can I still be charged?

The law in the state of Texas requires that you “knowingly” or “intentionally” fail to make payments. For example, telling the other parent that you will not pay child support until a certain demand is met shows that you intended to withhold payments. However, if you were sending checks in the mail, but the checks were not being delivered properly and you were not aware of this situation, then you would have no knowledge and therefore should not be convicted of the Criminal Nonsupport.

I don’t know that the child I was ordered to pay child support is mine. Does that change anything?

Section 25.05(b)^[2] of the Texas Penal Code states that, for the purposes of this offense, the state’s attorney can obtain a conviction even if that child was born out of wedlock, whose paternity is acknowledged by the individual, or whose paternity has been established by a separate civil suit. This means, for instance, that even if you’re the biological father but never married the child’s mother, then the law will consider the child yours. Even if you don’t have a paternity test, if the court has determined you to be the parent, then you can still be convicted.

I am unable to afford the child support payments. Can I still be charged with the offense?

If you are unable to make payments, then you will be eligible to plead an affirmative defense to prosecution.^[3] This means that if you have evidence of an issue that is preventing you from making payments (likebeing laid off) can plead this defense.

I have been making payments, but the other parent still says I have not made payments. Do they need more evidence?

Under Texas law, a conviction of Criminal Nonsupport may be sustained solely by the uncorroborated testimony of a party to the offense.^[4] That means that the state’s attorney can convict you by relying solely on the word of one parent. Therefore, it is critical that if you have evidence that payments were made (such as cashed checks, signatures for certified mail, or email/letter confirmation) that you provide that information to your attorney. With enough evidence showing that you were making payments, it is less likely that the sole word of another party would be enough evidence to convince a jury that you are guilty of Criminal Nonsupport.

Am I still required to make child support payments during the prosecution of this case?

Even if there is an ongoing trial regarding the payments, the court still has the power to make orders relating to child support payment.

What is the statute of limitation for Criminal Nonsupport in Texas?

Criminal Nonsupport offenses have a three-year limitations period.^[5]

What is the penalty for a Texas Criminal Nonsupport offense?

The Criminal Nonsupport crime is classified as a state jail felony. A state jail felony is a unique felony that carries a penalty of prison time in a “state jail” of 180 days to 2 years, and a fine of up to $10,000. At a judge’s discretion, you may be placed in jail for a period of up to 2 years unless you start making child support payments again.

Can you get probation for Criminal Nonsupport in Texas?

The Texas Code of Criminal Procedure allows both judges and juries to grant probation for Criminal Nonsupport, and judges are also allowed to accept deferred adjudication plea deals.^[6]

Note, however, that no matter the offense, neither judges nor juries may recommend community supervision for any suspended sentence of over 10 years.^[7] 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.^[8]

What level of crime is Criminal Nonsupport in Texas?

The Penal Code classifies the punishment for Criminal Nonsupport as a state jail felony.

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

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Legal References:

^1. Texas Penal Code §25.05. This law is current as of the 88th Legislature Regular Session.^2. Texas Penal Code §25.05(b) – “For purposes of this section, “child” includes a child born out of wedlock whose paternity has either been acknowledged by the actor or has been established in a civil suit under the Family Code or the law of another state.”^3. Texas Penal Code §25.05(d)^4. Texas Penal Code §25.05(c) – “Under this section, a conviction may be had on the uncorroborated testimony of a party to the offense.”^5. See Code of Criminal Procedure 12.01(9)^6. See Chapter 42, Texas Code of Criminal Procedure, Art. 42A.054, Art. 42A.056, Art. 42A.102 .^7. Art. 42A.053(c), Texas Code of Criminal Procedure^8. Art. 42A.054(b), Texas Code of Criminal Procedure