Aggravated Assault: Texas Penal Code §22.02

The Texas Aggravated Assault law requires the state’s attorneys to first prove the offense of Assault and then also that either the assault caused serious bodily injury (often abbreviated “Agg Assault SBI“) or was perpetrated with a deadly weapon (often abbreviated “AA/DW“).

One important difference between the offense of Assault and the offense of Aggravated Assault is that a “simple” Assault is typically a misdemeanor offense, and Aggravated Assault is a felony offense. However, there are an increasing number of scenarios in which “simple” Assault can be punished as a felony. Although a conviction for Aggravated Assault is usually punishable as a second degree felony, certain circumstances can result in an enhancement to a first degree felony offense, carrying a range of punishment of up to life in prison.

The Aggravated Assault law was amended in 2023 to include an enhancements for offenses that caused a traumatic brain or spine injury that resulted in a persistent vegetative state or irreversible paralysis and for mass shootings. Read more about this in the enhancement section below.

There are several other different types of assaultive crimes in Texas such as Sexual Assault, Aggravated Sexual Assault and Intoxication Assault. Learn more about the Aggravated Assault offense below.

The Penal Code classifies the Texas Aggravated Assault law under Title 5 “Offenses Against The Person,” Chapter 22 “Assaultive Offenses.” Learn more about the Texas offense of Aggravated Assault below.

What is the current Texas law about Aggravated Assault?

Texas law currently defines the offense of Aggravated Assault in Penal Code Section §22.02 as follows:^[1]

(a) A person commits an offense if the person commits assault as defined in Sec. 22.01 and the person:

(1) causes serious bodily injury to another, including the person’s spouse; or

(2) uses or exhibits a deadly weapon during the commission of the assault.

Section 22.01 of the Texas Penal Code is the Simple Assault offense.^[2] A Simple Assault charge becomes an Aggravated Assault charge for the two reasons listed in the Aggravated Assault statute: (1) “serious bodily injury” or (2) the use of a “deadly weapon.” A charge for Simple Assault is appropriate when bodily injury^[3] was caused, but if serious bodily injury^[4] was caused, a person may be subject to an Aggravated Assault charge instead. Bodily injury is the impairment of a physical condition while serious bodily injury involves a substantial risk of death or permanent physical impairment. When Aggravated Assault is charged under Section 22.02(a)(2) of the Aggravated Assault statute describing the use of a deadly weapon during an assault, it is commonly referred to as the crime of Assault with a Deadly Weapon.

What is a deadly weapon under the Aggravated Assault statute?

The definition of a deadly weapon^[5] under the Texas Penal Code is a firearm or any other weapon that is made or used for the purpose of inflicting death or serious bodily injury. Some examples of deadly weapons are a gun, a knife, or a baseball bat. As long as the object was used in a way that could have killed them or severely injured them, the object is considered a deadly weapon.

Can I be charged with Aggravated Assault for accidentally hurting someone?

You may be convicted of Aggravated Assault under certain circumstances even if you did not mean to injure someone. If you were shooting a firearm towards a home, a building, or a vehicle and and caused someone serious bodily injury, the state may bring a charge of Aggravated Assault against you. If the state proves that you were reckless^[6] in determining whether the home, building or vehicle were occupied, you may be convicted of Aggravated Assault under Section 22.02(b)(3). In fact, a conviction under Section 22.02(b)(3) is an enhanced punishment, punishable by a first degree felony.

What is the new Aggravated Assault law in Texas?

In 2023, the Texas legislature added enhancements for mass shootings and assaults that resulted in paralysis or vegetative states.

The legislature created an enhancement for offenses against process servers in 2021.

In 2009, the legislature added an enhancement for shooting into homes or other buildings.

Learn more about these changes to the law in the punishment section above.

What is the statute of limitation for Aggravated Assault in Texas?

The Texas Court of Criminal Appeals (the highest criminal court in Texas) held in 2016 that the limitations period for Aggravated Assault is two years.^[7]

However, since that case was decided, the legislature passed a bill in 2023 that gave Aggravated Assault a five year limitations period under Texas law.^[8]

But to further complicate things, the legislature later (but during the same session) also passed a bill that left Aggravated Assault out of the list of offenses that have a five-year limitations period.^[9] So the statutes conflict, which leaves the law in limbo for now.

What is the penalty for a Texas Aggravated Assault offense?

A conviction for Aggravated Assault is punishable as a second degree felony, unless a jury finds that one of the first degree felony enhancements apply.^[10] Aggravated Assault is punishable as a first degree felony when someone uses a deadly weapon and causes serious bodily injury to someone that they are in a close relationship to under the Texas Family Code. A close relationship under the Aggravated Assault statute refers to a dating relationship^[11] with, a family^[12] member, or someone living in the same household.^[13]

As of September 1, 2023, Aggravated Assault is also punished as a first degree felony when someone uses a deadly weapon during the commission of the assault and causes a traumatic brain or spine injury that results in a persistent vegetative state or irreversible paralysis^[14] and for mass shootings.^[15]

Prosecutors can also charge the offense as a first degree felony by alleging the offense was committed by a public servant during their course of employment, when committed against a public servant, against witness or informant who reported a crime, against a process server (as of 2021), or against a security officer.^[16] The perpetrator is presumed to know that someone was a public servant or officer if the person assaulted was wearing a uniform or badge.^[17] A “security officer” means a commissioned security officer as defined by Section 1702.002, Occupations Code, or a noncommissioned security officer registered under Section 1702.221, Occupations Code.^[18]

The final way to enhance Aggravated Assault to a first degree felony is for the state to prove that the offense occurred while you were in a motor vehicle and you knowingly discharged a firearm at or in the direction of a habitation, building, or vehicle, you were reckless as to whether the habitation, building, or vehicle was occupied, and in discharging the firearm, you caused a serious bodily injury.^[19] Note that this only applies to Agg Assault SBI.

Can you get probation for Aggravated Assault in Texas?

The Texas Code of Criminal Procedure allows both judges and juries to grant probation for Aggravated Assault, and judges are also allowed to accept deferred adjudication plea deals.^[20]

Note, however, that no matter the offense, neither judges nor juries may recommend community supervision for any suspended sentence of over 10 years.^[21] 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.^[22]

Do I have to register as a sex offender in Texas if guilty of Aggravated Assault?

The Aggravated Assault offense does not appear on the list of offenses requiring registration under Chapter 62 of the Texas Code of Criminal Procedure.^[23]

However, the legislature can add this offense to the list at any time. If that happens, people convicted of Aggravated Assault 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 Aggravated Assault in Texas?

The Penal Code classifies the punishment for Aggravated Assault as a second or third degree felony, depending on the circumstances.

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

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Legal References:

^1. Texas Penal Code §22.02. This law is current as of 2024.^2. Simple Assault is defined in Texas Penal Code §22.01 –

(a) A person commits an offense if the person:

(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse;

(2) intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse; or

(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.

^3. Texas Penal Code §1.07(a)(8) –

“Bodily injury” means physical pain, illness, or any impairment of physical condition.

^4. Texas Penal Code §49.07(b) –

In this section, “serious bodily injury” means injury that creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.

^5. Texas Penal Code §1.07 –

“Deadly weapon” means:

(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or

(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

^6. Texas Penal Code §22.02(b)(2)(A-D) Aggravated Assault is punishable by a first degree felony if:

The offense is committed:

(A) by a public servant acting under color of the servant’s office or employment;

(B) against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant;

(C) in retaliation against or on account of the service of another as a witness, prospective witness, informant, or person who has reported the occurrence of a crime; or

(D) against a person the actor knows is a security officer while the officer is performing a duty as a security officer

^7. State v. Schunior, 506 S.W.3d 29, 37 (Tex. Crim. App. 2016); also see Ex Parte Lucas Vieira, 676 S.W.3d 654 (2023) – No. PD-0690-22.^8. Code of Criminal Procedure 12.01(4)(H), as amended by HB 467, 88th Legislature (RS), Section 1^9. Code of Criminal Procedure 12.01(4)(H), as amended by HB 1506, 88th Legislature (RS), Section 1^10. Texas Penal Code §22.02(b)^11. Texas Family Code §71.0021(b) –

(b) For purposes of this title, “dating relationship” means a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature. The existence of such a relationship shall be determined based on consideration of:

(1) the length of the relationship;

(2) the nature of the relationship; and

(3) the frequency and type of interaction between the persons involved in the relationship.

^12 Texas Family Code §71.003 –

“Family” includes individuals related by consanguinity or affinity, as determined under Sections 573.022 and 573.024, Government Code, individuals who are former spouses of each other, individuals who are the parents of the same child, without regard to marriage, and a foster child and foster parent, without regard to whether those individuals reside together.

^13. Texas Family Code Section §71.005 – “Household” means a unit composed of persons living together in the same dwelling, without regard to whether they are related to each other.^14. Texas Penal Code §22.02(b)(1)(B), enacted by HB 28, 88th Legislature, Section 2^15. Texas Penal Code §22.02(b)(4), enacted by HB 165, 88th Legislature, Section 4^16. Texas Penal Code §22.02(b)(2)(A-E) Aggravated Assault is punishable by a first degree felony if:

The offense is committed:

(A) by a public servant acting under color of the servant’s office or employment;

(B) against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant;

(C) in retaliation against or on account of the service of another as a witness, prospective witness, informant, or person who has reported the occurrence of a crime;

(D) against a person the actor knows is a process server while the person is performing a duty as a process server; or

(E) against a person the actor knows is a security officer while the officer is performing a duty as a security officer

^17. Texas Penal Code §22.02(c)^18. Texas Penal Code §22.02(d)^19. Texas Penal Code §22.02(b)(3)^20. See Chapter 42, Texas Code of Criminal Procedure, Art. 42A.054, Art. 42A.056, Art. 42A.102 .^21. Art. 42A.053(c), Texas Code of Criminal Procedure^22. Art. 42A.054(b), Texas Code of Criminal Procedure^23. Code of Criminal Procedure, Article 62.001