Texas Aggravated Sexual Assault is a crime that requires the state’s lawyers to prove that you engaged in a Sexual Assault or Statutory Rape in addition to one of several different aggravating circumstances. Aggravated Sexual Assault is described as a separate offense from both Aggravated Assault and Sexual Assault. However, it shares some elements of both the Aggravated Assault offense and the Sexual Assault offense.

Texas Aggravated Sexual Assault cases are frequently handled by special prosecutors within a district attorney’s office. You will likely be facing some of the very best prosecuting attorneys and investigators. That is not to say you cannot win, but the importance of building the very best defense that you are able to build, even if you are completely innocent (in fact, especially if you are completely innocent!) is, extremely important.

What is the current Texas law regarding Aggravated Sexual Assault?

The current Texas law defines the offense of Aggravated Sexual Assault in Penal Code Section §22.021 as follows:^[1]

(a) A person commits an offense:

(1) if the person:

(A) intentionally or knowingly:

(i) causes the penetration of the anus or sexual organ of another person by any means, without that person’s consent;

(ii) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person’s consent; or

(iii) causes the sexual organ of another person, without that person’s consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; or

(B) regardless of whether the person knows the age of the child at the time of the offense, intentionally or knowingly:

(i) causes the penetration of the anus or sexual organ of a child by any means;

(ii) causes the penetration of the mouth of a child by the sexual organ of the actor;

(iii) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;

(iv) causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor; or

(v) causes the mouth of a child to contact the anus or sexual organ of another person, including the actor; and

(2) if:

(A) the person:

(i) causes serious bodily injury or attempts to cause the death of the victim or another person in the course of the same criminal episode;

(ii) by acts or words places the victim in fear that any person will become the victim of an offense under Section 20A.02(a)(3), (4), (7), or (8) or that death, serious bodily injury, or kidnapping will be imminently inflicted on any person;

(iii) by acts or words occurring in the presence of the victim threatens to cause any person to become the victim of an offense under Section 20A.02(a)(3), (4), (7), or (8) or to cause the death, serious bodily injury, or kidnapping of any person;

(iv) uses or exhibits a deadly weapon in the course of the same criminal episode;

(v) acts in concert with another who engages in conduct described by Subdivision (1) directed toward the same victim and occurring during the course of the same criminal episode; or

(vi) with the intent of facilitating the commission of the offense, administers or provides to the victim of the offense any substance capable of impairing the victim’s ability to appraise the nature of the act or to resist the act;

(B) the victim is younger than 14 years of age, regardless of whether the person knows the age of the victim at the time of the offense; or

(C) the victim is an elderly individual or a disabled individual.

The Aggravated Sexual Assault Texas Law essentially requires a Sexual Assault (visit our Sexual Assault page to learn more about this offense) and at least one “aggravating” factor.

The Sexual Assault law requires either a sexual act with a child or a non-consensual sexual act with an adult.^[2]

The aggravating factors include the use of a weapon, violence or serious threat, the use of a date rape drug, a victim under 14 years old and an elderly or disabled individual.^[3]

The law was updated in 2017 – the legislature specified that you don’t have to know the age of the accuser and expanded the list of “date rape”-type drugs to “any substance capable of impairing the victim’s ability to appraise the nature of the act or to resist the act” that could be used as an aggravating factor^[4] These changes took effect in 2017 and apply to any offense committed on or after September 1, 2017.^[5]

What is the penalty for an Aggravated Sexual Assault conviction?

Aggravated Sexual Assault is a first degree felony in Texas.^[6] There is also an enhancement that applies, raising the minimum prison term to 25 years if (i) the victim is younger than 6 or (ii) if the victim is between 6 and 13 years old, the assault also involved a subsection (a)(2)(A) circumstance (where a deadly weapon was used, serious bodily injury occurred, human trafficking was threatened and other similar conduct).^[7] You may also be facing a mandatory life without parole (LWOP) sentence if you have a prior conviction for a “sexually violent offense.”^[8]

What is the best defense to an Aggravated Sexual Assault charge?

If you have been accused of Aggravated Sexual Assault, you are facing a life sentence in prison. Both your freedom and your reputation is on the line. Do not think you will be safe from arrest, prosecution and conviction just because you are innocent. It can happen to anyone. Unfortunately, since even an arrest for Aggravated Sexual Assault can have a huge negative impact on your life, even if you are never convicted. So if you have not yet been arrested, it is crucial to hire a criminal defense lawyer immediately to try to avoid an arrest if possible.

If you have already been arrested, then you need to make sure that you hire a criminal defense attorney who will conduct a thorough investigation, not be afraid to challenge the government and also have the capabilities and resources to examine and confront any forensic evidence.

Whether you have been arrested for or currently just stand accused of Aggravated Sexual Assault, your best course of action is to hire an attorney and take immediate action to aggressively defend yourself. This is not the type of case that anyone will take lightly, and neither should your criminal defense attorney. As part of our Sex Assault Defense, we will need to conduct our own thorough and independent investigation. We do not consider it enough to rely on the facts as the police report them. We collect evidence from such sources as witnesses, laboratories, social media and other electronic sources. No stone should be left unturned.

Can I get probation for Aggravated Sexual Assault?

Aggravated Sexual Assault is a “3G” offense,^[9] meaning that a judge cannot give probation after a conviction. However, a jury may recommend probation if the victim was at least 14 years old.^[10] Learn more about 3G offenses

If you’re charged with Aggravated Sexual Assault, you may also be eligible for deferred adjudication under certain circumstances. To be eligible for deferred, you can’t have ever been previously placed on community supervision for Sexual Assault, Aggravated Sexual Assault, Indecency with a Child or a Child Safety Zone violation.^[11] You also can’t be charged with a violation (1) involving a child under 6 years old or (2) involving a child under 14 and (i) any additional aggravating factor described by the statute (in (a)(2)(A)) or (3) it’s a habitual offender offense under Section 12.42(c)(3) or (4), Penal Code.^[12]

What are the definitions of a “child,” “disabled individual,” and “elderly individual” under the law?

For the purposes of the Aggravated Sexual Assault law, “child” means a person under 17 years old.^[13] “Elderly individual” means a person 65 years of age or older.^[14] The definition of a disabled individual was updated by the Texas legislature in 2015. The current law is that “disabled individual” means “a person older than 13 years of age who by reason of age or physical or mental disease, defect, or injury is substantially unable to protect the person’s self from harm or to provide food, shelter, or medical care for the person’s self.”^[15] This current law applies for offenses alleged to have been committed after September 1, 2015^[16] – for offenses alleged to have been committed prior to September 1, 2015, the old law applies, and the statute included a requirement that a person be older than 14 years old to be considered a disabled individual.^[17]

What is the law on consent in Texas?

Describing “consent,” the Aggravated Sexual Assault law includes a subsection that cross-references the definitions of “without consent” from the Texas offense of Sexual Assault.^[18]

What is the statute of limitations for Aggravated Sexual Assault in Texas?

There is no limitations period for Aggravated Sexual Assault charged under Section 22.021(a)(1)(B).^[19] There is no limitations period specified for other Aggravated Sexual Assault charges, but a court will most likely follow the same limitations period set by the legislature for Sexual Assault.

Can I get parole for an Aggravated Sexual Assault conviction?

Under Texas Government Code §508.145(a), you are not eligible for parole if you are serving the “mandatory minimum” sentence of 25 years or more, as described in Texas Penal Code Section 22.021(f), on an Aggravated Sexual Assault conviction.

Under Texas Government Code §508.145(d)(3), you are not eligible for parole if you were sentenced to life without parole (LWOP) for Aggravated Sexual Assault pursuant to the repeat offender mandatory minimum in Section 12.42(c)(4).

You may be eligible for parole under Texas Government Code §508.145(d)(1)&((2), but there are many exceptions, so you should definitely consult an attorney for applicability specific to your case.

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Legal References:

^1. Texas Penal Code §22.021^2. Texas Penal Code §22.021(a)(1)^3. Texas Penal Code §22.021(a)(2)^4. H.B. 1808, 85th Legislature, Section 7^5. H.B. 1808, 85th Legislature, Sections 14 & 15^6. Texas Penal Code §22.021(e)^7. Texas Penal Code §22.021(f) –

(f) The minimum term of imprisonment for an offense under this section is increased to 25 years if:

(1) the victim of the offense is younger than six years of age at the time the offense is committed; or

(2) the victim of the offense is younger than 14 years of age at the time the offense is committed and the actor commits the offense in a manner described by Subsection (a)(2)(A).

^8. Texas Penal Code §12.42(c)(4)^9. Art. 42A.054, Texas Code of Criminal Procedure^10. Art. 42A.056, Texas Code of Criminal Procedure^11. Art. 42A.102(b)(2), Texas Code of Criminal Procedure^12 Art. 42A.102(b)(3)(B), Texas Code of Criminal Procedure^13. Texas Penal Code §22.021(b)(1), cross-referencing Section 22.011(c)^14. Texas Penal Code § 22.021(b)(2). This subsection states that “‘Elderly individual’ has the meaning assigned by Section 22.04(c).” Section 22.04(c) defines “elderly individual” in subsection (c)(2) as “a person 65 years of age or older.”^15. Texas Penal Code § 22.021(b)(3)^16. See H.B. 2589, 84th Legislature, Sections 2 & 3^17. H.B. 2589, 84th Legislature, Section 1^18. Texas Penal Code § 22.021(c)^19. Texas Code of Criminal Procedure Art. 12.01(1)(B)