The Texas crime of Assault covers everything from bar fights to inappropriate touching. “Simple” Assault is the fundamental Assault offense, but depending on the actors, victims, the type of force and the amount of damage, a “simple” assault offense can be enhanced by state attorneys to a much more serious criminal charge.

UPDATE: An enhancement for assault against pregnant women was added in the 86th Texas Legislative Session. Learn more below.

An Assault charge requires some form of intention, knowledge or recklessness. Any kind of bodily injury endured by a victim may meet the injury requirement, whether it was caused knowingly or recklessly. Mere threats or offensive contact only constitute a criminal Assault offense under Texas law when someone acted either intentionally or with knowledge of the act. In Texas, Assault does not require the contact to leave a mark.

Other serious charges in Texas related to Assault include Sexual Assault, Intoxication Assault, Aggravated Assault, Aggravated Sexual Assault and Injury to a Child.

What is the current Texas law about Assault?

The current Texas law defines the offense of Assault in Penal Code Section §22.01 as follows:^[1]

(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.

How much jail time can I get for Assault?

The amount of jail time you can get for Assault depends on the offense level for the specific type of Assault offense and whether any enhancements apply. Assault by Threat and Assault by Offensive Contact start at the Class C Misdemeanor level, but each can be enhanced to a Class B Misdemeanor for Sports-Participant Assault or to a Class A Misdemeanor for Assault on an Elderly person and, as of 2017, for Assault “committed against a pregnant individual to force the individual to have an abortion.”^[2] Learn more about Class C Assault

Assault Bodily Injury starts as a Class A Misdemeanor but can be enhanced to a third degree felony for repeat or serious family violence or Assault on a Peace Officer, government contractor, security officer or other emergency personnel. Assault Bodily Injury can also be a second degree felony for repeat serious Family Violence.

Learn more about the enhancements that may apply to Assault charges

How can an Assault charge be enhanced?

A simple Assault charge in Texas can be punished as a Class C Misdemeanor, Class B Misdemeanor, Class A Misdemeanor, third degree felony or second degree felony. The Assault in PC 22.01(a)(1) (“intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse” – known as “Bodily Injury Assault“) starts at the Class A Misdemeanor level, but the punishment can be enhanced to a higher punishment class under certain circumstances.

The Peace Officer Enhancement

Bodily Injury Assault can be punished as a third degree felony if the assault was committed against a peace officer.^[3] However, the assault against a police (or peace) officer enhancement requires that the assault have a connection with the officer’s official duty (see footnote 2).

The Family Violence Enhancement

Bodily Injury Assault can be punished as a third degree felony if the assault was committed against a person with whom you have a dating or familial type relationship.^[4] However, the family violence felony enhancement requires either a prior history or an allegation that the assault involved contact with the throat, neck or mouth.^[5] This is known as the “Assault Family Violence” charge. If the charge is Assault Family Violence, and the person is found to have prior Assault Family Violence convictions and the person is also found to have restricted breathing in the instant offense, then the Family Violence Assault charge can be enhanced to a second degree felony.^[6]

Enhancements for Certain Victims

The Bodily Injury Assault charge can also be enhanced to a third degree felony if the assault is proven to be committed against a government contractor, security officer or emergency responder.^[7]

The Abortion by Force Enhancement

The 85th Texas Legislature created a new bodily injury assault enhancement, efective as of September 2017: if the state’s lawyers convince a jury beyond a reasonable doubt that you assaulted a pregnant individual “to force the individual to have an abortion,” then the offense is punished as a third degree felony.^[8]

The Retaliation Enhancement

Another new enhancement was created in the 85th Texas Legislature through the passage of H.B. 2908, effective September 1, 2017.^[9] This enhancement makes an Assault Bodily Injury conviction a second degree felony “if the offense is committed against a person the actor knows is a peace officer or judge while the officer or judge 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 peace officer or judge.”^[10]

The Pregnant Victim Enhancement

H.B. 902, passed in 2019 in the 86th Texas Legislature, created a new bodily injury assault enhancement for assaults against people you know to be pregnant at the time of the offense.

Class C Enhancements

Assault by Threat and Assault by Offensive Contact can be enhanced if the defendant is found to have committed the assault against (1) an elderly person (making it a Class A Misdemeanor), or (2) a sports participant if the assailant is not also a sports participant (making it a Class B Misdemeanor).^[11] The 85th Texas Legislature also created an enhancement for Assault by Threat and Assault by Offensive Contact identical to the enhancement for Assault Bodily Injury: if the state’s lawyers prove to a jury that the Threat Assault or Offensive Contact was against a pregnant individual “to force the individual to have an abortion,” then the offense is punished as a Class A misdemeanor.^[12]

What does reckless mean according to the Texas Penal Code?

The word “reckless” is defined in Section 6.03 of the Texas Penal Code as “disregarding a substantial and unjustifiable risk that the result will occur.”^[13] The state’s attorney has to prove recklessness to a jury. The attorney will usually ask the jury to use its “common sense” in determining whether a particular behavior was reckless. A defense attorney can challenge the state attorney’s assertion that an action was reckless.

What is my best defense to an Assault charge?

There are many ways to defend people accused of assault charges, and you should consider all of them with your criminal defense attorney. In addition to the possibility that you just didn’t commit the assault, you may be eligible for an affirmative defense like self-defense or mutual consent.

There are several ways your criminal responsibility is generally limited under Texas law. The defenses listed in Chapter 8 of the Texas Penal Code apply to all forms of criminal responsibility–not just assault. Those listed are Insanity, Mistake of Fact, Mistake of Law, Intoxication, Duress, Entrapment, Age, and Child with Mental Illness (disability or lack of capacity). Chapter 9 of the Texas Penal Code lists certain justifications that apply more specifically to assault, although they also apply to any criminal offense involving the use of force.

Self Defense

Many of our clients were arrested and charged with assault when they were only trying to defend themselves. In those cases, the legal justification of self-defense would apply to an assault charge in the state of Texas. This defense needs to be specifically asserted, however, and the best defense will include investigation into the circumstances, the background of the alleged victim, surveillance footage, witness interviews and more investigative fact-collection.

The statute describing self-defense in Texas is Section 9.31 of the Texas Penal Code. You’re justified in committing what would be considered Assault if the “force” (meaning physical force or assault) is used “when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force.”^[14] Self-defense is in Section 9 of the Texas Penal code because it is considered a “Justification” as opposed to a “defense” under the penal code. However, there are a number of limitations that apply to the self-defense justification.^[15] Texas law explicitly states that a person is not required to retreat before using force in self-defense, so long as the person had a right to be present at the location where the force is used, had not provoked the person against whom the force is used, and was not engaged in criminal activity at the time the force is used.^[16] Specific rules apply to the use of deadly force in self-defense^[17] and the use of force to resist an arrest or search.^[18]

Defending Other People: “Defense of Third Persons”

Texas law also provides a defense to prosecution that the conduct is justified under the “Defense of Third Persons” situation. Section 9.33 of the Texas Penal Code provides that you (here, the “actor”) are justified in using force or deadly force against another to protect a third person if:

(1) under the circumstances as the actor reasonably believes them to be, the actor would be justified under Section 9.31 [the non-deadly force self-defense rules] or 9.32 [the deadly force self-defense rules] in using force or deadly force to protect himself against the unlawful force or unlawful deadly force he reasonably believes to be threatening the third person he seeks to protect; and

(2) the actor reasonably believes that his intervention is immediately necessary to protect the third person.

Protection of Life or Health

Section 9.34 of the Texas Penal Code provides a defense for situations in which you are preventing the person from harming themselves:

(a) A person is justified in using force, but not deadly force, against another when and to the degree he reasonably believes the force is immediately necessary to prevent the other from committing suicide or inflicting serious bodily injury to himself.

(b) A person is justified in using both force and deadly force against another when and to the degree he reasonably believes the force or deadly force is immediately necessary to preserve the other’s life in an emergency.

Protection of Property

Perhaps the most controversial defense is the use of force to protect your property or someone else’s property. In Texas you can use force to protect your property or someone else’s property – even deadly force. Section 9.41 addresses the use of non-deadly force used to protect your own property. Section 9.42 addresses the use of deadly force used to protect your own property. Section 9.43 addresses the use of deadly and non-deadly force used to protect others’ property. The Fifth District Court of Appeals in Dallas, Texas, recently handed down law regarding the procedural requirements for using the defense of property justification. In Newman v. Texas, the Fifth District Court of Appeals heard an appeal from Michael Dewayne Newman based on the fact that the trial court refused to instruct the jury on the justification of “defense of property.”The appellant thought that someone was attempting to burglarize his apartment. He confronted the individual, and during the confrontation, the appellant saw another person on the balcony of his apartment. Apparently the appellant recognized this person on the balcony as a friend of the neighbor that he was already engaging with. The appellant thought that they might be working together to steal from him, so he reacting by shooting a gun in the direction of the person on the balcony. However, during trial, the appellant denied all of these facts.The Fifth District Court examined the case to determine whether the justification defense should have been available to the appellant under those circumstances. The court of appeals wrote that a justification defense “does not negate any element of the offense, including the culpable intent; it only excuses what would otherwise constitute criminal conduct.”This has the effect of placing a defendant who feels he or she was justified in using force in the unfortunate situation of having to admit to the underlying criminal act. This is a tricky defense strategy, and if you are facing such a situation, you should be careful in attempting it. Please speak directly with your criminal defense attorney about this.Unfortunately for the appellant, Newman, the court of appeals ruled that his conduct could not be excused through the use of a justification defense and at the same time claim that he did not commit the crime.

Other Types of Defenses

Sometimes assault charges can arise in cases of mistaken identity. A common scenario that we see here would be a bar fight in which a victim is injured, and the victim knows they were assaulted, but they identify the wrong person. In defending our clients against assault charges, we conduct a thorough and independent investigation into the facts of the case and regularly subpoena records and interview witnesses.

If you are accused of assault, you will inevitably have to face both the complaining witness and the police officers who investigate the case. We will prepare a thorough and aggressive defense that takes into account all of the facts and circumstances, and we can use all of the resources that are available to the state–and even resources that the state never thought to use.

There are also certain specific defenses under state law, including Consent and Inapplicability to Certain Conduct

What is the difference between Simple Assault, Aggravated Assault and Assault with a Deadly Weapon?

Simple Assault is defined in Section 22.01(a)(1) of the Texas Penal Code and requires either bodily injury, offensive contact or a threat of imminent harm. The punishment level of a Simple Assault charge varies from a Class C Misdemeanor to a Second Degree Felony.

Aggravated Assault, under Texas law, requires serious bodily injury or the use of a deadly weapon. The punishment level for Aggravated Assault is a felony of the second degree by default, but it can be enhanced to a felony of the first degree if the Aggravated Assault (1) is a Family Violence Aggravated Assault (2) involves a peace officer or security officer or witness in one of various ways or (3) involves a motor vehicle in various ways. Learn more about the Aggravated Assault offense in Texas

Assault with a Deadly Weapon is a type of Aggravated Assault that is defined in Penal Code 22.02(a)(2) as a simple assault (as defined in 22.01) but where the assailant also “exhibits a deadly weapon during the commission of the assault.”

What is “Assault by Threat“?

The Assault described in Texas Penal Code Section 22.01(a)(2) (“intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse” – “Assault by Threat“) and the Assault offense described in PC 22.01(a)(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” – “Assault by Offensive Contact“) are punished less severely than Assault causing Bodily Injury (assuming no enhancements apply). Both Assault by Threat and Assault by Offensive Contact start at the Class C Misdemeanor level.^[19]

Assault by Threat is the type of assault described in subsection (a)(2) of the definition of the assault law described above. This offense is closely related to the offense of Terroristic Threat, but there are many more reasons you can be charged with Terroristic Threat than what would apply to Assault by Threat. Also, Assault by Threat requires a specific intent to harm, and the harm must be imminent – those requirements do not apply to the offense of Terroristic Threat.

What is “ASSAULT CAUSES BODILY INJ“? What is “ASSAULT CAUSES BODILY INJURY FAMILY VIOLENCE“? What is “ASSAULT CAUSES BODILY INJ DATE/FAMILY/HOUSE“? What is “ASSAULT CAUSES BODILY INJURY“?

Assault offenses appear on the court docket as:

ASSAULT CAUSES BODILY INJ
ASSAULT CAUSES BODILY INJURY
ASSAULT CAUSES BODILY INJURY FAMILY VIOLENCE
ASSAULT CAUSES BODILY INJ DATE/FAMILY/HOUSE

Simple Assault is marked on the court docket as “ASSAULT CAUSES BODILY INJURY” or “ASSAULT CAUSES BODILY INJ” when the simple assault is alleged to have resulted in some kind of bodily injury to the victim. “ASSAULT CAUSES BODILY INJURY FAMILY VIOLENCE” is a Family Violence (aka domestic violence) case. See the FAQ above to learn more about the different kinds of Assault Charges / Enhancements

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Legal References:

^1. Texas Penal Code §22.01^2. Penal Code Section 22.01(c)(3), created by H.B. 2552, Section 18, effective September 1, 2017^3. Texas Penal Code §22.01(b) – “An offense under Subsection (a)(1) is a Class A misdemeanor, except that the offense is a felony of the third degree if the offense is committed against: (1) 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”^4. The relationship must be as described in Texas Penal Code §22.01(b)(2) – “a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code.”^5. Texas Penal Code §22.01(b)(2)(A) – “it is shown on the trial of the offense that the defendant has been previously convicted of an offense under this chapter, Chapter 19, or Section 20.03, 20.04, 21.11, or 25.11 against a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code; or (B) the offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth.”^6. Texas Penal Code Section 22.01(b-1) –

Notwithstanding Subsection (b)(2), an offense under Subsection (a)(1) is a felony of the second degree if:

(1) the offense is committed against a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code;

(2) it is shown on the trial of the offense that the defendant has been previously convicted of an offense under this chapter, Chapter 19, or Section 20.03, 20.04, or 21.11 against a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code; and

(3) the offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth.

^7. Texas Penal Code §22.01(b)(3)-(5) –

(3) a person who contracts with government to perform a service in a facility as defined by Section 1.07(a)(14), Penal Code, or Section 51.02(13) or (14), Family Code, or an employee of that person:

(A) while the person or employee is engaged in performing a service within the scope of the contract, if the actor knows the person or employee is authorized by government to provide the service; or

(B) in retaliation for or on account of the person’s or employee’s performance of a service within the scope of the contract;

(4) a person the actor knows is a security officer while the officer is performing a duty as a security officer; or

(5) a person the actor knows is emergency services personnel while the person is providing emergency services.

^8. Penal Code §22.01(b), as amended by H.B. 2552, Section 18, effective September 1, 2017^9. House Bill 2908, Sections 6-7^10. Texas Penal Code §22.01(b-1), as created by H.B. 2908, Section 3, effective September 1, 2017^11. Penal Code Section 22.01(c)(2)^12 Penal Code Section 22.01(c)(3), created by H.B. 2552, Section 18, effective September 1, 2017^13. Texas Penal Code §6.03(c) – “A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.”^14. Texas Penal Code Section 9.31(a)^15. Texas Penal Code Section 9.31(b) and (d)^16. Texas Penal Code Section 9.31(e)^17. Texas Penal Code Section 9.32^18. Texas Penal Code Section 9.31(c)^19. Texas Penal Code §22.01(c)