Failure to Stop or Report Aggravated Sexual Assault of Child: Texas Penal Code §38.17

The Texas Failure to Stop or Report Aggravated Sexual Assault of Child law makes it illegal to fail to assist a child or immediately report to law enforcement if you encountered a situation in which you “should know” that a child is, or is about to be, a victim of Aggravated Sexual Assault or Continuous Sexual Abuse of Young Child or Children.

For this law to apply, you must have personally observed the commission or attempted commission of either Aggravated Sexual Assault or Continuous Sexual Abuse of Young Child or Children.

In order to obtain a conviction for this offense, the state’s attorneys must also prove that you could have assisted the child or immediately reported the commission of the offense without placing yourself in danger of suffering serious bodily injury or death.

This law does not apply to people who have a heightened responsibility for the child (like a parent or guardian or teacher), as described below. People with those types of enhanced responsibilities are covered under the felony offense of Injury to a Child if they fail to report abuse.

The Texas legislature codified this criminal offense in Texas Penal Code Section 38.17. The legislature did not update this law in 2023. In fact, this law has not been amended since 2007.

The Penal Code codifies the Texas Failure to Stop or Report Aggravated Sexual Assault of Child law under Title 8 “Offenses Against Public Administration,” Chapter 38 “Obstructing Governmental Operation.” Learn more about the Texas offense of Failure to Stop or Report Aggravated Sexual Assault of Child below.

What is the current Texas law about Failure to Stop or Report Aggravated Sexual Assault of Child?

The current Texas law defines the offense of Failure to Stop or Report Aggravated Sexual Assault of Child in Penal Code Section §38.17 as follows:^[1]

(a) A person, other than a person who has a relationship with a child described by Section 22.04(b), commits an offense if:

(1) the actor observes the commission or attempted commission of an offense prohibited by Section 21.02 or 22.021(a)(2)(B) under circumstances in which a reasonable person would believe that an offense of a sexual or assaultive nature was being committed or was about to be committed against the child;

(2) the actor fails to assist the child or immediately report the commission of the offense to a peace officer or law enforcement agency; and

(3) the actor could assist the child or immediately report the commission of the offense without placing the actor in danger of suffering serious bodily injury or death.

Subsection (a) excludes the people who have a relationship with a child described by Section 22.04(b) of the Penal Code. That part of the Penal Code defines the offense of Injury to a Child, and subsection (b) of that statute describes people whose failure to act in defense of a child under certain circumstances is punishable as a felony.

Subsection (b)(1) of this Failure to Stop or Report Aggravated Sexual Assault of Child offense applies to people who have either seen the child abuse or seen “attempted” child abuse, which could theoretically cover almost any interaction between an older person and younger person. However, subsection (b)(1) limits your obligation to report such behavior to instances in which a “reasonable person would believe” the commission of those offense is occurring or might occur.

Who are the people who have an enhanced duty to report child abuse?

You have an enhanced duty to report child abuse if you’re described by Penal Code Section 22.04(b). Penal Code Section 22.04 defines the Injury to a Child statute., and subsection (b) says you have an enhanced duty to report if (1) you have a legal or statutory duty to act in defense of the child (like a teacher or other professional); or (2) you have assumed care, custody, or control of a child (this covers parents and guardians in addition to babysitters or anyone else who is taking care of the child).

How can I be charged with a Failure to Stop or Report Aggravated Sexual Assault of Child offense in Texas?

You can be charged with Failure to Stop or Report Aggravated Sexual Assault of Child in Texas if the state’s attorneys believe that each of the elements of 38.17(a) as described in the section above have been met.

You do not need to have any special relationship with a child. If you have a special relationship with a child, like being their caretaker or teacher, you are covered under a different law, Injury to a Child.

What is the statute of limitation for Failure to Stop or Report Aggravated Sexual Assault of Child in Texas?

As a misdemeanor, Failure to Stop or Report Aggravated Sexual Assault of Child charges have a two-year limitations period.^[2]

What is the penalty for a Texas Failure to Stop or Report Aggravated Sexual Assault of Child offense?

A conviction for Failure to Stop or Report Aggravated Sexual Assault of Child in Texas is punished as a Class A misdemeanor,^[3] with a maximum possible fine under Texas state law of up to $4,000 and jail time of up to one year. Learn about the differences between grades of felonies and misdemeanors here.

Can you get probation for Failure to Stop or Report Aggravated Sexual Assault of Child in Texas?

The Texas Code of Criminal Procedure allows both judges and juries to grant probation for Failure to Stop or Report Aggravated Sexual Assault of Child, and judges are also allowed to accept deferred adjudication plea deals.^[4]

Do I have to register as a sex offender in Texas if guilty of Failure to Stop or Report Aggravated Sexual Assault of Child?

The Failure to Stop or Report Aggravated Sexual Assault of Child offense does not appear on the list of offenses requiring registration under Chapter 62 of the Texas Code of Criminal Procedure.^[5]

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

The Penal Code classifies Failure to Stop or Report Aggravated Sexual Assault of Child as a Class A misdemeanor.

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

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Legal References:

^1. Texas Penal Code §38.17. This law is current as of the 88th Legislature Regular Session.^2. See Code of Criminal Procedure 12.02(a)^3. Texas Penal Code §38.17(b)

^4. See Chapter 42, Texas Code of Criminal Procedure, Art. 42A.054, Art. 42A.056, Art. 42A.102 .^5. Code of Criminal Procedure, Article 62.001