Aggravated Sexual Assault: Texas Penal Code §22.021

The Texas Aggravated Sexual Assault law requires the state’s lawyers to prove that you engaged in a Sexual Assault or statutory rape under one of several different aggravating circumstances.

The Penal Code defines the Aggravated Sexual Assault offense in its own statute, separately from both Aggravated Assault and Sexual Assault. However, it shares some elements of both the Aggravated Assault offense and the Sexual Assault offense.

Just as in the Sexual Assault crime in Texas, Aggravated Sexual Assault has two main categories. One cateogry deals with children and does not require the state to prove a lack of consent. The other category deals with adults and requires the state to prove a lack of consent. What “consent” means is not the dictionary definition of the word, however. Aggravated Sexual Assault of a Child includes the “statutory rape” of anyone under the age of 14 years old.

Aggravated Sexual Assault of an adult typically involves cases that result in serious bodily injury or the use of a weapon, but the statute contains a list of other aggravating factors as well.

The Texas legislature codified this criminal offense in Texas Penal Code Section 22.021. The law was not amended in 2023. However, the legislature most recently updated law by adding items to the list of aggravating factors in 2017

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

What is the current Texas law about 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 Underlying Sexual Assault Offense

Under subsection (a)(1) of this statute, the Aggravated Sexual Assault Texas Law requires a Sexual Assault (visit our Sexual Assault page to learn more about this offense), and under subsection (a)(2), at least one “aggravating” factor. And just as in the Sexual Assault law, the underlying Sexual Assault requires either a sexual act with a child or a non-consensual sexual act with an adult.^[2]

The Aggravating Factors

The aggravating factors listed in subsection (a)(2) 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] In order to prove this offense, the state must prove both the Sexual Assault and the existence of one of the aggravating factors. If the state cannot prove the existence of one of the aggravating circumstances, then the state may still obtain a conviction for Sexual Assault as a lesser included charge.

What changed in 2017

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 difference between Sexual Assault and Aggravated Sexual Assault?

Aggravated Sexual Assault requires the state to prove certain “aggravating” factors in addition to the underlying Sexual Assault. For example, Sexual Assault cases involving violent circumstances, including when a weapon was used in the commission of the offense, are categorized as Aggravated Sexual Assault. Unsurprisingly, Aggravated Sexual Assault carries a more substantial penalty than Sexual Assault. You can learn more about the base Sexual Assault offense here.

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.^[6] “Elderly individual” means a person 65 years of age or older.^[7] 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.”^[8] This current law applies for offenses alleged to have been committed after September 1, 2015^[9] – 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.^[10]

What is the law on consent in Texas?

The Aggravated Sexual Assault law describes “consent,” by cross-referencing the subsection of the Sexual Assault statute that lists scenarios that legally lack “consent.”^[11]

Can I get parole if I’m convicted?

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.^[12]

You are also 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 Code of Criminal Procedure Art. 12.42(c)(4).^[13]

Otherwise, you may be eligible for parole, but there are many exceptions.^[14]

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

Aggravated Sexual Assault of a Child has no limitations period under Texas law.^[15] For other Aggravated Sexual Assault charges, the limitations period tracks the same limitations period set by the legislature for Sexual Assault.^[16]

What is the penalty for a Texas Aggravated Sexual Assault offense?

Aggravated Sexual Assault is classified as a first degree felony in Texas.^[17] 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).^[18] You may also be facing a mandatory life without parole (LWOP) sentence if you have a prior conviction for a “sexually violent offense.”^[19]

Can you get probation for Aggravated Sexual Assault in Texas?

Aggravated Sexual Assault is a “3G” offense,^[20] 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.^[21] 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.^[22] 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.^[23]

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

Any Texas Aggravated Sexual Assault conviction or adjudication, including deferred adjudication, requires registration as a sex offender.^[24]

What level of crime is Aggravated Sexual Assault in Texas?

The Texas Penal Code classifies Aggravated Sexual Assault as a first degree felony with a mandatory minimum punishment of 25 years under some circumstances.

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

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Legal References:

^1. Texas Penal Code §22.021. This law is current as of the 88th Legislature Regular Session.^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(b)(1), cross-referencing Section 22.011(c)^7. 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.”^8. Texas Penal Code § 22.021(b)(3)^9. See H.B. 2589, 84th Legislature, Sections 2 & 3^10. H.B. 2589, 84th Legislature, Section 1^11. Texas Penal Code § 22.021(c)^12 Texas Government Code §508.145(a)^13. Texas Government Code §508.145(d)(3)^14. Texas Government Code §508.145(d)(1)&((2)^15. Code of Criminal Procedure 12.01(1)(B)^16. See Code of Criminal Procedure 12.03(d)^17. Texas Penal Code §22.021(e)^18. 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).

^19. Texas Penal Code §12.42(c)(4)^20. Art. 42A.054, Texas Code of Criminal Procedure^21. Art. 42A.056, Texas Code of Criminal Procedure^22. Art. 42A.102(b)(2), Texas Code of Criminal Procedure^23. Art. 42A.102(b)(3)(B), Texas Code of Criminal Procedure^24. Code of Criminal Procedure, Article 62.001(5)(A)