Violations of the Civil Rights of Person in Custody; Improper Sexual Activity with Person in Custody: Texas Penal Code §39.04

The Texas Violations of the Civil Rights of Person in Custody; Improper Sexual Activity with Person in Custody law makes it illegal for peace officers and correctional officers and other staff (paid and unpaid) to unlawfully deprive someone in custody of their rights or to engage in sexual activity with prisoners.

The Texas legislature codified this criminal offense in Texas Penal Code Section 39.04. The legislature did not update this law in 2023 but did amend the law in 2021 by increasing the penalty classification levels for this offense.

The Penal Code classifies the Texas Violations of the Civil Rights of Person in Custody; Improper Sexual Activity with Person in Custody law under Title 8 “Offenses Against Public Administration,” Chapter 39 “Abuse Of Office.” Learn more about the Texas offense of Violations of the Civil Rights of Person in Custody; Improper Sexual Activity with Person in Custody below.

What is the current Texas law about Violations of the Civil Rights of Person in Custody; Improper Sexual Activity with Person in Custody?

The current Texas law defines the offense of Violations of the Civil Rights of Person in Custody; Improper Sexual Activity with Person in Custody in Penal Code Section §39.04 as follows:^[1]

(a) An official of a correctional facility or juvenile facility, an employee of a correctional facility or juvenile facility, a person other than an employee who works for compensation at a correctional facility or juvenile facility, a volunteer at a correctional facility or juvenile facility, or a peace officer commits an offense if the person intentionally:

(1) denies or impedes a person in custody in the exercise or enjoyment of any right, privilege, or immunity knowing his conduct is unlawful; or

(2) engages in sexual contact, sexual intercourse, or deviate sexual intercourse with an individual in custody or, in the case of an individual in the custody of the Texas Juvenile Justice Department or placed in a juvenile facility, employs, authorizes, or induces the individual to engage in sexual conduct or a sexual performance.

There is a second category of this offense found in subsection (f):

(f) An employee of the Texas Department of Criminal Justice, the Texas Juvenile Justice Department, a juvenile facility, a local juvenile probation department, or a community supervision and corrections department established under Chapter 76, Government Code, a person other than an employee who works for compensation at a juvenile facility or local juvenile probation department, or a volunteer at a juvenile facility or local juvenile probation department commits an offense if the actor engages in sexual contact, sexual intercourse, or deviate sexual intercourse with an individual who the actor knows is under the supervision of the Texas Department of Criminal Justice, Texas Juvenile Justice Department, probation department, or community supervision and corrections department but not in the custody of the Texas Department of Criminal Justice, Texas Juvenile Justice Department, probation department, or community supervision and corrections department.

How can I be charged with a Violations of the Civil Rights of Person in Custody; Improper Sexual Activity with Person in Custody offense in Texas?

You can be charged with Violations of the Civil Rights of Person in Custody; Improper Sexual Activity with Person in Custody in Texas if the state’s attorneys believe that each of the elements of either 39.04(a) or 39.04(f) as described in the section above have been met.

What is the statute of limitation for Violations of the Civil Rights of Person in Custody; Improper Sexual Activity with Person in Custody in Texas?

Violations of the Civil Rights of Person in Custody; Improper Sexual Activity with Person in Custody offenses have a three-year limitations period.^[2]

What is the penalty for a Texas Violations of the Civil Rights of Person in Custody; Improper Sexual Activity with Person in Custody offense?

The punishment scheme for this offense changed in the 87th Texas Legislature in 2021.

For offenses falling under subsection (a)(1), the law is somewhat ambiguous regarding punishment. For offenses occuring prior to September 1, 2021, convictions for subsection (a)(1) of the Violations of the Civil Rights of Person in Custody; Improper Sexual Activity with Person in Custody offense were punished as Class A misdemeanors.^[3]. But the Texas legislature passed two laws in 2021 that conflict with each other regarding punishment ifor those offenses that occur after September 1, 2021. Senate Bill 312 left those offenses classified as Class A misdemeanors, but House Bill 3157 amended the law to classify (a)(1) offenses as third degree felonies.^[4]

If the offenses falls under subsection (a)(2) and occurred after September 1, 2021, then a conviction for Violations of the Civil Rights of Person in Custody; Improper Sexual Activity with Person in Custody in Texas is punished as a second degree felony,^[5] with a maximum possible fine under Texas state law of up to $10,000 and jail time of up to 2 years.

If the offense falls under subsection (a)(2) and the offense was committed against a juvenile, then a conviction for Violations of the Civil Rights of Person in Custody; Improper Sexual Activity with Person in Custody could be punished as a second degree felony for offenses that occurred before September 1, 2021, and for offenses that occurred after September 1, 2021, as a first degree felony,^[6] with a maximum possible fine under Texas state law of up to $10,000 and prison time of up to 20 years, under the version of the law passed in H.B. 3157, 87th Legislature. But again there is a conflict in the law, as Senate Bill 312 got rid of that enhancement entirely. Learn about the differences between grades of felonies and misdemeanors here.

If the offense falls under subsection (f) then a conviction for Violations of the Civil Rights of Person in Custody; Improper Sexual Activity with Person in Custody in Texas is punished as a state jail felony^[7] with a maximum possible fine under Texas state law of up to $4,000 and jail time of up to one year.

Can you get probation for Violations of the Civil Rights of Person in Custody; Improper Sexual Activity with Person in Custody in Texas?

The Texas Code of Criminal Procedure allows both judges and juries to grant probation for Violations of the Civil Rights of Person in Custody; Improper Sexual Activity with Person in Custody, and judges are also allowed to accept deferred adjudication plea deals.^[8]

Note, however, that no matter the offense, neither judges nor juries may recommend community supervision for any suspended sentence of over 10 years.^[9] 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.^[10]

Do I have to register as a sex offender in Texas if guilty of Violations of the Civil Rights of Person in Custody; Improper Sexual Activity with Person in Custody?

The Violations of the Civil Rights of Person in Custody; Improper Sexual Activity with Person in Custody offense does not appear on the list of offenses requiring registration under Chapter 62 of the Texas Code of Criminal Procedure.^[11]

However, the legislature can add this offense to the list at any time. If that happens, people convicted of Violations of the Civil Rights of Person in Custody; Improper Sexual Activity with Person in Custody 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 Violations of the Civil Rights of Person in Custody; Improper Sexual Activity with Person in Custody in Texas?

The Penal Code classifies Violations of the Civil Rights of Person in Custody; Improper Sexual Activity with Person in Custody as a first, 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 §39.04. This law is current as of the 88th Legislature Regular Session.^2. See Code of Criminal Procedure 12.01(9)^3. See S.B. 312, 87th Texas Legislature, Section 1, and H.B. 3157, 87th Texas Legislature, Section 1^4. Texas Penal Code §39.04(b) as amended by S.B. 312, 87th Texas Legislature, Sections 1-3, and H.B. 3157, 87th Texas Legislature, Sections 1-3^5. Texas Penal Code §39.04(b), as amended by S.B. 312, 87th Texas Legislature, Section 1, and H.B. 3157, 87th Texas Legislature, Section 1^6. Texas Penal Code §39.04(b)(1),(2), as amended by S.B. 312, 87th Texas Legislature, Section 1^7. Texas Penal Code §39.04(b)^8. See Chapter 42, Texas Code of Criminal Procedure, Art. 42A.054, Art. 42A.056, Art. 42A.102 .^9. Art. 42A.053(c), Texas Code of Criminal Procedure^10. Art. 42A.054(b), Texas Code of Criminal Procedure^11. Code of Criminal Procedure, Article 62.001