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Injury to a Child Archives | Howard Lotspeich Alexander & Williams, PLLC

Reasonable Parental Discipline Texas Spanking Illegal

Spare the Rod or Spoil the Child: Is Spanking a Crime in Texas?

By | Assault

Can a Parent Spank a Child in Texas? Corporal Punishment and The Reasonable Discipline Defense

Parents Spanking in TexasIs Spanking illegal in Texas? No, spanking is not illegal in Texas under most circumstances. The Texas Penal Code provides a defense for parents charged with Injury to a Child under Section 22.04 when the force was used to “reasonably discipline the child.”

Specifically, Section 9.61 provides that a parent’s use of force, but not deadly force, against a child will be justified if the parent “reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare.” A reasonable belief is what an ordinary and prudent man would believe in the same or similar circumstances as the actor. It is not based on the particular belief of that parent. This is important to understand, because a parent could use force that they feel is the appropriate discipline for their child in that situation, when in fact that force could easily be an act of abuse that results in facing charges of a third degree felony.

When Does Spanking and Corporal Punishment Cross the Line and Become a Criminal Offense? When is Spanking Illegal in Texas?

In Texas, it is a known practice for parents to spank their children and it is perfectly legal to do so, but the main question is when does spanking or other corporal punishment cross the line to child abuse. When is spanking illegal in Texas? The Texas Penal Code states that child abuse occurs when the force results in bodily injury. Bodily injury means “physical pain, illness, or any impairment of physical condition.” Tex. Penal Code §1.07(8). Often, this is when use of force leaves some sort of mark, like a bruise or a cut. However, this determination will be decided on a case-by-case basis. After all, kids bruise easily and often engage in self-destructive behavior while they are being spanked (I know I did when I was a kid).

As a parent that chooses to use corporal punishment, it is to your benefit to understand that, while you have every right to do so in Texas, there are limits.  The Texas Attorney General website lays out some situations where discipline will likely be considered “abusive:”

  • When striking a child above their waist
  • When using ropes, wires, shoes, sticks, yardsticks, phone cords, and boards during corporal punishment
  • When force causes a “bruise, welt, swelling, or requires medication” it is likely to be deemed abusive

Additionally, the AG describes that the least likely abusive force is spanking with just an open hand (even though most parents that use corporal punishment are taught not to do that as a matter of principle).

If You Choose to Use Spanking or Corporal Punishment to Discipline Your Children, Be Careful.

Bottom line: Yes, parents may spank their kids in Texas. It is legal to use corporal punishment in Texas, but proceed at your own risk of crossing the line to abuse if you leave any type of mark. This rule of thumb will likely allow you to avoid situations like that of Adrian Peterson, a Vikings football player that was indicted in 2014 for injury to a child in Texas for using a branch from a tree to discipline his young son. This is a perfect example to show that while this was a perfectly accepted form of discipline in Texas at one time, it is now unacceptable.

As a parent in Texas this gives you a lot to think about and consider when deciding how to practice your right of discipline. This is just a rough overview of the bounds of reasonable discipline and should you have any questions contact our office. Additionally, if you are a parent and happen to find yourself in a situation where you are being investigated or facing charges for injury to a child, contact our criminal defense team to discuss whether the defense of reasonable discipline fits in your case.

NOTE: The “reasonable discipline” justification also applies to grandparents, guardians, someone working under the court, and someone whom has consent from the parent.

Injury to a Child Defense Attorneys – Fort Worth, Texas

If you are under investigation or have been charged with Injury to a Child for an incident related to the reasonable discipline of your child, contact our attorneys immediately. We will aggressively defend your parental rights in court, in front of a grand jury, or against police investigation. Our firm offers free consultations for all criminal cases. Contact us today at (817) 993-9249.

False Report Child Abuse Texas

Penalties for Falsely Reporting Child Abuse or Neglect in Texas

By | Child Abuse

False Report Child Abuse TexasUnder Section 261.101 of the Texas Family Code, persons are required to report if they have cause to believe that a child’s physical or mental health or welfare is being or has been adversely affected by abuse or neglect. The report is to happen immediately (or within 48 hours if the reporting person is a professional). The law further grants “immunity” to the person who reports or assists in the investigation if that person had “good faith” when they made the report.

What is a “Good Faith” Report of Child Abuse or Neglect?

Put simply, a “good faith” report is an honest and sincere report. The law wants to encourage folks to report so that the State can investigate and ensure that children are not being abused or neglected. However, falsely (or without good faith) reporting child abuse to CPS or other agencies is not to be used as an act of retaliation or aggression toward others. A false report damages the child’s welfare in itself because the child will be subjected to an investigation where none should have been pursued. Unfortunately, we have seen this occur in the context of highly contested family law cases and in some criminal cases as well. More recently, there were allegations of a false report made to smear a political opponent.

What are the Legal Penalties for Falsely Reporting Child Abuse or Neglect in Texas?

Section 261.107 provides the civil and criminal penalties associated with falsely reporting child abuse in Texas. This section provides that “a person commits an offense if, with the intent to deceive, the person knowingly makes a report…that is false.”

Criminal Penalty for False Report

Knowingly making a false report of child abuse or neglect in Texas is a State Jail Felony offense. The punishment range for this offense is 180 days to 2 years in a State Jail Facility and a fine up to $10,000. Further, if a person has been previously convicted of this same offense, a second offense is a Third Degree Felony which subjects the person to a prison term of 2 years up to 10 years.

Attorney’s Fees Reimbursement for the False Report

As a monetary penalty in connection with the criminal case, the court shall order any person that is convicted of making a false report to pay the reasonable attorney’s fees incurred by the person against whom the report was originally made.

Civil Penalty for False Report

The Family Code further provides that any person who engages in false reporting is liable to the State of Texas to pay a civil penalty of $1,000. The Texas Attorney General is responsible for bringing the action to recover the civil penalty.

What Do I Do if Someone Has Made a False Report to CPS About Me?

First of all, contact an attorney. Depending on the posture of the investigation, you may need representation and advice to help get through the allegations, even if they are false. If, however, CPS has already ruled out the allegations and no criminal action has been pursue, you should first gather your evidence. We have been with people at the police station when they made reports that they had been targeted by false CPS allegations. It is our experience that the police agency will want you to bring proof that the report was false or made in bad faith. Simply because CPS closed out the investigation and determined that there was “No Reason to Believe” that the allegations were true does not necessarily mean that the reporting individual acted in bad faith. Collect your text messages, social media messages, witness statements, and other evidence before you go to the police station to claim that you were the victim of a knowing false report. Because the State wishes to encourage reporting, it is reluctant to punish a person who reports unless there is clear cut evidence that the report was made in bad faith.  Again, it is best to contact an attorney to help you through this.

Failure to Protect Injury to a Child

“Failure to Protect” and the Affirmative Defense for Domestic Violence Victims

By | Defenses, Domestic Violence

Failure to Protect Injury to a ChildIn Texas, our “failure to protect” statute is an omission statute—Injury to a Child by Omission—meaning it aims to encourage parents to remove their children from dangerous and violent environments. If a parent “fails to protect” their child from certain known dangers, that parent can be charged with Injury to a Child by Omission, a felony level offense in Texas. The statute also covers injury to an elderly or disabled individual. If the person charged with Injury to a Child by Omission is a domestic violence victim, it is important to be aware of the Affirmative Defense Texas provides.

Texas’ Injury to a Child by Omission Offense | Failure to Protect

Section 22.04 of the Texas Penal Code provides that a person commits an injury to a child if he recklessly by omission, causes to a child: (1) serious bodily injury; (2) serious mental deficiency, impairment, or injury; or (3) bodily injury. Id. § 22.04(a).

An omission is conduct constituting an offense if: (1) the actor has a legal or statutory duty to act; or (2) the actor has assumed care, custody, or control of a child. PENAL § 22.04(b).

The Texas Family Code provides that a parent, guardian, conservator or foster parent of the child has the legal duty of care, control, and protection of the child. The State must prove that the defendant either intended or was aware that serious bodily injury would occur from their omissions. Patterson v. State, 46 S.W.3d 294.

Affirmative Defense to Prosecution for Domestic Violence Victims

In the early 90s, Texas established an affirmative defense for people charged with Injury to a Child by Omission. An affirmative defense is a complete and absolute legal defense. In the Failure to Protect scenario, a person can claim the affirmative defense if the following requirements are met:

  1. there be no evidence that the defendant had any knowledge of a previous injury to the child and that they failed to report the injury;
  2. the defendant “was a victim of family violence…committed by the same person “who is also charged with an offense against the child”; and
  3. the defendant reasonably believed, at the time they failed to act, that any attempt to prevent the person from hurting the child “would have an effect.”

TEX. PENAL CODE ANN. § 22.04(l)(2) (West 2011).

The Reality of Prosecution for Failure to Protect in Texas

Most often, mothers are the ones charged with Failure to Protect in Texas. In 2014, there were 19 women in Texas prisons serving time for Injury to a Child by Omission with sentences starting at ten years, all the way up to 45 years. Seven of these women were domestic violence victims. In fact, a Tarrant County woman who was also a victim to the violence of the man who injured her child is currently serving 40 years. Hopper v. State, 2013 WL 4679166 (Tex. App.—Fort Worth Aug. 29, 2013, pet. ref’d.) Furthermore, the woman serving 45 years was a case out of Dallas County where she was also a victim to the violence of the man who injured her child. It is unknown whether these women asserted the affirmative defense at trial.

As mentioned above, there are serious consequences attached to Injury to a Child by Omission and it is important to recognize all possible defense options. Many people do not know that the affirmative defense regarding domestic violence exists. If you are charged with an Injury to a Child by Omission and are also a victim of the abuser’s violence, this defense might apply to you. Contact our team today to find out what steps can be taken in your case. Regardless of whether this affirmative defense applies in your case, our attorneys will still fight hard to get your case dismissed or mitigated in any way they can.

Car Seat Laws in Texas Seat Belt Regulations

Car Seat and Seat Belt Laws in Texas: Sorting Out the Laws From the Guidelines

By | Traffic Offenses

Baby On Board: What Does Texas Law Say About Keeping Our Kids Safe in the Car?

Car Seat Laws in Texas Seat Belt RegulationsWe’ve all seen those yellow “Baby on Board” signs proudly displayed by new parents on the back windows of cars. In a perfect world, drivers would slow down and car accidents involving children would never be an issue. But we don’t live in a perfect world. The Insurance Institute for Highway Safety (“IIHS”) reports that car accidents cause one in four unintentional injury deaths in children younger than 13. The IIHS explains that while most crash deaths occur among children traveling as passengers, proper restraint use dramatically reduces these fatalities.

Such statistics are a sobering reminder that we must do all we can do to ensure that our kids are safe while traveling in a car. So what can Texas families do to make our daily commutes safer for our children? What does Texas law say about keeping our kids safe in the car?

Car Seat Laws in Texas

The car seat law in Texas, meaning the rules for which you can be issued a Class C citation, are provided in the Transportation Code. Section 545.412(a) of the Texas Transportation Code states:

“A person commits an offense if the person operates a passenger vehicle, transports a child who is younger than eight years of age, unless the child is taller than four feet, nine inches, and does not keep the child secured during the operation of the vehicle in a child passenger safety seat system according to the instructions of the manufacturer of the safety seat system.”

SUMMARY OF TEXAS CAR SEAT LAW:

  • 8 years – Children must remain in some sort of car seat or booster seat system until they are 8 years old;
  • 4’9″ Tall – If a child younger than 8 is taller than 4’9″, he or she may ride in a normal seat without a booster; and
  • Follow manufacturer instructions – It is a violation to use a safety seat improperly.

One of the important parts of the Texas car seat law is that seat must be properly installed according to the manufacturer’s instructions. USA Today reports that nearly half of all car seats are installed improperly.  Many law enforcement agencies are trained to understand proper car seat installation. While it is unlikely that an officer will issue you a citation if you have a car seat that happens to be improperly installed, you should still make sure to get your car seat checked out for the safety of your child.

DEFENSE: It is a defense to prosecution that the individual is operating their vehicle during an emergency or for a law enforcement purpose.

PENALTY: Failure to comply with §545.412(a) may result in a fine ranging from $25 to $250, plus court fees.

Car Seat Guidelines in Texas

Some additional car seat tips are provided as safety guidelines or best practices, meaning that there is not a law on the books in Texas covering this.  However, these are good practices that are taught by doctors and child car safety experts:

  • All infants and toddlers should ride in a rear-facing car seat until they are at least two years old, or until they max out the weight or height limits per the manufacturer’s limits.
  • Children two to four years old may ride in a forward-facing seat according to the manufacturer’s recommendations.
  • Use a booster seat for children four to eight years old, according to the maximum height or weight limits provided by the manufacturer.
  • Most seat belts will fit a child that is 4’9″ tall (normally around 10 years old).  If your child is not 4’9″ tall, you should consider keeping them in a booster seat to ensure proper seatbelt fit.

Seat Belt Laws in Texas

Under Texas law, all passengers in a motor vehicle must wear a seatbelt.  There are a few exceptions, like for postman, paper delivery crews, or garbage men; but for the average driver and passenger on the Texas roads, you must wear a seat belt. Section 545.413(a) of the Texas Transportation Code covers seat belt laws in Texas.  The law states:

“a person commits an offense if the person, who at least 15 years of age, rides in a passenger vehicle while the vehicle is being operated and is occupying a seat that is equipped with a safety belt, and is not secured by a safety belt.”

Further, §545.413(b) states that:

“a person commits an offense if the person operates a passenger vehicle that is equipped with safety belts and allows a child, who is younger than 17 years old and not required to be in a safety seat system, to ride in the vehicle without requiring the child to be secured by a safety belt.”

Can a Teenager Ride in the Bed of a Pickup Truck? No. Under Texas law, no person under 18 years of age may ride unrestrained in the bed of a pickup truck.

PENALTY: A violation of the seat belt law in Texas can result in a fine of $25 to $200 depending on the situation.

For teenagers, who are legally permitted to ride in the front passenger seat, the Texas Department of Transportation advises that wearing a seat belt while sitting in the front seat improves survival of a car accident by 50%. To be effective seat belts must be used properly—lap belts need to fit snugly on the hips and shoulder belts should go over the shoulder and across the center of the chest. Texas law says that safety belts—designed for adult use only—are not adequate for children under 8.

Front Seat and Back Seat Passenger Laws in Texas

There is not a law in Texas regarding who may ride in the front seat.  The driver must follow the car seat and seat belt laws, but there is not a law prohibiting any person or child from riding in the front seat. However, according to the safety “guidelines,” anyone under age thirteen should be restrained in the back seat due to concerns with airbag impact.

Can I Leave My Kids Alone In the Car in Texas?

Yes, but only for 5 minutes.  In 2010, thirteen children in Texas were killed by vehicular heatstroke. As a result, the Texas legislature enacted laws dealing with the amount of time children can be left in a vehicle unattended. Under Texas Penal Code §22.10(a), “a person commits an offense if he intentionally or knowingly leaves a child in a motor vehicle for longer than five minutes, knowing that the child is (1) younger than seven years of age; and (2) not attended by an individual in the vehicle who is 14 years of age or older.”

An offense under this section is a Class C misdemeanor. However, if the child is injured as a result of being left in the car, the crime can be increased to a felony, punishable by up to two years in jail and a $10,000 fine.

For More Information About Car Safety in Texas:


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