By Dallas and Collin County Criminal Defense Attorney Jeremy F. Rosenthal
Child abuse allegations are extremely serious in nature.
Texas law takes these matters so seriously that we are all charged with an affirmative duty in Texas of reporting any abuse or neglect of a child to the authorities. This duty even cuts through the attorney-client relationship.
It is extremely common for law enforcement, either a local police agency or Child Protective Services (CPS) to conduct investigations of child abuse or endangerment — without trying to ‘tip off’ the accused that he’s being investigated for a felony. What may seem like an innocuous request to have an in-person interview, may be a back-handed attempt to get a confession. If you have any question about why you’ve been contacted for an investigation you should speak with a lawyer immediately.
The law surrounding child abuse allegations in Texas are extremely complex and if you’re accused, you shouldn’t attempt to navigate these waters alone. Child abuse can be either a crime where someone is alleged to have acted “intentionally” or “knowingly” or it can be what is known as an “inchoate” crime which is a crime of omission — or failing to act.
For starters, “Injury to a Child” is defined by Texas Penal Code 22.04 which says,
(a) A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly by omission, causes to a child, elderly individual, or disabled individual:
(1) serious bodily injury;
(2) serious mental deficiency, impairment, or injury; or
(3) bodily injury.
There are affirmative defenses under this statute, however:
Penal Code 9.61 governs the parent-child relationship and says, “(a) The use of force, but not deadly force, against a child younger than 18 years is justified:
“(1) if the actor is the child’s parent or stepparent or is acting in loco parentis to the child; and
“(2) when and to the degree the actor reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare.
“(b) For purposes of this section, “in loco parentis” includes grandparent and guardian, any person acting by, through, or under the direction of a court with jurisdiction over the child, and anyone who has express or implied consent of the parent or parents.
Teachers are also provided an affirmative defense in some situations under Section 9.62:
“The use of force, but not deadly force, against a person is justified:
“(1) if the actor is entrusted with the care, supervision, or administration of the person for a special purpose; and
“(2) when and to the degree the actor reasonably believes the force is necessary to further the special purpose or to maintain discipline in a group.
Again, law surrounding injury to a child is extremely complicated and the stakes are very high. By handling things on your own or simply trusting investigators that have contacted you — you are taking a huge gamble with your future!
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For specific legal advice you should contact an attorney directly. Contacting Jeremy F. Rosenthal through this blog does not create an attorney-client relationship and that contact is not considered privileged or confidential in any way.