Texas Proposition 3: New Bail Rules for Certain Crimes

Texans have approved an amendment to the Texas Constitution to allow for the denial of bail in certain cases. More than 61 percent of the 2.9 million votes counted were in favor of a new requirement for Texas judges to deny bail to individuals accused of certain offenses, when the court finds the accused is a danger to others or unlikely to willingly return to court.

In this article, we will examine the allegations to which the denial of bail applies, the factors that trigger the denial of bail, the burden of proof required to deny bail, and the key considerations for prosecutors and defense attorneys under this new framework.

Why Proposition 3 Required a Constitutional Amendment

Texas Proposition 3 amended the Texas Constitution itself — specifically Article I, Section 11 — which meant it required extraordinary steps to become law.

The Texas Constitution has long guaranteed a right to bail for most offenses. Before Proposition 3, judges could deny bail only for capital murder cases where the evidence was strong, or in limited circumstances involving violations of certain protective orders. For virtually every other offense, no matter how serious, defendants had a constitutional right to some form of bail.

To expand bail denial to more offenses required changing the Constitution itself, which Texas law makes deliberately difficult. Here’s what happened:

• The legislature needed a two-thirds supermajority in both the House and Senate to propose the amendment
• The proposal then went to Texas voters in a statewide election
• Voters approved Proposition 3, making it part of the Texas Constitution

This high bar for changing fundamental rights reflects the importance of bail in our legal system. The founders understood that requiring someone to sit in jail for months or years before trial — when they’re still presumed innocent — is an extraordinary deprivation of liberty that should only happen under strict limitations.

The Federal Backdrop

The U.S. Supreme Court addressed this tension in United States v. Salerno, 481 U.S. 739 (1987), which upheld federal preventive detention laws. The Court ruled that the Eighth Amendment prohibits excessive bail, but doesn’t guarantee bail in all cases. Governments can deny bail entirely for compelling interests like public safety — as long as proper due process protections exist.

Texas Proposition 3 follows this constitutional framework. It doesn’t automatically deny bail; it requires hearings, imposes high evidentiary burdens on prosecutors, and includes specific procedural safeguards. Whether these protections are sufficient will likely be tested in courts for years to come.

Expect a Motion to Deny Bail in the Following Cases

Proposition 3 doesn’t apply to all violent crimes or even all felonies. Texas Constitution Article I, Section 11d(a) creates a precise list of nine offense categories. Understanding these categories — and their specific limitations — is critical for anyone facing charges.

1. Murder (Texas Penal Code Section 19.02)

All murder cases now fall under Proposition 3. Murder is intentionally or knowingly causing the death of another person, or intending to cause serious bodily injury and committing an act clearly dangerous to human life that causes death. With over 1,000 murder cases filed annually in Texas courts, this provision affects a significant number of defendants.

2. Capital Murder (Texas Penal Code Section 19.03)

Capital murder — the most serious offense in Texas law — was already grounds for bail denial under limited circumstances before Proposition 3. Capital murder involves murder plus an aggravating factor: killing a police officer, firefighter, or judge; murder during certain felonies like kidnapping or robbery; murder for hire; or multiple murders. While less common than other offenses (about 336 cases filed in fiscal year 2024), these cases now face the full procedural framework of Proposition 3.

3. Aggravated Assault — But Only Specific Types

Not all aggravated assault cases fall under Proposition 3, even though aggravated assault is the most common serious offense in Texas (over 27,000 cases annually in the combined “aggravated assault or attempted murder” category, according to the Office of Court Administration).

Under Texas Penal Code Section 22.02, aggravated assault occurs when someone causes serious bodily injury to another or uses or exhibits a deadly weapon during an assault. But Proposition 3 only applies to aggravated assault cases where:

• The defendant caused serious bodily injury (injury creating substantial risk of death, serious permanent disfigurement, or protracted loss or impairment of any bodily member or organ), OR
• The defendant used a firearm, club, knife, or explosive weapon during the assault

This means many aggravated assault cases are not covered by Proposition 3, including:

• Aggravated assault on a public servant (unless serious bodily injury or specified weapons were involved)
• Aggravated assault with a deadly weapon other than the four listed (such as a vehicle or blunt object)
• Aggravated assault in which the defendant only threatened serious bodily injury without displaying one of the four named weapons.

For defendants and their attorneys, determining whether a specific aggravated assault case falls within Proposition 3’s scope is the first critical question.

4. Aggravated Kidnapping (Texas Penal Code Section 20.04)

Aggravated kidnapping — not simple kidnapping — is covered by Proposition 3. This occurs when someone intentionally or knowingly abducts another person with intent to hold them for ransom, use them as a shield or hostage, facilitate a felony or flight after a felony, inflict bodily injury or violate or abuse them sexually, terrorize them or a third person, or interfere with a governmental or political function.

Aggravated kidnapping is distinguished from simple kidnapping by the specific intent requirements and the circumstances of the abduction. While Texas doesn’t separately track these cases in public statistics, aggravated kidnapping charges are serious and relatively uncommon compared to offenses like assault or robbery.

5. Aggravated Robbery (Texas Penal Code Section 29.03)

Aggravated robbery occurs when someone commits robbery (theft by force or threat) and causes serious bodily injury, uses or exhibits a deadly weapon, or causes bodily injury or threatens or places in fear of injury or death a person who is 65 years or older or disabled. With robbery cases declining from about 6,800 in FY 2021 to under 6,000 in FY 2024, these prosecutions have become somewhat less common.

Important distinction: Only aggravated robbery falls under Proposition 3. Simple robbery under, Texas Penal Code Section 29.02, is not covered, meaning defendants charged with robbery without the aggravating factors still have a constitutional right to bail under traditional rules.

6. Aggravated Sexual Assault (Texas Penal Code Section 22.021)

All aggravated sexual assaults, which are sexual assaults that involve sexual assault committed under aggravating circumstances: causing serious bodily injury or attempting to cause death, threatening or placing someone in fear of death or serious bodily injury, using or exhibiting a deadly weapon, acting with another person, administering a drug without knowledge, or committing the offense against certain vulnerable victims (children under 14, elderly persons, disabled persons).

Texas court statistics combine aggravated sexual assault of children with indecency with a child cases, showing over 5,000 combined cases annually. There’s some ambiguity in how the statistics separate aggravated sexual assault of adults, which may be tracked in different categories.

7. Indecency with a Child (Texas Penal Code Section 21.11)

This is critically different from the other categories. While most Proposition 3 offenses are limited to “aggravated” versions, the amendment covers all indecency with a child cases, regardless of the level of conduct.

Indecency with a child includes two types of conduct:

• Indecency by contact: Touching any part of a child’s genitals, anus, or breast with the intent to arouse or gratify sexual desire
• Indecency by exposure: Exposing one’s genitals, anus, or any part of one’s female breast, knowing a child is present, with intent to arouse or gratify sexual desire

Both contact and exposure offenses fall under Proposition 3, making this the broadest category in the amendment. With over 5,000 cases annually in the combined child sexual offense category, this provision potentially affects thousands of defendants.

8. Trafficking of Persons (Texas Penal Code Section 20A.02)

Human trafficking prosecutions have surged in recent years, increasing nearly 78 percent from FY 2021 to FY 2024 (from 194 to 345 cases). This reflects enhanced law enforcement focus on trafficking, specialized prosecution units, and federal-state cooperation.

Trafficking of persons involves knowingly trafficking another person with the intent or knowledge that the trafficked person will engage in forced labor or services, including sexual conduct or prostitution. This is distinct from smuggling, which involves illegal movement across borders; trafficking is about exploitation and forced servitude.

9. Continuous Trafficking of Persons (Texas Penal Code Section 20A.03)

Continuous trafficking is a more serious offense than single-incident trafficking. It occurs when someone engages in the trafficking of two or more victims during a period of 30 or more days. This offense carries enhanced penalties and is specifically designed to target organized trafficking operations rather than isolated incidents.

While Texas courts don’t separately track continuous trafficking in public statistics, the offense is explicitly covered by Proposition 3, meaning defendants charged under Section 20A.03 face the potential denial of bail.

How the New Bail Process Actually Works: Not Automatic Denial

Proposition 3 does not automatically deny bail for the nine covered offenses. This is perhaps the most important thing to understand: the amendment creates a process, not an automatic result.

The word “if” appears in Article I, Section 11d(b) for a reason: “A person to whom this section applies shall be denied bail pending trial if the attorney representing the state demonstrates…” The state must affirmatively prove its case at a hearing. If they fail to meet their burden of proof, you have a constitutional right to bail. Furthermore, the accused is entitled to be represented by counsel at the hearing.

The State’s Two Pathways to Bail Denial

Prosecutors can pursue one of two different arguments, each with its own evidentiary standard:

Pathway #1: Flight Risk (Preponderance of the Evidence)

The state must prove “by a preponderance of the evidence” that granting bail is insufficient to reasonably prevent your willful nonappearance in court.

What “preponderance of the evidence” means: This is the lowest standard of proof in civil and criminal proceedings. It means “more likely than not”— essentially anything over 50/50. If the judge thinks there’s a 51 percent chance that no bail conditions can prevent you from fleeing, the state wins on this standard.

Defense strategy: Challenge every assumption about flight risk. Show the judge:

• You have deep community ties (family, employment, property ownership)
• You have no history of failing to appear in court
• You have appeared for all previous court dates in this case or others
• You don’t have the means to flee (no passport, no financial resources for flight)
• You’re willing to accept GPS monitoring, surrender your passport, check in daily with pretrial services
• You have family members willing to serve as third-party custodians

Pathway #2: Public Safety (Clear and Convincing Evidence)

The state must prove “by clear and convincing evidence” that granting bail is insufficient to reasonably ensure the safety of the community, law enforcement, and the victim.

What “clear and convincing evidence” means: This is a significantly higher standard than preponderance. While not as high as “beyond a reasonable doubt” (the criminal trial standard), the judge must be substantially certain, not just barely convinced.

This is your better battleground. The clear and convincing standard is much harder for prosecutors to meet, especially when you can propose specific, verifiable bail conditions.

What the state must prove:

• You pose a genuine, specific threat to community safety, law enforcement, or the victim
• The threat is based on evidence, not speculation
• No combination of bail conditions can reasonably mitigate that threat

That last element is critical. Even if you allegedly committed a violent offense, if GPS monitoring, curfews, no-contact orders, weapons prohibitions, substance abuse treatment, and other conditions can reasonably ensure safety, the state hasn’t met its burden.

Defense strategy: Propose comprehensive, concrete safety measures:

• GPS ankle monitoring with real-time tracking and alerts
• Home confinement with exceptions only for court, attorney meetings, medical care, and employment
• No-contact orders with specific victims and witnesses
• Weapons prohibition and surrender of all firearms
• Regular drug and alcohol testing
• Mental health evaluation and treatment as a condition of release
• Third-party custodian supervision
• Regular in-person check-ins with pretrial services

Present these not as vague possibilities, but as specific, verified plans with named providers, costs, schedules, and enforcement mechanisms.

What the Court is Required to Consider to Deny Bail

To deny bail, the court is required to consider:

• the likelihood the person will willfully not appear (Preponderance of the Evidence)
• the nature and circumstances of the alleged offense
• the safety of the community (Clear and Convincing Evidence)
• the safety of law enforcement (Clear and Convincing Evidence)
• the safety of the victim (Clear and Convincing Evidence)
• the criminal history of the accused (Clear and Convincing Evidence).

The Hearing: Documentary Evidence, Not Necessarily Live Testimony

The new law “may not be construed to require any testimonial evidence before a judge or magistrate makes a bail decision.” That means, while a hearing is required, the hearing may proceed through proffers and arguments by counsel.

What this means in practice:

• Hearings can proceed entirely on affidavits, police reports, criminal history records, and other documents
• Neither the state nor the defense is required to present live witnesses
• You can still call witnesses if you choose—the amendment doesn’t prohibit testimony, it just doesn’t require it
• Hearings will likely be faster than traditional evidentiary proceedings

Why this matters for your defense: Written advocacy becomes absolutely critical. Your attorney’s motions, affidavits, and documentary submissions may be your entire case. This means preparing:

• Detailed defense motions explaining why bail should be granted
• Affidavits from family members about your ties to the community
• Employment verification letters on company letterhead
• Lease agreements or mortgage documents proving stable housing
• Character reference letters from employers, community members, clergy
• Treatment records showing ongoing mental health or substance abuse treatment
• Proposed bail conditions with specific provider names and contact information

Don’t expect to tell your story in person at the hearing. Put it in writing, with supporting documentation.

If the Judge Grants Bail: Strict Requirements and Protections

When a judge decides to grant bail despite the state’s arguments under Proposition 3, Section 11d(c) imposes mandatory obligations designed to protect public safety while preserving your liberty rights.

The Judge Must Set Appropriate Bail and Conditions

Under Section 11d(c)(1), the judge must set bail and impose conditions of release “necessary only” to reasonably:

• Prevent your willful nonappearance in court, AND
• Ensure the safety of the community, law enforcement, and the victim

That word “only” is critical. It means judges cannot impose excessive or unnecessary conditions. Bail and conditions must be narrowly tailored to these two specific purposes and nothing else.

Examples of appropriate conditions:

• GPS ankle monitor with geo-fencing around victim’s residence/workplace
• Home confinement with specified exceptions (court, medical, work, attorney meetings)
• Specific no-contact orders naming victims and witnesses
• Complete weapons prohibition with requirement to surrender all firearms to law enforcement
• Surrender of passport and any other travel documents
• Regular check-ins with pretrial services (daily, weekly, etc.)
• Substance abuse testing on a set schedule
• Mental health evaluation and participation in treatment
• Third-party custodian supervision with financial responsibility

What would be excessive or inappropriate:

• Conditions unrelated to flight risk or safety (such as requirements having nothing to do with the offense)
• Unnecessarily restrictive conditions when less restrictive options would accomplish the same goals
• Bail amounts so high they’re effectively a denial (if you can’t possibly pay it, it’s not really bail)
• Conditions that make it impossible to prepare a defense (such as restrictions on communicating with your attorney)

If conditions are excessive, you have the right to challenge them as unconstitutional, even under Proposition 3.

The Written Order Requirement

The new law requires judges who grant bail to “prepare a written order that includes findings of fact and a statement explaining the judge’s or magistrate’s justification for the grant and the determinations required by this section.”

What must be in the written order:

1. Findings of fact: Specific facts the judge found to be true. For example:

• “Defendant has resided continuously in Dallas County for 18 years”
• “Defendant has been employed at ABC Manufacturing for 12 years”
• “Defendant has no prior failures to appear on any charges”
• “Defendant has three minor children residing with him”
• “Defendant has no history of violent offenses prior to this charge”

2. Statement of justification: The judge’s reasoning for why bail is appropriate despite the state’s arguments. For example:

• “While the alleged offense is serious, the state failed to demonstrate by clear and convincing evidence that no bail conditions could ensure public safety given defendant’s lack of criminal history and willingness to accept GPS monitoring with home confinement”
• “The state presented no evidence that defendant poses a flight risk beyond speculation, while defendant presented substantial evidence of community ties”

3. Specific determinations: How the bail amount and conditions satisfy both constitutional requirements—preventing nonappearance AND ensuring safety.

Your Rights Remain Protected

The new law explicitly preserves existing legal protections: The amendment “may not be construed to limit any right a person has under other law to contest a denial of bail or to contest the amount of bail set by a judge or magistrate.”

What this means:

• You can file a writ of habeas corpus challenging bail denial
• You can appeal excessive bail amounts
• All other constitutional and statutory protections remain intact
• This amendment is purely additive — it doesn’t eliminate procedural rights you already had

What If Bail Is Denied? Your Options and Next Steps

If the judge denies bail under Proposition 3, you’re not out of options. Texas law provides several avenues for challenging the denial:

1. Immediate Writ of Habeas Corpus

Your attorney can file a writ of habeas corpus in the Texas Court of Criminal Appeals challenging the bail denial. The writ should argue that:

• The state failed to meet its burden under the applicable evidentiary standard
• The judge failed to adequately consider the four mandatory factors
• The findings of fact don’t support the conclusion that no bail conditions could work
• Less restrictive alternatives exist that weren’t adequately considered

Time is critical. The longer you remain in custody, the more it affects your ability to work with your attorney, maintain employment, care for family, and prepare your defense.

2. Request for Hearing on Changed Circumstances

If your circumstances change—you secure better employment, a family member offers to serve as custodian, you complete a treatment program, or new evidence emerges—you can request a new bail hearing. Changed circumstances can justify reconsideration even if bail was initially denied.

3. Pretrial Motions Based on Extended Custody

If you remain in custody for an extended period awaiting trial, your attorney can file motions arguing that the delay violates your speedy trial rights or that the prolonged detention without conviction is effectively punishment before trial.

4. Leverage in Plea Negotiations

While not ideal, the reality is that extended pretrial custody significantly affects plea negotiations. Prosecutors know that defendants in custody face pressure to resolve cases quickly. Your attorney should use time-served credits and the conditions of your confinement as leverage in any plea discussions.

What Effective Defense Looks Like

Defending against bail denial demands specific knowledge, preparation, and strategy that goes far beyond traditional bail practice:

1. Immediate Case Assessment and Classification

Defense attorneys need to see if a case type falls under the new law, and be prepared for the prosecution filing a motion to hold your client without a bond.

2. Rapid Evidence Gathering

With hearings often scheduled quickly, your defense team must gather substantial evidence in days, not weeks:

• Employment records and verification letters
• Property ownership or lease documentation
• Family affidavits about ties to the community
• Prior court appearance records
• Financial records showing inability or unlikelihood of flight
• Character references from employers, clergy, community members
• Treatment records for mental health or substance abuse
• Proposals from GPS monitoring companies, pretrial services, third-party custodians

This evidence must be formatted as admissible affidavits and documents, not casual statements.

3. Understanding and Challenging the State’s Evidence

Your attorney must understand which evidentiary standard the state is pursuing and prepare to challenge their proof:

If the state argues flight risk (preponderance):

• Challenge assumptions about your ability or intent to flee
• Show the state’s evidence is speculative, not factual
• Present affirmative evidence of community ties
• Demonstrate your history of court appearances
• Show financial inability to flee

If the state argues public safety (clear and convincing):

• Hammer on the higher evidentiary standard—prosecutors must be 70-75% certain, not just barely convinced
• Show that specific bail conditions can mitigate any alleged risk
• Challenge the state to explain why GPS monitoring, home confinement, no-contact orders, and supervision won’t work
• Present expert evidence about the effectiveness of monitoring technology
• Show your lack of violent criminal history
• Demonstrate your willingness to accept any reasonable condition

4. Proposing Comprehensive Bail Conditions

Never just argue for bail—always propose specific, concrete conditions:

• GPS monitoring: Name the specific vendor, explain the technology, show how geo-fencing works, provide costs
• Home confinement: Specify the exact address, name exceptions (court, medical, attorney, work), explain verification methods
• Third-party custodian: Identify the specific person, explain their relationship to you, show their financial resources and willingness to be responsible
• Treatment programs: Name specific providers, show enrollment capacity, provide schedules and costs
• Check-in requirements: Specify frequency, location, method of verification

Vague promises don’t work. Judges need to see that you’ve done the homework and have a real, implementable plan.

5. Mastering Written Advocacy

Since these hearings can proceed without live testimony, your written submissions may be your entire case. Be prepared with.

• Detailed legal briefs explaining the applicable evidentiary standards
• Well-drafted affidavits that tell your story persuasively
• Professional supporting documents (employment letters on letterhead, not handwritten notes)
• Visual aids when helpful (maps showing proximity to family, charts showing court appearance history)
• Proposed orders for the judge to sign if bail is granted

6. Protecting the Appellate Record

Your attorney must think beyond the immediate hearing:

• If bail is granted, ensure the judge issues the required written order with findings of fact
• If bail is denied, ensure the record clearly shows what evidence the state presented and whether it met the applicable standard
• Preserve all objections and legal arguments for potential appellate review
• Request specific findings if the judge’s ruling is unclear

Time Is Critical: Contact Us Today

Bail hearings can be scheduled quickly, and the evidence needed to support your release takes time to gather and prepare properly. Don’t wait until the day before the hearing to start building your case. Don’t assume that bail will be granted just because you have ties to the community or no prior record. Don’t assume the state will fail to meet its burden.

Expect prosecutors are prepared to argue for bail denial, and they’re doing it successfully in courtrooms across Texas. You need a criminal defense attorney who’s equally prepared to fight back.

Contact Varghese Summersett now at 817-203-2220 for a confidential consultation. We’ll review your charges, explain whether Proposition 3 applies to your case, discuss your options for fighting bail denial, and develop a comprehensive strategy for your defense.

The bail hearing may be the most important court appearance of your life. Make sure you have experienced criminal defense counsel who knows how to win it. Your freedom depends on it.

The numbers tell a devastating story. In 2024, 1,053 people were killed in Texas crashes involving alcohol-impaired drivers — accounting for over 25 percent of all traffic deaths in our state, according to records maintained by the Department of Public Safety. Texas ranks second-worst in the nation for drunk driving, with more than 42 percent of our traffic fatalities involving drunk drivers. One person dies every 7 hours and 32 minutes on Texas roads because someone chose to drink and drive.

Behind each statistic is a real person — a parent who won’t come home, a child whose life was stolen, a spouse facing an unbearable loss. Whether you’ve lost someone you love, suffered serious injuries, or aren’t sure yet of the full extent of your harm, Texas law provides a path forward. This guide and video, provided by the personal injury attorneys at Varghese Summersett, explains your rights and the immediate steps you should take.

The Reality of Drunk Driving Crashes in Texas

Drunk driving crashes are fundamentally different from typical accidents. These collisions stem from a conscious, illegal choice. When someone gets behind the wheel after drinking, they knowingly endanger everyone on the road under Texas Penal Code §49.04. The consequences range from catastrophic injuries to death. Texas has not experienced a single deathless day on its highways in nearly 24 years.

If You’ve Lost a Loved One to a Drunk Driver

Every single day, three families in Texas lose someone they love because of drunk driving. The shock and pain of losing a family member in such a preventable tragedy can feel unbearable. No amount of legal action can fill the void left behind, but Texas law acknowledges the immense harm caused by these senseless acts. Families have the right to seek justice — not only to hold the drunk driver accountable but also to ease the financial burdens that follow an unexpected loss.

When someone is killed by a drunk driver, it’s not just an accident — it’s a criminal act rooted in negligence. While the criminal justice system handles punishment through DWI or intoxication manslaughter charges, a civil wrongful death claim focuses on helping your family recover damages for the emotional, financial, and practical consequences of the loss. These may include funeral and burial expenses, loss of income or support, medical bills from emergency care, and compensation for the emotional pain and suffering your family endures.

Immediate Steps When a Family Member Dies

1. Focus on your family first.

Your immediate focus should be on your loved ones and your own well-being. In the first few days after such a tragedy, there’s no legal urgency to make decisions. Spend that time grieving together, making funeral arrangements, and leaning on the people who care about you. Accept help from friends and family — you don’t have to face this alone.

2. Preserve evidence when you’re ready.

When you feel able, gather the police report, any photographs from the scene, medical records from emergency treatment, and the death certificate. An attorney can obtain many of these documents, but having them helps.

3. Contact an experienced wrongful death attorney within the first few months.

Texas law gives families two years from the date of death to file a wrongful death claim. However, waiting too long can make it harder to build a strong case. Evidence can deteriorate, witnesses’ memories can fade, and vital documents may become difficult to obtain.

In addition, Texas Civil Practice and Remedies Code §71.004(b). states that if eligible family members — such as the spouse, children, or parents of the deceased — don’t file a wrongful death claim within three months of the death, the executor of the estate is required to file it on their behalf. That’s why consulting an attorney within the first few months is important, even if you’re not yet ready to take legal action.

A compassionate and experienced wrongful death lawyer can handle the legal complexities, communicate with insurance companies, and protect your family’s rights while you focus on healing.

Who Can File a Wrongful Death Claim in Texas?

Texas Civil Practice and Remedies Code §71.004(a) strictly limits who may bring a wrongful death lawsuit. Only these family members have legal standing:

• The surviving spouse (whether or not they have remarried)
• The deceased person’s children (biological or legally adopted)
• The deceased person’s parents

These family members may file the claim jointly or individually. Notably, siblings, grandparents, stepchildren (unless legally adopted), and other relatives cannot file wrongful death claims under Texas law, no matter how close they were to the deceased.

If eligible family members do not file a wrongful death lawsuit within three months after the death, the personal representative (executor or administrator) of the deceased person’s estate may file the claim on behalf of the family under §71.004(b).

What Compensation Can Your Family Recover?

Under Texas Civil Practice and Remedies Code §71.004, your family can seek compensation for:

• Loss of love, companionship, comfort, care, assistance, protection, affection, and moral support that the deceased would have provided
• Loss of consortium (for the surviving spouse)
• Mental anguish, grief, and sorrow experienced by surviving family members
• Loss of inheritance – the financial support and earnings the deceased would have contributed to the family over their lifetime
• Reasonable and necessary funeral and burial expenses

Exemplary (Punitive) Damages in Wrongful Death Cases

Texas Civil Practice and Remedies Code §71.009 specifically authorizes exemplary damages in wrongful death cases resulting from a “willful act or omission or gross negligence.” Drunk driving typically qualifies.

Gross negligence under §41.001(11) means the drunk driver had actual, subjective awareness that driving while intoxicated created an extreme degree of risk to others, yet proceeded anyway with conscious indifference to human life. When drunk driving causes death — which constitutes intoxication manslaughter under Texas Penal Code §49.08 — the normal caps on punitive damages often do not apply, allowing substantially higher awards to punish the wrongdoer and deter others.

Critical Deadline: Two Years from Date of Death

Texas Civil Practice and Remedies Code §16.003(b) gives you two years from the date of your loved one’s death to file a wrongful death lawsuit. This deadline is absolute in most circumstances. Miss it, and you lose your right to compensation forever.

The clock starts on the date of death, not the date of the accident. If your loved one survived for days or weeks before dying from their injuries, the two-year period begins when they pass away.

If You Were Injured by a Drunk Driver

If you survived a drunk driving crash with injuries — whether broken bones, head trauma, spinal damage, internal injuries, or other harm — you have the right to hold the drunk driver fully accountable under Texas law.

Immediate Steps After Being Injured

1. Seek medical attention immediately.
Even if you think your injuries are minor, get examined. Internal bleeding, concussions, and soft tissue injuries often don’t show symptoms immediately. Medical documentation from the emergency room or your doctor becomes critical evidence. Tell the medical provider exactly what happened and describe all your symptoms.

2. Call the police if they aren’t already there.
Law enforcement will document the scene, conduct field sobriety tests, and create an official accident report. Under Texas Transportation Code and Penal Code §49.04, officers can arrest the driver for Driving While Intoxicated if they have probable cause. Request a copy of the police report—it often contains crucial evidence like the driver’s blood alcohol concentration (BAC), failed sobriety tests, and officer observations.

3. Document everything you can.

If you’re physically able, take photographs of:

• All vehicles involved, from multiple angles
• Your visible injuries
• Skid marks, debris, and road conditions
• Traffic signs and signals
• Damage to guardrails or other property

Get contact information from any witnesses. Their statements can be vital.

4. Preserve all evidence.
Keep your damaged clothing, save all medical records and bills, document missed work days, and photograph your injuries as they heal. Take notes about your pain levels, limitations, and how the injuries affect your daily life.

5. Do not give a recorded statement to any insurance company.
You must report the accident to your own insurance company, but politely decline to give a detailed recorded statement to the drunk driver’s insurance company until you’ve spoken with an attorney. Insurance adjusters are trained to minimize payouts, and your words can be used against you.

6. Contact an experienced personal injury attorney quickly.
Drunk driving cases involve criminal proceedings, civil claims, insurance negotiations, and potentially dram shop liability. You need someone who understands how these pieces fit together under Texas law.

Compensation: Your Legal Rights Under Texas Law

Under Texas Civil Practice and Remedies Code §71.002, if a drunk driver injures you through their “wrongful act, neglect, carelessness, unskillfulness, or default,” you have the right to pursue compensation for a wide range of damages. These fall into three categories: economic, non-economic and punitive.

Economic Damages

Economic damages are measurable financial losses you’ve suffered as a result of the crash and can include:

• Medical Expenses: All past and future costs for emergency room care, hospitalization, surgeries, medications, physical therapy, rehabilitation, medical equipment, and necessary home modifications.
• Lost Wages and Earning Capacity: Income lost due to missed work and reduced ability to earn in the future if your injuries prevent you from returning to your previous job or career.
• Property Damage: Repair or replacement costs for your vehicle and any personal property damaged in the crash.

Non-Economic Damages

Non-economic damage cover the intangible, personal impacts of your injuries and can include:

• Physical Pain and Suffering: Compensation for the pain you have experienced and may continue to experience.
• Mental and Emotional Anguish: Anxiety, depression, PTSD, fear, and emotional trauma resulting from the accident.
• Permanent Disability or Disfigurement: Compensation for lasting impairments, including paralysis, amputation, or scarring.
• Loss of Enjoyment of Life: For hobbies, activities, or experiences you can no longer enjoy because of your injuries.

Exemplary (Punitive) Damages

Under Texas Civil Practice and Remedies Code §41.003, you may also seek exemplary, or punitive, damages when you prove by clear and convincing evidence that the drunk driver acted with gross negligence. This means:

• The driver had actual, subjective awareness that driving while intoxicated created an extreme risk to others.
• Despite knowing the risk, they proceeded with conscious indifference to your safety and welfare.

Drunk driving often meets this legal threshold. Choosing to drive drunk, despite its known dangers, can demonstrate the conscious disregard required under §41.001(11).

Importantly, if the drunk driver’s conduct qualifies as intoxication assault under Texas Penal Code §49.07 (causing serious bodily injury while intoxicated), the statutory caps on exemplary damages may not apply, potentially opening the door to significantly higher financial recovery.

Holding Bars and Restaurants Accountable: Dram Shop Claims

You may have claims beyond just the drunk driver. Texas Alcoholic Beverage Code §2.02 creates liability for bars, restaurants, and other alcohol providers who serve someone who is “obviously intoxicated to the extent that he presented a clear danger to himself and others” when that intoxication is a proximate cause of your injuries. This is what is known as a dram shop claim. To succeed, you must prove:

1. The establishment served alcohol to the driver
2. At the time of service, it was apparent the driver was obviously intoxicated and presented a clear danger
3. The driver’s intoxication was a proximate cause of your injuries

Social hosts who provide alcohol to minors under 18 may also face liability. Your attorney can investigate whether the drunk driver was at a bar, restaurant, or party before the crash.

Critical Deadline: Two Years from Date of Accident

Texas Civil Practice and Remedies Code §16.003(a) gives you two years from the date of the accident to file a personal injury lawsuit. This deadline is strictly enforced. If you miss it, Texas courts will dismiss your case, and you’ll lose your right to compensation.

The clock starts ticking on the date of the crash—not when you finish medical treatment, not when the criminal case concludes, and not when you realize the full extent of your injuries (with limited exceptions). Don’t delay in consulting with an attorney.

Hidden Injuries after a Crash: What You Need to Know

Not all injuries are immediately apparent. Adrenaline, shock, and the chaotic aftermath of a crash can mask serious harm. You might feel “okay” at the scene only to discover significant injuries hours or days later. This is common and dangerous.

Why Some Injuries Don’t Show Symptoms Immediately

• Internal bleeding can be life-threatening but may not cause obvious symptoms for hours. Bleeding in the abdomen, chest, or around organs can be subtle until it becomes critical.
• Concussions and traumatic brain injuries often don’t present clear symptoms right away. You might feel fine initially, then develop headaches, confusion, memory problems, nausea, or personality changes days later.
• Soft tissue injuries like whiplash, torn ligaments, or muscle damage may not cause significant pain until inflammation sets in—typically 24 to 48 hours after the accident.
• Spinal injuries can be masked by adrenaline. Herniated discs, compressed nerves, or vertebral fractures might not cause immediate pain but can lead to chronic problems.
• Psychological trauma, including PTSD, anxiety, and depression, often emerges in the days and weeks following a traumatic crash.

What You Must Do Even If You Feel Fine

• Go to the emergency room or urgent care immediately after the accident.
  Tell the medical staff you were in a car accident with a drunk driver. Even if you feel uninjured, tell them about any discomfort, no matter how minor — soreness, stiffness, slight headache, or feeling “off.” They will conduct examinations and imaging to check for hidden injuries. This medical visit creates a crucial record. Insurance companies routinely argue that if you didn’t seek immediate medical care, you couldn’t have been seriously hurt. Don’t give them that argument.
• Monitor yourself closely for 72 hours.
  Pay close attention to how you are feeling physically and mentally after an accident. Watch for:
  • Headaches or dizziness
  • Neck or back pain
  • Numbness or tingling
  • Nausea or vomiting
  • Confusion or memory problems
  • Mood changes
  • Difficulty sleeping
  • Any new pain or symptoms

• Return to a doctor immediately if any symptoms develop.
  Don’t wait. Tell the doctor these symptoms started after the accident. This documentation is critical.
• Document everything even if you feel fine.
  Take photos of any bruises, scrapes, or marks on your body (even minor ones). Write down what happened while the memory is fresh. Get the police report. Collect witness information.
• Consult with a personal injury attorney even if you’re unsure about your injuries.
  An attorney can explain your rights, advise you on what to watch for, and help ensure you don’t miss important deadlines. Most personal injury attorneys offer free consultations.

The “Discovery Rule” and Texas Statute of Limitations

Texas generally requires you to file a lawsuit within two years of the accident under §16.003(a). However, Texas courts recognize a limited “discovery rule” for injuries that are “inherently undiscoverable” at the time they occur.

If your injury truly could not have been discovered through reasonable diligence when the accident happened, the statute of limitations may not begin until you discover (or reasonably should have discovered) the injury. This exception is narrow and fact-specific. Don’t rely on it — seek medical attention immediately and consult an attorney to protect your rights.

The Criminal Case vs. Your Civil Claim: Understanding the Critical Difference

Criminal prosecution by the State of Texas under Penal Code §49.04 (DWI), §49.07 (intoxication assault), or §49.08 (intoxication manslaughter) is completely separate from your civil claim. Although both arise from the same tragic event, they serve entirely different purposes, follow different procedures, and have different outcome. Understanding this distinction is crucial to protecting your rights and interests.

The Criminal Case:

• Brought by the District Attorney, not by you or your family.
• Its purpose is to punish the driver for breaking the law — through jail or prison time, probation, fine, or license suspension
• The State must prove guilt “beyond a reasonable doubt”
• You are a witness, not a party. You may be asked to provide a statement, testify, or share victim impact information, but you do not control how the prosecution proceeds.
• Any criminal penalties go to the State of Texas, not directly to you
• Even if the driver is acquitted or the criminal case is delayed, that does not prevent you from seeking civil justice.

Your Civil Claim:

• Brought by you, or your attorney on your behalf
• The purpose is to compensate you for your injuries and losses
• The legal standard is lower: you must prove liability by a “preponderance of the evidence,” meaning it is more likely than not that the driver was responsible.
• You are the plaintiff seeking damages, meaning you have control over the claim, including whether to negotiate a settlement or proceed to trial.
• Any compensation or damages awarded go directly to you and your family, not the State.
• Civil cases can often uncover additional facts not fully developed in the criminal case, including details about alcohol service, vehicle ownership, or negligent third parties (like bars or restaurants that overserved the driver).

A criminal conviction strengthens your civil case by establishing intoxication and fault. However, you do not need to wait for the criminal case to conclude before pursuing your civil claim. In fact, you cannot wait — your two-year statute of limitations runs regardless of the criminal proceedings.

Why the District Attorney Is NOT Your Attorney

This is one of the most important things to understand: The District Attorney does not represent you. The DA represents the State of Texas and the interests of the public. While the DA may consult with you as a victim and keep you informed, they do not work for you, and their goals may not align with yours.

The DA’s job is to prosecute crime and protect public safety. Their focus is on:

• Securing a conviction or guilty plea
• Imposing criminal penalties (jail time, fines, probation)
• Protecting the community from dangerous drivers
• Managing an overwhelming caseload of hundreds of cases

The DA’s job is NOT to:

• Maximize your financial compensation
• Gather evidence for your civil case
• Negotiate with insurance companies on your behalf
• Ensure you receive medical treatment
• Meet your civil statute of limitations deadlines
• Recover damages for your medical bills, lost wages, or pain and suffering

The DA might accept a plea bargain that serves the State’s interests but provides you with no financial recovery whatsoever. The drunk driver could plead guilty, serve probation, pay a fine to the State — and you could be left with $200,000 in medical bills and no compensation. This happens regularly.

Why You Need Your Own Personal Injury Attorney to Protect Your Interests

You need an attorney who represents you and only you— someone whose sole focus is advancing your interests and maximizing your recovery. Your personal injury attorney will:

• Advise you on your legal rights and options under Texas Civil Practice and Remedies Code. This includes claims you may not even know exist, such as dram shop liability, underinsured motorist coverage, and exemplary damages.
• Protect you from insurance company tactics that could devastate your claim. Insurance adjusters will contact you quickly, often while you’re still hospitalized, seeking recorded statements, medical authorizations, and settlement releases. They’re trained to minimize payouts. Your attorney shields you from these tactics.
• Advance your financial interests aggressively. While the DA pursues criminal penalties, your attorney pursues every dollar you’re entitled to under Texas law — compensation for all medical expenses, lost income, pain and suffering, future care needs, and punitive damages.
• Coordinate with the criminal case strategically. Your attorney can obtain discovery from the criminal proceedings—police reports, toxicology results, witness statements, dash cam footage — and use this evidence to strengthen your civil claim.
• Ensure you don’t miss critical deadlines. The two-year statute of limitations under §16.003 doesn’t pause for the criminal case. Your attorney tracks all deadlines and files your lawsuit on time.
• Fight for you when no one else will. The drunk driver’s insurance company will hire aggressive defense lawyers. You need someone equally aggressive fighting for you.

How Varghese Summersett Works Drunk Driving Cases

Drunk driving cases require meticulous investigation and aggressive advocacy. At Varghese Summersett, we don’t rely on what insurance companies tell us or accept their version of events. We build your case from the ground up, gathering every piece of evidence needed to prove liability, establish damages, and maximize your recovery.

Accident Reconstruction

We work with certified accident reconstruction experts who analyze:

• Vehicle damage patterns to determine impact speed, point of impact, and force of collision
• Skid marks, debris fields, and roadway evidence to reconstruct the drunk driver’s path and speed
• EDR (Event Data Recorder) or “black box” data from both vehicles, which records speed, braking, steering input, and seatbelt use in the seconds before impact
• Dash cam and surveillance footage from nearby businesses, traffic cameras, and other vehicles
• Physical evidence, including final vehicle positions, road conditions, and visibility factors

This reconstruction proves exactly how the crash occurred and often reveals that the drunk driver was traveling at excessive speeds or engaged in other reckless conduct beyond just intoxication — strengthening your claim for exemplary damages.

Vehicle Evaluation and Inspection

Before insurance companies dispose of the vehicles, we:

• Inspect and photograph all vehicles involved, documenting the severity of damage
• Preserve critical evidence, including airbag deployment data, damaged components, and structural deformation
• Analyze crush damage with experts to determine collision forces—critical for proving the severity of impact when injuries may not be immediately visible
• Review repair estimates and total loss valuations to ensure you’re fully compensated for property damage

Insurance companies often try to minimize vehicle damage to argue that your injuries couldn’t be serious. Our thorough vehicle evaluation prevents that argument.

Obtaining Complete Medical Records

We gather all medical documentation related to your injuries:

• Emergency room records documenting your initial presentation and treatment
• Ambulance reports showing on-scene observations and your condition immediately after the crash
• Hospital records, including admission notes, surgical reports, imaging studies (X-rays, CT scans, MRIs), and discharge summaries
• Follow-up treatment records from all physicians, specialists, physical therapists, and other providers
• Pharmacy records documenting prescribed medications
• Mental health records if you’re being treated for PTSD, anxiety, depression, or other psychological trauma
• Life care plans from medical experts detailing your future care needs and costs

We work with your healthcare providers to ensure records are complete and clearly document how the drunk driving crash caused your injuries. Insurance companies scrutinize medical records looking for gaps in treatment or alternative explanations for injuries — we make sure the records tell your complete story.

Obtaining DWI Blood Draw Records and Toxicology Results

Blood alcohol evidence is crucial for proving intoxication and establishing gross negligence. We obtain:

• DWI blood draw warrants showing probable cause for the draw
• Blood alcohol concentration (BAC) results from law enforcement testing
• Complete toxicology reports showing not just alcohol levels but any drugs in the driver’s system
• Chain of custody documentation proving the blood evidence was properly handled
• Hospital blood draws if the drunk driver was also transported for treatment
• Expert analysis of BAC evidence, including retrograde extrapolation to determine the driver’s BAC at the time of the crash (not just when blood was drawn hours later)

We also obtain the administrative license suspension (ALR) hearing records from the Texas Department of Public Safety, which contain valuable testimony and evidence from the traffic stop and arrest.

Criminal Case Discovery

We coordinate with the police department and District Attorney’s office in an effort to obtain information and evidence for the criminal case, including:

• Police reports with officer observations of intoxication
• Dash cam and body cam footage showing the drunk driver’s behavior, failed sobriety tests, and admissions
• Witness statements taken by law enforcement
• 911 calls from witnesses reporting the drunk driver
• Bar receipts and credit card records (if obtained through criminal investigation)
• Cell phone records showing texting or calling while intoxicated
• Prior DWI convictions establishing a pattern of dangerous behavior

This evidence from the criminal case becomes powerful ammunition in your civil claim.

Investigating Dram Shop Liability

When the drunk driver was drinking at a bar or restaurant before the crash, we investigate potential claims under Texas Alcoholic Beverage Code §2.02:

• Identify where the driver was drinking through credit card records, witness interviews, and the driver’s own statements
• Send spoliation letters immediately to bars and restaurants, demanding they preserve all surveillance video before it’s automatically deleted
• Obtain video footage showing the driver’s level of intoxication and how much alcohol was served
• Interview bartenders and servers about the driver’s visible intoxication
• Subpoena receipts and records showing what was served and when
• Review TABC compliance records and prior violations
• Depose establishment employees about their training, policies, and actions on the night in question

Dram shop cases add another defendant with insurance coverage, often significantly increasing the total compensation available to you.

Our Unmatched Trial Experience in Intoxication Cases

Most personal injury firms handle drunk driving cases occasionally. We handle them routinely. When insurance companies know your attorney has extensive experience, they take your case seriously and make better settlement offers.

Our trial experience means we know:

• How to pick a jury that will hold drunk drivers accountable
• How to present toxicology evidence persuasively
• How to prove gross negligence for exemplary damages
• How to cross-examine drunk drivers and defense experts
• How to argue the full value of your case to a jury
• How to respond to the defenses insurance companies raise

We’re not afraid to try cases. Insurance companies know it. That gives you leverage in negotiations and ensures you receive fair value for your claim—whether through settlement or verdict.

Why You Need Experienced Legal Representation

Insurance companies know drunk driving cases often result in substantial damages, including exemplary damages. They fight these claims aggressively, scrutinizing every element of your case. The investigation and case preparation described above requires resources, expertise, and experience that most law firms simply don’t have.

At Varghese Summersett, this is what we do. We have the knowledge, resources, and proven track record to:

• Investigate thoroughly – As detailed above, we leave no stone unturned in building your case
• Preserve critical evidence – We act immediately to prevent evidence destruction
• Work with the best experts – Accident reconstruction specialists, medical experts, economists, toxicologists, and vocational rehabilitation experts
• Identify all liable parties – The drunk driver, their insurance company, bars or restaurants under Texas Alcoholic Beverage Code §2.02, underinsured motorist coverage, and any other potential defendants
• Calculate full damages – Including all future medical care, lost earning capacity, and non-economic losses
• Navigate both criminal and civil proceedings – Understanding how they interact and using the criminal case to strengthen your civil claim
• Fight for exemplary damages – Proving gross negligence under Chapter 41 to maximize your recovery
• Negotiate aggressively – Dealing with insurance companies that will try to minimize your claim
• Try your case if necessary – Taking your case to a jury when settlement offers are inadequate, backed by our extensive trial experience
• Meet all deadlines – Filing your lawsuit within the strict time limits of §16.003

You need attorneys who will fight as hard for you as the drunk driver’s insurance company will fight against you. That’s what we do.

Time Limits: Don’t Miss Your Deadline

Texas law imposes strict deadlines that can destroy your case if missed:

• Personal injury claims: Two years from the date of the accident (§16.003(a))
• Wrongful death claims: Two years from the date of death (§16.003(b))
• Claims against government entities: Six months to file notice under Texas Civil Practice and Remedies Code §101.101
• Dram shop claims: Two years from the date of the accident

These deadlines begin running immediately — while you’re in the hospital, while you’re grieving, while the criminal case is pending. The statute doesn’t care about your circumstances. Miss the deadline, and you lose your right to compensation forever, no matter how strong your case.

What to Do if You’re Hit By a Drunk Driver in Texas? Contact Varghese Summersett Today

If you’ve lost a loved one to a drunk driver, if you’ve been injured in a drunk driving crash, or if you were involved in a crash with a drunk driver and aren’t sure of your injuries, contact Varghese Summersett for a free, confidential consultation.

We’ll review your case, explain your rights under Texas Civil Practice and Remedies Code Chapters 41 and 71, Texas Alcoholic Beverage Code Chapter 2, and all applicable Texas statutes. We’ll outline the specific claims available to you and develop a strategy to maximize your recovery.

You pay nothing unless we recover compensation for you. Let us handle the legal complexities while you focus on healing or grieving.

The statistics are staggering: 1,053 Texans killed by drunk drivers in 2024. Thousands more injured. When it happens to you or your family, Texas law gives you powerful tools to fight back and hold the drunk driver accountable. Use them.

This article is for educational purposes only and does not constitute legal advice. Every case is unique. Outcomes depend on specific facts and circumstances. Contact an attorney to discuss your particular situation and applicable statutes.

New Texas Laws: School Liability for Sexual Abuse in Public Schools and Mandatory Reporting for Public and Private Schools

During the 89th Texas Legislature, lawmakers passed the most significant reform of school accountability for sexual abuse in more than 50 years. Two landmark bills—House Bill 4623 (HB 4623) and Senate Bill 571 (SB 571)—both effective September 1, 2025, create a comprehensive accountability system that distinguishes between public and private schools while ensuring all students are protected from abuse.

HB 4623 applies only to public schools: Under Chapter 118 of the Texas Civil Practice and Remedies Code, a public school district found grossly negligent in hiring, supervising, or employing a professional school employee who commits sexual abuse against a student, or fails to report abuse or neglect, is liable for damages up to $500,000 per act or omission for each claimant, plus attorney fees and court costs. This marks the most significant waiver of sovereign immunity for Texas public schools since 1969.

SB 571 applies to all schools—both public and private: The mandatory reporting requirements, criminal penalties for concealment, pre-employment screening mandates, and parent notification obligations established by SB 571 apply to every school in Texas, regardless of whether it is publicly or privately funded. All school employees—whether they work at public ISDs, charter schools, private schools, or religious schools—must report suspected abuse to DFPS or external law enforcement within 24 hours.

For decades, waivers of governmental immunity for Texas public schools have generally been limited to liability arising out of the use or operation of motor vehicles under the Texas Tort Claims Act and cases involving excessive discipline under the Education Code. The creation of Chapter 118 represents a fundamental shift in immunity by permitting tort claims when there is sufficient justification, especially in cases involving sexual abuse and professional misconduct.

Together, these reforms create a comprehensive system: SB 571 defines universal duties and establishes swift reporting requirements that apply to all Texas schools, while HB 4623 provides financial accountability specifically for public schools when those duties are breached.

Understanding Sovereign Immunity and Why These Reforms Matter

Sovereign immunity is a legal principle rooted in the idea that the government cannot be sued without its consent. In Texas, this doctrine has historically protected public entities—including school districts, cities, and state agencies—from most lawsuits. The rationale is that protecting public funds from litigation serves the greater good by preserving taxpayer dollars for public services.

However, this protection often came at a steep cost for victims of abuse. Even when a teacher, coach, or administrator sexually abused a student, the school district that employed them, failed to supervise them, or ignored warning signs could not be held financially accountable. Victims were left with limited options: they could pursue criminal charges against the individual perpetrator or attempt to sue the employee personally, but collecting damages from an individual is often far more difficult than recovering from an institution with insurance and assets.

The coordinated reforms of HB 4623 and SB 571 represent a deliberate policy choice by the Texas Legislature to prioritize victim compensation and institutional accountability over the traditional protections afforded to governmental entities. By creating both civil liability and criminal consequences for failures to protect students, these laws send a clear message: protecting children takes precedence over protecting public coffers and institutional reputations.

How the Two Bills Work Together: A Comprehensive Accountability System

Understanding how HB 4623 and SB 571 complement each other is essential to grasping the scope of these reforms:

SB 571 establishes duties and timelines:

• 24-hour mandatory reporting to DFPS or external law enforcement
• 48-hour administrative reporting chain (principal to superintendent to TEA/SBEC)
• Expanded definition of abuse including educator-student relationships under Texas Penal Code § 21.12
• Pre-employment screening and Do Not Hire Registry checks
• Parent notification requirements when misconduct allegations arise
• Criminal penalties (state jail felony) for superintendents who intentionally conceal misconduct
• Criminal penalties (Class B misdemeanor) for applicants who provide false information on pre-employment affidavits

HB 4623 provides civil remedies and financial accountability:

• Waives sovereign immunity so victims can sue school districts directly
• Abolishes official immunity for professional school employees involved in abuse or reporting failures
• Creates liability for both the abusive conduct itself and failures to report suspected abuse
• Allows recovery of actual damages up to $500,000 per act or omission for each claimant, plus attorney fees and court costs
• Provides a 30-year statute of limitations for sexual abuse claims
• Requires naming both the individual employee and school district as defendants

The integration in practice: When a school employee commits sexual abuse or fails to report suspected abuse, SB 571’s reporting requirements create clear legal duties with specific deadlines. Violations of these duties—such as failing to report to external law enforcement within 24 hours or a superintendent failing to report to TEA/SBEC within 48 hours—become evidence of gross negligence in HB 4623 civil lawsuits. The violation of SB 571’s clear mandates strengthens the victim’s case for damages under HB 4623.

For example, if a teacher observes abuse and fails to report to DFPS within 24 hours as required by SB 571, and that failure allows abuse to continue, the victim can sue under HB 4623 for actual damages resulting from the reporting failure. Meanwhile, if a superintendent intentionally concealed the incident, they face both criminal prosecution under SB 571 (state jail felony) and personal civil liability under HB 4623 (as official immunity is abolished for these cases).

Who Can Be Held Liable Under HB 4623?

One of the most significant aspects of HB 4623 is its dual liability structure. The law requires that lawsuits name both the school district and the individual employee as defendants, creating joint and several liability.

Individual Professional School Employees

The law abolishes official immunity for “professional school employees” in cases involving sexual misconduct or failure to report abuse or neglect. This is critically important because official immunity previously shielded government employees from personal liability for discretionary acts performed within the scope of their employment.

HB 4623 defines “professional school employees” broadly to include:

• Teachers and instructors
• School administrators (principals, assistant principals, superintendents)
• Counselors and social workers
• School nurses
• Bus drivers
• Any other employee who holds professional certification and exercises discretion in their duties

This expansive definition recognizes that many school employees beyond classroom teachers have significant contact with students and positions of trust and authority. A coach who abuses a student athlete, a bus driver who assaults a child on their route, or an administrator who deliberately ignores reports of abuse can all be held personally liable under HB 4623.

The School District Itself

By waiving sovereign immunity, HB 4623 allows victims to sue the school district directly. This is transformative because school districts typically carry liability insurance and have far greater financial resources than individual employees. Victims can now seek compensation from the institution that employed, supervised (or failed to supervise), and entrusted the abuser with access to children.

The requirement to name both the employee and the school as defendants ensures that victims can pursue recovery from both sources, while also preventing schools from escaping liability by arguing the employee acted outside the scope of employment.

What Conduct Triggers Liability and Mandatory Reporting?

The reforms create accountability for two distinct but related categories of wrongdoing, with different legal consequences under each bill.

Sexual Misconduct Against Students

HB 4623 creates civil liability for any sexual abuse, assault, or inappropriate sexual conduct by a professional school employee against a student. The law does not define “sexual misconduct” with precision, allowing courts to interpret it broadly to encompass the full spectrum of sexual abuse and exploitation, from inappropriate touching to rape.

SB 571 strengthens this framework by expanding Texas’s definition of child abuse under Texas Family Code §§ 261.001 and 261.101 to explicitly include “sexual conduct harmful to a child’s mental, emotional, or physical welfare, including conduct that constitutes an improper relationship between an educator and a student under Texas Penal Code § 21.12.”

This expanded definition is critical because it clarifies that the inappropriate educator-student relationships prohibited by criminal law also constitute reportable child abuse. Texas Penal Code § 21.12 criminalizes sexual contact or relationships between school employees and students, regardless of the student’s age or consent. The law also maintains that abuse includes “encouraging the child to engage in sexual conduct,” capturing grooming behavior and attempts to manipulate children into sexual situations even before physical abuse occurs.

Failure to Report Suspected Child Abuse or Neglect

Both bills recognize that institutional failures to report suspected abuse can be just as harmful as the abuse itself, as they allow abuse to continue and deprive children of protective intervention.

Under SB 571’s amended Texas Family Code § 261.101, professionals who have reasonable cause to believe that a child has been abused must report to the Department of Family and Protective Services (DFPS) or law enforcement within 24 hours of first having reasonable cause to believe abuse occurred. This 24-hour deadline eliminates any ambiguity about how quickly reports must be made and prevents delays that could allow abuse to continue or evidence to be lost.

Critically, SB 571 closes a potential loophole by clarifying that “law enforcement agency” does not include a police department of an educational entity. Reports must go to external law enforcement agencies independent of the school system—including the Texas Department of Public Safety, municipal police departments, county sheriff’s offices, or county constable’s offices—ensuring genuine oversight and investigation rather than allowing schools to satisfy reporting obligations through their own campus police forces.

When school employees fail to meet these reporting obligations, HB 4623 creates civil liability. Claims under this provision might arise when a teacher observes signs of abuse but fails to report it within 24 hours, when an administrator receives a disclosure from a student but takes no action, or when multiple school employees collectively ignore warning signs that should have triggered immediate reporting.

The violation of SB 571’s clear 24-hour reporting mandate becomes powerful evidence of breach of duty in civil cases brought under HB 4623.

What Damages Can Be Recovered Under HB 4623?

Understanding what victims can and cannot recover under HB 4623 is essential for evaluating the law’s practical impact.

Actual Damages: What’s Included

HB 4623 allows recovery of “actual damages,” which are designed to compensate victims for their real, proven losses. Actual damages can include:

• Medical expenses: Hospital bills, doctor visits, medications, and ongoing medical treatment related to the abuse
• Mental health treatment: Therapy, counseling, psychiatric care, and psychological treatment costs
• Lost wages or earning capacity: Compensation for income lost due to trauma, missed work, or diminished ability to work
• Pain and suffering: Non-economic damages for the physical pain and emotional anguish caused by the abuse
• Emotional distress: Compensation for anxiety, depression, PTSD, and other psychological impacts
• Loss of enjoyment of life: Damages for the victim’s diminished ability to enjoy activities and relationships
• Loss of familial relationships: Compensation when abuse damages family bonds and relationships

These damages must be proven with documentation such as medical records, billing statements, expert testimony from mental health professionals, and evidence of the abuse’s impact on the victim’s life and functioning.

The $500,000 Cap: Understanding “Per Act or Omission”

HB 4623 imposes a significant limitation: actual damages are capped at $500,000 per act or omission for each claimant. This statutory language requires careful interpretation.

What “per act or omission” means: The cap applies to each separate act of abuse or each separate omission (failure) by the school or employee. This is the language used in the statute itself and has specific legal meaning:

• Act: A separate instance of sexual abuse or misconduct
• Omission: A separate failure to report abuse or fulfill a duty

What this means in practice: If abuse occurred on multiple separate occasions, courts will need to determine whether each occasion constitutes a separate “act” with its own $500,000 cap, or whether multiple occasions constitute a single course of conduct subject to one cap. This legal question has not yet been resolved through litigation.

Similarly, if multiple school employees separately failed to report abuse (multiple “omissions”), courts may interpret each failure as a separate act or omission with its own damage limitation, though this remains to be clarified through case law.

Strategic litigation considerations: How plaintiffs plead their cases (whether framing claims around multiple acts versus a single course of conduct, or multiple omissions versus a systematic failure to report) may impact how courts apply the damage cap. This is an area where experienced legal counsel is essential.

Additional Recoverable Costs

Beyond actual damages, successful plaintiffs can also recover:

• Court costs: Filing fees and other litigation expenses
• Reasonable attorney’s fees: Compensation for legal representation, making it more feasible for attorneys to take these cases on behalf of victims who cannot afford to pay legal fees upfront

What Cannot Be Recovered: The Punitive Damages Prohibition

Perhaps the most significant limitation in HB 4623 is its explicit prohibition on exemplary damages—also known as punitive damages. These are damages designed not to compensate the victim, but to punish the defendant for particularly egregious conduct and deter similar behavior in the future.

In many personal injury cases, punitive damages can result in multi-million dollar awards when a defendant’s conduct was malicious, intentional, or demonstrated reckless disregard for others’ safety. By excluding punitive damages, HB 4623 ensures that the financial impact on school districts focuses solely on making victims whole, not on punishment or deterrence.

This limitation reflects the Legislature’s balancing act: opening the door to liability while preventing potentially catastrophic financial judgments that could devastate school district budgets and taxpayer resources.

Statute of Limitations: How Long Do Victims Have to File Claims?

Understanding the time limits for filing claims under HB 4623 is crucial for victims and their attorneys.

Sexual Abuse Claims: 30 Years

For claims involving sexual abuse or sexual misconduct, Texas law provides an extended statute of limitations. Under Section 16.0045 of the Texas Civil Practice and Remedies Code, victims of sexual assault or abuse can bring civil lawsuits for personal injury within 30 years from the date the alleged conduct occurred.

This extended period recognizes the unique nature of childhood sexual abuse. Research consistently shows that many survivors do not disclose abuse until years or even decades after it occurs. Trauma, shame, fear of retaliation, and psychological coping mechanisms often prevent victims from coming forward immediately. The 30-year limitation period gives survivors time to process their trauma, achieve emotional readiness to pursue legal action, and come forward when they are prepared to do so.

For a child abused at age 10, for example, they would have until age 40 to file a civil lawsuit under HB 4623. This lengthy window is consistent with similar survivor-friendly statutes enacted in other states in recent years.

Failure to Report Claims: Likely Two Years

For claims based solely on a school employee’s failure to report suspected child abuse or neglect—without allegations of sexual misconduct—the applicable statute of limitations is less clear. HB 4623 itself does not specify a limitations period for these claims.

In the absence of a specific statutory provision, these claims likely fall under the general statute of limitations for personal injury actions in Texas, which is two years under Section 16.003 of the Texas Civil Practice and Remedies Code. This shorter period may apply unless the facts of the case trigger the 30-year exception for sexual abuse.

The two-year limitation begins to run when the claim “accrues”—typically when the victim knew or should have known of the injury and its causal connection to the defendant’s wrongdoing. For failure to report claims, determining accrual can be complex and may depend on when the victim learned that school employees failed to fulfill their mandatory reporting obligations.

Tolling and Exceptions

Texas law includes various doctrines that can pause (“toll”) the running of the statute of limitations:

• Minority tolling: For child victims, the statute of limitations may not begin to run until they reach age 18
• Delayed discovery: In some cases, the clock may not start until the victim discovers or reasonably should have discovered both the injury and its cause
• Fraudulent concealment: If the defendant actively concealed wrongdoing, the limitations period may be extended

These exceptions can significantly extend the time available to file claims, particularly in cases where school districts actively covered up abuse or where victims suffered repressed memory or trauma-related barriers to disclosure.

Administrative Reporting and Oversight

Beyond the mandatory 24-hour reporting to DFPS or external law enforcement, SB 571 creates a parallel administrative reporting system designed to ensure state education agencies can investigate misconduct and take action against educators’ professional certifications.

The 48-Hour Reporting Chain

Under Texas Education Code §§ 22A.051 and 22A.052, school administrators face strict reporting deadlines when they become aware of evidence that a State Board for Educator Certification (SBEC)-certified or non-certified employee or service provider has:

• Abused or committed an unlawful act with a student or minor, including physical mistreatment or threats of violence not justified under self-defense laws, regardless of whether bodily injury resulted
• Been involved in or solicited a romantic relationship with a student or minor
• Solicited or engaged in sexual contact with a student or minor
• Engaged in inappropriate communications with a student or minor (as defined by SBEC rule)
• Failed to maintain appropriate boundaries with a student or minor (as defined by SBEC rule)

Principals must report to superintendents within 48 hours of becoming aware of such evidence. Superintendents must then report to TEA/SBEC within 48 hours of becoming aware of the misconduct. This creates a tight, 96-hour maximum timeline from initial awareness at the campus level to reporting to state licensing authorities.

Criminal Penalties for Concealment

SB 571 adds powerful enforcement to these reporting requirements. A superintendent who fails to file a required report with the intent to conceal a person’s criminal record or alleged incident of misconduct commits a state jail felony, punishable by 180 days to two years in state jail and fines up to $10,000.

This criminal liability provision directly addresses the problem of administrators who protect abusive employees or cover up misconduct to avoid scandal or litigation. While prosecutors must prove the superintendent deliberately failed to report with the purpose of hiding the misconduct (not merely negligence or oversight), this provision creates powerful incentive to err on the side of reporting.

Civil Liability for Reporting Failures

When administrators fail to meet these reporting obligations—whether the 24-hour deadline for reporting to DFPS/law enforcement or the 48-hour administrative reporting deadlines—victims can pursue civil claims under HB 4623. The failure to report becomes evidence of the school’s gross negligence in protecting students, supporting claims for actual damages up to $500,000.

This dual accountability system means that a superintendent who conceals misconduct faces both criminal prosecution under SB 571 and potential civil liability (along with the school district) under HB 4623 for any harm that results from the failure to report.

The TEA Misconduct Reporting Portal

To streamline and centralize reporting, Texas Education Code §§ 22A.103 and 22A.155 require that misconduct reports and responses to TEA subpoenas be submitted through TEA’s Misconduct Reporting Portal. This portal system creates a centralized, trackable record of misconduct reports, making it harder for information to be lost, ignored, or buried. It also facilitates TEA’s ability to identify patterns, track repeat offenders across districts, and ensure accountability in the reporting process.

Parent Notification and Transparency Requirements

Under Texas Education Code § 22A.053, school boards and governing bodies must adopt policies requiring notice to parents or guardians when an employee or service provider is alleged to have engaged in specified misconduct involving a student. The notice must disclose:

• That the alleged misconduct occurred
• Whether the person was terminated following investigation or resigned before the investigation was completed
• Whether a report was submitted to TEA or SBEC concerning the alleged misconduct

This transparency requirement empowers parents with information about incidents affecting their children and prevents schools from quietly allowing accused employees to resign and move to other districts without consequence. Parents have a right to know when their child’s safety may have been compromised, and this information helps them make informed decisions about their children’s education and safety.

h2>What to Do If You Receive a School Misconduct Notice

Under Texas law, all schools—public and private—must notify parents when an employee is alleged to have engaged in sexual misconduct or abuse involving any student. If you receive such a notice, even if the school says your child wasn’t involved, take it seriously.

Focus on Your Child First

Children often don’t immediately disclose abuse. Watch for changes in behavior, mood, or attitude toward school. Have gentle, age-appropriate conversations. Consider connecting your child with a counselor who specializes in child trauma, regardless of whether you believe they were directly affected. Early intervention can make a significant difference in a child’s healing and recovery.

Understand What the Notice Doesn’t Tell You

The school is required to tell you that misconduct occurred and whether the employee was fired or resigned. But you won’t learn:

• The full scope of what happened and who was affected
• Whether the employee had prior complaints or red flags
• Whether the school properly screened them during hiring
• Whether school officials violated their 24-hour duty to report abuse to authorities
• Whether administrators tried to cover up or minimize the incident

These details matter. If the school failed to properly screen an employee, ignored warning signs, or delayed reporting to protect its reputation, that institutional failure put your child and others at risk. Understanding what really happened helps ensure it doesn’t happen again.

Time Is Critical

Evidence disappears quickly. Security footage gets deleted, emails are purged, documents go missing, and witnesses forget details. More importantly, if the school violated its reporting duties or enabled abuse through negligence, understanding that quickly helps protect other children and ensures accountability.

Why Call Varghese Summersett

Our role isn’t just about filing lawsuits—it’s about getting to the truth, protecting children, and holding institutions accountable. We can:

• Investigate what really happened and whether the school violated its mandatory reporting duties under the new laws
• Help you understand whether your child had contact with the accused employee and what warning signs to watch for
• Connect you with qualified counselors and support resources specialized in childhood trauma
• Preserve critical evidence before the school destroys it
• Hold everyone accountable—the perpetrator through criminal referrals, the school through administrative actions and civil claims if warranted
• Force systemic change so the school implements better protections and this doesn’t happen to another family

We’ve handled too many cases where parents assumed the school was managing things properly, only to discover months later that the employee had a history of complaints, the school never reported to police within 24 hours as required, or their own child had been affected but was too frightened to speak up initially.

What Happens Next

A free, confidential consultation helps you understand what occurred, what your options are, and what’s best for your child. There’s no pressure and no obligation. We simply help you see the full picture so you can make informed decisions about your child’s wellbeing and safety.

If holding the school accountable through legal action makes sense, we’ll explain how that process works and handle everything while you focus on your child. If your child needs support services, we’ll connect you with the right resources. If criminal action is warranted, we’ll ensure law enforcement has all the evidence they need.

Call Varghese Summersett today. Your child’s wellbeing comes first. We’ll help you understand what happened, ensure your child gets the support they need, and make certain the school is held accountable so this never happens again.

Prevention Through Enhanced Screening and Background Checks

SB 571 establishes comprehensive front-end prevention measures to keep dangerous individuals out of schools in the first place.

Pre-Employment Affidavits

Under Texas Education Code § 22A.055, individuals applying for employment or seeking to work as service providers must:

• Consent to the release of their employment records
• Submit a pre-employment or pre-service affidavit disclosing whether they have ever been:
  • Investigated, charged, adjudicated, or convicted by law enforcement or child protective services for conduct described in Section 22A.051
  • Investigated by a licensing authority or had a license, certificate, or permit denied, suspended, revoked, or sanctioned in any state
  • Included in the Do Not Hire Registry
  • Employed by a service provider for any public or private school
  • Terminated, discharged, or resigned in lieu of termination from any public or private school

Individuals who fail to disclose required information commit a Class B misdemeanor, punishable by up to 180 days in jail and a $2,000 fine. This criminal penalty prevents applicants from omitting problematic history and helps schools identify potentially dangerous hires before bringing them into contact with students.

The Do Not Hire Registry

The Do Not Hire Registry, administered by TEA, maintains a list of individuals who are prohibited from employment in Texas schools due to serious misconduct. SB 571’s requirement that applicants disclose whether they’re included in this registry, combined with schools’ obligation to check the registry during hiring, creates a statewide system to prevent known abusers and dangerous individuals from simply moving between districts.

Schools that fail to properly screen applicants and subsequently hire someone who commits sexual abuse may face enhanced liability under HB 4623 for gross negligence in hiring, as the failure to conduct proper background checks demonstrates a reckless disregard for student safety.

Practical Implications for School Districts

The coordinated reforms of HB 4623 and SB 571 create significant new obligations and risks for Texas public schools. Districts must now implement comprehensive systems that address prevention, detection, reporting, and accountability:

Immediate Reporting Compliance (SB 571):

• Train all professionals on the 24-hour deadline for reporting suspected abuse to DFPS or external law enforcement
• Establish clear protocols ensuring reports go to external agencies, not school police
• Train principals on 48-hour reporting obligations to superintendents
• Ensure superintendents understand both the 48-hour TEA/SBEC reporting deadline and criminal liability for intentional concealment
• Implement systems for using TEA’s Misconduct Reporting Portal
• Educate staff on the expanded definition of abuse, including educator-student relationships under Penal Code § 21.12

Prevention and Screening (SB 571):

• Implement comprehensive pre-employment affidavit requirements
• Check the Do Not Hire Registry for all applicants
• Verify all disclosures and consent to employment record releases
• Conduct thorough background checks beyond minimum requirements
• Document all screening procedures to defend against HB 4623 “gross negligence in hiring” claims

Transparency and Communication (SB 571):

• Adopt board policies for parent notification when misconduct allegations arise
• Ensure notices include required elements: that misconduct occurred, employment status, and whether reports were filed
• Create systems to track and document parent notifications

Liability Protection and Risk Management (HB 4623):

• Maintain adequate liability insurance coverage for claims under the statutory framework
• Document supervision, training, and institutional response to protect against liability
• Implement robust policies for preventing, detecting, and responding to sexual abuse
• Create clear documentation systems showing compliance with all SB 571 reporting requirements
• Understand that violations of SB 571 duties will be used as evidence in HB 4623 lawsuits

The combined effect of these laws incentivizes proactive institutional responsibility rather than reactive damage control. School districts that fail to take prevention and reporting seriously now face:

• Criminal prosecution of superintendents under SB 571 (state jail felony for concealment)
• Civil liability up to $500,000 per act or omission for each claimant, plus attorney fees under HB 4623
• Reputational damage and loss of public trust
• Increased insurance premiums and difficulty obtaining coverage
• State sanctions and potential intervention by TEA/SBEC

What Victims Should Know

If you or someone you know experienced sexual abuse by a school employee, or if school officials failed to report suspected abuse, several important points should guide your next steps:

Time is Critical

While HB 4623 provides an extended 30-year statute of limitations for sexual abuse claims, gathering evidence becomes more difficult as time passes. Witnesses’ memories fade, documents are destroyed, and proving your case becomes more challenging. If you’re considering legal action, consulting with an attorney sooner rather than later is advisable.

Documentation Matters

Preserve any evidence related to the abuse, including:

• Medical records and treatment documentation
• Mental health counseling records
• Communications with school officials
• Reports made to law enforcement or child protective services
• Any contemporaneous notes, diaries, or records you created
• Contact information for potential witnesses

You Must Name Both the Employee and School

HB 4623 requires that lawsuits name both the individual employee and the school district as defendants. A claim against only one party will not comply with the law’s requirements. This procedural requirement ensures proper notice and protects defendants’ due process rights while enabling victims to pursue recovery from both sources.

Understanding Your Rights Under Both Laws

The reforms create multiple layers of accountability:

• School employees had a duty to report within 24 hours to DFPS or external law enforcement (SB 571 – applies to all schools)
• Administrators had duties to report within 48 hours through the chain to TEA/SBEC (SB 571 – applies to public schools)
• You have up to 30 years to file a civil lawsuit for sexual abuse against both the employee and school district (HB 4623 – public schools only)
• You can recover up to $500,000 per act or omission, plus attorney fees for actual damages (HB 4623 – public schools only)
• Reporting failures strengthen your case: Violations of SB 571’s clear reporting deadlines provide strong evidence of the school’s gross negligence in your HB 4623 lawsuit

Criminal vs. Civil vs. Administrative Actions

Understanding the different types of legal proceedings is important:

Criminal prosecution (under existing law and SB 571): The abuser may be criminally charged, and superintendents who concealed misconduct may face state jail felony charges. These cases seek punishment through incarceration, fines, and criminal records.

Civil lawsuit (under HB 4623): You sue both the employee and school district for monetary compensation. The standard is “preponderance of evidence” (more likely than not), which is easier to meet than criminal “beyond reasonable doubt.” You can pursue this even if criminal charges aren’t filed or don’t result in conviction.

Administrative action (under SB 571): TEA/SBEC may revoke or suspend the abuser’s teaching certificate, preventing them from working in Texas schools. This protects other children but doesn’t provide you with compensation.

You can pursue all three simultaneously. A criminal conviction or certificate revocation can help your civil case, but isn’t required for you to win damages under HB 4623.

Legal Representation Is Essential

Claims under these new laws involve complex legal and factual issues, including:

• Proving the abuse occurred and its impact on your life
• Establishing the school’s gross negligence in hiring, supervising, or employing the abuser
• Documenting violations of SB 571’s reporting requirements to strengthen your case
• Navigating the sovereign immunity waiver and remaining legal defenses
• Calculating and documenting actual damages within the $500,000 cap
• Meeting the dual-defendant requirement (naming both employee and school)
• Adhering to procedural requirements and statutes of limitations
• Coordinating civil litigation with any criminal prosecution or administrative actions

An experienced attorney can evaluate your case, explain your rights under both HB 4623 and SB 571, gather necessary evidence, and advocate for full compensation within the law’s framework.

Contact Varghese Summersett for Help with School Abuse Claims

The attorneys at Varghese Summersett understand the profound impact of childhood sexual abuse and the courage it takes for survivors to come forward. If you believe you have a claim under Texas’s new school accountability laws—whether based on sexual misconduct, failure to report abuse, or violations of mandatory reporting requirements—our experienced legal team can help you understand your rights and pursue the justice and compensation you deserve.

Our attorneys are well-versed in both HB 4623’s civil liability provisions and SB 571’s reporting requirements. We can help you:

• Evaluate whether school employees violated their 24-hour reporting obligations
• Investigate whether administrators failed to report to TEA/SBEC within required timelines
• Document evidence of gross negligence in hiring, supervising, or retaining abusive employees
• Build a strong case for actual damages within the statutory framework
• Navigate the complexities of suing both the individual employee and school district
• Coordinate civil litigation with any criminal prosecution or administrative actions

With offices throughout Texas, including Fort Worth, Southlake, Dallas, and Houston, we are positioned to represent victims across the state. We offer confidential consultations where we can review your situation, explain how these landmark reforms apply to your case, and outline your legal options.

Criminal Consequences of AI-Generated Pornography in Texas

Texas has enacted some of the nation’s most comprehensive laws addressing AI-generated pornography, particularly content involving minors. As of September 1, 2025, both federal and Texas state law explicitly criminalize the creation, distribution, and possession of AI-generated sexually explicit material under specific circumstances. Understanding these laws is critical for anyone who might encounter, create, or distribute such content.

If you have been accused of a crime stemming from AI-Generated Pornography, your liberty is on the line. These cases are complex, high-stakes, and rapidly evolving — requiring a defense team with deep legal knowledge, technological understanding, and a proven track record in handling cutting-edge criminal matters in Texas and federal courts.

At Varghese Summersett, our experienced criminal defense attorneys are at the forefront of emerging digital crimes and are prepared to aggressively protect your rights and future. In this comprehensive article about AI-Generated Pornography, we examine the legal landscape in Texas, explain the potential criminal charges you could face, and outline the most effective defense strategies to protect your rights.

Our team breaks down how prosecutors approach these cases, what evidence they may rely on (including digital forensics and AI model analysis), and how experienced defense counsel can challenge allegations under both state and federal law.

Federal AI-Porn Laws Applicable in Texas

The TAKE IT DOWN Act

Passed in May 2025, the TAKE IT DOWN Act makes it a federal crime to knowingly publish sexually explicit images — whether real or AI-generated — without the depicted person’s consent. This includes deepfake nudes and revenge pornography. The law requires websites and platforms to remove such content within 48 hours of receiving notice from a victim.

Federal Child Sexual Abuse Material (CSAM) Provisions

Federal law criminalizes all forms of non-consensual pornographic deepfakes and applies to the publication, distribution, and threatening of publication of explicit content, including computer-generated or manipulated images. Congressional bills are expanding child pornography statutes to include fully AI-generated or computer-edited child images, regardless of whether real minors were involved.

Overview of Texas’s Three-Statute Framework

Texas addresses AI-generated pornography through three primary criminal statutes, each targeting different types of conduct and carrying different penalties:

• Texas Penal Code § 21.165: Unlawful Production or Distribution of Certain Sexually Explicit Media (targets non-consensual deepfakes of identifiable adults and minors)
• Texas Penal Code § 43.26: Possession or Promotion of Child Pornography (addresses traditional and AI-manipulated Child Sexual Abuse Material involving identifiable real minors, plus computer-generated CSAM that is virtually indistinguishable from real children)
• Texas Penal Code § 43.235: Possession, Promotion, or Production of Certain Visual Material Appearing to Depict Child (criminalizes obscene visual material appearing to depict minors, including cartoons, animations, and AI-generated content, plus prohibits using real children’s images to train AI models)

Understanding the distinctions between these statutes is essential for comprehending the full scope of criminal liability in Texas. Our experienced criminal defense attorneys thoroughly explain each one in the sections below.

Texas Penal Code § 21.165: Unlawful Production or Distribution of Certain Sexually Explicit Media

Texas Penal Code 21.165 was enacted in 2023 specifically to address deepfake pornography. The statute represents Texas’s recognition that existing revenge porn laws did not adequately cover AI-generated or manipulated content that never existed as an original intimate image.

Key Legal Definitions

• “Deep fake media” means a visual depiction created or altered through software, machine learning, artificial intelligence, or any other computer-generated or technological means, including by adapting, modifying, manipulating, or altering an authentic visual depiction manually or through an automated process, that appears to a reasonable person to depict a real person, indistinguishable from an authentic visual depiction of the real person, performing an action that did not occur in reality.
• “Visual depiction” means a photograph, motion picture film, videotape, digital image or video, or other visual recording.
• “Intimate parts” and “sexual conduct” have the meanings assigned by Section 21.16 (the revenge porn statute).

What Conduct Is Prohibited?

Production or Distribution (Subsection b):

A person commits an offense if, without the effective consent of the person appearing to be depicted, they knowingly produce or distribute by electronic means deep fake media that appears to depict the person:

• With visible computer-generated intimate parts or with the visible intimate parts of another human being as the intimate parts of the person; OR
• Engaging in sexual conduct in which the person did not engage

Threats (Subsection b-1):

A person commits an offense if they intentionally threaten to produce or distribute deep fake media with the intent to coerce, extort, harass, or intimidate another person.

Strict Consent Requirements

Consent under this statute is valid only if the person appearing to be depicted knowingly and voluntarily signed a written agreement drafted in plain language. The agreement must include:

• A general description of the deep fake media; AND
• If applicable, the audiovisual work into which the deep fake media will be incorporated

Verbal consent, implied consent, or unsigned agreements are not sufficient under the statute.

Critical Requirement: Identifiable Individual

The statute requires the deepfake to depict “a real person, indistinguishable from an authentic visual depiction of the real person.” This means:

• The person must be identifiable and real
• Generic AI-generated faces that don’t resemble any actual person do not fall under this section
• The deepfake must be realistic enough to appear indistinguishable from authentic footage to a reasonable person

Criminal Penalties Under § 21.165

What Is NOT a Defense to Unlawful Production or Distribution of Certain Sexually Explicit Media

The statute explicitly states it is NOT a defense that:

• The deep fake media contains a disclaimer stating the media was unauthorized or that the person did not participate in creation; OR
• The media indicates through a label or otherwise that the depiction is not authentic

Labeling content as “fake,” “parody,” or “satire” does not protect creators from prosecution.

Affirmative Defenses to unlawful production or distribution of certain sexually explicit media

1. Legitimate Activities (Subsection c-3):

It is an affirmative defense that production or distribution occurs in the course of:

• Lawful and common practices of law enforcement
• Reporting unlawful activity
• A legal proceeding, if the production or distribution is permitted or required by law

2. Technical Service Providers (Subsection c-4):

It is an affirmative defense if the actor:

• Is an Internet service provider, cloud service provider, cybersecurity service provider, communication service provider, or telecommunications network that transmits data; AND
• Acted solely in a technical, automatic, or intermediate nature

This protects ISPs and hosting providers who merely transmit or store content without active involvement.

3. AI Application Developers (Subsection c-5):

It is an affirmative defense if the actor:

• Is a provider or developer of a publicly accessible AI application or software used in creating the deep fake media;
• Included a prohibition against creating prohibited deep fake media in the actor’s terms and conditions or user policies that users must acknowledge before access; AND
• Took affirmative steps to prevent creation of prohibited deep fake media through technological tools

Required technological tools include:

• Training the AI to identify prohibited deep fake media
• Providing effective reporting tools for prohibited content
• Filtering prohibited deep fake media before showing it to users
• Filtering prohibited content from training datasets

This defense protects AI developers who take proactive measures to prevent misuse of their technology.

Mandatory Restitution

Courts must order defendants convicted under this section to make restitution to victims for:

• Psychological harm
• Financial harm
• Reputational harm

This restitution is mandatory, not discretionary.

Concurrent Prosecution

If conduct constitutes an offense under both this section and another law, the actor may be prosecuted under both. Examples:

• Creating deepfake child pornography: charged under both § 21.165 and § 43.26
• Deepfakes used for stalking: charged under both § 21.165 and stalking statutes
• Commercial distribution: charged under both § 21.165 and fraud statutes

Texas Penal Code § 43.26: Possession or Promotion of Child Pornography

Section 43.26 is Texas’s primary child pornography statute, originally enacted in the 1970s. The 2025 amendments (effective September 1, 2025) fundamentally restructured the statute to create separate subsections for offenses involving actual children versus computer-generated children, reflecting the challenge of AI-generated CSAM.

Critical Definitions

“Depiction of a child” means:

• Type A: A depiction of a child who was younger than 18 years of age at the time the image was made; OR
• Type B: A depiction of a child who is:
  • Recognizable as an actual person by face, likeness, or other distinguishing characteristic (such as a unique birthmark or other recognizable feature); AND
  • Whose image as a child younger than 18 was used in creating, adapting, or modifying the visual material, including computer-generated visual material created using AI or other computer software

This definition explicitly covers AI-generated deepfakes when they use a real, identifiable child’s image.

“Depiction of a computer-generated child” means a depiction:

• Appearing to be a child younger than 18 years of age;
• Created using an artificial intelligence application or other computer software; AND
• That to a reasonable person is virtually indistinguishable from an actual child younger than 18 years of age

This definition addresses purely fictional AI-generated CSAM that doesn’t use any real child’s image but appears realistic.

Two Parallel Offense Structures

The 2025 amendments created two parallel offense structures with significantly different penalties:

Subsection (a-1): Possession of Material Depicting Actual Child

A person commits an offense if:

• The person intentionally or knowingly possesses, or intentionally or knowingly accesses with intent to view, visual material containing a visual depiction of a child engaging in sexual conduct (including as a victim of trafficking); AND
• The person knows or should have known that the depiction is of a child younger than 18 at the time the image was made

This subsection covers traditional child pornography AND AI-generated material using a real child’s image or likeness.

Subsection (a-2): Possession of Computer-Generated Child Material

A person commits an offense if the person:

• Intentionally or knowingly possesses, or intentionally or knowingly accesses with intent to view, visual material containing a visual depiction of a computer-generated child engaging in sexual conduct; AND
• Either:
  • Knows or should have known that the depiction appears to be of a child younger than 18; OR
  • Believes that the depiction is of an actual child younger than 18 at the time the image was made

This subsection covers purely AI-generated CSAM with no identifiable real child, provided it is virtually indistinguishable from real CSAM.

Criminal Penalties: Actual Child Material (Subsection a-1)

Age Enhancement for Actual Child Material

If visual material depicts a child younger than 10 years of age at the time the image was made:

• Second or third-degree felony offenses increase to the next higher category of offense
• For first-degree felonies under subsection (c-1)(2), minimum imprisonment increases from 5 years to 15 years

Criminal Penalties: Computer-Generated Child Material (Subsection a-2)

Age Enhancement for Computer-Generated Material

If visual material depicts a computer-generated child appearing to be younger than 10 years of age, punishment increases to the next higher category of offense (with a 10-year minimum remaining for subsection c-3(3) offenses).

Promotion Offenses

Subsection (e): Promotion of Actual Child Material

A person commits an offense if:

• The person intentionally or knowingly promotes or possesses with intent to promote visual material depicting a child engaging in sexual conduct; AND
• The person knows or should have known the depiction is of a child younger than 18 at the time the image was made

Penalties (per 2025 SB 1621 amendment):

Subsection (e-1): Promotion of Computer-Generated Child Material

A person commits an offense if:

• The person intentionally or knowingly promotes or possesses with intent to promote visual material depicting a computer-generated child engaging in sexual conduct; AND
• Either knows or should have known the depiction appears to be of a child younger than 18, OR believes it’s of an actual child younger than 18

Penalties:

Critical Prosecutorial Presumption

Subsection (f) creates a crucial rebuttable presumption in prosecutions under subsections (a-1) or (e):

• The state is NOT required to prove the identity of the child in the depiction
• There is a rebuttable presumption that the depiction is of an actual child (not computer-generated)

This means defendants charged under the “actual child” provisions bear the burden of proving the material was computer-generated to potentially receive the lesser penalties under subsections (a-2) or (e-1).

Affirmative Defenses

Subsection (h): School Administrator/Law Enforcement Defense

It is a defense if the actor is a law enforcement officer or school administrator who:

• Possessed or accessed the material in good faith solely as a result of an allegation of a § 43.261 violation (electronic transmission by minor);
• Allowed other personnel to access the material only as appropriate based on the allegation; AND
• Took reasonable steps to destroy the material within an appropriate period following the allegation

Subsection (h-1): Official Duties Defense

It is an affirmative defense that at the time of the offense the actor was a judicial or law enforcement officer discharging official duties.

Subsection (h-2): Close-in-Age Defense for Computer-Generated Material

It is an affirmative defense to prosecution under subsections (a-2) or (e-1) that the actor is not more than two years older than the depicted child.

Important limitation: This defense applies ONLY to computer-generated material offenses, not to actual child depictions.

Key Distinctions: Actual vs. Computer-Generated

Texas Penal Code § 43.235: Possession, Promotion, or Production of Certain Visual Material Appearing to Depict Child

The Obscenity-Based AI Child Pornography Statute

Section 43.235 was added in 2025 (effective September 1, 2025) through SB 20. Unlike § 43.26, this statute requires the material to meet the legal definition of “obscene” and explicitly covers cartoons, animations, and other stylized depictions.

Statutory Elements

A person commits an offense if they:

Subsection (b)(1): Knowingly possess, access with intent to view, or promote obscene visual material containing a depiction that appears to be of a child younger than 18 engaging in activities described by Section 43.21(a)(1)(B), regardless of whether the depiction is:

• An image of an actual child;
• A cartoon or animation; OR
• An image created using AI or other computer software

Subsection (b)(2): Use an image of an actual child younger than 18 at the time the image was made with the intent to train an AI model to produce visual material constituting child pornography under § 43.26.

Critical Requirement: Obscenity

Unlike § 43.26, this statute requires the material to be “obscene” as defined by § 43.21. This adds a constitutional safeguard but also a prosecutorial burden. Material must meet the three-part Miller test for obscenity:

• The average person, applying contemporary community standards, would find the work, taken as a whole, appeals to prurient interest in sex
• The work depicts or describes sexual conduct in a patently offensive way
• The work, taken as a whole, lacks serious literary, artistic, political, or scientific value

What Are “Activities Described by Section 43.21(a)(1)(B)”?

Section 43.21(a)(1)(B) refers to obscene material that includes a visual depiction of sexual conduct. This incorporates the definition of “sexual conduct” from § 43.25, which includes:

• Sexual intercourse (actual or simulated)
• Deviate sexual intercourse
• Sexual contact
• Masturbation
• Bestiality
• Sadistic or masochistic abuse
• Lewd exhibition of genitals, anus, or female breast

Broad Coverage: Cartoons, Animations, and AI

The statute explicitly covers:

• Images of actual children (though these would typically also be charged under § 43.26)
• Cartoons and animations depicting children in sexual conduct
• AI-generated or computer-created images
• Any other visual depiction “appearing to be” a child younger than 18

This is broader than § 43.26’s computer-generated child definition, which requires the depiction to be “virtually indistinguishable” from an actual child. Section 43.235 only requires material to “appear to be” a child and meet the obscenity standard.

Unique AI Training Prohibition

Subsection (b)(2) creates a unique offense not found in § 43.26: using images of actual children to train AI models to produce child pornography. This specifically targets:

• Developers who feed real child images into AI training datasets for the purpose of generating CSAM
• Individuals who fine-tune AI models using real child images to improve CSAM generation
• Anyone who uses a child’s image with the specific intent to enable AI-generated CSAM production

This provision recognizes that the act of training AI models itself can constitute a form of child exploitation.

Criminal Penalties Under § 43.235

No Volume-Based Enhancements

Unlike § 43.26, this statute does not provide enhanced penalties based on the number of images possessed. The penalties increase only based on prior convictions, not on volume.

Concurrent Prosecution

Subsection (d) explicitly allows dual prosecution: “If conduct constituting an offense under this section also constitutes an offense under another law, the actor may be prosecuted under this section, the other law, or both.”

This means prosecutors can simultaneously charge under:

• Both § 43.235 and § 43.26
• § 43.235 and § 21.165 (deepfake statute)
• § 43.235 and any other applicable statute

Comparative Analysis: When Each Statute Applies

Comparison of the Three Statutes

Prosecutorial Strategy and Application

Prosecutors strategically select statutes based on the nature of the material and available evidence:

They use § 43.26(a-1) when:

• There is an identifiable real child in the material
• Prosecutors want the highest possible penalties
• AI was used to manipulate or create sexual content using a real child’s image
• The rebuttable presumption of an actual child favors prosecution

They use § 43.26(a-2) when:

• Material is AI-generated without using any real child’s image
• The AI-generated material is virtually indistinguishable from photographs of real children
• Defendant can prove no actual child was depicted

They use § 43.235 when:

• Material is clearly fictional (cartoons, stylized anime) but still obscene
• Material “appears to be” a child but may not be “virtually indistinguishable” from a real child
• Charging AI training activities specifically
• As an additional charge alongside § 43.26

They use § 21.165 when:

• The victim is an identifiable adult or minor
• Consent is the central issue
• As an additional charge when minors are involved

Collateral Consequences Beyond Prison

Convictions under these statutes carry severe lifelong consequences that extend far beyond incarceration:

Sex Offender Registration

Mandatory requirements for convictions under § 43.26 and § 43.235:

• Lifetime registration on Texas’s sex offender registry
• Tier III classification (highest level) for promotion or production offenses
• Quarterly in-person reporting to law enforcement
• Public disclosure of name, address, photograph, vehicle information, and offense details
• Registration in every jurisdiction where the person lives, works, or attends school
• Online publication on public sex offender databases accessible to anyone
• Community notification when moving to new areas

Residence and Employment Restrictions

• Cannot live within 1,000 feet of schools, daycare centers, parks, playgrounds, youth centers, or swimming pools
• Prohibited from any employment involving children or requiring contact with minors
• Automatic loss of professional licenses (teaching, medicine, law, counseling, childcare, etc.)
• Mandatory restrictions on internet and computer use (may require monitoring software installation)
• Prohibited from operating social media accounts in many cases
• Cannot work in positions with access to children’s personal information
• Severe limitations on available housing (entire neighborhoods may be off-limits)
• Difficulty finding any employment due to public registry

Family and Custody Consequences

• Strong legal presumption against custody rights for own children
• Supervised visitation only, if any contact is permitted with own children
• May be permanently barred from unsupervised contact with own children
• Can lose custody of children not involved in the offense
• Restrictions on contact with other minors (nieces, nephews, grandchildren)
• Divorce proceedings often initiated by spouse upon conviction
• Child Protective Services involvement and ongoing investigations
• Supervised visitation may require paying for professional monitors

Civil Liability

• Victims can file civil lawsuits for damages (no statute of limitations in Texas for CSAM victims)
• Mandatory restitution orders under § 21.165 for psychological, financial, and reputational harm
• Federal restitution available under 18 U.S.C. § 2259 for victim losses
• Civil claims for emotional distress, invasion of privacy, and intentional infliction of emotional distress
• Punitive damages available in many civil cases
• No bankruptcy protection for these debts
• Victims may recover lifetime therapy costs and lost wages

Immigration Consequences

For non-U.S. citizens, convictions are catastrophic:

• Automatic deportable offense (mandatory removal from United States)
• Permanent bar on any future re-entry to the United States
• Prevents naturalization and citizenship applications
• Considered “aggravated felony” under immigration law (most serious category)
• No discretionary relief available (no cancellation of removal, asylum, hardship waivers, etc.)
• May face prosecution in home country upon deportation
• Family members’ immigration status may be jeopardized

Additional Collateral Consequences

• Firearm restrictions: Permanent federal and state ban on firearm possession
• Voting rights: Loss of voting rights during incarceration (restored after completion of sentence)
• Jury service: Permanent disqualification from jury service
• Federal benefits: Ineligibility for many federal programs and benefits
• Student loans: Ineligibility for federal student aid
• Public housing: Lifetime ban from federally subsidized housing
• International travel: Many countries deny entry to registered sex offenders
• Background checks: Offense appears on all background checks permanently
• Social stigma: Severe social isolation, community ostracism, and harassment
• Internet restrictions: Courts may prohibit internet access or social media use
• GPS monitoring: Lifetime GPS ankle monitor in some cases

Law Enforcement and Prosecution Trends

In recent years, the rise of AI-generated child sexual abuse material (CSAM) has triggered an unprecedented response from law enforcement agencies and prosecutors at every level. What was once a niche concern has rapidly evolved into a top priority, drawing national attention and prompting aggressive action. Authorities have ramped up their technological capabilities, reallocated resources, and forged deeper collaborations across jurisdictions to combat this new form of digital exploitation. As a result, investigations are becoming more thorough, prosecutions more strategic, and penalties more severe.

Understanding these emerging enforcement trends is critical—not just for those facing accusations, but for legal professionals, tech companies, and anyone concerned about the evolving landscape of digital criminal law.

Increased Enforcement Activity

Reports of AI-generated CSAM have risen dramatically since 2023, leading to escalating enforcement efforts:

• Formation of dedicated task forces focusing specifically on AI-generated CSAM
• Significantly increased resources for digital forensics labs and AI detection capabilities
• Prosecution prioritization at both federal and state levels
• Enhanced sentencing recommendations reflecting severity of AI-facilitated crimes
• Public awareness campaigns about legal consequences
• Increased cooperation between state and federal prosecutors

Investigation Methods and Technology

Law enforcement uses increasingly sophisticated tools to investigate violations:

• Hash value databases: To identify known CSAM images across platforms (PhotoDNA, NCMEC hash database)
• AI detection tools: Machine learning systems that identify AI-generated content and trace creation methods
• Metadata analysis: Examining creation dates, locations, device information, and software signatures
• Undercover operations: In online communities, dark web forums, and peer-to-peer networks
• Peer-to-peer network monitoring: Tracking file-sharing activity in real-time
• Technology company cooperation: ISPs, cloud providers, and social media platforms proactively report suspicious activity
• Forensic examination: Of seized devices, including deleted files, hidden partitions, and encrypted containers
• Cryptocurrency tracing: Following Bitcoin and other cryptocurrency payments for illegal content
• International cooperation: Through Interpol, Europol, and bilateral law enforcement agreements
• Warrant service coordination: Simultaneous multi-jurisdiction operations

Federal vs. State Prosecution

Child pornography cases can be prosecuted in both state court (under § 43.26 and § 43.235) and federal court (under 18 U.S.C. §§ 2251-2252A). Federal prosecution typically occurs when:

• Interstate or international transmission is involved (internet use typically satisfies this)
• Large-scale operations or organized networks are discovered
• Production cases involving multiple victims or ongoing abuse
• Federal investigators (FBI, ICE, Homeland Security Investigations) conduct the investigation
• The case involves significant aggravating factors warranting longer sentences
• Defendant is already in federal custody on other charges

Federal sentences are significantly more severe than Texas state sentences:

• Mandatory minimum 5-year sentence for receipt/distribution (18 U.S.C. § 2252(a)(2))
• Mandatory minimum 15-year sentence for production (18 U.S.C. § 2251)
• Mandatory minimum 30 years if defendant has prior sex offense conviction
• Sentencing enhancements based on number of images, age of victims, sadistic content, and other factors
• No parole in federal system (defendants serve at least 85% of sentence)
• Supervised release of 5 years to life after prison

Practical Implications and Recommendations

As the legal system evolves to address the complex challenges posed by AI-generated explicit content, it’s crucial for all stakeholders—parents, educators, tech developers, and legal practitioners—to understand their roles and responsibilities. The consequences for missteps in this area can be swift and severe, especially when minors are involved. What may seem like a harmless or anonymous interaction with technology can carry lifelong criminal implications.

This section provides targeted recommendations to help protect children, ensure compliance with emerging legal standards, and guide professionals in navigating this high-stakes digital landscape. Whether you’re a concerned parent, a software developer, or a defense attorney, proactive education, technical safeguards, and strategic legal analysis are more essential than ever.

For Parents and Educators

• Educate children about the serious criminal consequences of AI-generated explicit content
• Monitor children’s online activities, AI tool usage, and app downloads
• Discuss the permanence of digital content and lifelong criminal implications
• Report incidents involving minors immediately to school authorities and law enforcement
• Understand that minors can face prosecution as adults for creating or distributing CSAM
• Be aware that “teen sexting” between minors can result in child pornography charges under § 43.261
• Teach children about consent, digital citizenship, and online safety
• Implement parental controls and monitoring software on children’s devices
• Have ongoing conversations about peer pressure and online risks
• Know the warning signs: secretive device use, clearing history, using encrypted apps

For Technology Companies and AI Developers

• Implement robust content moderation systems before product launch, not after problems emerge
• Develop and deploy AI detection tools for synthetic CSAM
• Establish clear terms of service explicitly prohibiting illegal content generation
• Implement technical safeguards preventing creation of CSAM (training data filtering, output filtering, prompt filtering)
• Train AI models to refuse generating content depicting minors in any sexualized context
• Provide effective user reporting mechanisms that are monitored 24/7
• Train staff on recognition and mandatory reporting requirements
• Respond to takedown notices within required timeframes (48 hours under TAKE IT DOWN Act)
• Maintain detailed logs of reports, actions taken, and timestamps
• Cooperate fully with law enforcement investigations and provide requested data
• Consider implementing age verification systems for AI tools
• Regularly audit systems for potential misuse and emerging abuse patterns
• Ensure the AI developer defense under § 21.165(c-5) is available by implementing all required safeguards
• Join industry initiatives like the National Center for Missing & Exploited Children’s Technology Coalition
• Conduct regular penetration testing to identify vulnerabilities

For Legal Practitioners

Defense Considerations:

• Immediately determine which statute(s) the client is charged under—penalties vary dramatically
• Examine whether material truly “appears to depict” a minor or is “virtually indistinguishable” from actual child (expert analysis required)
• Challenge knowledge and intent elements through digital forensics and device usage patterns
• Review chain of custody for all digital evidence carefully
• Assess search warrant validity and Fourth Amendment issues (probable cause, scope, execution)
• Determine whether material meets statutory definition of “sexual conduct” or “obscenity”
• Evaluate availability of affirmative defenses (close-in-age, official duties, AI developer safeguards)
• Obtain comprehensive mental health evaluations for sentencing mitigation
• Consider constitutional challenges under Ashcroft v. Free

Moten v. State, No. 10-24-00183-CR (Tex. App.—Waco Oct. 9, 2025)

In a significant decision clarifying prosecutor discovery obligations under Texas law, the Tenth Court of Appeals recently addressed whether the State must proactively seek out recordings of jail phone calls made by defendants. In Moten v. State, the court held that prosecutors have an affirmative duty to search for jail call recordings in response to discovery requests, even when stored on third-party servers, and cannot wait until a witness alerts them to such calls’ existence.

While finding a discovery violation and an abuse of discretion in admitting the improperly disclosed evidence, the court ultimately affirmed the conviction on harmless error grounds.

The Background

Herbert Wayne Moten was charged with aggravated assault with a deadly weapon for stabbing Keiland Harris with a knife, causing serious bodily injury. The incident occurred outside a bar at closing time on August 6, 2023. Within hours of his arrest that morning, Moten made phone calls from the Navarro County jail to Teagan McGuire, a witness in the case.

On October 17, 2023 — more than seven months before trial — Moten filed a request for discovery under Texas Code of Criminal Procedure Article 39.14, specifically requesting any audio recordings of Moten or any witness. This timely discovery request triggered the State’s obligations under the statute.

The Discovery Violation

The discovery problem arose during trial. Jury selection occurred on a Friday. By Friday afternoon, the prosecutor had learned from witness Teagan McGuire that Moten had called her twice from jail. The prosecutor received the actual audio recordings of those calls on Monday morning — the day trial testimony was to begin, and after the jury had already been selected.

When the prosecutor disclosed this development before opening statements on Monday morning, Moten objected on the basis that the production was untimely and prevented him from effectively preparing for trial. The trial court initially deferred ruling, stating they would “take that up when we get to that point.” When the State called McGuire to testify and sought to introduce the recordings, Moten renewed his objections. The trial court overruled the objections and allowed the recordings to be played for the jury.

The State’s Argument

The State advanced two primary arguments to justify the late disclosure:

• Lack of Knowledge: The prosecutor claimed he did not know about the calls and had no way to know about them until McGuire mentioned them on Friday afternoon.
• Possession Theory: The State argued it was not in possession of the calls because they were stored on a server belonging to a third-party vendor that contracted with the Navarro County Sheriff’s Office to maintain jail phone call recordings.

The Court’s Legal Analysis

Standard of Review

The court applied an abuse of discretion standard to review the trial court’s evidentiary ruling. Under this standard, an abuse of discretion occurs when the trial court acts without reference to guiding rules or principles or acts arbitrarily or unreasonably. The appellate court will sustain the trial court’s decision if it was correct on any applicable theory of law.

Article 39.14’s Requirements

The court began its analysis by examining the plain language of Texas Code of Criminal Procedure Article 39.14(a), which requires the State to produce “as soon as practicable after receiving a timely request from the defendant” various forms of evidence, including recorded statements that are “material to any matter involved in the action” and “in the possession, custody, or control of the state or any person under contract with the state.”

Drawing heavily on the Texas Court of Criminal Appeals’ recent decision in State v. Heath, 696 S.W.3d 677 (Tex. Crim. App. 2024), the court outlined several key principles:

• Broad Definition of “State:” Items in the possession, control, or custody of the State include items in the possession of law enforcement agencies.
• No Knowledge Requirement: Article 39.14 does not contain a knowledge requirement. Even if the prosecutor is unaware of discoverable items in the State’s possession, the State has an obligation to exercise reasonable diligence.
• Affirmative Duty to Search: Once a discovery item is requested, “the State now has an affirmative duty to search for the item and produce it to the defendant in a timely manner.”
• “Practicable” Means Reasonable Diligence: The term “practicable” includes a requirement of reasonable diligence on the part of the prosecutor to discover what items the State intends to introduce at trial.
• Disclosure as the Rule: Article 39.14 “removes procedural hurdles to obtaining discovery, broadens the categories of discoverable evidence, and expands the State’s obligation to disclose,” making “disclosure the rule and non-disclosure the exception.”

Rejection of the “Third-Party Server” Argument

The court decisively rejected the State’s argument that the jail calls were not in its possession because they were stored on a third-party vendor’s server. The court noted that Article 39.14(a) specifically extends to evidence “in the possession, custody, or control of the state or any person under contract with the state.”

Since the Navarro County Sheriff’s Office contracted with the third-party company to maintain jail phone calls, the recordings —”although on a server belonging to a company contracting with the Sheriff’s office, were continually in the State’s possession.”

Finding of Inadequate Diligence

The court’s most significant holding addressed the prosecutor’s claim that he could not have known about the calls until the witness mentioned them. The court found this explanation inadequate:

“Here, the prosecutor obtained the recordings of the phone calls right away after McGuire alerted him to their existence. However, there is no explanation as to why the prosecutor could not, on his own, request phone logs and recordings, if any exist, directly from the Sheriff’s office without knowing for a fact that they exist.”

The court concluded: “We conclude that the State failed to exercise reasonable diligence in ascertaining whether unknown but discoverable evidence existed.”

This holding is particularly significant because it establishes that prosecutors cannot simply wait for evidence to come to them — they must affirmatively seek out discoverable materials in response to defense requests, even if they don’t know whether such materials exist.

Abuse of Discretion

Because the State violated Article 39.14, the trial court abused its discretion by admitting the recordings of the phone calls. The court applied the framework from State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005), finding that the trial court acted without reference to guiding rules or principles.

Harmless Error Analysis

Despite finding error, the court did not reverse the conviction. Instead, it concluded the error was harmless under Texas Rule of Appellate Procedure 44.2(b).

Standard for Non-Constitutional Error

A violation of Article 39.14 is statutory (non-constitutional) error. For such errors, the appellate court must determine whether the error affected a substantial right of the defendant — specifically, whether the error had a substantial or injurious effect on the jury verdict.

Harm Analysis Factors

The court examined several non-exclusive factors established in Cook v. State, 665 S.W.3d 595, 599 (Tex. Crim. App. 2023):

1. Character of the Error and Connection to Other Evidence

The court found this factor weighed strongly against harm. In the phone calls, Moten “did not admit guilt or say anything overtly incriminating.” Instead, he:

• Told McGuire not to say anything
• Asked if she was on his side
• Told her that he loved her
• Offered to send her money

The court concluded: “The statements made in the phone calls had no bearing on the facts of consequence in the case, whether Moten stabbed Harris.”

2. Nature of Evidence Supporting the Verdict / Other Evidence of Guilt

The court found overwhelming evidence of guilt beyond the challenged phone calls:

• Victim’s Testimony: Harris survived the attack and testified that Moten stabbed him
• Eyewitness Accounts: Multiple witnesses testified that Moten instigated the fight outside the bar
• Location Evidence: No one else was nearby when Harris was stabbed
• Confession: Gabriel Judge, Moten’s co-worker, testified that Moten confessed to the stabbing as soon as they drove away from the scene
• Medical Evidence: Testimony described Harris’s severe twelve-inch-long vertical laceration across his abdomen, along with photographs of the wound

The court concluded: “The jury could reasonably have found Moten guilty of aggravated assault with a deadly weapon. Given the strength of the inculpatory evidence, these factors weigh against a finding of harm.”

3. Substantially Similar Evidence Admitted Without Objection

Significantly, McGuire testified about the contents of the jail calls without objection. Her testimony covered the same ground as the recordings themselves — that Moten asked if she would be on his side, told her not to say anything, offered money, and said he loved her. She also testified that Moten did not claim his co-worker Judge stabbed Harris or deny his own involvement.

The court applied the principle from Cook that “erroneous admission of evidence will not result in reversal when other such evidence was received without objection either before or after the complained-of ruling.”

4. State’s Emphasis of the Complained-Of Error

The State did not mention the jail phone calls in either its opening or closing arguments. The calls only came up when defense counsel mentioned them in closing argument. The State responded in rebuttal, arguing that “it was not reasonable that an innocent man would call McGuire and tell her not to say anything, assert that he wants her on his side, and offer to send her money.”

The court found this factor weighed “slightly in favor of finding harm,” but not enough to overcome the other factors pointing toward harmlessness.

Prosecutor Discovery Obligations Texas

Reviewing the entire record, the court concluded it was “unable to say that the trial court’s admission of the jail phone calls affected Moten’s substantial rights.” The erroneous admission was therefore harmless error, and the court affirmed the conviction.

The Scope of “The State’s Possession:” Beyond the Prosecutor’s Actual Knowledge

The assertion that requested evidence is not “in the possession” of the District Attorney’s Office is insufficient under State v. Heath and Moten v. State. In Heath, the Court of Criminal Appeals held that “the state” under Article 39.14(a) means the State of Texas, which “includes prosecutors and law enforcement.” Heath, 715 S.W.3d at 2. The Court rejected any construction limiting “the state” to the individual prosecutor or district attorney’s office, holding instead that Article 39.14’s reference to materials “in the possession, custody, or control of the state” encompasses all evidence held by law enforcement agencies, regardless of the prosecutor’s actual knowledge of its existence. Id. at 21-26. The Court emphasized that Article 39.14(a) “does not speak to the prosecution’s state of mind, nor does it contain any mens rea limitation,” and that “the focus of the statute is on the State’s obligation and ability to disclose evidence in the State’s possession, not whether a specific prosecutor knew that law enforcement had the evidence in its possession.” Id. at 21-22.

Moten extends this principle to third-party vendors operating under contract with governmental entities. The Court held that evidence possessed by Securus — a private company contracted to provide jail telephone services — falls within “the possession, custody, or control of the state” under Article 39.14(a). The Court reasoned that because the jail exercises control over the vendor’s services and the recordings are made pursuant to governmental authority, such evidence must be produced upon timely request. This construction aligns with Article 39.14(a)’s express language requiring disclosure of evidence “in the possession, custody, or control of the state or any person under contract with the state.”

These holdings impose an affirmative duty of inquiry. The prosecutor must exercise “reasonable diligence to ascertain what discoverable evidence is at [the State’s] disposal.” Heath, 715 S.W.3d at 38. As the Court explained, “as soon as practicable” means “as soon as reasonably possible” and requires that prosecutors determine what evidence law enforcement and contracted vendors possess. Id. at 36-37. The duty arises immediately upon receipt of a timely discovery request, not when the prosecutor subsequently learns of evidence during trial preparation. Id. at 36-38.

The practical import is that prosecutors must affirmatively inquire with investigating agencies and relevant third-party contractors to identify discoverable materials. Where evidence can be obtained through reasonable inquiry — such as requesting jail call recordings from a contracted vendor or body camera footage from law enforcement — disclosure is “practicable” under the statute regardless of whether the prosecutor previously knew such evidence existed. The failure to make such inquiries constitutes a violation of Article 39.14(a)’s timeliness requirement, and lack of actual knowledge does not excuse noncompliance. See Heath, 715 S.W.3d at 39 (“[O]nce discovery of an item is requested, the State now has an affirmative duty to search for the item and produce it in a timely manner.”).

Implications and Analysis

Practical Impact on Prosecutors

This decision places clear obligations on prosecutors in Texas:

• Proactive Discovery Duties: Prosecutors cannot adopt a passive approach to discovery. When defendants request recordings of statements, prosecutors must affirmatively search for such materials.
• Jail Call Protocols: Prosecutors should establish routine procedures to request and review jail call logs and recordings for defendants, particularly those who have filed discovery requests.
• Third-Party Vendors: The fact that evidence is maintained by contractors does not excuse the State’s discovery obligations. Prosecutors must ensure they can access materials held by vendors under contract with law enforcement.
• Timing: Seven months from discovery request to trial was more than sufficient time to identify and produce jail call recordings. The “as soon as practicable” standard requires diligence throughout the pretrial period, not last-minute scrambles.

Defense Considerations

For defense attorneys, this case provides:

• Strong Precedent: Clear authority that prosecutors must search for jail calls in response to discovery requests, not wait until they happen to learn about them.
• Remedy on Appeal Limitations: However, the case also illustrates that discovery violations may be found harmless, particularly when:
  • The improperly disclosed evidence is not highly incriminating
  • Similar evidence comes in without objection
  • Other evidence of guilt is overwhelming
  • The State makes minimal use of the evidence
• Strategic Responses: Defense counsel might consider:
  • Moving to exclude the evidence entirely
  • Seeking continuances when late-disclosed evidence emerges

Broader Context: The Heath Framework

The court’s decision applies the framework established in State v. Heath, 696 S.W.3d 677 (Tex. Crim. App. 2024), which significantly expanded prosecutors’ discovery obligations. The Heath court emphasized that Article 39.14’s amendments were designed to remove procedural hurdles and expand disclosure requirements.

The Moten decision shows how appellate courts are applying Heath‘s principles in specific contexts. The affirmative duty to search for evidence means prosecutors can no longer claim ignorance as an excuse for non-disclosure when reasonable diligence would have uncovered the evidence.

The Harmless Error Safety Valve

While the court found a clear discovery violation, the harmless error analysis allowed it to affirm the conviction. This reflects a balance in Texas appellate jurisprudence between enforcing procedural rights and avoiding reversal of convictions when errors did not affect the outcome.

The factors that made the error harmless here were:

• Content of the Evidence: The calls contained no confession or direct admission
• Duplicative Nature: Similar testimony came in without objection
• Strength of Other Evidence: Overwhelming independent proof of guilt
• Minimal Emphasis: State barely mentioned the calls

Defense attorneys should note that these factors might not be present in other cases. Where improperly disclosed evidence is more incriminating, is the only source of certain information, or receives heavy emphasis, reversal might be more likely.

Key Takeaways

Moten v. State clarifies that Texas prosecutors have affirmative duties to search for and disclose jail call recordings in response to discovery requests. The State cannot hide behind third-party storage arrangements or claim ignorance when reasonable diligence would have uncovered the evidence.

The case serves as both a warning to prosecutors about their discovery obligations and a reminder to defense counsel that establishing error alone may not be sufficient for appellate relief. The ultimate question remains whether the error affected the defendant’s substantial rights, which requires a careful examination of the entire trial record.

Going forward, Texas prosecutors should implement systematic procedures to identify and disclose jail communications, particularly in jurisdictions where such recordings are routinely made. The “as soon as practicable” standard, combined with the affirmative duty to search articulated in Heath and applied here, leaves little room for delayed disclosure absent extraordinary circumstances. If further cements the expectations surrounding prosecutor discovery obligations, requiring diligence and accountabilty across every state of the process.