May 15, 2014

Injury to a Child by Omission in Texas

"Injury to a child by omission" means that the legal guardian, or someone with the legal duty to support/protect the child, failed to take an action they should have taken and the failure to take that action caused injury to the child. 
“Injury to a Child” is defined by Texas Penal Code 22.04 which states;
(a)  A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly by omission, causes to a child, elderly individual, or disabled individual:
(1)  serious bodily injury;
(2)  serious mental deficiency, impairment, or injury; or
(3)  bodily injury.

Child abuse allegations are extremely serious in nature, and Texas law takes these matters so seriously that we are all charged with an affirmative duty in Texas to report any abuse or neglect of a child to the authorities. Charges of child abuse can be brought if someone is alleged to have acted “intentionally” or “knowingly”, or in the case of an “inchoate” crime; a crime of omission, or failing to act.

While most felony child abuse charges stem from a direct act by a defendant in the context of an assault, either intentionally or recklessly causing some contact with a child that results in an injury- child abuse also applies to omissions or things that a person failed to do. This is one of the few felony offenses where a person is punished for not doing something. 
Child abuse charges from omissions only apply to a parent or another person who has taken over the parenting or caretaking function, such as a nanny or babysitter. Examples could include punishment techniques involving the deprivation of food or water, or failing to obtain proper medical treatment for a child, even when the denial of treatment is based on religious beliefs.

There are several affirmative defenses available to people accused of injury to a child in Texas. A primary defense is provided by Texas Penal Code Section 9.61 which allows "the use of force, but not deadly force, against a child younger than 18 years of age (1) if the actor is the child’s parent or step-parent acting in loco parentis to the child (which includes grandparents, guardians, or any person acting by, through, or under the discretion of a court with jurisdiction over the child, and anyone that has the express or implied consent of the parent or parents of the child); and (2) when and to the degree the actor reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare."
This means that if a defendant can show that the injury was the result of reasonable discipline, then a defendant is allowed to submit an affirmative defense. The main focus is the reasonableness of the discipline;  if a parent spanks their child with a belt and leaves minimal red marks, they will probably be able to beat a felony child abuse charge. A spanking with a metal studded belt that lasted for an extensive period of time would not qualify as reasonable.

It is extremely common for law enforcement, either a local police agency or Child Protective Services (CPS) to conduct investigations of child abuse or endangerment without notifying the accused that they are  being investigated for a felony.  A seemingly innocuous request to have an in-person interview may be an attempt to get a confession.  

If you have any question about why you’ve been contacted for an investigation you should speak with a lawyer immediately. Contact the law offices of Parnham and McWilliams at 713.224.3967 or visit to schedule a free consultation.

No comments:

Post a Comment