Injury to a Child is listed in the Texas Penal Code Chapter 22 with the other Assault Offenses, but it is both broader and more complicated than ordinary assault. Broader because it punishes not just intentional conduct but also negligence, and more complicated because the law penalizes not only a person’s actions, but also a person’s failure to take action. The reason for the breadth and complexity is that the law covers crimes against children, and children are minors. They are vulnerable and need protection. For there to be an Assault crime, someone must cause bodily injury that results in someone else’s pain. Injury to a Child can mean causing injury, but it can also mean failing to do something. There are several different penalties for Injury to a Child, and all of the penalties are felonies. All Assaults penalize intentional conduct and reckless conduct, but Injury to a Child covers more. Injury to a Child also punishes criminal negligence. This is the lowest level of criminal culpability in the penal code. There are also special provisions for owners or employees of child-care facilities who have special duties under the law to provide care for children. This page discusses all facets of the law, how Injury to a Child differs from Assault, discusses the different penalties, and explains how a person can get arrested and defend their case.
How is Injury to a Child Different from Assault?
Assault, Texas Penal Code Section 22.01, requires one person to intentionally or recklessly injure someone that causes them pain. An assault requires a person to do something. Injury to a Child also requires this, but casts an even wider net. Because of the protection and guidance that children require, the failure of a caregiver or someone responsible for the child to provide medical care, food, or shelter, that causes a child an injury can create criminal liability. A failure to provide care or shelter or food is called an omission, and this is defined and discussed in detail below. Injury to a Child is more seriously punished than Assault. An Assault is either a Class A or a Class C misdemeanor unless it is aggravated. An Aggravated Assault signifies serious bodily injury or that a weapon was used. There is no misdemeanor level for an Injury to a Child offense. It is always a felony.
What is an Omission?
Unlike a deliberate action, an omission is a failure to act, a failure to do something that injures or impairs a child. For a failure to act, a person has to a requirement to do so by law. For instance, a parent, or a healthcare worker, a teacher, or a caregiver. For an omission that causes an injury to be a criminal offense, a person must have assumed control or custody of the child or assumed responsibility to care for the child. Omitting to care for a child that results in bodily injury can mean an allegation of neglecting a child, or leaving a child in a dangerous situation that results in the child sustaining an injury. Bodily injury just means pain, and this does not take much. Serious bodily injury means an injury that creates a serious risk of the child dying or being disfigured.
What are the Responsibilities for Owners or Employees of a Child Care Facility?
Owners of child-care facilities or employees of child-care facilities also have duties to keep children safe and prevent them from injuries. This is addressed in Texas Penal Code Section 22.04 (a-1). If an employee or an owner or an operator of a child care facility for children with disabilities causes an injury, or by not doing something (an omission), causes an injury, a crime has been committed. The level of penalty can be anywhere from a first-degree felony to a state-jail felony, depending on the person’s mental state. Intentionality is the highest level of culpability. Intentional acts or intentional omissions that cause serious bodily injury carry the highest penalties. If the omission or the act is negligent, and criminal negligence is alleged, the penalties are lower. Whether the state of Texas can prove that the act in question was intentional, negligent, somewhere in between, or neither, is a matter of lawyering. It is necessary to have a criminal defense attorney who can skillfully work and effectuate a defense.
What is Bodily Injury?
Bodily injury is a required part of any assault case. Bodily injury means any injury that causes someone to feel pain physically or causes an illness. Bodily injury is a lesser injury than serious bodily injury. Bodily injury means pain and can be a black eye, a body bruise, a scrape, a burn, a sprained ankle, or any other injury. Depending on the severity, these things can be serious bodily injury too. Distinguishing what is bodily injury and what is serious bodily injury can sometimes be a matter for disagreement between a criminal defense attorney and a prosecutor.
What is Serious Bodily Injury?
Serious bodily injury refers to bodily injury that puts the child’s life at risk or causes permanent disfigurement. Anytime someone is shot, or stabbed, or beaten with another kind of weapon, or sustains an injury that compromises their vision or hearing or the harms the operation of another body part, serious bodily injury will be charged, and the severity of the penalty will increase. Since an omission can also result in a criminal charge, serious bodily injury can be the result of something that is not done, an injury that occurs because something doesn’t get done. The differences between bodily injury and serious bodily injury can sometimes be easily determined. Serious bodily injury is a specific legal term, and prosecutors and defense attorneys will sometimes hotly contest what it is and is not. This is an important fight because it will mean a huge difference in how serious the charges are.
What are the Penalties?
The penalties vary based on the level of mental state (the level of intent) and the kind of injury the child sustained. This does not mean that someone will be convicted if they are indicted. Cases can always be negotiated to something lesser after the indictment. An indictment means that the case goes forward and will go to court. More on the grand jury process below. For an Injury to a Child case, there are many options for a prosecutor can present the case. The penalties could be anywhere from a first-Degree felony, second-degree, third-degree, or a state-jail felony.
Penalties are Based on Both Degree of Injury and Intent
There are two important questions that will determine the level of the charge. The first question: what was the mental state of the defendant at the time of the injury? Did the defendant intend to injury the child, or intend to omit care or food or shelter that caused the injury, or did the injury result because of recklessness or negligence? Recklessness or negligence (more on what these mean below) signify that although a person may not have intended it directly, they may nonetheless responsible because of some kind of oversight or accident. The second question: how serious were the injuries? As discussed above, there are key differences between serious bodily injury and bodily injury. Sometimes this is not apparent, and the decision to charge one or the other can drastically impact the seriousness of the penalty. The most severe charge for Injury to a Child is for an intentional act or an intentional omission that causes serious bodily injury.
What is the Grand Jury Process?
In Texas, grand juries indict cases. Felonies in Texas go to the grand jury, if the grand jury gives a case a True Bill, then it will result in an indictment. Injury to a Child is a felony and these cases will go through the indictment process. If the grand jury gives the case a “No Bill,” then it will be dismissed. The grand jury process is a closed-door event. The only people there are a prosecutor, the twelve grand jurors, and a court reporter making a record of the closed-door discussion. Sometimes witnesses will testify to the grand jury. Sometimes a defendant might even testify, although a defendant cannot ever be compelled to testify at any time. Defense attorneys are not allowed to be present with the grand jurors. Defense attorneys are not allowed to present any evidence about the case directly to the grand jurors. Although a defense attorney cannot be a part of the grand jury proceedings, a defense attorney can speak to the prosecutor beforehand and present evidence to them. Often there are things about a case—especially about the defendant’s story—that a prosecutor may not be aware of. These things can sometimes influence a prosecutor’s decision to go forward with the case or recommend a “No Bill.” It depends on the case. If prosecutors believe that the case has no merit, he or she might recommend to a jury that a case does not go forward. The prosecutor’s recommendation can often powerfully influence a grand jury’s feelings about a case.
What is Intentional Conduct?
Intentionality is the most culpable mental state for any criminal offense. The most serious penalty for an Injury to a Child is an intentional action or an intentional failure to act that causes either serious bodily injury or a serious impairment or mental deficiency. An intentional act is defined by Texas Penal Code Section 6.03(a) which tells us that someone behaves intentionally when the person has a deliberate objective to either do something or to cause a result. For instance, if a person goes to a shooting range and fires a gun at a target and hits the target in the middle, that is intentional conduct. When a person hits a tennis ball across the net into the other person’s court, they are intending to return the ball across the net. In the context of an Injury to a Child offense, sometimes intentionality is not as easy to figure out. The context are often going to be very important. Circumstances are everything when determining intent. What did a person say to the child? What did they say to police? What did they say to neighbors, others? How has this person behaved in the past with the child? Intentionally causing serious bodily injury to a child is a first-degree felony. Intentionally causing bodily injury to a child is a third-degree felony. Determining intent can be the frontline of a major legal battle between the prosecutor and the defense attorney, and this is another reason why it is so important to have a skilled attorney handling the case.
What is Knowing Conduct?
After intentional conduct, knowing conduct is the second highest mental state. Knowing can be slightly more elusive to understand than intentionality. Knowing means acting or failing to act with knowledge. A person must be aware of his or her conduct or the circumstances surrounding that conduct. Someone must be reasonably certain that their action or their inaction will bring about a result. What does this mean? If I let garbage pile up in my kitchen for months without throwing anything away, and I leave food out, letting it rot and pile up, I can be reasonably certain that rats and other insects will show up sooner or later. There is often a fine line between intentional conduct and knowing conduct. In most cases, arguments can be made that intentional conduct is knowing conduct and vice versa. The Injury to a Child statute has the same punishments for both intentional and knowing conduct. Knowingly causing serious bodily injury to a child is a first-degree felony. Knowingly causing bodily injury to a child is a third-degree felony.
What is Reckless Conduct?
Unlike intentional or knowing conduct, recklessness has to do with carelessness and risk taking. Reckless means to have an awareness of a risk but to disregard it and to act despite this risk. Everyone is familiar with the term reckless and can recognize when someone is behaving recklessly. If someone throws a brick off of the top of a building downtown, that person may not have intended to kill someone, but they are definitely reckless as to whether the brick will strike a car or a person and severely harm them or kill them. Another example: someone is speeding on a city street, driving double the speed limit, and when the driver in front of them stops suddenly to avoid a fallen tree branch, the speeding car slams into them, causing an accident. The driver did not intend to crash their car into the other driver—did not have knowledge that it would happen—but they are aware of speed limits and that speeding is illegal is because when cars speed reaction time slows down. Because of that speeding can be very dangerous. The driver is aware of the risks and is consciously disregarding those risks. Reckless Injury to a Child that causes serious bodily injury is a second-degree felony. Reckless Injury to a Child that causes bodily injury is a state-jail felony.
What is Criminal Negligence?
The lowest level of criminal culpability is criminal negligence. Like recklessness, criminal negligence is about risk, not about intending to do something or intending to not do something. With recklessness, the person acting recklessly disregards a substantial risk, like the risk of hurting someone while throwing a rock off of a building, or firing a gun into the air in a crowd. For negligence, the risk is lower than a reckless risk. Negligence might be something like when a person refuses to wash their hands and then catches a virus or a contagious disease or omitting to provide food or shelter to a child and then that child catches pneumonia. An Injury to a Child committed where the allegation is negligence is a state jail felony.
What are Some Defenses to Injury to a Child?
There are several defenses that are listed in the statute. There are both defenses and affirmative defenses, listed in Texas Penal Code Section 22.04 and explained below. All defenses will emerge from the facts of the case itself. The defense must fit the case to be effective. If attorney elects a defense that does not align with what happened in the case, that attorney will be fighting an uphill and often times losing battle.
Reasonable Medical Care
It is a defense to Injury to a Child that the injuries that were caused, either by actions or omissions, were part of reasonable medical care at the direction of a physician or by a physician. For this defense to be available, a doctor must have prescribed drugs or ordered medical treatment, and these prescriptions or orders must have been followed. Another defense is emergency medical care that is administered in good faith. Emergency medical care does not require the direction of order of a physician, but it does require an emergency. It also requires a good faith effort. This means the person must be solely motivated by a sincere attempt to help the child.
What are Affirmative Defenses?
Unlike a defense such as “I didn’t do it,” an affirmative defense admits the offense and justifies it. For example, an affirmative defense to a murder charge is self-defense. Self-defense does not deny that the shooting took place or that the shooting took place but maintains that the shooting took place under severe duress and claims the person had no choice.
No Longer Providing Care to Child
If the person is a caregiver, there is a defense available if they are no longer providing care for the child when the injury occurs. For this defense to be available, there are strict requirements listed in Texas Penal Code Section 22.04(i). The person must have told the child in person that they are no longer providing medical care, food, shelter, or protection. Also, they must have notified the child’s parents or someone acting in loco parentis to the child in writing that care is no longer being provided before the injury. This is a statutory defense, which means it is found in the law. That doesn’t mean that if a person does not have a defense if they have only told the parents verbally that they are no longer caring for the child, or if they did not cause the injury. They will still have a defense. It just means they will not have a statutory defense under 22.04(i).
Omission Based on Acknowledged Religious Method of Healing
There is another affirmative defense to Injury to a Child regarding medical care and religious practices. People have a fundamental right to practice their religion. This is important because an arrest and prosecution for Injury to a Child might otherwise conflict with the right to religious freedom and the First Amendment. If the person charged was treating the child medically according to the principles of a religious practice. The medical care must be a recognized healing practice of a religion. Because of that, this defense cannot be deployed after the fact unless there is some merit to the claim.
Victim of Fort Worth Domestic Violence Attorney
There is another defense for a person charged with Injury to a Child that are themselves victims of family violence that is inflicted by someone who is also charged with causing injury to the child. This arises when there is an abusive spouse or parent. It is meant to protect one spouse or parent who fails to report an injury. Sometimes one spouse or parent is abusive to both the child and to the other parent. For this defense to be viable, the person must not have been aware of the Injury to the Child on a prior occasion and did not fail to report a prior injury. Also, the person must have a reasonable belief that any effort to stop the abuse would not have any effect.
