Texas Penal Code 22.041 – Abandoning or Endangering Child

WHAT IS ABANDONING OR ENDANGERING CHILD IN TEXAS?

The Texas law against abandoning or endangering a child includes two distinct offenses: (1) abandoning a child under 15 occurs when a person who must legally care for a child leaves that child in any place where the child would be exposed to harm; (2) endangering a child occurs when a person acts in a way that places the child in imminent danger.

• What is the difference between abandoning and endangering a child? Only a person who has “care, custody, or control” of a child under 15 may be charged with abandoning that child. If a person assumes responsibility for the child, he or she may not leave the child in a place or under circumstances that would expose the child to harm. One’s status as a step-parent alone—unlike a parent—does not automatically require the step-parent to care for a step-child.

  Endangering a child may be committed by any person who puts a child in immediate danger, regardless of whether the person had care, custody, or control of the child at the time.

WHAT IS THE ABANDONING OR ENDANGERING CHILD LAW IN TEXAS?

Tex. Penal Code § 22.041. ABANDONING OR ENDANGERING A CHILD.

(b) A person commits an offense if, having custody, care, or control of a child younger than 15 years, he intentionally abandons the child in any place under circumstances that expose the child to an unreasonable risk of harm.

(c) A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that places a child younger than 15 years in imminent danger of death, bodily injury, or physical or mental impairment.

(d) Except as provided by Subsection (e), an offense under Subsection (b) is:

(1) a state jail felony if the actor abandoned the child with intent to return for the child; or

(2) a felony of the third degree if the actor abandoned the child without intent to return for the child.

(e) An offense under Subsection (b) is a felony of the second degree if the actor abandons the child under circumstances that a reasonable person would believe would place the child in imminent danger of death, bodily injury, or physical or mental impairment.

(f) An offense under Subsection (c) is a state jail felony.

(g) It is a defense to prosecution under Subsection (c) that the act or omission enables the child to practice for or participate in an organized athletic event and that appropriate safety equipment and procedures are employed in the event.

(h) It is an exception to the application of this section that the actor voluntarily delivered the child to a designated emergency infant care provider under Section 262.302, Family Code.

WHAT IS THE PENALTY CLASS FOR ABANDONING OR ENDANGERING CHILD IN TEXAS?

Endangering a child is a state jail felony, punishable by 180 days to two years in a state jail facility. The penalty class for abandoning a child depends on the place in which the child was abandoned, and whether the person intended to return for the child.

• Is abandoning a child a felony in Texas? Abandoning a child may be charged as a state jail felony, a third degree felony, or a second degree felony, depending on the actor’s intent and the environment in which the child is left.

  When a person abandons a child with the intent to come back for the child, the offense is a state jail felony, punishable by 180 days to two years in a state jail facility.

  Abandoning a child is a third degree felony, punishable by two to ten years in prison, if the person does not intend to return.

  When a child is abandoned in a place or under circumstances that would put the child in immediate danger, it is a second degree felony, punishable by two to 20 years in prison.

WHAT IS THE PUNISHMENT RANGE FOR ABANDONING OR ENDANGERING CHILD IN TEXAS?

Endangering a child or abandoning a child with intent to return charged as state jail felonies carry possible sentences of 180 days to two years in a state jail facility, and up to a $10,000 fine.

Third degree felony abandoning a child with no intent to return carries between two and ten years in prison, and up to a $10,000 fine. Abandoning a child in a dangerous environment, a second degree felony, is punishable by two to 20 years in prison, and up to a $10,000 fine.

WHAT ARE THE PENALTIES FOR ABANDONING OR ENDANGERING CHILD IN TEXAS?

A person charged with abandoning or endangering a child may be eligible for probation after a conviction, or deferred adjudication without a conviction.

• Will Child Protective Services (“CPS”) be called in abandoning or endangering a child cases? Texas Family Code Section 261.101 requires police to call the Department of Family and Protective Services—formerly “CPS”—if they have “reasonable cause to believe that a child has been abused or neglected or may be abused or neglected.” Police call DFPS in most cases.

WHAT ARE THE DEFENSES TO ABANDONING OR ENDANGERING CHILD IN TEXAS?

The statute provides a defense for a parent or caretaker charged with endangering a child if the accused was merely enabling the child to practice for or participate in an athletic event. As long as appropriate safety equipment and procedures are employed in the event, parents are not endangering their child by allowing them to participate.

• Can a person who leaves his or her child at a hospital be charged with child abandonment? Texas Family Code Section 262.302 requires designated emergency infant care providers, such as hospitals, fire stations with licensed paramedics on duty, or a children’s shelter, to accept abandoned children, and the person who abandons the child may not be criminally charged with abandonment.

  It is likely, however, that the Texas Department of Family and Protective Services (formerly “CPS”) will be notified if a person leaves his or her child with a designated emergency infant care provider.

• What if a child is left home alone? It is only a crime when the child is left unattended at home without reasonable and necessary care, in circumstances “under which no reasonable, similarly situated adult would leave a child of that age and ability.” So, leaving an infant alone in a bathtub, for example, could be charged as a second degree felony. But leaving a sleeping child in a crib for an hour might not be considered leaving a child “without reasonable and necessary care” under those circumstances. The only way to avoid criminal charges entirely is not to leave a child home alone.

• Who can be charged with endangering a child? In Texas, anyone who engages in conduct that places a child “in imminent danger of death, bodily injury, or physical or mental impairment” may be charged with child endangerment, regardless of the person’s relationship to the child.

WHAT IS THE STATUTE OF LIMITATIONS FOR ABANDONING OR ENDANGERING CHILD IN TEXAS?

The limitation period for abandoning or endangering a child is five years.

ABANDONING OR ENDANGERING CHILD IN TEXAS

Texas law protects individuals who cannot protect themselves, and it does so based on societal standards of reasonableness. It is a crime to intentionally leave a child alone when no “reasonable, similarly situated adult would do so.” It is not required that the person know or be aware of dangerous circumstances, as long as that person has assumed care, custody, or control of the child.

TEXAS ABANDONING OR ENDANGERING CHILD COURT CASES

The case law in Texas discussing abandoning and endangering a child cases shows Texas courts’ protection of the parent-child relationship, while balancing the safety of children and severity of the defendant’s conduct.

• In Schultz v. State, the defendant left her nine-year-old daughter and her 11-year-old nephew alone in her home for 15 hours. The children died in a fire, and the defendant was charged with abandoning the children without providing reasonable and necessary care under the circumstances. The Court of Criminal Appeals affirmed, holding the defendant’s conduct of leaving the children alone exposed her to criminal charges for any resulting harm the children suffered.
• In Garcia v. State, the defendant knocked on a witness’s door holding her infant, who was wearing only a diaper in 58-degree weather. The child was shivering, and her lips were blue. When the witness did not let them inside, the defendant went to the witness’s parked car, opened the unlocked car door, and sat inside with her child until the witness called police. Police put the child in front of a heater, but sought no further medical assistance.

The Court of Criminal Appeals reversed the mother’s conviction for endangering a child, holding that there was no imminent danger of bodily injury or impairment in this case.

• Texas courts have also recognized, under certain circumstances, there is no duty to care for a child. In Rey v. State, the defendant and his wife separated, and shared custody of their one-year-old daughter. The estranged wife also had a three-year-old from a prior relationship. The defendant went to his wife’s home, saw the children were alone, and broke a window to take his one-year-old. He left his stepson alone, barefoot, and screaming outside by the broken window.

The Court of Criminal Appeals reversed his abandoning a child conviction, holding he had not accepted care, custody, or control of his stepson at that time.