Texas Penal Code 22.11 – Harassment By Persons In Certain Correctional Facilities; Harassment of Public Servant

WHAT IS HARASSMENT BY PERSONS IN CERTAIN FACILITIES; HARASSMENT OF PUBLIC SERVANT IN TEXAS?

The law against harassment of a public servant, or harassment by persons in certain facilities, also known as “the chunking statute,” makes it a third degree felony to spit on an officer, or throw blood, feces, or other bodily fluids at officers and employees of correctional or commitment facilities.

WHAT IS THE HARASSMENT BY PERSONS IN CERTAIN FACILITIES; HARASSMENT OF PUBLIC SERVANT LAW IN TEXAS?

Tex. Penal Code § 22.11. HARASSMENT BY PERSONS IN CERTAIN FACILITIES; HARASSMENT OF PUBLIC SERVANT.

(a) A person commits an offense if, with the intent to assault, harass, or alarm, the person:

(1) while imprisoned or confined in a correctional or detention facility, causes another person to contact the blood, seminal fluid, vaginal fluid, saliva, urine, or feces of the actor, any other person, or an animal;

(2) while committed to a civil commitment facility, causes:

(A) an officer or employee of the Texas Civil Commitment Office to contact the blood, seminal fluid, vaginal fluid, saliva, urine, or feces of the actor, any other person, or an animal:

(i) while the officer or employee is lawfully discharging an official duty at a civil commitment facility; or

(ii) in retaliation for or on account of an exercise of official power or performance of an official duty by the officer or employee; or

(B) a person who contracts with the state to perform a service in the facility or an employee of that person to contact the blood, seminal fluid, vaginal fluid, saliva, urine, or feces of the actor, any other person, or an animal:

(i) while the person or employee is engaged in performing a service within the scope of the contract, if the actor knows the person or employee is authorized by the state to provide the service; or

(ii) in retaliation for or on account of the person’s or employee’s performance of a service within the scope of the contract; or

(3) causes another person the actor knows to be a public servant to contact the blood, seminal fluid, vaginal fluid, saliva, urine, or feces of the actor, any other person, or an animal while the public servant is lawfully discharging an official duty or in retaliation or on account of an exercise of the public servant’s official power or performance of an official duty.

(b) An offense under this section is a felony of the third degree.

(c) If conduct constituting an offense under this section also constitutes an offense under another section of this code, the actor may be prosecuted under either section.

(e) For purposes of Subsection (a)(3), the actor is presumed to have known the person was a public servant if the person was wearing a distinctive uniform or badge indicating the person’s employment as a public servant.

WHAT IS THE PENALTY CLASS FOR HARASSMENT BY PERSONS IN CERTAIN FACILITIES; HARASSMENT OF PUBLIC SERVANT IN TEXAS?

Harassment of a public servant or harassment by persons in certain facilities is a third degree felony, punishable by two to ten years in prison.

WHAT IS THE PUNISHMENT RANGE FOR HARASSMENT BY PERSONS IN CERTAIN FACILITIES; HARASSMENT OF PUBLIC SERVANT IN TEXAS?

The punishment range for harassment of a public servant or harassment by persons in certain facilities, a third degree felony, is between two and ten years in prison, and up to a $10,000 fine.

WHAT ARE THE PENALTIES FOR HARASSMENT BY PERSONS IN CERTAIN FACILITIES; HARASSMENT OF PUBLIC SERVANT IN TEXAS?

A person charged with harassment of a public servant, a third degree felony, may be eligible for probation after a conviction, or deferred adjudication without a conviction, for a period not to exceed ten years.

WHAT ARE THE DEFENSES TO HARASSMENT BY PERSONS IN CERTAIN FACILITIES; HARASSMENT OF PUBLIC SERVANT IN TEXAS?

The statute does not authorize specific defenses to harassment by persons in certain facilities or harassment of a public servant. A person accused thereof may attempt to negate one of the elements the State must prove at trial, such as the intent to “assault, harass, or alarm” the officer or facility employee by causing contact with bodily fluids.

• What if the person did not mean to spit or bleed on the public servant? Unintentionally causing bodily fluids to contact another is not an offense under this statute.

  In Gomez v. State, for example, a police officer responding to a disturbance call approached the defendant, who was standing in his front yard with a bleeding arm. When the officer attempted to speak to the defendant, he pushed the officer, and a struggle ensued. The officer arrested the defendant, and later noticed the defendant’s blood on his uniform and face. The appellate court reversed the defendant’s conviction, finding a lack of evidence that the defendant intended to assault, harass, or alarm the officer by causing the blood to contact him.

WHAT IS THE STATUTE OF LIMITATIONS FOR HARASSMENT BY PERSONS IN CERTAIN FACILITIES; HARASSMENT OF PUBLIC SERVANT IN TEXAS?

The limitation period for harassment of public servants by persons in certain facilities, a third degree felony, is three years.

HARASSMENT BY PERSONS IN CERTAIN FACILITIES; HARASSMENT OF PUBLIC SERVANT IN TEXAS

The “chunking statute” recognizes that law enforcement and correctional or commitment facility employees endure high-risk situations. This law aims to protect those people by punishing certain transgressions against them, such as inmates spitting on them. While a ten-year maximum confinement may seem harsh for spitting, or causing other bodily fluids to contact a public servant, the courts have deferred to the Legislature’s determination that this punishment is appropriate for this crime.

TEXAS HARASSMENT BY PERSONS IN CERTAIN FACILITIES; HARASSMENT OF PUBLIC SERVANT COURT CASES

The case law regarding harassment of public servants or harassment by persons in certain facilities in Texas shows the recognition by appellate court justices of the legislature’s authority as lawmakers, and the justices’ duty to uphold the law as written.

• In Guerrero v. State, a prisoner threw a large amount of his liquid feces onto a correctional guard, covering her “from head to toe.” Based on the prisoner’s criminal history, which included multiple violent felony convictions, he was enhanced as an habitual offender, and sentenced to life imprisonment. He argued on appeal that the punishment was cruel and unusual.

  The court of appeals upheld the sentence, evaluating: (1) the gravity of the offense compared with the harshness of the penalty; (2) the sentences imposed for similar crimes in the same jurisdiction; and (3) the sentences imposed for the same crime in other jurisdictions.

• In U.S. v. Shelton, a federal court explained the seriousness of “chunking,” and the reason for such harsh consequences: “Throwing feces or urine on someone is more than mere ‘physical contact.’ Dysentery, hepatitis, HIV, and a host of other infectious diseases can be transferred by feces and urine. The victim in this type of assault is subject to worry and mental distress while awaiting the results of tests. In this case, the officer had to be treated with a ‘cocktail’ of drugs to protect against such diseases.”
• In Perez v. State, a man spat on four officers during his arrest for public intoxication. He told them he was infected with COVID-19 and that he hoped they would contract the virus and die. The trial judge sentenced the defendant to ten years’ confinement on each count, to run concurrently. The defendant argued that the punishment was cruel and unusual, but the court of appeals upheld the sentences without an Eighth Amendment analysis.