Texas Codes

Tex. Penal Code § 39.04 (2026)

Violations Of The Civil Rights Of Person In Custody; Improper Sexual Activity With Person In Custody Or Under Supervision

✓ current as of May 2026

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Sec. 39.04. VIOLATIONS OF THE CIVIL RIGHTS OF PERSON IN CUSTODY; IMPROPER SEXUAL ACTIVITY WITH PERSON IN CUSTODY OR UNDER SUPERVISION. (a) An official of a correctional facility or juvenile facility, an employee of a correctional facility or juvenile facility, a person other than an employee who works for compensation at a correctional facility or juvenile facility, a volunteer at a correctional facility or juvenile facility, or a peace officer commits an offense if the person intentionally:

(1) denies or impedes a person in custody in the exercise or enjoyment of any right, privilege, or immunity knowing his conduct is unlawful; or

(2) engages in sexual contact, sexual intercourse, or deviate sexual intercourse with an individual in custody or, in the case of an individual in the custody of the Texas Juvenile Justice Department or placed in a juvenile facility, employs, authorizes, or induces the individual to engage in sexual conduct or a sexual performance.

Text of subsection as amended by Acts 2021, 87th Leg., R.S., Ch. 895 (H.B. 3157), Sec. 1

(b) An offense under Subsection (a)(1) is a felony of the third degree. An offense under Subsection (a)(2) is a felony of the second degree, except that an offense under Subsection (a)(2) is a felony of the first degree if the offense is committed against:

(1) an individual in the custody of the Texas Juvenile Justice Department or placed in a juvenile facility; or

(2) a juvenile offender detained in or committed to a correctional facility.

Text of subsection as amended by Acts 2021, 87th Leg., R.S., Ch. 939 (S.B. 312), Sec. 1

(b) An offense under Subsection (a)(1) is a Class A misdemeanor. An offense under Subsection (a)(2) is a felony of the second degree.

(d) The Attorney General of Texas shall have concurrent jurisdiction with law enforcement agencies to investigate violations of this statute involving serious bodily injury or death.

(e) In this section:

Text of subdivision as amended by Acts 2015, 84th Leg., R.S., Ch. 216 (H.B. 511), Sec. 1

(1) "Correctional facility" means:

(A) any place described by Section 1.07(a)(14);

(B) any place or facility designated for the detention of a person suspected of violating a provision of the Immigration and Nationality Act (8 U.S.C. Section 1101 et seq.); or

Text of subdivision as amended by Acts 2015, 84th Leg., R.S., Ch. 1136 (S.B. 183), Sec. 2

(1) "Correctional facility" means any place described by Section 1.07(a)(14).

(2) "Custody" means the detention, arrest, or confinement of an adult offender, the detention of a juvenile offender, or the commitment of a juvenile offender to a correctional facility or juvenile facility.

(2-a) "Juvenile facility" means:

(A) a facility operated by the Texas Juvenile Justice Department or a private vendor under a contract with the Texas Juvenile Justice Department; or

(B) a facility for the detention or placement of juveniles under juvenile court jurisdiction and that is operated wholly or partly by a juvenile board or another governmental unit or by a private vendor under a contract with the juvenile board or governmental unit.

(3) "Sexual contact," "sexual intercourse," and "deviate sexual intercourse" have the meanings assigned by Section 21.01.

(4) "Sexual conduct" and "performance" have the meanings assigned by Section 43.25.

(5) "Sexual performance" means any performance or part thereof that includes sexual conduct by an individual.

(f) An employee of the Texas Department of Criminal Justice, the Texas Juvenile Justice Department, a juvenile facility, a local juvenile probation department, or a community supervision and corrections department established under Chapter 76, Government Code, a person other than an employee who works for compensation at a juvenile facility or local juvenile probation department, or a volunteer at a juvenile facility or local juvenile probation department commits an offense if the actor engages in sexual contact, sexual intercourse, or deviate sexual intercourse with an individual who the actor knows is under the supervision of the Texas Department of Criminal Justice, Texas Juvenile Justice Department, probation department, or community supervision and corrections department but not in the custody of the Texas Department of Criminal Justice, Texas Juvenile Justice Department, probation department, or community supervision and corrections department.

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

(h) It is an affirmative defense to prosecution under Subsection (f) that the actor was the spouse of the individual at the time of the offense.

Added by Acts 1979, 66th Leg., p. 1383, ch. 618, Sec. 1, eff. Sept. 1, 1979. Amended by Acts 1983, 68th Leg., p. 3242, ch. 558, Sec. 8, eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 18, Sec. 5, eff. April 15, 1987. Renumbered from Penal Code Sec. 39.021 and amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994. Amended by Acts 1997, 75th Leg., ch. 1406, Sec. 1, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 158, Sec. 1 to 3, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1070, Sec. 1, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1297, Sec. 69, eff. Sept. 1, 2001.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 263 (S.B. 103), Sec. 62, eff. June 8, 2007.

Acts 2007, 80th Leg., R.S., Ch. 263 (S.B. 103), Sec. 63, eff. June 8, 2007.

Acts 2007, 80th Leg., R.S., Ch. 378 (S.B. 563), Sec. 3, eff. June 15, 2007.

Acts 2007, 80th Leg., R.S., Ch. 908 (H.B. 2884), Sec. 43, eff. September 1, 2007.

Acts 2009, 81st Leg., R.S., Ch. 87 (S.B. 1969), Sec. 19.003, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch. 260 (H.B. 549), Sec. 5, eff. September 1, 2009.

Acts 2015, 84th Leg., R.S., Ch. 216 (H.B. 511), Sec. 1, eff. September 1, 2015.

Acts 2015, 84th Leg., R.S., Ch. 734 (H.B. 1549), Sec. 144, eff. September 1, 2015.

Acts 2015, 84th Leg., R.S., Ch. 734 (H.B. 1549), Sec. 145, eff. September 1, 2015.

Acts 2015, 84th Leg., R.S., Ch. 1136 (S.B. 183), Sec. 1, eff. September 1, 2015.

Acts 2015, 84th Leg., R.S., Ch. 1136 (S.B. 183), Sec. 2, eff. September 1, 2015.

Acts 2017, 85th Leg., R.S., Ch. 540 (S.B. 343), Sec. 1, eff. September 1, 2017.

Acts 2017, 85th Leg., R.S., Ch. 540 (S.B. 343), Sec. 2, eff. September 1, 2017.

Acts 2017, 85th Leg., R.S., Ch. 540 (S.B. 343), Sec. 3, eff. September 1, 2017.

Acts 2021, 87th Leg., R.S., Ch. 895 (H.B. 3157), Sec. 1, eff. September 1, 2021.

Acts 2021, 87th Leg., R.S., Ch. 939 (S.B. 312), Sec. 1, eff. September 1, 2021.

Notes of Decisions

Cited in 29 cases (10 in the last 5 years), 2001–2026 · leading case: Edwards v. State, 97 S.W.3d 279 (Tex. App. 2003).

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Edwards v. State, 97 S.W.3d 279 (Tex. App. 2003). · cites it 6× “As such, a rational jury could reasonably have found appellant to be an "employee, namely a transportation agent" of the Jail within the meaning of Texas Penal Code § 39.04(a). Thus, we find the evidence legally sufficient to support the verdict.”

Crawford v. Cuomo, 796 F.3d 252 (2d Cir. 2015). “6 ; Tex. Penal Code Ann. § 39.04 ; Wis. Stat.”

Mizell v. State, 70 S.W.3d 156 (Tex. App. 2001). “See Tex. Penal Code Ann. § 39.04 (c) (Vernon Supp.”

Casmir Irielle v. State, 441 S.W.3d 868 (Tex. App. 2014). “See Tex. Penal Code Ann. § 39.04 . Appellant challenges his conviction in three issues, arguing that the trial court erred by (1) instructing the jury on two or more offenses in the disjunctive, which violated appellant’s right to a unanimous verdict; (2) omitting relevant…”

Jeffrey Andrew Dickson v. State, 144 S.W.3d 61 (Tex. App. 2004). “Here, the indictment on the civü rights charge alleged the complainant was in Dickson’s custody at the time they engaged in sexual activity, and the definition of custody in section 39.”

David Walton v. Ashley Nehls, 135 F.4th 1070 (7th Cir. 2025). “§ 39-16-408 Texas Tex. Penal Code Ann. § 39.04 Vermont Vt. Stat.”

Hill, Sr. v. Dollar Tree Stores, Inc. (W.D. Tex. 2024). · cites it 6× “Based on these events, Plaintiff brings this action under the Court’s federal question jurisdiction, asserting, to the best of the Court’s understanding, several claims against Dollar Tree: a § 1983 claim for racial discrimination in violation of the Fourteenth Amendment; a…”

Pastrano v. State, 250 S.W.3d 128 (Tex. App. 2008). · cites it 4× “Laws 2359 (amended 2007) (current version at Tex. Penal Code Ann. § 39.04 (a)(2) (West Supp.”

John Pastrano v. State (Tex. App. 2008). · cites it 4× “Laws 2359 (amended 2007) (current version at Tex. Penal Code Ann. § 39.04 (a)(2) (West Supp.”

Justin Allison v. the State of Texas (Tex. App. 2023). · cites it 2× “Laws 1136 , with Tex. Penal Code Ann. § 39.04 (b) (West Supp.”

James Brickley v. Nicholas Walton (Tex. App. 2025). · cites it 2× “21 Texas Penal Code § 39.04 ................”

John Pastrano v. State (Tex. App. 2008). · cites it 3× “Laws 2359 (amended 2007) (current version at Tex. Penal Code Ann. § 39.04 (a)(2) (West Supp.”

Show all 29 citing cases →

— Tex. Penal Code § 39.04(a) — 3 cases

Edwards v. State, 97 S.W.3d 279 (Tex. App. 2003). “As such, a rational jury could reasonably have found appellant to be an "employee, namely a transportation agent" of the Jail within the meaning of Texas Penal Code § 39.04(a). Thus, we find the evidence legally sufficient to support the verdict.”

Joel Zamora v. State (Tex. App. 2008).

— Tex. Penal Code § 39.04(a)(1) — 2 cases

Ricardo Gonzales, Jr. v. the State of Texas (Tex. App. 2024).

Mark Walters v. Tdcj (Tex. App. 2012).

— Tex. Penal Code § 39.04(a)(2) — 5 cases

Ray Edward Brookins v. State (Tex. App. 2011).

— Tex. Penal Code § 39.04(b) — 1 case

Kelly Thomas Kleinmann v. the State of Texas (Tex. App. 2022).

— Tex. Penal Code § 39.04(e)(3) — 1 case

Pierre Andrews v. the State of Texas (2026).

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