Felony Offenses in the Texas Penal Code

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Texas Penal Code, Section 39.04 - Violations of the Civil Rights of Persons in Custody; Improper Sexual Activity with Person in Custody

CHAPTER 39. ABUSE OF OFFICE

        § 39.04.  VIOLATIONS OF THE CIVIL RIGHTS OF PERSON IN CUSTODY; IMPROPER SEXUAL ACTIVITY WITH PERSON IN CUSTODY.
        (a)  An official of a correctional facility, an employee of a correctional facility, a person other than an employee who works for compensation at a correctional facility, a volunteer at a correctional 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 Youth Commission, employs, authorizes, or induces the individual to engage in sexual conduct or a sexual performance.
        (b)  An offense under Subsection (a)(1) is a Class A misdemeanor.  An offense under Subsection (a)(2) is a state jail felony, except that an offense under Subsection (a)(2) is a felony of the second degree if the offense is committed against:
                (1)  an individual in the custody of the Texas Youth Commission; or
                (2)  a juvenile offender detained in or committed to a correctional facility the operation of which is financed primarily with state funds.
        (c)  This section shall not preclude prosecution for any other offense set out in this code.
        (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:
                (1)  "Correctional facility" means:
                        (A)  any place described by Section 1.07(a)(14); or
                        (B)  a "secure correctional facility" or "secure detention facility" as defined by Section 51.02, Family Code.
                (2)  "Custody" means the detention, arrest, or confinement of an adult offender or the detention or the commitment of a juvenile offender to a facility operated by or under a contract with the Texas Youth Commission or a facility operated by or under contract with a juvenile board.
                (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 Youth Commission, or a local juvenile probation department commits an offense if the employee engages in sexual contact, sexual intercourse, or deviate sexual intercourse with an individual who the employee knows is under the supervision of the department, commission, or probation department but not in the custody of the department, commission, or probation 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, Sec. 62, eff. June 8, 2007.
     Acts 2007, 80th Leg., R.S., Ch. 263, Sec. 63, eff. June 8, 2007.
     Acts 2007, 80th Leg., R.S., Ch. 378, Sec. 3, eff. June 15, 2007.
     Acts 2007, 80th Leg., R.S., Ch. 908, Sec. 43, eff. September 1, 2007.
     Acts 2009, 81st Leg., R.S., Ch. 87, Sec. 19.003, eff. September 1, 2009.
     Acts 2009, 81st Leg., R.S., Ch. 260, Sec. 5, eff. September 1, 2009.

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