News and Insights

Can a Parent Spank a Child in Texas? Corporal Punishment and The Reasonable Discipline Defense

Specifically, Section 9.61 provides that a parent’s use of force, but not deadly force, against a child will be justified if the parent “reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare.” A reasonable belief is what an ordinary and prudent man would believe in the same or similar circumstances as the actor. It is not based on the particular belief of that parent. This is important to understand, because a parent could use force that they feel is the appropriate discipline for their child in that situation, when in fact that force could easily be an act of abuse that results in facing charges of a third degree felony.

When Does Spanking and Corporal Punishment Cross the Line and Become a Criminal Offense? When is Spanking Illegal in Texas?

In Texas, it is a known practice for parents to spank their children and it is perfectly legal to do so, but the main question is when does spanking or other corporal punishment cross the line to child abuse. When is spanking illegal in Texas? The Texas Penal Code states that child abuse occurs when the force results in bodily injury. Bodily injury means “physical pain, illness, or any impairment of physical condition.” Tex. Penal Code §1.07(8). Often, this is when use of force leaves some sort of mark, like a bruise or a cut. However, this determination will be decided on a case-by-case basis. After all, kids bruise easily and often engage in self-destructive behavior while they are being spanked (I know I did when I was a kid).

As a parent that chooses to use corporal punishment, it is to your benefit to understand that, while you have every right to do so in Texas, there are limits.  The Texas Attorney General website lays out some situations where discipline will likely be considered “abusive:”

• When striking a child above their waist
• When using ropes, wires, shoes, sticks, yardsticks, phone cords, and boards during corporal punishment
• When force causes a “bruise, welt, swelling, or requires medication” it is likely to be deemed abusive

Additionally, the AG describes that the least likely abusive force is spanking with just an open hand (even though most parents that use corporal punishment are taught not to do that as a matter of principle).

If You Choose to Use Spanking or Corporal Punishment to Discipline Your Children, Be Careful.

Bottom line: Yes, parents may spank their kids in Texas. It is legal to use corporal punishment in Texas, but proceed at your own risk of crossing the line to abuse if you leave any type of mark. This rule of thumb will likely allow you to avoid situations like that of Adrian Peterson, a Vikings football player that was indicted in 2014 for injury to a child in Texas for using a branch from a tree to discipline his young son. This is a perfect example to show that while this was a perfectly accepted form of discipline in Texas at one time, it is now unacceptable.

As a parent in Texas this gives you a lot to think about and consider when deciding how to practice your right of discipline. This is just a rough overview of the bounds of reasonable discipline and should you have any questions contact our office. Additionally, if you are a parent and happen to find yourself in a situation where you are being investigated or facing charges for injury to a child, contact our criminal defense team to discuss whether the defense of reasonable discipline fits in your case.

NOTE: The "reasonable discipline" justification also applies to grandparents, guardians, someone working under the court, and someone whom has consent from the parent.

Injury to a Child Defense Attorneys - Fort Worth, Texas

If you are under investigation or have been charged with Injury to a Child for an incident related to the reasonable discipline of your child, contact our attorneys immediately. We will aggressively defend your parental rights in court, in front of a grand jury, or against police investigation. Our firm offers free consultations for all criminal cases. Contact us today at (817) 993-9249.

Know your Rights and Responsibilities Before Using Deadly Force for Self Defense in Texas

You may have heard about Texas Stand Your Ground Law or The Castle Doctrine.  These ideas refer to “standing your ground” in your “castle” against intruders by using deadly force to protect yourself.  But do you know when you can use force and what kind of force can be used? Understanding the Texas gun laws is incredibly important so that you know exactly what you can and cannot do when protecting yourself or your home, car, or business.

What exactly is the Castle Doctrine? When Can Deadly Force be used for Self Defense Purposes?

In Texas, Section 9 of the Texas Penal Code provides legal justifications for the use of force in a limited set of circumstances when a person has no duty to retreat. For example, a homeowner in his own home does not have a duty to retreat and may use deadly force to protect himself against an armed intruder. This would be the same for a business owner in his place of business and a truck driver in his own truck.

Texas law provides for a justifiable defense at trial when using deadly force if the person claiming self defense:

1. Reasonably believed the deadly force was immediately necessary;
2. Had a legal right to be on the property;
3. Did not provoke the person against whom deadly force was used; and
4. Was not engaged in criminal activity at the time the deadly force was used.

What is Considered Self Defense in Texas?

Self Defense will be a justifiable defense so long as the type of force used is reasonable and necessary in the moment to protect against an attacker. A person may use force against another when they reasonably believe it is immediately necessary to protect from another’s “use or attempted use of unlawful force.” A person may use deadly force in self defense under Section 9.31 of Texas Penal Code if he:

• Knew the intruder unlawfully with force entered into his home, vehicle, or place of employment; or
• Was being kidnapped; or
• The intruder was attempting to sexually assault, rob, kidnap, or murder.

What is the Difference Between Deadly Force and Threat of Force?

Threat of force is when a person displays a weapon as a threat, showing that they will use deadly force to cause death or serious bodily injury if necessary. Texas Penal Code §9.04.  Threat of Force is a precursor to the use of Deadly Force.

For example, a landowner, on his property, sees a trespasser running towards him. If the landowner decides to turn in such a way to display his holstered, loaded gun which causes the trespasser to run off the property, Texas law says this is likely a justifiable threat of force.

When is Defense of Another Person Justifiable?

A person is justified in using force or deadly force to protect a third party if he believes intervention is immediately necessary and would be justified in using force or deadly force to protect himself against the unlawful force in the same circumstance.

However, use of force is not justified if in the use of force to protect a third party, the person gets the circumstances wrong and ends up seriously injuring or killing an innocent third party.

For example, a man sees his friend in a fight and intervene by using deadly force to protect his friend and kills the third party. The man did not realize that the third party was actually using force as self defense against his friend. In this situation, the man would not be able to use defense of others as a justification for killing the third party.

Protection of One’s Own Property

Under Texas Penal Code §9.42, a person may use deadly force against another to protect land or property if:

1. He is the owner of the land;
2. He reasonably believes using the force is immediately necessary to prevent arson, burglary, or robbery; and
3. He reasonably believes that the land or property cannot be protected or recovered by any other means.

Know Your Rights and Responsibilities

In conclusion, while Texas law does have a few justifications for use of force and deadly force, the justifications are only proven in a very limited set of circumstances. Further, even if a person has a justification for using force, he may still be arrested and face trial. Additionally, even though an actor may have been justified in using force, he may still face civil litigation and penalties associated with the use of force against another.

Using force for self defense purposes is a serious response and should only be used in truly dangerous and threatening situations. Texas law makes it abundantly clear that those who use force will only be justified in doing so if they meet specific criteria, given the circumstances, and acted as a reasonable person would have under the same or similar circumstances.

Fort Worth Gun Crimes Defense Attorney

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UPDATE: In 2019, the Texas Surcharge Program was repealed by law and all surcharges were forgiven as of September 1, 2019. 

Contact DPS Regarding Your Surcharge Account

For assistance with questions about your Surcharge account, you can contact Texas DPS Municipal Services Bureau (MSB) at:

1-800-688-6882

Check Your DPS Account at www.txsurchargeonline.com

If you are unsure whether you have a pending TX DPS surcharge or if you would like to pay your Texas DPS surcharge, you can do this online at www.txsurchargeonline.com. Surcharges in Texas are frustrating and sometimes confusing. If you need clarification on your TX surcharge, you should contact the Texas Department of Public Safety by phone or on their website at www txsurchargeonline com.

Barnett Howard & Williams PLLC Announces the Recipients of the 2019 Scholarship Awards

This was the 4th year for our law firm to offer scholarships. In honor of the sacrifices of our military veterans, we decided to that the scholarships should be connected to military service. The first scholarship is a $500 award for a Military Veteran Law Student and the second scholarship is a $500 award for a Military Dependent undergraduate student. Throughout the year, we received several applications from very deserving students. We appreciate all of the students that took the time to apply for the scholarships and wish them all the best in their studies. For those students that were not selected, we invite you to apply again next year as we plan to continue the scholarship offers as an annual award.

2019 Winner - Military Veteran Law Student Scholarship

The winner of the 2019 Military Veteran Law Student Scholarship is:

CPT ANTHONY TAYLOR, U.S. ARMY

Anthony Taylor is an Army veteran that served as a Pathfinder Platoon Leader in the 82nd Airborne Division's lite Pathfinder Company and deployed to Afghanistan as a Ranger Platoon Leader in the 75th Ranger Regiment. Captain Taylor will be attending Northwestern University's Pritzker School of Law in Chicago this Fall. Congratulations Anthony Taylor. Best wishes as you continue toward your law degree.

2019 Winner - Military Dependent Scholarship

The winner of the 2019 Military Dependent Undergraduate Scholarship is:

TYLER CAIN

Tyler Cain is the son of a U.S. Marine infantry veteran. His father was wounded in combat and is currently 100% disabled. Motivated by his father's struggles, Tyler hopes to earn a degree in Political Science and work as a lobbyist and diplomat. He is enrolled in Coastal Carolina University. Best wishes Tyler, as you continue in your studies.

More Information About Our Scholarship Opportunities:

For more information about how to apply for these scholarships in future years, please visit the scholarship pages:

Military Veteran Law Student Scholarship

Military Dependent Scholarship

Finally, Common Sense Prevails Regarding First-time DWI Offenses

For years, I’ve had the difficult task of trying to explain to clients facing a first-time DWI charge why their case is treated more harshly under the law than other misdemeanor criminal offenses like assault, prostitution, theft, drug possession, etc. In Texas, you can be charged with one of the latter crimes and have the option of deferred adjudication probation. Deferred adjudication probation has not been an option for DWI offenses in Texas. Until now.

Effective September 1st, 2019, a first-time DWI offense may qualify for deferred adjudication probation in Texas. The Texas legislature passed legislation that was signed into law by Governor Abbott that will amend Texas Code of Criminal Procedure Art. 42A.102(b) and make deferred adjudication probation available for some first-time DWI offenses.

What is Deferred Adjudication Probation?

Deferred adjudication probation typically requires the same terms and conditions as regular probation. So, why is it a better option? In Texas, if you receive regular or “straight” probation, the judge is required to enter a finding of guilt in your case which results in a criminal conviction.

Deferred adjudication probation is different because the judge “defers” that finding of guilt and, if you successfully complete the probation, the case results in a dismissal of the charge. Thus, you avoid the penalties and consequences that result from having a criminal conviction on your record.

The New Provisions are Effective September 1st, 2019 and Are Not Retroactive.

Deferred adjudication probation on first-time DWI offenses will apply ONLY to offenses committed on or after September 1st, 2019. That means all offenses committed prior to that date will be governed by previous law that does not allow deferred adjudication probation for DWI offenses.

Are All DWI Offenses Eligible for Deferred Adjudication Under the New Law?

The new law also limits which types of first-time DWI offenses will qualify. Deferred adjudication will NOT be available for first-time DWI offenses if:

• If it is adjudicated that your blood or breath alcohol concentration was .15 or higher at the time the analysis was performed (see Texas Penal Code 49.04(d).) Or
• You held a commercial license or commercial learner’s permit at the time of the DWI arrest

Also, if you are charged with a subsequent DWI after receiving a previous conviction or convictions for DWI, you are disqualified.

The Interlock Trade-Off

For years, defense attorneys and prosecutors (yes – even prosecutors!) have lobbied for making deferred adjudication probation an option for first-time DWI offenders. However, MADD staunchly opposed the idea. So, what’s changed MADD’s position? MADD agreed to the new law because it makes first-time DWI offenders (who previously were NOT required to have an ignition interlock device as a condition of probation) now have it as a requirement. The new law requires the judge to order the ignition interlock device as a condition of probation if you receive deferred adjudication probation for a DWI offense (see the amendment to Texas Code Crim. Procedure Art. 42A.408(e-1).)

There is, however, an exception to this requirement under TCCP Art. 42A.408(e-2) of the new law. If you submit to a substance abuse evaluation and the judge determines (based on that evaluation) that the ignition interlock requirement is “not necessary for the safety of the community,” then the judge may waive the requirement. This is certainly something you would want to discuss with your attorney.

What Will My Record Look Like if I Receive Deferred Adjudication Probation for a DWI Offense?

Although successful completion of deferred adjudication probation results in a dismissal of the underlying criminal charge, there is still a criminal record that must be addressed following the dismissal. The new law limits your remedy options to a nondisclosure (sealing of the record) and even that is not guaranteed.
You will not qualify for a nondisclosure if:

• You have previously been convicted of or placed on deferred adjudication probation for another offense (other than a traffic offense that is punishable by fine only.) Or
• There is sufficient evidence to show that offense resulted in a motor vehicle accident involving another person (including a passenger in the motor vehicle operated by you.)

It’s also worth noting there is a two-year waiting period after discharge from probation to petition the court for a nondisclosure.

Can a Future DWI Arrest Be Enhanced Even if I Wasn't Convicted on the First One Under the New Law?

If, after your successful completion of deferred adjudication probation and dismissal by the court, you are arrested again for DWI, the new law allows the state to use the prior for enhancement purposes. If your case is dismissed, how can the state use it as a prior conviction? This can make for a candid debate, but, at the end of the day, this was another MADD trade-off conceded by the legislature that you should be aware of when considering long-term consequences of the new law.

DEFERRED SOUNDS GOOD - WHERE DO I SIGN? NOT SO FAST!!!

If, after September 1st, 2019, you or a loved one are faced with a first-time DWI charge and qualify for deferred adjudication probation, it might appear to be an easy option. However, we can’t stress enough how important it is that you retain a qualified DWI attorney who can analyze your case to determine If the state has enough evidence to prove their case or if there are legal or evidentiary issues present that may prove problematic for the state. The experienced DWI Attorneys at Barnett, Howard & Williams, PLLC are here to help determine what your best options truly are. So, please feel free to give us a call.