Texas Penal Code 38.111 – Improper Contact with Victim

WHAT IS IMPROPER CONTACT WITH VICTIM IN TEXAS?

The Texas law against improper contact with a victim prohibits persons charged with or convicted of certain sex offenses and confined in correctional facilities from contacting victims and their family members.

• Is an offender prohibited from contacting crime victims in Texas? The statute criminalizing contacting a victim cross-references Article 62.001(5) of the Texas Code of Criminal Procedure, which lists certain sex offenses for which a person is required to register as a sex offender. A person charged with or convicted of one of those crimes may not attempt to contact the victim of the crime, or a victim’s family member. Those crimes include:
  • Continuous sexual abuse of a child or disabled individual
  • Bestiality
  • Indecency with a child
  • Sexual assault
  • Aggravated sexual assault
  • Prohibited sexual conduct
  • Aggravated promotion of prostitution
  • Compelling prostitution
  • Solicitation of prostitution punishable as a second degree felony
  • Sexual performance by a child
  • Possession or promotion of child pornography
  • Aggravated kidnapping committed with intent to sexually violate or abuse the victim, or the victim or intended victim was under 17
  • Kidnapping if the victim or intended victim was under 17
  • Burglary of a habitation with intent to commit a sexual offense
  • Unlawful restraint if the victim or intended victim was under 17
  • Second conviction for indecent exposure
  • Trafficking of persons
  • Continuous trafficking of persons
  • Online solicitation of a minor

WHAT IS THE IMPROPER CONTACT WITH VICTIM LAW IN TEXAS?

Tex. Penal Code § 38.111. IMPROPER CONTACT WITH VICTIM.

(a) A person commits an offense if the person, while confined in a correctional facility after being charged with or convicted of an offense listed in Article 62.001(5), Code of Criminal Procedure, contacts by letter, telephone, or any other means, either directly or through a third party, a victim of the offense or a member of the victim’s family, if the director of the correctional facility has not, before the person makes contact with the victim:

(1) received written and dated consent to the contact from:

(A) the victim, if the victim was 17 years of age or older at the time of the commission of the offense for which the person is confined; or

(B) if the victim was younger than 17 years of age at the time of the commission of the offense for which the person is confined:

(i) a parent of the victim;

(ii) a legal guardian of the victim;

(iii) the victim, if the victim is 17 years of age or older at the time of giving the consent; or

(iv) a member of the victim’s family who is 17 years of age or older; and

(2) provided the person with a copy of the consent.

(b) The person confined in a correctional facility may not give the written consent required under Subsection (a)(2)(A).

(c) It is an affirmative defense to prosecution under this section that the contact was:

(1) indirect contact made through an attorney representing the person in custody; and

(2) solely for the purpose of representing the person in a criminal proceeding.

(d) An offense under this section is a Class A misdemeanor unless the actor is confined in a correctional facility after being convicted of a felony described by Subsection (a), in which event the offense is a felony of the third degree.

WHAT IS THE PENALTY CLASS FOR IMPROPER CONTACT WITH VICTIM IN TEXAS?

If a person improperly contacts a victim while confined after being convicted of a listed sex offense, it is a third degree felony, punishable by two to ten years in prison. Improper contact with a victim is otherwise a Class A misdemeanor, punishable by up to one year in county jail.

WHAT IS THE PUNISHMENT RANGE FOR IMPROPER CONTACT WITH VICTIM IN TEXAS?

The punishment range for improper contact with a victim charged as a third degree felony is between two and ten years in prison, and a maximum $10,000 fine. Class A misdemeanor improper contact with a victim carries up to one year in jail, and a maximum $4,000 fine.

WHAT ARE THE PENALTIES FOR IMPROPER CONTACT WITH VICTIM IN TEXAS?

A person charged with improperly contacting a victim may be eligible for probation after a conviction, or deferred adjudication without a conviction. The period of community supervision for a Class A misdemeanor may not exceed two years. The community supervision term for a third degree felony may not exceed ten years.

WHAT ARE THE DEFENSES TO IMPROPER CONTACT WITH VICTIM IN TEXAS?

The statute provides an affirmative defense if it is the person’s attorney who contacts the victim or victim’s family members “solely for the purpose of representing the person in a criminal proceeding.” The victim or minor victim’s parent or guardian may also give written consent to the director of the correctional facility for the offender to attempt contact.

• Can an attorney contact a victim of a criminal case in Texas? Lawyers representing people who are prohibited from contacting victims and their families may do so under most circumstances. According to the Texas Disciplinary Rules of Professional Conduct, defense attorneys are generally permitted to contact anyone who may be involved in a criminal case, so long as the attorney does not mislead anyone about material facts. This means attorneys must identify themselves and those they represent, and no one is required to speak to them.

WHAT IS THE STATUTE OF LIMITATIONS FOR IMPROPER CONTACT WITH VICTIM IN TEXAS?

The limitation period for improper contact with a victim charged as a third degree felony is three years. If charged as a Class A misdemeanor, the limitation period is two years.

IMPROPER CONTACT WITH VICTIM IN TEXAS

The purpose of prohibiting contact with a victim from jail or prison, whether by letters, telephone, or through a third party, is to protect sexual assault victims and their families from harm. The law presumes victims and their families prefer not to be contacted by their assailants, but the statute gives a victim or minor victim’s parent or guardian the option of consenting to contact in writing.

TEXAS IMPROPER CONTACT WITH VICTIM COURT CASES

The case law regarding improper contact with a victim in Texas upholds the statute’s constitutionality. The Court of Criminal Appeals discussed the law in 2016:

• In Schlittler v. State, the defendant and his wife had a son, and his wife had a daughter from a previous marriage. They divorced, and the defendant was later convicted of sexually assaulting his step-daughter during the marriage. He was prohibited by a family court from contacting his son, but sent his friend social media messages to relay to his son.The defendant was convicted of improper contact with a victim’s family member. The appellate court upheld his conviction, concluding he had no fundamental right to privately communicate with his son while imprisoned for sexually assaulting his step-daughter.