Assault under Texas Penal Code Section 22.01 is not one offense. It is three acts that share a name, and the punishment runs from a 500 dollar fine to twenty years in prison. Causing bodily injury is ordinarily a Class A misdemeanor. Threatening someone, or touching them offensively, is ordinarily a Class C misdemeanor. The same act of causing bodily injury becomes a third degree felony against any of ten categories of complainant listed in subsection (b), and a second degree felony against a peace officer or a judge.
What are the three ways to commit assault in Texas?
Subsection (a) sets them out. Under (a)(1), a person commits an offense by intentionally, knowingly, or recklessly causing bodily injury to another, including the person’s spouse. Under (a)(2), by intentionally or knowingly threatening another with imminent bodily injury, including the person’s spouse. Under (a)(3), by intentionally or knowingly causing physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.
Which subsection the State charges is the most consequential fact on the charging instrument, because the grade of the offense follows from it. A shove that leaves no mark can be charged under (a)(3) as a Class C. The same shove, if it caused pain, can be charged under (a)(1) as a Class A. Section 1.07(a)(8) of the Penal Code defines bodily injury as physical pain, illness, or any impairment of physical condition, so the distance between those two charges is smaller than most people assume.
What is the punishment for assault in Texas?
| Offense | Grade | Punishment range |
|---|---|---|
| Threat or offensive contact, Sec. 22.01(a)(2) or (a)(3) | Class C misdemeanor | Fine not to exceed 500 dollars (Sec. 12.23) |
| Offensive contact with a known sports participant by a non-participant, Sec. 22.01(c)(2) | Class B misdemeanor | Up to 180 days in jail, a 2,000 dollar fine, or both (Sec. 12.22) |
| Bodily injury, Sec. 22.01(a)(1) | Class A misdemeanor | Up to one year in jail, a 4,000 dollar fine, or both (Sec. 12.21) |
| Offensive contact with an elderly or disabled individual, Sec. 22.01(c)(1), or threat or contact against a pregnant individual to force an abortion, Sec. 22.01(c)(3) | Class A misdemeanor | Up to one year in jail, a 4,000 dollar fine, or both |
| Bodily injury against any of the ten categories in Sec. 22.01(b), including family violence with a qualifying prior or by strangulation | Third degree felony | Two to ten years in prison and a fine not to exceed 10,000 dollars (Sec. 12.34) |
| Bodily injury by a civil commitment facility resident against Texas Civil Commitment Office personnel, Sec. 22.01(b-1) | Third degree felony | Two to ten years in prison and a fine not to exceed 10,000 dollars |
| Bodily injury against a known peace officer or judge, Sec. 22.01(b-2) | Second degree felony | Two to twenty years in prison and a fine not to exceed 10,000 dollars (Sec. 12.33) |
| Family violence assault with a qualifying prior conviction and by strangulation, Sec. 22.01(b-3) | Second degree felony | Two to twenty years in prison and a fine not to exceed 10,000 dollars |
The punishment ranges themselves are not in Section 22.01. They come from Chapter 12 of the Penal Code, which is worth knowing because the charge and the range are set by two different statutes and prosecutors quote the second one loosely.
When does a misdemeanor assault become a felony?
Subsection (b) is the answer, and it is longer than most people realize. Causing bodily injury under (a)(1) is a third degree felony rather than a Class A misdemeanor when the offense is committed against any of ten categories of person.
| Sec. 22.01(b) | Category |
|---|---|
| (b)(1) | A person the actor knows is a public servant, while lawfully discharging an official duty or in retaliation for it |
| (b)(2) | A person in a relationship described by Family Code Sec. 71.0021(b), 71.003, or 71.005, where there is a qualifying prior conviction or the offense was committed by strangulation |
| (b)(3) | A government contractor performing a service in a correctional or civil commitment facility, or that contractor’s employee |
| (b)(4) | A person the actor knows is a security officer performing a duty as a security officer |
| (b)(5) | A person the actor knows is emergency services personnel providing emergency services |
| (b)(6) | A person the actor knows is a process server performing a duty as a process server |
| (b)(7) | A pregnant individual, to force the individual to have an abortion |
| (b)(8) | A person the actor knows is pregnant at the time of the offense |
| (b)(9) | A person the actor knows is hospital personnel, while located on hospital property |
| (b)(10) | A person the actor knows or reasonably should know is an employee or agent of a utility, performing a duty within the scope of that employment |
Two subsections then override that list upward. Under (b-2), an assault against a person the actor knows is a peace officer or a judge, while that officer or judge is lawfully discharging an official duty or in retaliation for it, is a second degree felony, not a third. Under (b-3), a family violence assault that involves both a qualifying prior conviction and strangulation is also a second degree felony. And under (b-4), an assault causing bodily injury committed in the course of an offense under Section 20.05(a)(2) is a third degree felony.
What is assault by strangulation in Texas?
Section 22.01(b)(2)(B) elevates a family violence assault to a third degree felony when the offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth.
Notice what that language does not require. It does not require loss of consciousness. It does not require a visible injury. It does not require that breathing actually stopped, only that it was impeded. And it expressly includes blocking the nose or mouth, so a hand over the face can support the allegation. That is how a case that reads like a misdemeanor on the offense report gets filed as a felony, and it is the first allegation to examine in the charging instrument.
Why does a first family violence conviction matter so much?
Because of Section 22.01(b)(2)(A). That provision makes a later assault against a family or household member a third degree felony if the defendant has previously been convicted of an offense committed against a person in one of those relationships under Chapter 22, Chapter 19, or Section 20.03, 20.04, 21.11, or 25.11, or under Section 25.07 or 25.072 where the violation was based on family violence conduct. The first conviction is what converts the next misdemeanor allegation into felony exposure. Add strangulation to that and (b-3) takes it to a second degree felony, which starts at two years and tops out at twenty.
That is the arithmetic that gets lost when a first case is resolved quickly because the offer looks light. The offer is never only about the case in front of you. Our page on assault on a family member covers how these cases are actually defended.
Does the statute presume the defendant knew the complainant’s job?
Subsection (d) creates a presumption. For purposes of subsection (b), the actor is presumed to have known the person assaulted was a public servant, a security officer, an employee or agent of a utility, or emergency services personnel if that person was wearing a distinctive uniform or badge indicating the person’s employment, agency, or status. A presumption is rebuttable and it is not proof, but it moves the practical burden on the knowledge element, which is often the element the defense would otherwise be contesting.
Charged With Assault in Harris County?
Whether an assault allegation is a Class C or a second degree felony can turn on a single phrase in the charging instrument. Blass Law handles assault cases across Houston and the surrounding counties. Call (713) 664-4000 or request a case evaluation.
Related: Texas Penal Code 22.02, Aggravated Assault, what a Class A misdemeanor is in Texas, and our Houston aggravated assault lawyer page.
Reviewed by Jay Blass Cohen, founder of Blass Law PLLC — ACS-CHAL Forensic Lawyer-Scientist, certified Drug Recognition Expert, and SFST instructor, serving Houston since 2009. This article is general information, not legal advice for your situation. Prior results do not guarantee a similar outcome.