James Luster

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Injury to a Child Texas

Child Abuse Charges Defense

Injury to a child charges in Texas often arises from false allegations and misunderstood circumstances. Regardless of how innocent you are, with child abuse allegations the system is designed to first and foremost protect children. So, you will be treated like a criminal. Practically, the presumption of innocence does not do anything to protect you. You need a criminal defense lawyer to fully investigate and develop every aspect of your case. James Luster recognizes the importance of developing an effective and aggressive defensive strategy to get the best possible result for you. He wants to help you get an injury to a child accusation put behind you. Child abuse or neglect cases can ripple through your entire life…for the rest of your life. These cases can destroy families and reputations. Some cases end with long or lifetime prison sentences. Meet with a lawyer before the situation gets any worse.

Meet Attorney James Luster about your case…

Child Abuse, Neglect, and Injury Topics on this page:

  1. Texas Penal Code
  2. Head Injury Cases
  3. Spiral Fracture Injuries
  4. Child Burn Cases
  5. Is Injury to a Child an Aggravated Offense?
  6. Understanding Abuse Reports
  7. Child Abuse Resources

Texas Penal Code - Injury to a Child (Act or Omission)

If charged with injury to a child, it is important to understand the charges brought against you. According to Texas Penal Code, Title 5: Offenses Against the Person, Chapter 22: Assaultive Offenses, Section 22.04, the Tarrant County District Attorney’s Office will be required to prove the following elements (essential parts) of Injury to a Child beyond a reasonable doubt.The Texas Penal Code 22.04 for Injury to a Child lays out what must be proved.

Someone is guilty of Injury to a Child if the person:

  • intentionally acts or by omission;
  • knowingly acts or by omission;
  • recklessly acts or by omission; or
  • with criminal negligence acts

causes to a child

  • serious bodily injury;
  • serious mental deficiency, impairment, or injury; or
  • bodily injury.


There are some specific, important definitions in the Texas Penal Code that apply to Injury to a Child Cases. These terms can make the difference between Guilty or Not Guilty in some cases and years of possibly prison sentences in others. For the Tarrant County District Attorney’s Office to convict you of Injury to a Child it is important that the specific definitions defined by the Texas Penal Code apply and are proven in your case.

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Texas Child Abandonment

It is a crime if someone has custody, care, or control of a child (person younger than 15) and then the person abandons the child in a place or situation that is unreasonably risky to the safety of the child. In Texas, Child Abandonment is a felony. The degree of felony depends on several facts.

  • State Jail Felony if a person abandons a child and intends to return for the child.
  • Third Degree Felony if a person abandons a child but does not intend to return for the child.
  • Second Degree Felony if a person abandons a child in a place or circumstances that a reasonable person would believe would place the child in imminent danger of death, bodily injury, or physical or mental impairment.

Safe Haven for Child Abandonment

There are specific places where a parent can “abandon” their child and it is not a crime. These places are commonly called “Safe Havens.” In the Tarrant County area, do not confuse the domestic violence service provider “Safe Haven” with these designated emergency infant care providers. Texas Child Abandonment law does not apply if a person “abandons” or delivers a child to place that is “a designated emergency infant care provider” under Texas law. The designated places are:

  • Emergency medical services provider - a person who uses or maintains emergency medical services vehicles, medical equipment, and emergency medical services personnel to provide emergency medical services;
  • a hospital;
  • Freestanding emergency medical care facility (licensed under the Texas Health and Safety Code) - a facility, structurally separate and distinct from a hospital, that receives an individual and provides emergency care; or
  • Certain designated child-placing agencies that are licensed by the Department of Family and Protective Services.

These “designated emergency infant care providers” are supposed to take any child who looks to be 60 days old or younger that is voluntarily delivered to the provider by the child's parent and the parent does not express an intent to return for the child. The designated emergency infant care provider who takes a child does not have a legal duty to try to stop or keep the parent. The provider should not stop or keep the parent (person dropping the child) unless the child appears to have been abused or neglected. The designated emergency infant care provider does not have a legal duty to find out the parent’s identity, so the parent may remain anonymous. On the other hand, the parent may be given a form to voluntarily prove the name and medical facts for the child.

Once the designated emergency infant care provider takes possession of a child, the agency must notify the Texas Department of Family and Protective Services (TDFPS). TDFPS then takes the child into custody. TDFPS reports the child to the police, so the police can investigate whether the child is reported missing. Then TDFPS files papers with a court to decide where the child should go.

As with “Injury to a Child,” a person younger than 15 is considered a “child” for purposes of abandoning a child. In Texas, abandoning means leaving a child somewhere without giving or arranging for “reasonable and necessary care.” A jury deciding what a similarly situated adult would do with a child of similar age and development judges the “reasonable and necessary care”. See, this can be very subjective. What may have been considered reasonable when you were a child may not be considered reasonable now. What one juror may consider reasonable may not be what another juror considers reasonable. To have the best chance at fairness, meet with a criminal defense attorney as soon as possible.

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Texas Endangering a Child

Your actions do not have to actually cause injury to a child for a crime to be committed. Abandonment described above can result in criminal charges, but placing a child in a dangerous situation, even if supervised, can result in Endangerment charges. It is a crime if someone, by an act or omission, intentionally, knowingly, recklessly, or with criminal negligence does something that puts a child (younger than 15 years) in imminent danger of death, bodily injury, or physical or mental impairment.

There is a specific exception for kids playing sports. It is a defense to prosecution of child endangerment that the act or omission is allowing the child to practice for or participate in an organized athletic event and that appropriate safety equipment and procedures are employed in the athletic event. So, parents can still let their kids play football and soccer.

There are some situations that are considered to be dangerous, unless you prove otherwise. This means the law “presumes” these situations to be child endangerment:

  • manufacturing methamphetamine near a child;
  • storing or having methamphetamine around a child;
  • using methamphetamine in the presence of the child; and
  • using any Texas Penalty Group 1 drug in the presence of a child.


It also creates a “presumption” that someone has endangered a child, if the child tests positive for methamphetamine and there is some evidence the person caring for the child possessed or had control over methamphetamine. Basically, if drugs are found anywhere near a child, you are going to have a lot of hurdles to jump to prove your have not endangered a child. Police and social workers are not really interested in hearing any explanation you have. They will only use what you say against you. This is why you need to contact a criminal defense attorney immediately.

Child Endangerment is a State Jail Felony in Texas. The penalty is from 180 days to 2 years in a Texas State Jail facility, along with a fine of up to $10,000.

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Child” means a person 14 years of age or younger in this context.

"Bodily injury" means physical pain, illness, or any impairment (being weakened or damaged) of physical condition.

Serious Bodily Injury” means bodily injury that creates a substantial (great or important enough to be worthy of attention) risk of death or that causes death, serious permanent disfigurement, or protracted(lasting for a long time or longer than expected or usual) loss or impairment of the function of any bodily member or organ.

Acting with Criminal Negligence” means you should be aware of a substantial and unjustifiably risky circumstance or possible result. The risk must be so great that failing to take notice of the risk constitutes a gross (very obvious and unacceptable) deviation from how careful an ordinary person would be in the same situation. (For exact language look to Texas Penal Code Section 6.03)

Abandon” means leaving a child somewhere without providing reasonable and necessary care for the child, under circumstances under which no reasonable, similarly situated adult would leave a child of that age and ability.

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Child Head Injury Cases

Many injury to a child cases involve head trauma, and most child abuse related homicide allegations involve head injuries. You may not be able to see a serious head injury by just looking at a child’s head. It may be difficult to determine the cause of a head injury in a small child. What causes different head injuries is something that prosecution and defense witnesses often disagree about. Head injuries may occur in all degrees of severity, with symptoms ranging from dizziness, vomiting, lethargy, and confusion to coma and death. If a child suffers a head injury the caretaker or parent of the child usually becomes the focus of a criminal investigation.

Things you may say during the early investigation of a child head injury case could hurt you later. If your child or a child you care for has suffered a head injury, then you need to speak with a criminal defense lawyer before ever speaking to police or CPS. Parents and caregivers are often terribly distressed in the time surrounding a head injury to a child. This stress or confusion may lead to misstatements during interviews or interrogations. Professionals who investigate cases such as these will often view any inconsistencies as evidence of guilt. Do not make a bad situation worse by speaking with CPS or police before talking to one of our criminal defense attorneys.

Understanding Head Injury

Child head trauma (injury) is common. Most child head trauma is minor and does not cause brain injury or chronic conditions. Unfortunately, some children with seemingly minor head injury have “clinically important traumatic brain injury” (CiTBI). Generally, CiTBI is defined as intracranial (inside the skull) injuries resulting in death, neurosurgical intervention, intubation (placement of a tube into the (windpipe) to help breath) for more than 24 hours, or hospital admission for at least 2 nights. CiTBI is suspected if a child with a reported head injury has a CT scan (computerized tomography - special x-rays) showing:

  • Epidural hematoma (extradural hematoma) - a buildup of blood between the tough outer liner of the brain or spine and the skull.
  • Subdural hematoma - a collection of blood outside of the brain; or
  • Cerebral contusion - bruise on brain tissue.

Obviously, traumatic brain injury is suspected when you can see a depressed skull fracture.


Understanding the extent of a child’s head injury and the future impact is critical to defending injury to a child in Texas. Three categories of injury make up the “result” part of an injury to child charge: serious bodily injury; serious mental deficiency, impairment, or injury; or bodily injury. Texas Penal Code § 22.04. The government will have an “expert” testify about the extent of a child’s injury. If a child abuse attorney is not thoroughly educated about the science (and bad science) of head injuries then the government’s expert can woo jurors into convicting you. This is an area where experienced lawyers know to fight, because for too long people have been sent off to prison based on bad science.

A prosecution “expert” opinion about clinically important traumatic brain injuries creates a problem. The diagnosis may allow the “expert” to provide a prediction of the future, instead of being confined to certainty of a present condition. The “experts” prediction may increase the chances a jury finds a child has suffered serious bodily injury. In the context of injury to a child Texas criminal cases, “serious bodily injury” means physical pain, illness, or any impairment of physical condition to the extent it creates a substantial risk of:

  1. death;
  2. serious permanent disfigurement; or
  3. protracted loss or impairment of the function of any bodily member or organ.


The government charges injury to a child cases as First Degree Felonies if you are accused of intentionally or knowingly causing a child’s head injury and the injury creates a substantial risk of 1 or 2 (death or serious permanent disfigurement). The charge is a Second Degree Felony if the government accuses you of recklessly causing the same injuries. If the injuries to not rise to the level of “serious bodily injury” then the child injury charge may be much less serious or not even criminal.

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Child Head Injury Symptoms

If medical personnel or social workers believe your child (or a child in your care) has suffered a head injury then they will likely ask you about the most common symptoms, including: Some swelling of the child’s scalp – this may be caused from blood collecting under the skin, because of busted blood vessels in the scalp; Child losing consciousness – if a child has a minor head injury then losing consciousness is very rare; however, loss of consciousness may occur even with minor head injuries; Child suffering from headaches – this may seem like an obvious symptom, but some children are too young to speak. So, symptoms may present by signs of irritability; Child vomits – this is a tricky symptom, because children often vomit for a variety of reasons. However, this can be a symptom of child head injury; Onset of seizures – a small fraction of children suffer from a seizure even after serious head injury. Even if a child seems to have a seizure a CT scan is necessary to get an idea of what is actually happening; Child gets a concussion – concussion symptoms include confusion, amnesia, headaches, vomiting, and bouts of dizziness. Even a becoming unconscious may happen, but it is rare.

Child Injury Attorney Fort Worth

Injury to a Child criminal charges are some of the most complicated cases prosecuted in Texas. We tackle these cases head-on, including battling it out with Child Protective Services. Honestly, a CPS case may be a great tool to gather valuable information for your criminal defense. Regardless of whether CPS is involved in your child injury case, you need a Fort Worth injury to a child defense lawyer that will develop a strategy to beat the accusations against you. A lawyer that treats child injury cases like any other criminal case (e.g. drugs or DWI) is a disaster waiting to happen, for you. Call our law firm, today. We want to get the record straight and get your life back on track.

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Shaken Baby Syndrome

Shaken Baby Syndrome (SBS) has been a hot topic and area of prosecution for years. Unfortunately, not until recently has the science behind this sensational area of advocacy been closely scrutinized. A growing number of doctors and engineers have come to question the science behind Shaken Baby Syndrome. This is very disruptive, because SBS has been considered a public health threat for a long time.

International laws properly ban human experimenting. So, it is very difficult for doctors and scientists to test their ideas about SBS and other child injuries. So, there have been no conclusive tests showing violent shaking produces the conditions usually relied upon for diagnosis: bleeding and swelling in the head and bleeding in the back of the eyes. More research is showing that accidents and some diseases may create identical signs in infants.

Despite some movement in this area of science, many doctors support the diagnosis of Shaken Baby Syndrome. They say their diagnosis, although not tested in controlled experiments, it has been backed up by years of “clinical work,” research and confessions people that have abused children.

Doctors giving opinions about Shaken baby syndrome is unlike most other areas in which medical doctors give opinions. SBS diagnosis is not focused on treating a child. When a child has bleeding on the brain (subdural hematoma), a doctor needs to relieve the pressure. This course of treatment does not depend on how the child became injured. This is an area where medicine crosses over into the criminal justice system. So, we often have people without proper training trying to guess at the cause of injuries. This does not stop prosecution witnesses from giving very damning opinions about the cause of children’s head injuries.

Many American doctors maintain that an infant cannot suffer a fatal head injury from a fall of less than three stories high. Obviously, researchers cannot drop children to test this theory. However, a child falling from five feet will reach a speed of 15 miles per hour. Think of running as fast as you can into a wall in your house. Your head would hit at a speed less than 15 miles per hour. Common sense quickly debunks the notion that the soft skull of an infant cannot be fatally broken under similar physical stress.

Regardless of the state of the science, your lawyer needs to be abreast of the newest innovations. James Luster constantly attends training and researches the latest child injury forensic science. He is ready to stand up to the prosecution's “experts” and fight for you. Do not speak with police or CPS before speaking with a criminal defense attorney.

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Burn Injury Cases

A common area for Injury to a Child cases involves burns. These cases usually involve smaller children (under the age of 10). Sometimes the begin because you take a child to get medical treatment for a burn, but in many cases it results from someone calling the police or CPS because of marks on a child. These cases are very complex, and a thorough investigation needs to start immediately. Talk to criminal defense attorney, James Luster, to get help with you cases.

Younger children have skin thinner than adults. So, heat can cause more damage to a kid’s skin than it might to an adults. Also, skin thickness varies across the body. Thicker areas like palms, soles, back, scalp, and the back of the neck, may damage less. Thinner skinned areas like the chest, inner thighs, bottom of forearms, and the inner arm area, may damage more. Injury to a child by burns can happen quickly and accidentally. Immediately get your child medical help, but do not speak with CPS or police until you have spoken to a criminal defense lawyer.

Adult get significant injuries of the skin after 1 minute in water at 127 degrees, 30 seconds at 130 degrees, and 2 seconds at 150 degrees. Children suffer significant burns in less time than an adult.

Burns can usually be categorized in two groups, Scalds or Contact. Scald burns are the most common. These burns are caused by hot liquid or steam:

  • hot faucet water (bath or sink);
  • stove top boiling water;
  • tea or coffee;
  • soup; or
  • grease.

Scald burns may be either a spill or splash type of burn or an immersion burn. The most common kind of scald burn that causes injury is the immersion burn, and most deliberate burns are caused by tap water.


The other type of common burn is a Contact burn. These are usually of the branding type so the burn often takes the shape of the hot object. Examples include:

  • curling iron;
  • steam clothing iron;
  • cigarette lighter;
  • fireplace or grill; or
  • a heated kitchen.

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Degree of Burns

First Degree

  • Partial thickness burn
  • Localized redness
  • Appear sunburn like
  • Usually heal themselves

Second Degree Burn

  • Partial thickness burns
  • Part of the skin has been damaged or destroyed
  • Blisters containing clear fluid
  • Pink underlying tissue
  • Often heal themselves

Third Degree Burn

  • Full thickness burn
  • Full skin has been destroyed
  • Deep red tissue underlying blisters
  • Bloody blister fluid
  • Muscle and bone may be damages
  • Require professional treatment

Fourth Degree Burn

  • Penetrates deep tissue to fat, muscle, bone
  • Requires immediate professional treatment

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Spill or Splash Injuries

These injuries happen when hot liquid falls onto a child. The burn pattern usually does not have a neat shape and has different depths around the burn. Examiners will be looking for where the scalding liquid first came into contact with the child. Liquid travels downward and cools as it moves away from the initial contact point.

Examiners are going to be looking for a “splash pattern” to give a clue as to what happened. If a pot of water is spilled or thrown on someone’s chest, the initial contact area will show a splash pattern. Then the area lower on the body should taper down, creating what is called an “arrow down” pattern. This is an example of a pattern they may be looking for; however, this pattern is more commonly seen in assaults on adults than in assaults on children.

Aside from natural splash patterns, there are a lot of variables such as positioning and clothing or covering. Injury to a child by spills or splashes can lead to complex forensic questions. This is an area your criminal defense lawyer should be familiar with.

Immersion Burns Injuries

Immersion burns are caused when a child falls or is placed into a bathtub, sink, or other container of hot liquid. Usually, in a deliberate immersion burn, the depth of the burn is uniform. The injury edges are very distinct, sharply defined “waterlines” with little tapering of depth at the edges. Sometimes, there may not be any indication the child thrashed or splashed around. This will be used as “evidence” that the child was held in place. They will be looking for bruising on the child as a sign the of holding.

Prosecution “experts” will say that only children with deliberate immersion burns have deep burns of the buttocks, anus, or genital areas. Investigators will be looking for signs that these kinds of burns resulted from toilet training or punishment for ruining cloths. So, police will look for dirty diapers or clothing in the bathroom. First responders may look at how deep the water is in the tub. They will try to find different pieces of evidence to use against you. This is why you cannot speak to police or CPS before talking to you criminal defense attorney. They are collecting evidence against you from the very first moments.

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Contact Burns Injuries

”Contact burns” can be caused by flames or hot solid objects. Burns caused by flames are a rare kind of deliberate injury. When this does happen, the burn is usually deep and well defined, compared to accidental flame burns. If a child accidentally touches something really or something really hot falls on a child, usually there is a lack of pattern in the burn injury. This is because the child quickly moves away from the hot object. But even brief accidental contact can cause a second-degree burn with the pattern of the hot object.

It is very difficult to tell between injuries that are non-accidental contact burns and accidental contact burns. Cigarettes and iron burns are the most common types of these injuries. When investigating cigarette burns, examiners are concerned with the location of the burn. For instance, burns on a child’s back or buttocks are less likely to have been caused by walking into a cigarette. Burns on the face and eyes are more common if the child walks or runs into the adult’s lighted cigarette held at waist height.

Accidental burns are usually more shallow, randomly shaped, and less well defined than deliberate burns. Multiple cigarette burns are a read flag of child abuse.

Intentional “branding” injuries usually take the shape of the hot object that caused the burn (such as cigarette lighters and curling irons). These are usually much deeper than the superficial and random burns caused by accidents. Most branding type burns occur when something is accidentally grabbed or falls on someone. These are usually second-degree injuries and are in random places. Police or first responders are going to be asking where the hot object was.

Another cause of accidental burns is contact with items that have been exposed to the sun for long periods. Pavement can get up to 176 degrees and can burn a child’s bare feet. A child put in a carseat that has been in a car in the sun can get second- and even third-degree burns.

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Spiral Fractures

People mistakenly think that spiral fractures are almost certainly the result of abuse. Spiral fractures imply a cause of twisting the bone. These fractures can and often do occur accidentally. Obviously, before a child can move around on his or her own, self-inflicted spiral fractures do not make sense.

Child abuse is a challenging and sensitive area for pediatricians and other professionals. Everyone in the system, including doctors, want to protect children. The stakes are too high to miss a diagnosis or incorrectly attribute a cause of an injury. Unfortunately, mistakes happen all of the time because of the intense emotions and protective nature of people.

Everyone can agree it is terrible for a parent to be falsely accused of injuring a child, and it is painful to see a child taken from a parent who did not commit abuse. These concerns usually take a backseat to the fear of child not being taken out of an abusive situation and the abuse continues or worsens. Many professionals, consciously or subconsciously, err on the side of claiming abuse occurred.

So, unless there is a clear explanation of how the fracture occurred, professionals are going to assume abuse is the cause. Before a professional should jump to this conclusion, they should conduct:

  • A collection of a complete history;
  • Comprehensive soft-tissue exam;
  • A skeletal survey;
  • Order lab testing for calcium, phosphorous, alkaline phosphatase.

Your lawyer should be familiar with the prevailing medical and forensic practices for investigating spiral fracture child injuries. A good criminal defense attorney can check the work of the medical professionals and uncover areas where the doctors or other professionals jumped to conclusions. As an example, your lawyer should delve into whether professionals considered diagnosis for:

  • Osteogenesis Imperfecta - a genetic disorder characterized by bones that break easily, often from little or no apparent cause.
  • Parathyroid disorders - possible disease of parathyroid glands causing overactivity of one or more of the parathyroid lobes causing a potentially serious calcium imbalance.

Once a child is moving on her own, the prevailing literature on spiral fractures indicates the cause is statistically less likely to be abuse. Still, professionals must still consider abuse as an explanation for injury to a child. But there is even a name for a common spiral fracture of the tibia (shinbone) in an ambulatory child, the “toddler’s fracture.” This is often caused when a young child plants their foot and twists on it. The twisting force creates a spiral fracture.

Sometimes caregivers are completely unaware of these twists taking place, so everyone is left trying to understand how the fracture happened. It may be much later that the fracture even comes to someone’s attentions when the child points out the pain or is resistant to walking. In this situation, the parent or caretaker whisks the child to the Emergency Room, but has not clear explanation as to why the spiral fracture occurred. Abuse will immediately be suspected.

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Is Injury to a Child an Aggravated Offense?

Injury to a Child is a Third Degree Felony if it is proved that the defendant acted intentionally or knowingly. Tex. Penal Code 22.04. When people ask if “a charge is aggravated” in Texas, usually they are concerned with two things: (1) Do harsher parole laws apply?; and (2) can a person get probation if they have never had a felony before? Sometimes people say a charge is “3g” instead of using the term aggravated or “agg.”

3G means the charge is listed in Subsection G of Section 3 of Article 42.12 of the Texas Code of Criminal Procedure. This is a list of some serious crimes that a judge cannot give probation for if the person is found guilty at trial. The more serious charges are 3g. Injury to a Child is not a "3g" offense unless it's a first degree felony. Injury to a child is a First Degree Felony if it is proved the defendant acted intentionally or knowingly AND either: (1) serious bodily injury; and (2) serious mental deficiency, impairment, or injury. Since a Third Degree charge is not 3G or aggravated, then the stricter parole laws won't apply and a judge can give first time felony offenders probation if the person is found guilty at trial. These are very specific legal distinctions and you should not rely on this website or any source other than you criminal defense attorney.

As an example of the complexity of this issue, a “deadly weapon” finding can change everything. Even a Third Degree can fall under the harsher parole laws of Texas Code of Criminal Procedure 42.12 (3)(g) if the State proves the defendant used a "deadly weapon" during the commission of the offense. If you are sentenced to "agg time" or there is a deadly weapon finding, you will not eligible for parole until you have served half of the sentence. To understand the full range of consequences and penalties you are facing you must call a Fort Worth Injury to a Child Defense Lawyer.

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Understanding Child Abuse Reports

Child abuse can have slightly different meanings in Texas laws and regulations. Criminal charges may be more specific than CPS allegations. However, generally child abuse is causing a child’s death, causing a child physical injury, or even causing a child emotional harm. This includes striking, shoving, shaking, or hitting a child, regardless of whether it is for the purpose of discipline. Child abuse laws in Texas are complicated and often leave much to interpretation.

In the CPS context, a child’s injuries are considered to cause “Substantial Harm” if the child abuse causes real and significant physical injury or damage to a child including: bruises, cuts, welts, skull or other bone fractures, brain damage, subdural hematoma, internal injuries, burns, scalds, wounds, poisoning, human bites, concussions, and dislocations and sprains.

Remember, a child does not have to have substantial harm for the government to file “Injury to a Child” criminal charges. However, allegations of “Substantial Harm” to a child can easily support at least a Third Degree Felony injury to a child charge. If a child suffers “Serious Physical Abuse” that means the child’s injuries require fast medical attention, including hospitalization. These injuries are those that may endanger the child's life or cause permanent functional impairment, death, or disfigurement if untreated. This is a CPS term. In the criminal context, this is very close to “serious bodily injury.” This means injuries causing a substantial risk of death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. “Serious Physical Abuse” can support a First Degree Felony charge of Injury to a Child. Contact a criminal defense lawyer immediately if you are faced with these allegations.

Of course, sexual conduct with a child is child abuse. That includes the criminal charges of Indecency with a Child; Sexual Assault; or Aggravated Sexual Assault. Sexual child abuse also includes compelling or encouraging the child to engage in sexual conduct. CPS defines “Serious Sexual Abuse” as oral, anal, or genital intercourse; sexual acts performed with the child that involve the genitals or anus; touching of the genitals, breasts, or anus. Any of these sexual abuse allegations by CPS fit within sexual abuse criminal charges. If convicted of any of this conduct in a criminal court you would be facing serious prison sentences and registration as a sex offender.

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Child Abuse or Neglect Reported to CPS

When Child Protective Services (CPS) gets a report of child abuse or neglect the Department assigns a priority level based on the “immediacy of the risk and the severity of the possible harm to the child.” The higher level of child abuse or neglect is Priority 1. This is when a report alleges circumstances (if true) would cause a child to be in immediate risk of child abuse or neglect that is severe enough to possible cause death or serious harm. The other level is Priority 2 reports. This is basically every report not rising to the level of Priority 1.

If CPS gets a Priority 1 Report they are supposed to immediately respond, meaning within 24. If CPS receives a Priority 2 Report then CPS is supposed to begin an investigation within 72 hours by forwarding the report to specialized screening staff. Regardless of whether CPS assigns your situation a Priority 1 or 2, you need to speak with a Texas child abuse attorney as soon as possible. James Luster is experienced in handling injury to a child or endangering a child cases that involve CPS investigations.

Does CPS contact the police? Yes, CPS will contact the police. They are required to notify police of child abuse reports or reports of neglect within 24 hours of receiving a Priority 1 Report for: sexual abuse report; or abuse or neglect in a public or private school. CPS can contact the police orally or by facsimile. If CPS reports these cases orally, they must follow up with a written report within 3 days after receiving the abuse or neglect report. Some written record should exist of this report.

CPS still has to report these Priority 1 abuse and neglect allegations even if information shows the report is unfounded or does not qualify for Priority 1. If a case is Priority 2 then CPS must report it to police, in writing, within 3 days. This means if CPS has contacted you or attempted to contact you, they are going to contact police soon. It cannot be stressed enough, before speaking with CPS or the police about child abuse or neglect allegations you should speak with a criminal defense attorney that is experienced in CPS investigations.

CPS can be three of the most frightening letters a parent ever hears. The Child Protective Services (CPS) Program is designed to protect children and to act in the children's best interest. However, many people find themselves the focus of a Child Protective Services (CPS) investigation that has been initiated by false accusations of abuse or neglect. And yet, other family members may have grandchildren, nephews, nieces, or other loved ones that have been removed by Child Protective Services (CPS) and because of bad parenting the children are being swept away from the entire family. These could be situations where someone is charged with injury to a child or neglect, or perhaps no criminal cases have been filed.

Through the Child Protective Services (CPS) Program, the Texas Department of Family and Protective Services (DFPS) focuses on children and their families and seeks active involvement of the children's parents and other family members to solve problems that lead to abuse or neglect. The Child Protective Services (CPS) Program is intended to seek a solution that prevents harm to the child and to keep the child with the family when possible. However, CPS case workers often feel this objective cannot be obtained, so they recommend removal of the child from the family and placement with substitute families or caretakers, many times foster families.

Child Protective Services (CPS) is supposed to work to provide permanence for a child in substitute care by resolving family dysfunction and returning the child to the family. Finally if the Child Protective Services (CPS) case worker thinks the family situation is unfixable (in the 1 year period allowed for these suits) the CPS caseworker recommends termination of the parent-child relationship and permanent placement of the child with another family or caretaker. The Child Protective Services (CPS) Program tries to provide permanence for a child who cannot return to the family by recommending termination of the parent-child relationship or other suitable legal authorization for permanent placement of the child with another family or caretaker.

Privacy and the Child Protective Services (CPS) Program Many of the “investigative” practices of Child Protective Services (CPS) Program implicate serious constitutional and statutory privacy issues. This is one reason you need a skilled Fort Worth Child Abuse Attorney to help protect you from unnecessary and unreasonable invasions of privacy and harassment. Child Protective Services (CPS) Program investigations invoke Fourth Amendment Protections. There are four primary examples of Child Protective Services (CPS) Program activities that invoke Fourth Amendment protection: (1) Entry of a home by Child Protective Services (CPS); Visual examination of a child by a Child Protective Services (CPS) worker; Transporting a child from school by Child Protective Services (CPS); and (4) Removal of a child by Child Protective Services (CPS).

Texas and Federal Basis for Child Protective Services (CPS) DFPS's Child Protective Services Program is based on federal and Texas laws. Federal laws, under which the program operates, are specified in the Social Security Act and interpreted through regulations published in the United States Code of Federal Regulations. Texas laws that protect children from abuse, neglect, or other harm have existed been around since 1931. Texas Child Protective Services (CPS) state laws pertaining to children and families are the: Texas Family Code; the Human Resources Code; Texas Revised Civil Statutes Annotated, article 2351, Subsection 11; and the Texas Open Records Act. This is just background on Texas Child Protective Services. To understand the limitations of their investigative power and to know your rights in injury to a child cases, you need to find a criminal defense lawyer familiar with these cases.

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What is not child abuse in Texas?

Certain activities are not considered child abuse or neglect, in and of themselves:

  • Truancy – this is when a child is absent from school (voluntarily) without a valid excuse.
  • Runaway Child – this is when a child voluntarily leaves home without the permission of a parent or guardian.
  • Children in need of supervision (CHINS) – this is closely related to juvenile delinquency – when a child is acting in a way that demonstrates the government should intervene, but the child’s activity does not necessarily rise to the level of criminal charge.
  • Reasonable physical discipline – in Texas you can still spank your child, but CPS dictates that physical discipline is appropriate only if it does not cause any injuries or substantial risk of harm.
  • Latch-key children – this is when a child is school-age and left unattended a portion of the day, and the child’s parents (guardian) have made appropriate arrangements to ensure the child is not in danger.
  • Violent Children Outside of the Family – these are children who act violently toward other children, but the children do not live in the same home (or not family members).


Medical conditions and misunderstood circumstances can be mistaken for signs of physical neglect. School personnel, family members, or law enforcement may make reports of malnourishment, lack of personal cleanliness, torn or dirty clothes, insufficient clothing for warmth and protection, or need for glasses, dental care, or other medical attention. These reports may be false or may be the result of persons jumping to conclusions. These cases may also be referred to as injury to a child by omission.

Neglect cases may be charged as reckless injury to a child. This is State Jail Felony charge if only bodily injury (pain or sickness) results. The charge is a Second Degree Felony if the injury results in serious bodily injury or impairment.

Many people make the mistake of trying to explain their situation to law enforcement. Any slight perceived inconsistency or misstatement may cause a criminal investigation or prosecution to worsen. Do not make the mistake of talking to law enforcement before speaking with a criminal defense attorney. Injury to a Child and Endangerment cases are very serious, and police do not give you the benefit of the doubt. So, even if you think your situation falls in the this “Not Child Abuse” list, do not speak with police or CPS until you have met with a criminal defense lawyer. These cases can tear you family and life apart.

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Failure to Report

Failing to report child abuse is a crime in Texas under Texas Family Code Section 261.109. If a person has cause to believe that a child's physical or mental health or welfare has been harmed by abuse or neglect by anyone, then the person is required by law to immediately make a report. If someone does not report child abuse, they can be charged with a Class A Misdemeanor in most cases. In some cases, failure to report child abuse can be a State Jail Felony charged. A very specific situation is, if the child is in a supported living center because of intellectual disabilities and the child has suffered serious bodily injury as a result of he abuse or neglect. It is also a State Jail Felony to fail to report if the person that knows about the abuse is a Texas state licensed “professional.” A professional must report the suspected abuse within 48 hours. Examples of these professionals are:

  • attorneys;
  • clergy
  • medical practitioner;
  • social worker; or
  • mental health professional.

A report of child abuse should include the reporter's belief that a child has been or may be abused or neglected or has died of abuse or neglect. The report can be made to:

  1. any local or state law enforcement agency;
  2. the Texas Department of Family Protective Services; or
  3. the Texas agency that operates, licenses, certifies, or registers the facility in which the alleged abuse or neglect occurred.

Regardless of where the initial child abuse report goes to, an injury to a child charge will be filed with police. A detective is assigned to the case, and a detective will likely attempt to contact the person accused. Never speak with police or CPS without talking to a criminal defense lawyer first. They will use whatever you say against you.

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False Reports of Child Abuse

It is a crime to knowingly make a false report of child abuse under Texas Family Code Section 261.107. This crime is a State Jail Felony, unless the person making the false report has already been convicted of making a false report. Then the charge is a Third Degree Felony. The government very rarely files criminal cases for a false report of child abuse.

Even if child abuse did not occur, if a person reports suspected abuse in “good faith,” the person is not liable. Someone acting in good faith who reports or assists in the investigation of a report of alleged child abuse or neglect or who testifies or otherwise participates in a judicial proceeding arising from a report, petition, or investigation of alleged child abuse or neglect is immune from civil or criminal liability that might otherwise be incurred or imposed. So witnesses in an injury to a child criminal trial are not subject to prosecution if they are acting in good faith.

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Helpful Child Abuse or Injury to a Child Resources:



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