It has been the practice at my office to prosecute mothers who use drugs while pregnant under 22.041(c), which provides that a "person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that places a child younger than 15 years in imminent danger of death, bodily injury, or physical or mental impairment." The rationale is that the harm is likely and this gives us a way to put them on probation to ensure that no further harm comes to the child.
It has, however, come to our attention that 22.12 might preclude use of 22.041 as a means to this end. 22.12(1) makes clear that Chapter 22 "does not apply to conduct charged as having been committed against an individual who is an unborn child if the conduct is . . . committed by the mother of the unborn child." I suppose that 22.041 is therefore inapplicable as we have been using it.
Can anyone confirm that my analysis is correct? And if it is correct, how does your office handle the situation I just detailed? Are there provisions better suited to handling the drug-using pregnant mother situation?
This is an interesting question because it seems clear that for purposes of the mother losing custody of the child or having her parental rights terminated, "[t]he relevant inquiry is whether [the] course of conduct endangered the child’s physical or emotional well-being. The conduct does not have to occur in the presence of the child, be directed toward the child, or cause the child injury. The conduct may occur before the child’s birth."
The analysis of SB319 (which added 22.12 to the Penal Code in 2003) merely states: "In Texas, current law does not provide a wrongful death cause of action for the death of an unborn child and does not provide criminal sanctions for the injury of an unborn child. As a result, Texas law does not include necessary remedies or sanctions to address wrongful conduct. Many other states have established such causes of action and criminal sanctions. The purpose of Senate Bill 319 is to ensure that Texas law includes an appropriate civil remedy and appropriate criminal sanctions to address wrongful conduct." No explanation or note was made of the exclusion of conduct by the mother. I did not examine any of the testimony at the committee hearings for a clue. You should do that. Nor does Kiss, 316 S.W.3d at 669 suggest the answer.
I think your situation allows you to utilize conduct that threatens harm to the child after it is born. In other words you do not charge that the conduct was committed against the unborn child, but rather by the mother of the born child, although prior to the birth. The fact that the child is subsequently born alive (with preventable or unnecessary defects) does not then constitute a defense. The key word in the statute is "charged," not "committed."
If the bill analysis is correct in stating the law before enactment of SB319 did not provide criminal sanctions for injury to or assault against unborn children (by anyone), then I guess there is no other means of prosecution for this conduct.
It is also worthwhile to note that the CCA granted relief based on 22.12 in an unpublished opinion in Ex parte Vela, AP-75,562 (12/6/06). Deaf Smith County conceded the issue in that case.
