Endangering a child is § 22.041 of the Texas Penal Code.
TPC § 22.12 says chapter 22 doesn't apply to conduct charged as having been committed against an individual who is an unborn child if it is committed by the mother of the unborn child.
Our position is that since 22.12 should be interpreted strictly and only bar prosecution when an unborn child is the victim. In our case, the child was born and at birth was positive for methamphetamine. Our position is the actus reus occurred before the child was born but that the child didn't suffer a harm until it was born positive.
This position was rejected by the El Paso Court of Appeals in 890 S.W.2d 893. The State did not petition for discretionary review and, the best I can tell, the Court of Criminal Appeals hasn't ruled on the issue.
Does anybody have helpful case law on this issue? The El Paso Court of Appeals is only going to be persuasive, not binding, for us. Babies being born positive for methamphetamine is a common occurrence here and we don't want to back down and cease prosecution of instances like this based on case law that is merely persuasive, not binding.
You might also take a look at an unreported case out of Tex Court Crim App:
Ex Parte Vela, 2006 Tex. Crim. App. Unpub. LEXIS 39 * | 2006 WL 3518116
Sorry, this is not helpful to your position, but maybe helpful in evaluating your position:
"The State of Missouri is not alone in barring the prosecution of mothers who fail to exercise proper prenatal care. Of fifteen state courts addressing this issue, fourteen have ruled that a mother cannot be held criminally liable for conduct harmful to her fetus. One reason why courts have disallowed such criminal charges is that it would be difficult to determine what types of prenatal misconduct should be subject to prosecution. Here, the State argues that criminal liability should arise when an unborn child is injured as a result of the mother's unlawful conduct, such as the use of illegal drugs. However, the mother is already subject to prosecution for such unlawful activity, and the only purpose of allowing additional pregnancy-related charges would be to protect the interest of the fetus. Given that goal of protection, the logic of allowing such prosecutions would be extended to cases involving smoking, alcohol ingestion, the failure to wear seatbelts, and any other conduct that might cause harm to a mother's unborn child. It is a difficult line to draw and, as such, our legislature has chosen to handle the problems of pregnant mothers through social service programs instead of the court system."
State v. Wade, 232 S.W.3d 663 (Mo. App. 2007).
I could add that many a mother has lost custody of children as a result of such conduct.
Jeez, CommonSense. It's just a question!
In reference to the question asked: in theory, what you'd be arguing is that on one date, prior to the child's birth, defendant intentionally or knowingly inject herself with methamphetamine while pregnant but the child didn't experience any bodily injury, etc., until it was born?
I think even under a strict interpretation of 22.12 you're still stuck with when the bodily injury actually occurred, and unless you have some really good medical evidence to the contrary (which probably doesn't exist), I think that's going to be while the child is unborn and mom is using meth. I don't know that just the act of being born gets you where you want to go.This message has been edited. Last edited by: JohnE,
I understand your interest in pursuing such a prosecution. However, you can't get around 22.12. Many years ago, after reading a thread on this forum, I tried another theory of prosecution in a similar case. That didn't work either. See 2007 WL 2460225.
I can't imagine any nobler cause than what you're aiming for and you guys know better than anyone what a problem this is in East Texas.
I don't know that there is any political appetite for this at the Capitol, and you're for sure out of time this session, but did you check with your senator and state rep prior to the session starting about maybe changing the law? I think you'll fix the legislation before you get the legal reasoning you're looking for. Ultimately that's the way we probably have to go.
[Sorry for the anonymous troll. That person's account has been nuked in accordance with our rules of use. Carry on. --admin]
FWIW, I can confirm that there is *no* appetite for this at the legislature. Repeated attempts have gone nowhere in the past, and a legislator who considered filing such a bill this session begged off after failing to identify a path to passage.
Well, at least that angle has been thoroughly covered then. It's a tough issue. Can't blame anyone for trying a hail-Mary through the appellate courts if it's the only door left to try.
Thank You So much for the useful information.
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