Section (h) of the Abandoning/Endangering a Child statute says it is an exception to the application of this section that the actor voluntarily delivered the child to a designated emergency infant care provider under Section 262.302, Family Code.

That section of the Family Code is entitled "Accepting Possession of Certain Abandoned Children". I get that it applies to abandoning a child, and why we don't want to criminalize that conduct. However, it doesn't make sense to me that a person is off the hook for endangering a child just because they subsequently called 911 or took the child to the hospital. I tried doing some research, but with no luck.

My case is mom puts baby in bath tub, fills tub halfway with water, and then walks away for a couple minutes to get something. In that time, baby has drowned. Thankfully the baby survived. Mom called 911 and EMS came out and took the baby to the hospital. Does she get a free pass because she called 911?

Anybody have any thoughts on this or experience with it?

I'm not sure this would fit in every circumstance, but in your case could you charge under 22.04 injury to a child by omission? The child was in her "care, custody, or control" and she was knowing/reckless in her decision not to properly supervise, resulting in (serious) bodily injury.

Some random scattershot thoughts:

(a) Yes, the exception is overbroad due to a drafting error, but past efforts to scale it back were rejected by the bill author because she didn't understand the impact of an exception versus, say, a defense or affirmative defense.

(b) Under the plain meaning of the word, it doesn't sound like she "delivered" the child to anyone, so perhaps the exception won't be a problem.

(c) Remember that an exception must be negatively alleged in the indictment and disproven at trial, even if the defense does not raise it; PC 2.02.

(d) Do you have other evidence of child abuse/neglect? Is this part of a trend in that household? Has CPS been involved? Does the mother seem not to care about her child? If you answer "no" to all of those questions, you might want to reconsider making a felony case out of this. If the mother was scared to death by what she did, making her a felon isn't going to have any greater deterrent effect that what actually happened. (But again, I don't know all the facts, I'm just speaking as a parent who has done stupid things myself.)