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Consent and Intoxication in Texas Sexual Assault Cases
Learn how Texas sexual assault law treats incapacity, intoxication and knowledge, and why prior relationships do not settle consent.
In short: Texas section 22.011(b) specifies circumstances in which conduct is without consent. These include knowing that a person is intoxicated or impaired to the point of being incapable of consenting. A prior relationship or earlier consensual interaction does not establish consent to the alleged event.
Explore this page 9 sections
Does any alcohol consumption automatically establish incapacity?
No. The statutory circumstance concerns incapacity to consent and the accused’s knowledge of it. Evaluate the actual condition, observations and sequence rather than equate any drinking with the entire legal test.
Why are complete communications important?
Messages may provide context but must be read with timing and surrounding evidence. A friendly message before or after an event is not automatic proof of consent during it. Selected excerpts can obscure rather than clarify the relevant question.
How should evidence be collected?
Preserve material you lawfully possess and identify relevant witnesses for counsel. Do not seek an admission through pressure or violate a no-contact order. Counsel should evaluate capacity, knowledge and the particular alleged conduct as separate evidentiary questions.
A practical example and questions for counsel
Hypothetical example: Suppose a gathering involved alcohol and later messages are offered as proof about consent. Counsel should identify the condition at the time of the alleged conduct, what the accused knew and what each message actually addresses. A later conversation may have several explanations and should not be isolated from its context. Likewise, observations of drinking do not alone quantify capacity. Organize the evidence by time and by the particular nonconsent circumstance alleged, avoiding assumptions based solely on a relationship or the tone of one exchange.
How this fits Texas law
Section 22.011 distinguishes specified conduct without consent from specified conduct involving a child younger than 17. It lists circumstances of nonconsent and contains narrowly defined defenses and exceptions. Most offenses under this section are second degree, but subsection (f) contains exceptions. The charged subsection must guide the defense analysis.
How do I get started?
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Last updated October 2026
Common questions
Does any alcohol consumption automatically establish incapacity?
No.
Why are complete communications important?
Messages may provide context but must be read with timing and surrounding evidence.
How should evidence be collected?
Preserve material you lawfully possess and identify relevant witnesses for counsel.
Protecting Good People During Hard Times
Do not wait for your court date to get help. Call (214) 239-2013.
Phones are answered 24/7, with AI covering when no staff is free.
This page provides general information about Texas law. It is not legal advice, and reading it does not create an attorney-client relationship.