Is Bigamy a Sex Crime in Texas?

By Tad Nelson – Board Certified Criminal Defense Lawyer

It is common knowledge that you cannot legally be married to more than one person at the same time. Under Texas law, both the actor’s prior marriage and a person’s prior marriage are central to determining criminal liability for bigamy. Whether an actor’s prior marriage constitutes a barrier depends on whether the prior marriage was legally dissolved, voided, or annulled. Bigamy is more than a civil indiscretion; it is, in fact, a criminal offense under the Texas Penal Code—specifically, bigamy is classified as a third-degree felony under Texas Penal Code § 25.01. In some related offenses, such as certain family law violations, the crime may be classified as a state jail felony.

Bigamy involving minors is treated especially severely in Texas. If a married person or actor lives with another individual under the appearance of being married, or attempts to marry someone else who is 17 at the time, the criminal bigamy charge can be elevated from a third- to second-degree felony. Attempted bigamy with someone aged 16 and younger is classified as a first-degree felony, meaning the bigamist could face the potential of life imprisonment. The law applies to marriages or cohabitation in this state or a foreign country, and the offense can arise in any state or foreign country under circumstances that would constitute a marriage, except for the actor’s prior marriage.

Bigamy laws apply to a person in this state or a spouse in this state, regardless of whether the marriage or cohabitation occurred in Texas, another state, or a foreign country. Texas law also distinguishes between relatives of the whole or half blood in certain offenses related to marriage and sexual conduct.

There is an affirmative defense if the actor’s belief was that they were legally eligible to marry, such as when the person’s prior marriage was dissolved, voided, or annulled. A reasonable actor’s belief about the dissolution of a prior marriage, supported by a certified copy of a death certificate or other signed document issued by a court, can serve as a defense. Whether a prior marriage constitute a barrier depends on whether it was properly dissolved, voided, or annulled.

Introduction to Bigamy and Being Legally Married

Bigamy, as defined by § 25.01 of the Texas Penal Code, occurs when a person who is already legally married enters into another marriage or purports to marry someone else, or lives with another individual in this state under the appearance of being married. The law recognizes not only formal marriages but also situations where a couple presents themselves as married—through cohabitation and shared intent—even if no official ceremony or license exists. This “appearance of being married” can have significant legal consequences, as it extends the reach of bigamy laws beyond traditional marriages to relationships that mimic the legal rights and responsibilities of marriage, regardless of whether the conduct occurs in this state or a foreign country.

Importantly, bigamy is not limited to marriages performed within Texas. The offense can arise if a person is married in another state or foreign country under circumstances that would constitute a marriage, except for the actor’s prior marriage constitute a criminal offense. This broad definition ensures that individuals cannot evade Texas law by marrying outside the state or country. Understanding bigamy is crucial, especially in the context of sex crimes and sexual assault cases, because a person’s marital status and the appearance of being married can directly impact the classification and severity of related offenses. The Texas Penal Code’s approach to bigamy reflects the state’s commitment to upholding the integrity of marriage and protecting individuals from the legal and personal harms that can result from violations of marital commitments.

Understanding the Texas Penal Code

The Texas Penal Code serves as the backbone of criminal law in the state, outlining what constitutes a crime and the corresponding penalties. For offenses against the family—such as bigamy, prohibited sexual conduct, and interference with child custody—the Penal Code provides detailed definitions and punishment ranges. This legal framework is especially important in cases involving sex crimes, including sexual assault and aggravated sexual assault, where the stakes are high and the consequences severe.

Understanding the Texas Penal Code is crucial for anyone navigating allegations of sexual assault or related offenses. The code not only defines what actions are considered criminal but also sets forth the legal rights of both the accused and the alleged victim. For example, in a sexual assault case, the Penal Code specifies the elements of the offense, potential enhancements (such as those related to bigamy), and the degree of felony involved. Because the law can be complex and the penalties significant, it is essential to consult a defense attorney who is well-versed in the Penal Code and experienced in handling sex crimes. A knowledgeable attorney can help protect your legal rights, explain the nuances of the law, and develop a strong defense strategy tailored to your situation.

Classification and Punishment as a Third Degree Felony

Under the Texas Penal Code, bigamy is generally classified as a felony of the third degree under Texas Penal Code § 25.01, reflecting the seriousness with which the state treats violations of marital law. However, the punishment for an offense under this section can escalate depending on the circumstances, particularly the age of the person whom the actor marries or purports to marry. If the individual involved is 17 years of age, the offense is elevated to a second-degree felony. In cases where the person is 16 years of age or younger, bigamy becomes a first-degree felony, carrying the most severe penalties under Texas law.

This tiered punishment range underscores the state’s intent to deter not only the breach of marital commitments but also to protect minors from sexual exploitation and abuse. The Texas Court of Criminal Appeals has upheld the constitutionality of the ‘bigamy enhancement’ for sexual assault, which allows for harsher penalties if the perpetrator is already married and assaults someone they cannot legally marry. These enhancements are designed to address the heightened risk of sexual abuse and exploitation in situations where the actor’s prior marriage constitutes a barrier to lawful marriage with the victim. The defendant’s conviction for sexual assault or bigamy enhancement can result in significant consequences, including lengthy prison sentences and lifelong impacts.

The Texas Penal Code § 22.011 defines sexual assault as engaging in sexual acts without consent, typically classified as a second-degree felony. Aggravated sexual assault may be upgraded to a first-degree felony if it involves a deadly weapon, serious bodily injury, or a victim younger than 14. A 25-year minimum sentence applies to sexual assault if the victim is under 6, or under 14 with serious injury or threats. A second-degree felony for sexual assault carries a penalty of 2 to 20 years in prison and a maximum $10,000 fine. Conviction for sexual assault generally requires lifetime registration as a sex offender. Texas courts have indicated that married individuals may exploit a “cloak of trustworthiness” to justify harsher punishments for sexual assault.

Consent is absent if the actor compels submission by force, threat, or coercion, or if the victim is unconscious, physically unable to resist, or intoxicated. Texas law permits criminal charges for sexual assault against a spouse if the act is nonconsensual. Sexual contact with a child under 17 is considered sexual assault regardless of whether the child consented. In Texas, sexual assault and bigamy are serious criminal offenses governed by the Texas Penal Code, with penalties ranging from misdemeanors to first-degree felonies depending on circumstances such as the victim’s age, use of weapons, or prior marital status. In Texas, ‘deviate sexual intercourse’ is defined as any contact between the genitals of one person and the mouth or anus of another person with the intent to arouse or gratify sexual desire, as per the Texas Penal Code.

Court Rebuffs Challenge to “Bigamy Enhancement” for Sexual Assault

Separately, Texas law governing sexual assault makes it a first-degree felony when the offense is committed against “a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married” under the bigamy law. In other words, you are subject to additional legal penalties if you are already married and proceed to commit sexual assault against another person that, by definition, you cannot legally marry. Offenses involving interference with a child’s custody or actions by a noncustodial parent can also be prosecuted if they violate a court order or valid order, especially when related to protective orders, family violence, or child support. Under Section 25.04 of the Texas Penal Code, a noncustodial parent can be charged with an offense if they knowingly entice or persuade a child to leave the custody of the custodial parent, guardian, or person standing in for the custodial parent. Additionally, under Section 25.03 of the Texas Penal Code, a person may have a defense against charges of Interference with Child Custody if they return the child to the court’s jurisdiction within three days after taking the child.

The Texas Court of Criminal Appeals recently rejected a constitutional challenge to this particular law. The defendant, who was legally married to another woman—his lawful wife—had “sexual intercourse on multiple occasions” with a 14-year-old girl. Prosecutors charged the defendant with sexual assault of a minor–normally a second-degree felony–but invoked the “bigamy enhancement” to elevate the charge to a first-degree felony.

The jury convicted the defendant on five counts of sexual assault, finding as relevant here that he was having sex with a minor he was legally prohibited from marrying. The defendant’s conviction was affirmed by the court. On appeal, the defendant argued the bigamy enhancement was unconstitutional since it treated married and unmarried defendants differently. In other words, if the defendant had not been married at all when he committed the offense, he would have received a less-harsh sentence. In such cases, the testimony of a lawful wife may be used as proof of marriage or to establish the legal relationship relevant to the offense.

The Court of Criminal Appeals ultimately affirmed the law’s constitutionality. A majority of the Court held the State of Texas “has a legitimate interest in deterring, preventing, and punishing the sexual exploitation of children.” The bigamy enhancement was designed by the Texas legislature to protect children against “sexual predators” who would “use the ‘cloak of marriage’ to gain access to children whose parents might be less cautious in sending their children to homes with married parents.” The law also aims to protect household members and custodial parents from family violence and related offenses, including those involving a deadly weapon.

So the law does not necessarily target bigamous conduct. Rather, it is “rationally related” to a broader scheme to protect children, including any child born into such circumstances. The criminal procedure in Texas addresses repeated violation of court orders, including protective orders and valid orders related to family violence, child support, and trafficking cases. Certain related offenses, such as enticing a child, may be classified as a class B misdemeanor under Texas law. When an individual commits such an offense, the legal consequences can be severe, especially when the offense interferes with a child’s custody or the legal status of a child born under these circumstances. And on those grounds, the Court of Criminal Appeals affirmed the defendant’s conviction and sentence.

Protective Measures and Orders

Protective measures and orders play a vital role in the Texas legal system, particularly in cases involving family violence, sexual assault, or sexual exploitation. When there is a credible threat of harm, Texas courts can issue a protective order to shield the alleged victim from further abuse or intimidation. These orders can restrict the accused from contacting or approaching the protected person, and may also include provisions to keep the individual away from the victim’s home, workplace, or other specified locations.

The Texas Penal Code authorizes several types of protective measures, including temporary restraining orders, emergency protective orders, and permanent protective orders. Each type serves a specific purpose, from providing immediate short-term protection to establishing long-term safeguards against ongoing threats. In cases involving bigamy, sexual assault, or other crimes against the family, a protective order can be a critical tool for preventing further harm and ensuring the safety of those at risk. These legal protections are not only available to victims of physical violence but also to those facing threats of sexual exploitation or abuse. Understanding how protective orders work—and how they can be enforced under the Penal Code—is essential for anyone seeking to protect themselves or their loved ones from harm.

Have You Been Charged With Sex Crimes in League City? Call Us Today

When it comes to sex crimes, Houston-area prosecutors will use every legal tool at their disposal to maximize a defendant’s potential sentence. This is why you need to take all sex crimes allegations seriously. If you need help from a qualified Galveston sex crimes defense attorney, call the Law Offices of Tad Nelson & Associates today at [(281) 280-0100](tel:(281) 280-0100) or contact us online. We are here to assist with your legal needs related to sex crimes, bigamy, or family law.

Have You Been Charged With a Sex Crime in League City? Call Us Today

When it comes to sex crimes, Houston-area prosecutors will use every legal tool at their disposal to maximize a defendant’s potential sentence. This is why you need to take all sex crimes allegations seriously. If you need help from a qualified Galveston sex crimes defense attorney, call the Law Offices of Tad Nelson & Associates today at (281) 280-0100 or contact us online.