Transmitting an STD in Texas

Transmitting or exposing another to an STD can land a person with assault charges in Texas.

By , Attorney · Mitchell Hamline School of Law
Updated 3/02/2023

Texas does not have criminal laws that specially address the knowing transmission of sexually transmitted diseases (STDs). In fact, Texas was the first state to repeal its HIV-criminal-transmission law in 1994. However, a person can still be prosecuted for transmitting HIV or other STDs under Texas's assault laws. In some cases, a prosecutor could file charges for assault with a deadly weapon or attempted murder.

What Is a Sexually Transmitted Disease or Infection (STD or STI)?

Texas defines STDs in its Health and Safety Code. Instead of listing out STDs, the law provides a general definition. An STD is any infection (disease or health impairment) that may be transmitted from one person to another as a result of sexual activities.

The Texas Department of State Health Services identifies the following as STDs on its website: HIV, syphilis, chlamydia, gonorrhea, hepatitis, herpes, HPV, and PIV. The department also refers to STIs in its resources.

(Tex. Health & Safety Code § 81.003 (2022).)

Texas Laws on Criminal Transmission of HIV and Other STDs

While Texas doesn't have HIV- or STD-criminal-transmission laws, Texas prosecutors have successfully convicted individuals for exposure and transmission under the state's assault and attempted murder laws.

Assault Crimes: Transmission of an STD or HIV

A person commits assault by intentionally, knowingly, or recklessly causing bodily injury to another. Bodily injury includes physical pain, physical illness, or any impairment of a physical condition. Under this definition, it could be argued that a person who knowingly transmits an STD to a sexual partner has caused them bodily injury. A person convicted of assault faces a class A misdemeanor penalty, punishable by up to a year in jail and a $4,000 fine.

If the transmission results in "serious bodily injury"—a substantial risk of death—the crime becomes aggravated assault, a felony of the second degree that's punishable by 2 to 20 years in prison. Although most STDs do not present a risk of death, Texas courts have held that HIV is a fatal disease.

Assault With a Deadly Weapon: Exposure to HIV

Even without transmitting HIV, a person who knows of their infected status and intentionally exposes another person to the disease could face second-degree felony charges for assault with a deadly weapon. Texas law considers a deadly weapon to be anything that can be used to cause death or serious injury, including infected semen or other bodily fluids. A second-degree felony conviction carries 2 to 20 years in prison.

For example, prosecutors in Texas charged a man who knew he was infected with HIV with assault with a deadly weapon after the man committed sexual assault. The court concluded that under Texas laws, infected semen could be considered a deadly weapon if the defendant engages in unprotected sexual contact. (Mathonican v. State, 194 S.W.3d 59 (Tex. App. 2006).)

Attempted Murder: Exposure to HIV

It's also possible that a person who knowingly exposes another person to HIV could be charged with attempted murder, a second-degree felony. Attempted murder charges require the prosecutor to prove that the person intentionally exposed another to the disease in order to infect the victim and cause their death.

For example, a prisoner who knew that he had HIV and spat on a prison guard was convicted of attempted murder and sentenced to life in prison. Although the risk of transmission was slim, the court held that the defendant intended to infect the guard with HIV and kill the guard. (Weeks v. State, 834 S.W.2d 559 (Tex. App. 1992).)

(Tex. Penal Code §§ 1.07, 12.21, 12.33, 15.01, 19.02, 22.01, 22.02 (2022).)

Possible Defenses to HIV and STD Transmission Charges

Several defenses or defense strategies may be available to a defendant facing assault or attempted murder charges related to STD transmission or exposure.

It wasn't me. One defense strategy is that the prosecution has the wrong person and that the transmission did not occur based on the defendant's sexual activities with the victim.

Lack of knowledge. Charges for assault or attempted murder require that the defendant knowingly expose or cause harm to another. If the defendant did not know of their STD status before engaging in sexual activities, no crime has been committed.

Consent. A defendant who disclosed their STD status to their partner may be able to raise the partner's consent to the sexual activity as a defense to assault charges.

HIV is not deadly. Many of the Texas court cases finding that HIV is a fatal disease were decided before antiretroviral therapies became widely available as an effective treatment. A defense attorney may be able to argue that HIV is no longer a "deadly weapon" and no longer should be considered an injury that carries a substantial risk of death.

Texas Laws on HIV and STD Notification to Partners

Texas law does not require a person to notify any sexual or needle-sharing partners of their HIV or STD status. However, the state provides programs for partner notification and referral services through community resources. It's important to notify partners so they can make informed decisions regarding their health and the health of others.

Getting Legal Advice and Representation

In Texas, exposing another person to an STD can have serious consequences, including attempted murder or assault charges. Contact a criminal defense attorney if you face allegations or charges of intentionally transmitting or exposing another to an STD.

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