Does Texas Penal Code §22.011 Make Drunk Sex Automatically Sexual Assault?

There have been recent false claims that all sex involving alcohol in Texas is now considered sexual assault. Texas Penal Code §22.011 does not criminalize all intimacy after drinking. It focuses on the person’s capacity to consent and the accused’s knowledge. If the person cannot understand or resist and the other person knows that, consent is not valid. But drinking alone does not erase consent. Learn what the law really says—and what it doesn’t.

What Texas Penal Code §22.011 Actually Says

Texas Penal Code §22.011 outlines what qualifies as sexual assault. One condition involves intoxication. The law says it is sexual assault if someone, because of alcohol or drugs, is unable to appraise the nature of the act or resist, and the accused knows that. It is not about whether the person had a drink—it’s about whether they were incapacitated and whether the other person knew it.

Clear Points on Consent and Intoxication

• Drinking alcohol does not remove consent by itself.

• Extreme intoxication can void consent if it affects awareness or resistance.

• Prosecutors must prove both the level of intoxication and that the accused was aware of it.

Why a “Sobriety Test” Isn’t Required

Texas law doesn’t require a person to test their partner before sex. There’s no rule for breathalyzers or field tests in private settings. Instead, courts focus on the facts: Was the person slurring, confused, unconscious, or unable to respond? Did the accused notice? Evidence from witnesses, videos, and messages matters more than a meme.

When “Yes” Might Not Mean Consent

A person’s “yes” is valid only if they have the capacity to consent. If they are too impaired to understand what is happening or resist, and the other person knows that, consent is not legally valid. These cases often hinge on specific facts and credibility, not slogans.

Can a Party Host Be Charged With Sexual Assault?

Not unless they were involved in or promoted the act. The claim that a host becomes a sex offender for serving alcohol is wrong. Criminal liability for sexual assault requires either participation or intent to aid the act. Simply handing someone a drink does not meet that threshold.

Is This a “New” Law?

No. The language about capacity and intoxication has been in Texas law for years. The idea that consent requires capacity is not new. What’s new is the misinformation circulating on social media, which often skips the legal standards and falsely claims that any drinking negates consent.

How Police and Prosecutors Handle These Cases

Investigators consider the full timeline:

• How much was consumed, over what time

• Physical signs like vomiting, passing out, or confusion

• Communications before and after the event

• Whether the accused noticed signs of impairment
  Toxicology reports and digital records can help, but they don’t prove knowledge or capacity on their own.

Common Defense Strategies

• Evidence of Capacity: Video or witness testimony can show the person appeared capable.

• Timing of Impairment: Blood alcohol content later may not reflect the condition during the encounter.

• Accused’s Awareness: If the person appeared normal, the accused may have reasonably believed they had capacity.

• Inconsistent Statements: Changes in the accuser’s story can raise credibility questions.

• Digital Records: Messages and behavior can show mutual interest or clear communication.

If Someone You Know Has Been Accused

Help them preserve messages, videos, receipts, and witness names. These can make a difference. Tell them to avoid discussing the case with anyone but their lawyer. At Zendeh Del & Associates PLLC, we handle complex sex crime defense across Galveston and Houston.

More on Defending Serious Charges in Galveston

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• The Essential Role of Defense Attorneys in Safeguarding Liberty

• Jury Acquits Zendeh Del & Associates Client in High-Profile Clear Lake Case

Consent requires capacity. Texas law does not criminalize all intimacy after alcohol.

How Zendeh Del & Associates PLLC Can Help

Our firm acts quickly to investigate, protect your rights, and preserve crucial evidence. We serve clients across Galveston, Clear Lake, League City, and nearby communities. If you have been accused or are under investigation, contact us before making any statements.

If you are facing a sex crime allegation, Zendeh Del & Associates PLLC is here to help protect your rights and future.