Comment

The major Texas Penal Code chapter 20 offenses create a particular problem with regard to instructing juries on the required culpable mental states. These offenses are a specific example of the general difficulty with culpable mental state analysis under the Code. See further discussion at CPJC 6.7.

The chapter 20 offenses require proof that the accused intentionally or knowingly restrained another or, under kidnapping, abducted another. As explained in CPJC 20.1, restrain and abduct (by incorporating restraint) are defined so as to effectively create three subelements: (1) restricting the victim’s movement by moving or confining the victim, (2) interfering substantially with the victim’s liberty, and (3) doing this “without consent.”

To which of these subelements do the required culpable mental states—intent or knowledge—apply? The statutory language is not definitive. In fact, it is less definitive than that of some other offenses, since the question is how the basic requirements of unlawful restraint and kidnapping (in Penal Code sections 20.02(a) and 20.03(a)) apply to the subelements of restrain as set out in a different statutory provision—section 20.01(1). Case law has not addressed the matter.

The Committee was confident the courts would apply the requirement of intent or knowledge to the first subelement, restricting the victim’s movement by moving or confining the victim. This subelement defines the basic conduct constituting the chapter 20 offenses, which appear to be primarily “nature of conduct” offenses. The central role played by movement or confinement in the definition of the offenses suggests that the required culpable mental states apply to that requirement.

With regard to the lack of consent subelement, the Committee noted that under section 20.01(1)—except in those cases in which the victim is a child—“without consent” is defined as requiring that the restraint be “accomplished by . . . force, intimidation, or deception.” Tex. Penal Code § 20.01(1)(A). This definition necessarily—although implicitly rather than explicitly—requires awareness that force, intimidation, or deception is being used. Essentially, this subelement contains its own culpability requirement. Consequently, there is no need for the general requirement of intent or knowledge to apply to this element. The Committee concluded that the courts would not apply the required culpable mental state to lack of consent, so defined.

Most members of the Committee were confident that the offenses would not require proof that the defendant intended his conduct to interfere substantially with the victim’s liberty, or at least knew it would do so. They relied on the objective statement of the subelement in the statute. Moreover, restraint of another without consent is wrongful and unlawful even if that restraint does not interfere substantially with the victim’s liberty. Thus this subelement does not serve to distinguish lawful from innocent conduct, and therefore—as discussed in CPJC 6.7—the culpable mental state prescribed for the offense is unlikely to extend to this subelement.