Texas Penal Code 22.05: Deadly Conduct, Penalties, and Defenses

Texas Penal Code Section 22.05, the deadly conduct statute, criminalizes two kinds of dangerous behavior: recklessly putting another person in immediate danger of serious bodily injury, and knowingly firing a gun at people or in the direction of a home, building, or vehicle. The first is a Class A misdemeanor carrying up to a year in county jail. The second is a third-degree felony carrying two to ten years in prison. Because the law punishes the danger itself, you can be charged even if no one is hurt.¹

Reckless Conduct That Endangers Someone

Subsection (a) applies when a person recklessly engages in conduct that places another in imminent danger of serious bodily injury.¹ Two definitions do most of the work here.

Under Section 6.03, a person acts recklessly when they are aware of a substantial and unjustifiable risk but consciously disregard it. The risk has to be severe enough that ignoring it is a gross departure from what a reasonable person would do in the same situation.² This is a step above ordinary carelessness. Negligence means failing to notice a risk; recklessness means seeing it and going anyway.

“Serious bodily injury” is defined in Section 1.07 as harm that creates a substantial risk of death, causes death, results in serious permanent disfigurement, or leads to the extended loss or impairment of a body part or organ.³ A broken finger probably won’t qualify. A skull fracture, severed tendon, or punctured lung likely will. Prosecutors don’t have to prove anyone actually suffered this kind of injury. They only have to prove you put someone in immediate danger of it.

Knowingly Discharging a Firearm

Subsection (b) is the more serious offense. It applies when a person knowingly discharges a firearm at or in the direction of one or more individuals, or at a habitation, building, or vehicle while being reckless about whether it is occupied.¹

“Knowingly” under Texas law means the person is aware of what they are doing — that they are pulling the trigger and firing a weapon.² You do not need to intend to hit any specific person. Firing into a crowd, shooting toward a house during a dispute, or firing in the direction of a parked car with people nearby all fit within this subsection.

When the target is a structure or vehicle rather than a person, the state must also prove you were reckless about whether it was occupied. That means you were aware of the risk that someone was inside and disregarded it.¹ The occupancy element is not assumed. Shooting at a clearly abandoned barn in a remote area raises different questions than shooting at an apartment building on a weeknight evening.

The statute borrows its definitions of “habitation,” “building,” and “vehicle” from Section 30.01. A habitation is any structure or vehicle adapted for overnight accommodation, including each separately secured unit in an apartment complex and attached structures like a garage. A building is any enclosed structure intended for use or occupation. A vehicle covers essentially anything used to move people or property in the normal course of travel or commerce.⁴

The Pointing-a-Firearm Presumption

The statute gives prosecutors a shortcut in one scenario. When a person knowingly points a firearm at or in the direction of another, recklessness and imminent danger are presumed. The presumption applies regardless of whether the person believed the gun was loaded.¹ “I didn’t think it was loaded” is not a defense when you deliberately aimed the weapon.

There is one carved-out exception. The presumption does not apply to a peace officer pointing a firearm while lawfully performing official duties, such as drawing a weapon during a lawful arrest.¹

The presumption is a tool for the subsection (a) misdemeanor. It does not create any presumption about whether a building or vehicle was occupied under subsection (b). Occupancy still has to be proved on its own.

Penalties

The gap between the two tiers is substantial, and it reflects how much more seriously Texas law treats actual gunfire.

Class A Misdemeanor

Reckless conduct under subsection (a) is a Class A misdemeanor, the most serious misdemeanor classification in Texas.¹ The maximum punishment is up to one year in county jail, a fine of up to $4,000, or both.⁵ Community supervision and deferred adjudication are generally available at this level.

Third-Degree Felony

Discharging a firearm under subsection (b) is a third-degree felony.¹ A conviction carries two to ten years in the Texas Department of Criminal Justice and a possible fine of up to $10,000.⁶

Probation on the felony version is complicated. Texas law bars judge-ordered community supervision for any felony in which the defendant used or exhibited a deadly weapon, and a firearm qualifies.⁷ Deferred adjudication may still be available because deadly conduct is not among the offenses specifically excluded under Article 42A.102, but whether it is offered in a particular case depends heavily on the facts and the court.

Defenses

A charge is not a conviction. Several defenses can apply depending on what happened.

Self-Defense

Under Section 9.31, a person is justified in using force when they reasonably believe it is immediately necessary to protect themselves against another’s use or attempted use of unlawful force. The force used must be proportional. Self-defense does not apply if the defendant provoked the confrontation, consented to the force used against them, or was engaged in criminal activity beyond a minor traffic violation at the time.⁸

Self-defense sits awkwardly against a recklessness charge. Self-defense requires acting justifiably; recklessness requires acting with unjustifiable disregard for risk. When the charge rests on subsection (a), evidence of self-defense often works to negate the recklessness element itself rather than operate as a classic affirmative defense.

Necessity

Section 9.22 recognizes a necessity defense. The defendant must show they reasonably believed the conduct was immediately necessary to avoid imminent harm, that the harm avoided clearly outweighed the harm the law aims to prevent, and that the legislature did not plainly exclude the defense for the conduct in question.⁹ The bar is high. The danger has to be immediate and the defendant’s response has to be the lesser evil.

Challenging the Mental State

Under subsection (a), the state must prove recklessness, not just carelessness. If the defendant genuinely did not perceive the risk, the conduct may have been negligent but not criminal under this statute. Under subsection (b), the state must prove the defendant knowingly discharged the firearm. A truly accidental discharge from a mechanical malfunction, as opposed to careless handling, can undermine that element.

Consequences Beyond the Sentence

Jail time and fines are not the whole picture. A deadly conduct conviction, especially the felony version, reaches well past the courtroom.

Firearm Rights

A felony conviction under subsection (b) triggers restrictions at both the state and federal level. Texas law prohibits a convicted felon from possessing a firearm for five years after completing their sentence, parole, or community supervision. After that five-year period, possession is limited to the person’s own home.¹⁰ Violating this restriction is itself a third-degree felony.

Federal law is stricter. Under 18 U.S.C. § 922(g), anyone convicted of a crime punishable by more than one year in prison is prohibited from possessing any firearm or ammunition. There is no waiting period and no home exception.¹¹ Because a Texas third-degree felony carries up to ten years, a deadly conduct felony triggers the federal ban. The two systems conflict: Texas may allow limited home possession after five years, but federal law still prohibits it.

Immigration

For noncitizens, a firearms conviction can be grounds for deportation. Federal immigration law makes a person deportable who is convicted of an offense involving the purchase, sale, possession, or use of a firearm or destructive device in violation of any law.¹² A subsection (b) conviction involves the knowing discharge of a firearm and can trigger this provision. Any noncitizen facing a deadly conduct charge involving a weapon should talk to an immigration attorney before accepting any plea.

Licensing and Employment

A felony conviction can jeopardize professional licenses in healthcare, law, education, and finance. Licensing boards look at whether the underlying conduct reflects on fitness to practice safely, and firearm-based endangerment convictions get serious attention. Even the misdemeanor version can create problems. Background checks are routine, and a Class A misdemeanor for recklessly endangering someone’s life is the kind of entry that disqualifies applicants from jobs that involve the public, weapons, or supervisory responsibility.

1
State of Texas. Texas Penal Code 22.05 – Deadly Conduct
2
State of Texas. Texas Penal Code 6.03 – Definitions of Culpable Mental States
3
State of Texas. Texas Penal Code 1.07 – Definitions
4
State of Texas. Texas Penal Code 30.01 – Definitions
5
State of Texas. Texas Penal Code 12.21 – Class A Misdemeanor
6
State of Texas. Texas Penal Code 12.34 – Third Degree Felony
7
State of Texas. Texas Code of Criminal Procedure Article 42A.054
8
State of Texas. Texas Penal Code 9.31 – Self-Defense
9
State of Texas. Texas Penal Code 9.22 – Necessity
10
State of Texas. Texas Penal Code 46.04 – Unlawful Possession of Firearm
11
Office of the Law Revision Counsel. 18 USC 922 – Unlawful Acts
12
Office of the Law Revision Counsel. 8 USC 1227 – Deportable Aliens