Emergency? Call Now - The short answer. The Legislature made two changes in 2025 that matter in almost every sexual assault case now filed in Bexar County. House Bill 3073, called the Summer Willis Act, rewrote Penal Code § 22.011(b)(6) so that an act is without consent when the actor knows the other person is intoxicated or impaired by any substance to the extent that the person is incapable of consenting. It applies only to offenses committed on or after September 1, 2025. Separately, the rape shield rule now lives in Code of Criminal Procedure article 38.372, and it is stricter than most people assume.
I want to start with something that is not a legal argument. Sexual assault cases are the hardest cases in this courthouse for everyone in the room. The person who made the report is describing the worst thing that ever happened to her. The person on trial is facing the loss of the rest of his life. Both of those can be true in the same case, and it is the reason the rules of proof exist at all.
What did the Summer Willis Act change?
The old version of subsection (b)(6) was about drugging. It required that the actor intentionally impaired the other person’s ability to appraise or control her conduct by administering a substance without her knowledge. The State had to prove the accused did the impairing.
The new version is about knowledge of a condition, whatever caused it.
Penal Code § 22.011(b)(6), before and after September 1, 2025
| Offense date before Sept. 1, 2025 | Offense date on or after Sept. 1, 2025 |
| Without consent if the actor intentionally impaired the other person’s power to appraise or control her conduct by administering a substance without her knowledge. | Without consent if the actor knows the other person is intoxicated or impaired by any substance to the extent that she is incapable of consenting. |
| The State proves the accused did the impairing. | The State proves the accused knew her condition. Who supplied the substance does not matter. |
That is not a technical amendment. It moves the whole case onto two questions that are usually contested and rarely documented: how impaired was she, and what did he know about it.
The same bill added two more circumstances to the list: a coach or tutor who exploits a dependency, at § 22.011(b)(13), and a hired caregiver who exploits a dependency, at (b)(14). It also added a line to subsection (c) providing that “consent” has the meaning assigned by Penal Code § 1.07.
Why the date of the alleged offense controls everything
Section 4 of the act says the change in law applies only to an offense committed on or after the effective date. September 1, 2025. An allegation about a night in 2023, indicted in 2026, is governed by the old subsection (b)(6), not the new one.
People assume the law that applies is the law in the newspaper. It is not. It is the law on the date of the conduct. In an outcry case where the date is given as a season or a school year rather than a day, that one fact can decide which version of the statute the jury is charged on. It is the first thing I look for in the indictment.
What does Article 38.372 do?
Article 38.372 governs evidence of a complainant’s past sexual behavior in prosecutions under a list of statutes that includes sexual assault, aggravated sexual assault, indecency with a child, continuous sexual abuse, indecent assault, and certain trafficking offenses.
The structure is strict and worth reading carefully.
- Reputation and opinion evidence about a complainant’s past sexual behavior is not admissible. Not weighed, not balanced. Not admissible. Art. 38.372(c).
- Specific instances of past sexual behavior are also inadmissible, subject to one narrow path. Art. 38.372(d).
- That path requires the accused to file a motion, outside the jury’s presence, and obtain an in camera examination of the evidence with a court reporter present. 38.372(e)(1).
- The court must then find the probative value outweighs the danger of unfair prejudice to the complainant, and that the evidence fits one of five categories. 38.372(e)(2).
- The record of that examination is sealed and preserved as part of the record. 38.372(f).
The five categories are: evidence necessary to rebut or explain scientific or medical evidence the State offered; past sexual behavior with the accused offered to prove consent, where lack of consent is an element; evidence relating to the complainant’s motive or bias; evidence admissible under Texas Rule of Evidence 609; and evidence that is constitutionally required to be admitted.
What this means in a courtroom
It means the fight over this evidence happens before the jury ever hears a word of it, and it means there is no such thing as raising it in the moment. A lawyer who has not filed the motion and asked for the hearing has not preserved anything. The appellate record will show the evidence was never offered, and the point will be gone.
It also means the fifth category, evidence constitutionally required to be admitted, is where the serious work is. The Sixth Amendment right to confront the witnesses against you and the Fourteenth Amendment right to present a complete defense do not stop at a state evidentiary rule. Those arguments have to be made specifically, on this record, about this piece of evidence, with an offer of proof. Made generally, they lose.
Can someone be convicted on one person’s word?
Yes, and people are surprised by this every single time.
Article 38.07 provides that a conviction for sexual assault and certain related offenses is supportable on the uncorroborated testimony of the complainant, if she informed any person other than the accused of the alleged offense within one year. And that one-year requirement does not apply at all where the complainant was 17 or younger, 65 or older, or an adult who by reason of age or physical or mental disease, defect, or injury was substantially unable to meet her own basic needs.
So there is no rule requiring DNA. There is no rule requiring injury. There is no rule requiring a witness. When people tell me the State has no evidence, what they usually mean is that the State has no physical evidence. Those are different sentences, and only one of them is a defense.
Where these cases are actually won or lost
In my experience the real work in a consent case sits in four places. The timeline, reconstructed minute by minute from phone records, rideshare records, door access logs, and receipts, rather than from memory. The forensic interview or the SANE examination, and whether the questions asked were open or suggestive. The reports of what the complainant said in the first hours, compared word for word with what she said in the second interview and at trial. And the State’s own scientific evidence, which frequently proves contact that nobody disputes and proves nothing at all about consent.
None of that is dramatic. All of it is document work done early, before phones are traded in and before businesses overwrite their video.
A word about tone
I do not build a defense by attacking a young woman’s character. Article 38.372 mostly forecloses it, and juries in Bexar County punish it even when the rules allow it. What I do is hold the State to its proof, examine how the investigation was conducted, and insist that the person accused is a person and not a category.
If you are under investigation and no charge has been filed yet, that is the most important moment in the case and most people spend it talking to a detective. Read what to do before charges are filed .
If you want to talk about a case, call 210-663-3750 . I answer my own phone.
Related reading: sexual assault defense and sex offender registration in Texas