Failure to Pay Child Support & Criminal Non-Support in San Antonio: Defending Your Liberty, Restoring Your Rights
When Unpaid Child Support Becomes a Criminal Matter: What San Antonio Parents Must Know
Child support enforcement in Texas operates on two parallel tracks: civil and criminal. Most parents are familiar with the civil consequences of falling behind—wage garnishment, license suspension, tax refund interception. But far fewer understand that intentional failure to pay child support is also a state jail felony under Texas Penal Code § 25.05, carrying potential penalties of incarceration in state prison, substantial fines, and a permanent criminal record.
At Barton & Associates, we bridge the critical gap between family law and criminal defense. Our San Antonio attorneys represent both custodial parents seeking to enforce support orders through criminal prosecution and obligors facing arrest, indictment, or probation revocation for criminal nonsupport. We understand that behind every delinquent child support case is a complex human story—job loss, disability, family crisis, or genuine inability to pay. We also understand that when children go without the financial support they are legally entitled to receive, accountability must be pursued through every available avenue.
Whether you are seeking to initiate criminal charges against a non-paying parent or defending against a criminal nonsupport prosecution in Bexar County, Comal County, or Guadalupe County, Barton & Associates provides the experienced, dual-focused representation this high-stakes intersection demands.
Understanding Criminal Nonsupport Under Texas Penal Code § 25.05
The Offense Defined
Under Texas Penal Code § 25.05, an individual commits criminal nonsupport if they “intentionally or knowingly” fail to provide support for:
- Their child younger than 18 years of age; OR
- Their child of any age who is the subject of a court order requiring support .
This is not a civil contempt proceeding. This is a criminal prosecution initiated by complaint, investigated by law enforcement, and prosecuted by the District Attorney’s office. A conviction results in a criminal record, not merely a civil judgment.
Classification and Penalties
Criminal nonsupport is a state jail felony. The penalties include:
- Confinement in a state jail facility for 180 days to 2 years
- A fine not to exceed $10,000
- Both incarceration and fines
These penalties exist independently of—and in addition to—any civil enforcement remedies. A parent can simultaneously owe back child support, be held in civil contempt, and face criminal prosecution for the same conduct.
The Critical Shift: Ability to Pay Is No Longer an Element
Historically, the State bore the burden of proving a defendant had the ability to pay. That is no longer the law. Under current Texas Penal Code § 25.05, the State is not required to prove that the obligor possessed the financial capacity to make support payments.
Instead, inability to pay is an affirmative defense. This means the burden shifts to the defendant to prove, by a preponderance of the evidence, that they could not provide support . This distinction is absolutely critical. Parents who simply “couldn’t pay” but lack documentation, corroborating evidence, or timely filed modifications face conviction without the State ever having to prove they actually had money.
As the Fort Worth Court of Appeals held in Howard v. State, “While the State does not bear the burden of proving the defendant’s ability to pay, ‘it is an affirmative defense under [section 25.05] that the actor could not provide support for the actor’s child.’ The defendant has the burden of proving an affirmative defense by a preponderance of the evidence”.
What Constitutes “Support”?
The Penal Code does not define “support,” leaving it to the factfinder at trial. Texas courts have defined support broadly as “a means of livelihood, sustenance, or existence” and “that which furnishes a livelihood; a source or means of living; subsistence, sustenance, maintenance, or living”. This evidentiary question means juries determine, based on the defendant’s circumstances, whether the payments made—or not made—constituted sufficient support.
The Dual-Track Enforcement System: Civil and Criminal
San Antonio parents facing unpaid child support must understand that civil and criminal enforcement are separate, parallel proceedings. They may occur simultaneously, involve different burdens of proof, and result in distinct penalties.
Civil Enforcement: The Family Court Track
Civil enforcement proceeds under Texas Family Code Chapter 157. The custodial parent files a Motion for Enforcement, seeking:
- A finding of civil contempt
- Confinement in county jail for up to six months per violation
- A money judgment for arrears plus 6% interest
- Attorney’s fees and court costs
- Make-up visitation or possession time
Civil contempt is coercive and remedial—the jail sanction is designed to compel compliance. The obligor “holds the keys to the jailhouse door” and may purge the contempt by paying the ordered amount.
Criminal Enforcement: The District Court Track
Criminal nonsupport proceeds under Penal Code § 25.05 in the criminal district courts. The District Attorney, not the custodial parent, prosecutes the case. The penalties are punitive, not coercive. Incarceration in state jail is not purgeable by later payment; it is punishment for the completed offense.
Critically, a conviction may be had on “the uncorroborated testimony of a party to the offense”. This means the custodial parent’s testimony alone can support a felony conviction, even without payment records or documentary evidence.
Our San Antonio Criminal Nonsupport Defense Practice
Defending Parents Facing Felony Prosecution
If you are under investigation by the Bexar County District Attorney’s Office, have received a criminal complaint, or have been arrested for criminal nonsupport, immediate legal intervention is essential. Our defense practice focuses on:
1. Preserving and Presenting the Affirmative Defense of Inability to Pay
Because inability to pay is an affirmative defense that the defendant must prove, our first priority is comprehensive documentation. We gather:
- Employment records documenting job loss, layoff, or reduction in hours
- Medical records establishing disability or serious illness
- Business records demonstrating self-employment income fluctuation
- Bankruptcy filings and discharge orders
- Testimony and affidavits corroborating financial hardship
We do not wait until trial. We present this evidence pre-indictment to persuade prosecutors to decline prosecution or reduce charges.
2. Challenging the “Intentional or Knowing” Mental State
Criminal nonsupport requires proof that the failure to pay was intentional or knowing. We defend clients by demonstrating:
- Good-faith but partial payments
- Reliance on mistaken advice from child support agencies
- Confusion regarding modified or disputed orders
- Genuine misunderstanding of payment obligations
3. Pre-Indictment Intervention
Before charges are filed, we engage directly with the Bexar County District Attorney’s Office, presenting mitigating evidence and proposing resolutions short of felony prosecution. Many cases can be diverted, dismissed, or reduced to misdemeanors with proper advocacy at this stage.
4. Probation Revocation Defense
Many criminal nonsupport defendants are placed on community supervision (probation) with conditions requiring regular child support payments. When obligors fall behind on probation conditions, the State files Motions to Revoke Community Supervision under Texas Family Code § 157.214 . We defend these revocation proceedings vigorously, seeking continued supervision or alternative sanctions rather than activation of state jail sentences.
5. Post-Conviction Relief
For clients with existing criminal nonsupport convictions, we pursue habeas corpus relief, motions for new trial, and appeals where the underlying support order was improper, the affirmative defense was not adequately considered, or counsel was ineffective.
Representing Custodial Parents: Pursuing Criminal Accountability
For custodial parents in San Antonio who have exhausted civil remedies and continue to receive no support, criminal prosecution may be the most effective tool to compel payment and secure accountability.
How Criminal Charges Are Initiated
Unlike civil enforcement, which you initiate by filing a Motion for Enforcement, criminal nonsupport prosecutions require action by the District Attorney. Our firm assists custodial parents in:
1. Preparing Criminal Complaints
We draft detailed, sworn complaints documenting:
- The existence and terms of the child support order
- The specific dates and amounts of missed payments
- The obligor’s employment history and earning capacity
- Any statements or admissions by the obligor regarding refusal to pay
- The amount of arrears and duration of nonpayment
2. Presenting Evidence to Prosecutors
We meet with Bexar County Assistant District Attorneys assigned to family justice or crimes against the family divisions, presenting organized evidence packets that establish probable cause and demonstrate the severity and willfulness of the non-support.
3. Coordinating with Law Enforcement
When arrest warrants issue, we coordinate with the Bexar County Sheriff’s Office or local police departments to ensure effective service. We also assist custodial parents in navigating the Texas Attorney General’s Child Support Evader Program, which publishes names, photographs, and warrant information for parents owing more than $5,000 with active arrest warrants.
Strategic Considerations: When to Pursue Criminal Charges
Criminal prosecution is not appropriate for every delinquent child support case. We advise custodial parents to consider this path when:
- Civil enforcement (wage withholding, license suspension) has failed
- The obligor has demonstrated intentional, willful avoidance
- The obligor has concealed income, assets, or employment
- Substantial arrears have accumulated ($10,000 or more)
- The obligor has fled the jurisdiction or is evading service
- Lesser remedies have been exhausted without compliance
The Eight Civil Consequences of Nonpayment: Beyond the Criminal Case
Even when criminal charges are not filed, parents who fail to pay child support in Texas face severe civil sanctions. Understanding these consequences is essential for both obligors seeking to avoid them and obligees seeking to invoke them.
- Incarceration for Civil Contempt: Up to six months in county jail for each violation, with the opportunity to purge by paying the ordered amount.
- Driver’s License Suspension: The Texas Department of Public Safety suspends driver’s licenses upon OAG notice of delinquency exceeding three months.
- Professional and Occupational License Suspension: Licenses to practice law, medicine, real estate, cosmetology, contracting, and even hunting and fishing licenses may be suspended.
- Tax Refund Interception: Federal and state income tax refunds are intercepted and applied to arrears.
- Property and Financial Asset Liens: The OAG files child support liens against real property, bank accounts, retirement plans, and other assets.
- Passport Denial or Revocation: Obligors owing more than $2,500 in past-due support are ineligible for passport issuance or renewal.
- Credit Reporting: The OAG reports child support arrears and payment history to credit reporting agencies, depressing credit scores and affecting housing, employment, and financing.
- Personal Injury Settlement Liens: Child support liens attach to personal injury settlements, workers’ compensation awards, and other tort recoveries.
Affirmative Defense: Proving Inability to Pay
For obligors facing either civil contempt or criminal prosecution, the central question is often: Could you pay, and did you willfully refuse?
Because inability to pay is an affirmative defense, the burden rests with the obligor. Successful assertion of this defense requires:
Timely Action: The defense is significantly weakened if the obligor never sought a modification of the support order. Courts expect parents who lose jobs or become disabled to promptly file a Motion to Modify. Continuing to ignore a support order while unable to pay is not a defense—it is evidence of intentional failure.
Documentary Evidence: We compile:
- Termination notices and unemployment records
- Physician statements and disability determinations
- Bankruptcy petitions and discharge orders
- Tax returns demonstrating income decline
- Evidence of incarceration, hospitalization, or institutionalization
Good-Faith Partial Payments: Paying something—even substantially less than the ordered amount—demonstrates good faith and negates the “intentional” mental state. We advise all obligors to pay whatever they can, document every payment, and communicate regularly with the other parent and child support agency.
Modification: The Obligor’s Most Powerful Tool
The single most effective way to avoid both civil contempt and criminal prosecution is to proactively modify the support order when circumstances change.
Texas law permits modification upon showing:
- A material and substantial change in circumstances; OR
- Three years have passed since the last order and the monthly amount differs by at least 20% or $100 from the guidelines.
Critically, modification is not retroactive. If you lose your job today but wait six months to file, you remain legally obligated for six months of payments at your prior income level—and you may be prosecuted for failing to pay them.
At Barton & Associates, we counsel all San Antonio obligors: Do not wait until you are served with an enforcement motion or criminal complaint. The time to modify is the moment your income changes.
Why Barton & Associates for Criminal Nonsupport and Enforcement Defense
True Dual Competency: Most family lawyers do not practice criminal law. Most criminal defense lawyers do not understand Texas Family Code child support calculations, guidelines, and procedures. Barton & Associates maintains active practices in both family law and criminal defense. We do not need to refer your case to another firm or learn an unfamiliar practice area. We handle the intersection natively.
Bexar County Experience: Our attorneys appear regularly in both the Bexar County family district courts and the criminal district courts. We know the prosecutors, the judges, and the specific enforcement practices of San Antonio’s legal community.
Forensic Financial Investigation: Criminal nonsupport cases rise and fall on financial evidence. Our firm’s established forensic accounting capabilities—honed in high-asset divorce and complex property division cases—are deployed in criminal defense to analyze income, document inability to pay, and challenge the State’s evidence of intentional nonpayment.
Holistic Client Advocacy: A criminal nonsupport conviction affects not only your liberty but also your employment, professional licensing, immigration status, and future family law matters. We defend the whole client, not merely the criminal charge. We coordinate with probation officers, child support caseworkers, and family court judges to achieve resolutions that address both your criminal exposure and your underlying support obligations.
Compassionate, Judgment-Free Representation: Parents who fall behind on child support are not criminals—they are human beings facing financial crisis, health emergencies, family breakdown, or simple misfortune. We do not judge. We defend. We advocate. We solve problems.
Frequently Asked Questions: Failure to Pay and Criminal Nonsupport
Q: Can I really go to jail for not paying child support in Texas?
A: Yes. Civil contempt can result in up to six months in county jail. Criminal nonsupport is a state jail felony carrying 180 days to two years in state jail. Texas law does not treat child support delinquency lightly.
Q: What is the difference between civil contempt and criminal nonsupport?
A: Civil contempt is coercive—you can be released by paying the purge amount. Criminal nonsupport is punitive—you serve a sentence as punishment for the completed offense. Civil contempt proceeds in family court; criminal nonsupport proceeds in criminal district court.
Q: Can the State prosecute me if I lost my job and truly cannot pay?
A: Yes, if you cannot prove your inability to pay by a preponderance of the evidence. The State does not have to prove you had money—you must prove you did not. This is why documentation and timely modification filings are essential.
Q: My ex denies me visitation. Can I withhold child support?
A: No. Texas law is absolutely clear: child support and visitation are separate legal obligations. Withholding support because visitation is denied is not a defense to either civil contempt or criminal nonsupport. The remedy for denied visitation is an enforcement action for possession, not self-help through nonpayment.
Q: How much do I have to owe before criminal charges can be filed?
A: Texas Penal Code § 25.05 does not specify a minimum arrearage amount. The offense is complete when the obligor intentionally or knowingly fails to provide support. However, in practice, Bexar County prosecutors rarely pursue felony charges for minor, short-term delinquencies. Substantial arrears, prolonged nonpayment, and evidence of intentional evasion increase prosecution likelihood.
Q: Can I be prosecuted if my child support order is from another state?
A: Yes. Criminal nonsupport applies to any court order requiring support, including orders issued by other states. Texas has jurisdiction to prosecute if the obligor resides in or is found in Texas.
Q: Will paying the arrears stop a criminal prosecution?
A: Possibly, but not automatically. Payment of arrears is mitigation, not a defense. The offense is complete when the failure to pay occurs. However, full payment of arrears prior to indictment frequently results in declination of prosecution or favorable plea offers. We routinely negotiate resolutions avoiding jail time and felony convictions when clients cure their arrears.
Q: What should I do if I cannot pay my child support?
A: (1) Pay something—anything—every month. (2) Document your income, job search, disability, or other hardship. (3) File a Motion to Modify immediately. (4) Communicate with the other parent and the child support agency. (5) Retain counsel before enforcement actions are filed or criminal complaints are sworn.
Your Liberty, Your Future, Your Family
Failure to pay child support is not merely a financial dispute. In Texas, it is a crime—one carrying the potential for state jail confinement, a felony record, and lifelong collateral consequences. Whether you are a custodial parent desperate for the support your child is owed or an obligor facing prosecution for nonpayment, the stakes could not be higher.
At Barton & Associates, we provide the specialized, dual-trained representation this high-risk area demands. We do not view criminal nonsupport as simply an extension of family law or an occasional detour from civil practice. It is a core component of our comprehensive child support representation, and we bring to every case the full resources of both our family law and criminal defense practices.
If you are under investigation for criminal nonsupport, do not speak to law enforcement or prosecutors without counsel. If you are a custodial parent seeking justice through criminal prosecution, do not navigate the District Attorney’s office alone. Contact Barton & Associates immediately.
Call our San Antonio office today at 210-500-0000 to schedule a confidential consultation. You can also use our online Free Consultation form. Let us defend your liberty, enforce your rights, and protect your child’s future.
Main Category: Family Law
Practice Area Category: Child Support
Barton & Associates, Attorneys at Law
115 Camaron St, San Antonio, TX 78205
Office: 210-500-0000
