Houston Criminal Defense Blog

Judge Declares Texas’ Online Solicitation Statute Unconstitutional

texas capitol in austin

Laws around the country, such as the Houston online solicitation of a minor statute, have made for riveting TV. Hidden cameras wait for the arrival of the unsuspecting target of a police sting operation.

Upon his arrival, the individual is met, not by the underage girl with whom he thought he was about to party, but by a news reporter. After a few minutes of an uncomfortable interview, at least for the guy who has, by now, begun to realize that whatever sexual fantasies he might have thought were going to be fulfilled are about to end badly, viewers get to see the police make an arrest.

The constitutional firestorm surrounding the Houston online solicitation law

The Section 33.021 of the Texas Penal Code makes online solicitation of a minor a criminal offense. The problem with the law has issues with the constitutionality of some of its provisions. A district court judge declared the law unconstitutional as a violation freedom of speech as guaranteed by the First Amendment to the United States Constitution.

The facts of the case are similar to those you might have seen on television. A 35-year-old man arranged to meet with an underage teenager. He was going to pay her in exchange sex. When he arrived at the meeting place, he was met by police officers who promptly placed him under arrest. Prosecutors charged him with online solicitation of a minor after he was indicted by a grand jury.

When the case went to court, the judge ruled that the statute was an infringement on protected speech. Essentially, the judge decided that the man’s fantasy of engaging in sexual intercourse with an underage teenager was nothing more than his thoughts, and thoughts cannot be the basis for a criminal prosecution. As for his traveling to meet with the “girl,” the court said that meeting someone pretending to be a child was protected by the Constitution even though the statute did not recognize it as a defense.

The problem with the old statute

Even before the judge’s decision dismissing criminal charges filed under the online solicitation of a minor statute, the legislature was already at work changing the wording of the law to eliminate what the judge found to be unconstitutional. First, it might help to take a look at the statute the Texas judge said violated the Constitution.

Under 33.021, online solicitation of a minor included each of the following elements:

  • The accused must have been at least 17 years of age
  • The minor must either be younger than 17 years of age or make a representation of being under 17 years of age
  • The accused acted to arouse or gratify the sexual desire of another person
  • Communicates with the minor by Internet, email, text message or other electronic means

The statute specified that engaging in a fantasy, such as two adults exchanging emails in which one of them pretends to be a teenager, was not a defense to the criminal charge. The law also prohibited an accused individual from using as a defense the fact that a meeting did not occur or that one was never intended.

The legislature tries to get it right

Determined to enact an online solicitation of a minor law that will meet constitutional standards for protecting free speech, the legislature passed amendments to Texas Penal Code section 33.021. The amendments became effective on September 1, 2015, but they will not apply to criminal charges filed prior to that date. The amendments only apply to violations that take place after September 1.

The amendments change the original online solicitation of a minor criminal charge by doing the following:

  • The language about a person representing himself or herself as a minor has been deleted, so the person solicited must actually be younger than 17 years of age
  • Eliminated the language about arousing or gratifying the sexual desire of another person
  • Allows as a defense the fact that the accused did not into for a meeting to take place
  • Fantasy is now allowed as a defense

It remains to be seen how law enforcement in Houston and elsewhere in the state will adapt their sting operations to the limitations of the amendments to the online solicitation law.

Getting advice from a Houston criminal defense attorney

The sweeping changes to section 33.021 of the Texas Penal Code may have met some of the complaints about the constitutionally of the law. Still present, however, is the danger of someone getting caught in a police sting operation.

Even if you believe that you are only engaging in a fantasy in an exchange of emails, you will need the service of an attorney to defend you against any criminal charges. Only a skilled and competent Houston criminal defense attorney will know how to identify and present whatever defenses might be available to you.


If you are facing charges of online solicitation of a minor, the Law Offices of Billy Skinner can help you. Billy Skinner offers an aggressive defense and needed support when facing criminal charges. Contact his office today at (713) 600-7777.
Photo Phil Roeder | Used under Creative Commons image attribution license 2.0