Texas Penal Code 33.021 – Online Solicitation of a Minor

WHAT IS ONLINE SOLICITATION OF A MINOR IN TEXAS?

The Texas law against online solicitation of a minor prohibits a person, with intent to commit human trafficking, bestiality, continuous sexual abuse of a child or disabled individual, indecency with a child, sexual assault, aggravated sexual assault, prohibited sexual conduct, sexual performance by a child, compelling prostitution, or possession of child pornography, from requesting a minor to engage in illegal sex acts, and from communicating with a minor in a sexually explicit manner.

• What is a “minor” under the online solicitation of a minor law? Texas Penal Code Section 33.021 defines “minor” as an individual younger than 17 years of age, or an individual whom the actor believes to be younger than 17 years of age. This means a person who solicits an undercover officer posing as a minor may be charged with online solicitation of a minor, despite the officer solicited not actually being under 17 years of age.

WHAT IS THE ONLINE SOLICITATION OF A MINOR LAW IN TEXAS?

Tex. Penal Code § 33.021. ONLINE SOLICITATION OF A MINOR.

(b) A person who is 17 years of age or older commits an offense if, with the intent to commit an offense listed in Article 62.001(5)(A), (B), or (K), Code of Criminal Procedure, the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, intentionally:

(1) communicates in a sexually explicit manner with a minor; or

(2) distributes sexually explicit material to a minor.

(c) A person commits an offense if the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, knowingly solicits a minor to meet another person, including the actor, with the intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person.

(d) It is not a defense to prosecution under Subsection (c) that the meeting did not occur.

(e) It is a defense to prosecution under this section that at the time conduct described by Subsection (c) was committed:

(1) the actor was married to the minor; or

(2) the actor was not more than three years older than the minor and the minor consented to the conduct.

(f) An offense under Subsection (b) is a felony of the third degree, except that the offense is a felony of the second degree if the minor is younger than 14 years of age or is an individual whom the actor believes to be younger than 14 years of age at the time of the commission of the offense. An offense under Subsection (c) is a felony of the second degree.

(f-1) The punishment for an offense under this section is increased to the punishment prescribed for the next higher category of offense if it is shown on the trial of the offense that:

(1) the actor committed the offense during regular public or private primary or secondary school hours; and

(2) the actor knew or reasonably should have known that the minor was enrolled in a public or private primary or secondary school at the time of the offense.

(g) If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section, the other law, or both.

WHAT IS THE PENALTY CLASS FOR ONLINE SOLICITATION OF A MINOR IN TEXAS?

The penalty classification for online solicitation of a minor depends on the conduct, and the age of the victim. Online solicitation of a minor is a:

• Third degree felony, punishable by two to ten years in prison, if:
  • communicates in a sexually explicit manner with a minor, or sends sexually explicit material to a minor;
• Second degree felony, punishable by two to 20 years in prison, if:
  • communicates in a sexually explicit manner with, or sends sexually explicit material to a minor under 14 years of age, or if the person believed the minor was under 14 years of age; or
  • solicits the minor to meet for the purpose of engaging in sex.

Online solicitation of a minor is increased to the next highest offense category if the person knew or should have known the minor was enrolled in school, and solicited the minor during school hours. If the offense is increased to a first degree felony, it is punishable by five to 99 years or life in prison.

WHAT IS THE PUNISHMENT RANGE FOR ONLINE SOLICITATION OF A MINOR IN TEXAS?

The punishment range for online solicitation of a minor depends on the penalty classification.

• Third degree felony: two to ten years in prison, maximum $10,000 fine;
• Second degree felony: two to 20 years in prison, maximum $10,000 fine;
• First degree felony: five to 99 years or life in prison, maximum $10,000 fine.

WHAT ARE THE PENALTIES FOR ONLINE SOLICITATION OF A MINOR IN TEXAS?

A person charged with online solicitation of a minor may be eligible for probation after a conviction, or deferred adjudication without a conviction. A jury may recommend probation after a guilty finding for a term of up to ten years, only if the prison sentence assessed is ten years or less, and the person has no prior felony convictions. A judge may grant probation after a guilty finding, or deferred adjudication after a plea of guilty or nolo contendere (“no contest”), for a period not to exceed ten years.

WHAT ARE THE DEFENSES TO ONLINE SOLICITATION OF A MINOR IN TEXAS?

The statute authorizes a defense to online solicitation of a minor committed by requesting to meet the minor to engage in sex if: (1) the person was married to the minor; (2) the minor was within three years of the person’s age; (3) the minor consented to the conduct.

• What is “sexually explicit” communication with a minor? According to Texas Penal Code Sections 33.021 and 43.25, “sexually explicit” communication is language or material that relates to or describes sexual contact, sexual intercourse, deviate sexual intercourse, bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola.

• Is speaking to a minor against the law? The mere act of talking to a person under 17 years of age is not illegal. Texas law specifically proscribes communicating in a sexually explicit manner with a purported minor, and soliciting a minor for sex. Although solicitation involves speech, it is the conduct of requesting a minor to engage in illegal sex acts that is prohibited, which is not protected by the First Amendment.

  In Ex parte Lo, the Court of Criminal Appeals held the “sexually explicit communication” provision was constitutionally invalid because, as a content-based regulation of speech, it was not narrowly tailored to achieve the compelling interest of protecting children from sexual predators.

  Since Lo, the Legislature has amended the law, which now requires the State to prove the accused communicated in a sexually explicit manner with a minor with the intent to commit a specific sexual offense listed in Texas Code of Criminal Procedure article 62.001(5)(A), (B), or (K). In practice, people are most often prosecuted under Section 33.021(c) for agreeing to meet a minor with the intent to engage in sex, rather than sending sexually explicit communications.

WHAT IS THE STATUTE OF LIMITATIONS FOR ONLINE SOLICITATION OF A MINOR IN TEXAS?

The limitation period for online solicitation of a minor is three years.

ONLINE SOLICITATION OF A MINOR IN TEXAS

Online solicitation of a minor is committed by sending a minor sexually explicit content, speaking to a minor in a sexually explicit manner, or requesting to meet the minor to engage in sex. The offense is completed once the person solicits sex from a minor, regardless of whether the meeting actually occurs.

TEXAS ONLINE SOLICITATION OF A MINOR COURT CASES

The case law regarding online solicitation of a minor in Texas explains the statute’s application.

• In Kapperman v. State, the defendant was convicted of online solicitation of a minor after agreeing to meet with an undercover officer posing as a 15-year-old girl for sex.

  He argued on appeal the prosecution failed to prove his identity, but the appellate court affirmed. The detectives testified the defendant showed up at the apartment where he agreed to have sex with a young girl, was seen on video outside the door texting the officer that he was there, and had condoms in his wallet.