Texas Penal Code 43.02 – Prostitution

WHAT IS PROSTITUTION IN TEXAS?

The Texas law against prostitution prohibits offering or agreeing to engage in sexual acts for a fee.

WHAT IS THE PROSTITUTION LAW IN TEXAS?

Tex. Penal Code § 43.02. PROSTITUTION.

(a) A person commits an offense if the person knowingly offers or agrees to receive a fee from another to engage in sexual conduct.

(c) An offense under Subsection (a) is a Class B misdemeanor, except that the offense is:

(1) a Class A misdemeanor if the actor has previously been convicted one or two times of an offense under Subsection (a); or

(2) a state jail felony if the actor has previously been convicted three or more times of an offense under Subsection (a).

(c-2) The punishment prescribed for an offense under Subsection (b) is increased to the punishment prescribed for the next highest category of offense if it is shown on the trial of the offense that the actor committed the offense in a location that was:

(1) on the premises of or within 1,000 feet of the premises of a school; or

(2) on premises or within 1,000 feet of premises where:

(A) an official school function was taking place; or

(B) an event sponsored or sanctioned by the University Interscholastic League was taking place.

(d) It is a defense to prosecution for an offense under Subsection (a) that the actor engaged in the conduct that constitutes the offense because the actor was the victim of conduct that constitutes an offense under Section 20A.02 or 43.05.

(e) A conviction may be used for purposes of enhancement under this section or enhancement under Subchapter D, Chapter 12, but not under both this section and Subchapter D, Chapter 12. For purposes of enhancement of penalties under this section or Subchapter D, Chapter 12, a defendant is previously convicted of an offense under this section if the defendant was adjudged guilty of the offense or entered a plea of guilty or nolo contendere in return for a grant of deferred adjudication, regardless of whether the sentence for the offense was ever imposed or whether the sentence was probated and the defendant was subsequently discharged from community supervision.

WHAT IS THE PENALTY CLASS FOR PROSTITUTION IN TEXAS?

Prostitution is enhanceable, meaning the penalty category increases for a person with previous prostitution convictions. Prostitution is a Class B misdemeanor, punishable by 180 days in jail, for a first offense. It is enhanced to a:

• Class A misdemeanor, punishable by up to one year in jail:
  • If a person has one or two previous prostitution convictions or grants of deferred adjudication;
• State jail felony, punishable by 180 days to two years in a state jail facility:
  • If a person has three or more previous prostitution convictions or grants of deferred adjudication.
• Third degree felony, punishable by two to ten years in prison:
  • If a person has been previously convicted of at least two state jail felony offenses, and has been sentenced to serve state jail time on both previous convictions.

If a person commits prostitution on or within 1,000 feet of a school or school-sponsored event, the offense category is enhanced to the next highest level.

WHAT IS THE PUNISHMENT RANGE FOR PROSTITUTION IN TEXAS?

The punishment ranges for prostitution charges increase with the penalty classification:

• Class B misdemeanor:
  • up to 180 days in county jail, maximum fine of $2,000;
• Class A misdemeanor:
  • up to one year in county jail, maximum fine of $4,000;
• State jail felony:
  • 180 days to two years in a state jail facility, maximum fine of $10,000;
• Third degree felony:
  • two to ten years in prison, maximum fine of $10,000.

WHAT ARE THE PENALTIES FOR PROSTITUTION IN TEXAS?

For the first prostitution offense, a Class B misdemeanor, a judge is required to place the accused on probation or deferred adjudication, rather than a jail sentence. The period of probation or deferred adjudication for a Class A or Class B misdemeanor may not exceed two years.

A person charged with his or her first state-jail felony prostitution charge may not be sent to state jail—a judge must place the person on deferred adjudication or probation for a period not to exceed five years. A person on probation or deferred for prostitution will be required to participate in a commercially sexually exploited persons court program, pursuant to Article 42A.515 of the Code of Criminal Procedure.

WHAT ARE THE DEFENSES TO PROSTITUTION IN TEXAS?

The statute creates a defense for people who engage in prostitution as a result of being trafficked, or compelled as a minor to engage in prostitution.

• Can a minor be charged with prostitution in Texas? Yes, if the juvenile is 14 years or older. Although 17 is the age of sexual consent in Texas, the law authorizes prosecuting juveniles between 14 and 17 years of age for prostitution. See In re B.W., 313 S.W.3d 818 (Tex. 2010).

• Does the entrapment defense apply to Texas prostitution charges if the “John” is an undercover police officer? No, in most circumstances. To succeed on an entrapment defense, one must show he or she was induced to commit a crime by a law enforcement agent’s persuasion or other means. Merely affording the person an opportunity to commit a crime is not entrapment, so an undercover officer who approaches a prostitute with an offer to pay for sex does not entrap the prostitute who agrees.

WHAT IS THE STATUTE OF LIMITATIONS FOR PROSTITUTION IN TEXAS?

The limitation period for Class A or Class B misdemeanor prostitution is two years. If the prostitution may be charged as a felony, the limitation period is three years.

PROSTITUTION IN TEXAS

Prostitution in Texas is still considered an offense against public decency and order, and as violating the moral values of society. The offense is complete when a person offers or agrees to engage in sexual conduct for a fee, regardless of whether the person actually engages in sexual conduct.

TEXAS PROSTITUTION COURT CASES

The case law regarding prostitution in Texas shows the low threshold courts have for upholding an interaction as an agreement for sex.

• In Zhao v. State, the defendant worked as a masseuse. An undercover officer booked a massage, during which the defendant rubbed his genitals. The officer asked how much, and the defendant whispered, “Is $40 okay?” The officer got up and left, but the defendant apologized and tried to convince him to return. She was convicted of prostitution, but argued on appeal the officer was the one who initiated the agreement.The appellate court affirmed, recognizing the statute and precedent permit a conviction even when an undercover officer makes the initial offer. The defendant participated in the agreement.