Texas Penal Code 43.021 – Solicitation of Prostitution

WHAT IS SOLICITATION OF PROSTITUTION IN TEXAS?

The Texas law against solicitation of prostitution prohibits agreeing to pay another person to engage in sexual conduct. Prior to 2021, the prostitute and the “john” were both chargeable under the prostitution statute, which is a Class B misdemeanor for the first offense. Agreeing to pay another for sex is a state jail felony in Texas.

WHAT IS THE SOLICITATION OF PROSTITUTION LAW IN TEXAS?

Tex. Penal Code § 43.021. SOLICITATION OF PROSTITUTION.

(a) A person commits an offense if the person knowingly offers or agrees to pay a fee to another person for the purpose of engaging in sexual conduct with that person or another.

(b) An offense under Subsection (a) is a state jail felony, except that the offense is:

(1) a felony of the third degree if the actor has previously been convicted of an offense under Subsection (a) or under Section 43.02(b), as that law existed before September 1, 2021; or

(2) a felony of the second degree if the person with whom the actor agrees to engage in sexual conduct is:

(A) younger than 18 years of age, regardless of whether the actor knows the age of the person at the time of the offense;

(B) represented to the actor as being younger than 18 years of age; or

(C) believed by the actor to be younger than 18 years of age.

(c) 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 that subchapter. For purposes of enhancement of penalties under this section or Subchapter D, Chapter 12, a defendant is considered to have been previously convicted of an offense under this section or under Section 43.02(b), as that law existed before September 1, 2021, 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 SOLICITATION OF PROSTITUTION IN TEXAS?

The penalty classification for solicitation of prostitution depends on the age of the person solicited, and whether the accused has prior convictions for solicitation of prostitution.

• State jail felony, punishable by 180 days to two years in a state jail facility:
  • first offense;
• Third degree felony, punishable by two to ten years in prison, if:
  • the accused has one prior conviction or deferred adjudication for solicitation of prostitution;
• Second degree felony, punishable by two to 20 years in prison, if the prostitute solicited:
  • is under 18 years of age, regardless of the person’s knowledge;
  • represents to the person he or she is under 18; or
  • the person believes the solicited prostitute is under 18.

WHAT IS THE PUNISHMENT RANGE FOR SOLICITATION OF PROSTITUTION IN TEXAS?

The punishment range for solicitation of prostitution charged as a state jail felony is 180 days to two years in a state jail facility, and a maximum fine of $10,000. If charged as a third degree felony, it carries between two and ten years in prison, and a possible $10,000 fine. A person charged with solicitation of prostitution as a second degree felony faces between two and 20 years in prison, and up to a $10,000 fine.

WHAT ARE THE PENALTIES FOR SOLICITATION OF PROSTITUTION IN TEXAS?

A person charged with solicitation of prostitution as a state jail felony may be eligible for probation after a conviction, or deferred adjudication without a conviction, for a period between two and five years. If charged as a second degree or third degree felony, the period of community supervision may not exceed ten years.

WHAT ARE THE DEFENSES TO SOLICITATION OF PROSTITUTION IN TEXAS?

The statute does not authorize specific defenses to solicitation of prostitution. A person accused thereof may attempt to negate at least one of the elements the State must prove at trial, as the defense available for prostitutes does not apply to their solicitors.

• Does the entrapment defense apply in Texas prostitution cases? 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 acting as a prostitute walking on the street does not entrap a person who stops to discuss sex for a fee.

• What if the person did not know the prostitute was a minor? The statute specifically precludes a person charged with soliciting a person under 18 from arguing he or she lacked knowledge of the other’s age. In fact, the solicited person need not actually be under 18 years old; if the “john” believes the prostitute is under 18, or the prostitute represents he or she is under 18 in the course of forming the agreement, it is a second degree felony.

• Does a solicitation of prostitution conviction require registration as a sex offender in Texas? Yes, if punishable as a second degree felony, solicitation of prostitution is a reportable adjudication or conviction included in the Sex Offender Registration Program.

WHAT IS THE STATUTE OF LIMITATIONS FOR SOLICITATION OF PROSTITUTION IN TEXAS?

The limitation period for solicitation of prostitution is three years.

SOLICITATION OF PROSTITUTION IN TEXAS

Texas law criminalizes agreeing to pay another for sex, and punishes solicitation of prostitution as a felony, even for the first offense. The Legislature increased penalties for solicitors as part of its efforts to combat human trafficking.

TEXAS SOLICITATION OF PROSTITUTION COURT CASES

The case law regarding solicitation of prostitution in Texas shows courts consistently uphold the law as constitutional.

• In Robles v. State, defendant drove up to a scantily-clad woman, who was an undercover police officer dressed as a prostitute. They agreed to have sex for a fee, and she told him to drive to a nearby park, where other officers arrested him. He challenged the constitutionality of the prostitution statute.The appellate court cited the state’s interests in prohibiting such conduct was to deter: (1) crimes such as violence against women and human trafficking; (2) the spread of infectious diseases; and (3) commodification of sex. Further, prostitutes and clients do not have an “intimate relationship” protected by the First Amendment