Part of Texas Online Solicitation of a Minor Statute Unconstitutional

Today I got an opinion from the Texas Court of Criminal Appeals that culminated four years of appellate litigation on the unconstitutionality under the First Amendment of the “talking dirty” portion of Texas’s “online solicitation of a minor” statute, Texas Penal Code Section 33.021(b).

The State could file a motion for rehearing with the Court of Criminal Appeals, but it’s a 25-page unanimous opinion penned by Judge Cathy Cochran, so I think the motion would be a waste of paper.

I expect that the State will file a petition for writ of certiorari with the United States Supreme Court, and that it’ll be denied. The unconstitutionality of the statute is a no-brainer. In fact, in light of Stevens the Court of Criminal Appeals (and I, in my briefs) arguably gave the State too much leeway by applying strict scrutiny rather than a purely categorical test. I am relieved that I won’t have to file a cert petition, which I would have done had the Court of Criminal Appeals come to a different conclusion.Volokh Conspiracy, Grits for Breakfast, the Austin American-Statesman, and the Houston Chronicle have taken note of the case, noting in particular this language:

Subsection (b) covers a whole cornucopia of “titillating talk” or “dirty talk.” but it also includes sexually explicit literature such as “Lolita,” “50 Shades of Grey,” “Lady Chatterly’s Lover,” and Shakespeare’s “Troilus and Cressida.” It includes sexually explicit television shows, movies, and performances such as “The Tudors,” “Rome,” “Eyes Wide Shut,” “Basic Instinct,” Janet Jackson’s “Wardrobe Malfunction” during the 2004 Super Bowl, and Miley Cyrus’ “twerking” during the 2013 MTV Video Music Awards.” It includes sexually explicit art such as “The Rape of the Sabine Women,” “Venus De Milo,” “the Naked Maja,” or Japaneses Shunga. Communications and materials that, in some manner, “relate to” sexual conduct comprise much of the art, literature and entertainment of the world from the time of the Greek myths extolling Zeus’s sexual prowess, through the ribald plays of the Renaissance, to today’s Hollywood movies and cable TV shows.

While “look at all the things that are ‘sexually explicit’ under this statute” (i.e. just about everything) was a theme of my briefs and argument, and while at oral argument we discussed Miley Cyrus and Abercrombie & Fitch, when I read the opinion I had to Google “Shunga.” Well played, Judge Cochran. Well played.

The Naked Maja
Spanish Postage Stamp with Copy of Goya’s Maja Desnuda

52 responses to “Part of Texas Online Solicitation of a Minor Statute Unconstitutional”

  1. Mark, while I’m not sure this is something I would have staged a protracted fight over, I admire the professional achievement and congratulate you.

    Not that there aren’t good reasons to oppose the frenzy of criminalizing bad judgment and poor taste whenever children are involved. It would be nice if you gained some notoriety as a result of this ruling, since I’m sure you could articulate a position where conduct can be disapproved of, even strongly disapproved of, without calling out the dogs of law enforcement.

    I hope you are rewarded with at least one-tenth the amount of bounty showered upon Kim Kardashian’s latest clothing line for this important public service.

    Of course the ruling takes on an added poignancy given your recent debate with the professor over the whole revenge-porn issue.

    In any case, well done.

  2. Congrats on the victory for so many people. I’m so thankful for great attorneys like yourself who care for others. My son is one that I pray this will help out. Thank you again so much. I pray you get the recognition you so deserve.

  3. Mr Mark Bennett. Would this ruling affect individuals of subsection C? Of solicitation of a minor? If not or if so What could be an arguement in court. For deferred adjuication defendants? Thanks

  4. So would it have to go through all the channelsas the previous one did such as Court of criminal appeals. I assume no easy fight.

  5. I understand that it’s not going to fix itself. I would like to say that we had a good enough attorney to help us fix it but I’m not sure he’s going to help us out. I’m going to continue following this and hope to get answers as this moves along. I was merely thanking you for all the hard work and years of dedication you have put in.

    • You’re welcome. I don’t know who your lawyer is, so I can say this: there is a small handful of lawyers in Texas whom I would trust to help people get out from under convictions for violating this law. A lawyer who doesn’t know what he’s doing will screw things up not only for his client, but also for everyone else similarly situated.

  6. So anyone on deferred adju. For section c pretty much have no recourse other then to challenge the stature.? My friend is on Probation for online solicitation 10 yrs deferred.

  7. I’ve wondered about early termination for sex offender crimes. In terms of Probation. Is this possible? If a judge ruled something couldn’t they dismiss it as well?

    • Please use the “reply” button so our discussion is threaded.
      Early termination of the probation wouldn’t eliminate the 10-year sex-offender-registration requirement. You want to drive a stake through the heart of 33.021(c).

  8. […] at Defending People, Mark Bennett savors an astounding appellate victory in Texas in which he convinced a court to overturn a portion … As Mark pointed out, and the court agreed, Texas' statute swept up conduct protected by the First […]

  9. […] Mark Bennett, over at Defending People, relates his tremendous victory before the Texas Court of Crim­i­nal Appeals that “cul­mi­nated four years of appel­late lit­i­ga­tion on the uncon­sti­tu­tion­al­ity under the First Amend­ment of the “talk­ing dirty” por­tion of Texas’s “online solic­i­ta­tion of a minor” statute, Texas Penal Code Sec­tion 33.021(b).” Mark then outlines “What Happens Next”.  Kudos to a superb criminal defense lawyer and First Amendment advocate. […]

  10. Congratulations!

    FWIW, “Rape of the Sabine Women” is not overtly about rape, nor even about rape rape. It’s about an abduction, with “rape” being the anglicization of the Latin “raptio“, to kidnap.

    The Romans abduct some Sabine women because of a shortage of mates– a sexual topic also central to the children’s novel Watership Down— so the the art works are most directly about violence and only implicitly and allusively about the impending sexual domination (and its interest as a political metaphor).

    Your example still holds, then. But I thought it might be interesting to point out that it holds despite the potentially misleading conventional title of that subject, and not because of it.

    • I knew that, not only because I took art history in high school, but also because I directed the non-bowdlerized version of The Fantasticks in college. Rape of the Sabine Women was actually the court’s example, rather than mine, as were the Venus de Milo and the Naked Maja—none of which most of us would consider “sexually explicit,” but all of which, because of Texas’s catholic definition of that phrase, are.

  11. I am a divorced father who has a present 14 and 13 yr old daughters. My ex wife’s 3rd husband was charged w solicitation of a 14 yr old. He didn’t fight it and took differed adjudication. Later broke probation and didn’t fight it and now in prison. Now according to your hard work he will be able to move back into a house of 4 girls, none of which are of his own. I’m interested in those who think this is such a victory? “For the people” please. Only fault in this is , I wish the police would have continued with the investigation and set up a meeting with him, therefore there would be no doubt of his “intentions”. I will confirm with my attorney on my legal rights and see if his rights are more important than mine, as their biological father .I can only thank you for your hard work when I know that my daughters are asleep in the same house as he is. Any legal advice for someone like me?

    • Sounds to me like you need to take care of your family rather than hope the government will do it for you. I’d get a family lawyer now to get your kids out of the house if H3 is allowed to move in.

      • I will, but now am relying on the same courts who consider “dirty talk” coming from a 33 yr old man to a 14 yr old girl, who is asking if the girl has amazon or landing strip at 10:30 at night. On top of that, asking please for a photo. Now this is legal ” dirty talk” or “freedom of speech”? This ruling now helps me understand the actual freedom of speech and rights of the “people”. It helps me sleep at night. I just hope that the money and time in court , because of what a 33 yr old man has done,will protect my daughters..this decision will protect a very small percentage of the total who have been accused and convicted of such a disgusting , immoral act. I realize nothing worse than an innocent person being convicted of a crime, but in this case this ruling is a negative outcome and hope you agree.Now I rely on the court system ,who is part of the government as you stated ,to take into account my situation. Do you have children and would you feel comfortable in my situation?

    • Have you considered that your anger/concern is misdirected? What of the legislators who enacted an unconstitutional law? What of the prosecutors who chose an unconstitutional law to prosecute?

      It’s the law that was bad, not the lawyer who won the case. Maybe this is a good reason not to vote for legislators who pander for votes with overly broad and simplistic fixes to complex problems?

  12. Now I rely on the court sys­tem ‚who is part of the gov­ern­ment as you stated ‚to take into account my sit­u­a­tion. Do you have chil­dren and would you feel com­fort­able in my situation?

    To be blunt, you made choices that gave a court jurisdiction to decide where your children reside, and with whom. If I had made those choices, I would probably not feel comfortable either.

    • Nice reply and way to turn it on me. You are wrong again.When their mother and I divorced it was on good terms, and since then she has made choices that have turned out bad after marriage. I have always believed that a relationship with both parents unless the other is unfit is healthy for our children. I try not to punish her nor my children for her husbands bad choices. Do you understand now? So let me explain it to you. My children love their mother and myself and I am trying to keep them from suffering for other adult mistakes. Smart people like yourself, keep fighting for “the people” and “freedom of speech”. You did a great job with it.. You never answered if you would feel comfortable if it was your children, if you have any? Just an honest question from an interested follower. Im sure your answer would be appreciated. After he was charged and took the plea , I was relying on the courts to protect the children from 33 yr old man who contact 14 yr old girls , asking to send pictures of her privates and discussing anatomy with her. I guess you feel that is appropriate? He was friend of the parents,so it wasn’t a stranger. Other attorneys ,like yourself told her he was wronged and couldn’t believe he was arrested. So when you say that I shouldn’t rely on the government to protect my children, who should I rely on? You’re not making much sense.

      • Compared to girls raised in homes where both parents are present, the daughters of single parents are 164% more likely to become pregnant before marriage, 53% more likely to marry as teenagers, and 92% more likely to dissolve their own marriages. The absence of a biological father increases a daughter’s vulnerability to rape and sexual abuse by 900%.

        You don’t get to know the details of my family life because I protect my family. A man protects his family. A man keeps bad people out of his children’s lives as much as he can, and certainly keeps bad people out of their home or dies trying.

        “Who should you rely on” to protect your children? On yourself, and yourself only. A man doesn’t delegate that job to his ex, to her current squeeze, or to the government.

        You chose to marry your daughters’ mother. You chose to have children. You chose to divorce their mother and allow your daughters to live in a home without a biological father present. Those weren’t your daughters’ choices, and they sure weren’t mine.

        What I did was what I—along with every lawyer, cop, public official, and soldier in America—have sworn to do: support and defend the U.S. Constitution. I am proud of it, and I am comfortable with the court’s decision because I wasn’t counting on the government to keep my kids safe. I keep my kids safe.

        Yes, I understand that you don’t like the results. Because you screwed up and put your daughters out from under your protection. Because of your choices you can’t keep that bad guy out of your daughters’ home without going to a family-court judge on your knees.

        Accept your responsibility and fix it the best you can. Stop wasting your time whining on the Internet about how it’s the First Amendment lawyer’s fault. If you can’t stop the bad guy from going back to the house, move heaven and earth to get your daughters away from there.

        In other words, man the fuck up.

  13. Your such an idiot. And would love to have you tell me that in person . It wasn’t my choice for divorce and as a smart attorney as you think you are, you know once one parent wants and is determined to have a divorce there is not much the other can do to stop it, am I correct? Don’t get your feelings hurt little Mark because someone disagrees with you. I hope you never have a divorce that your wife calls for. By no means are you like a solider or police officer or firefighter like you think you are. A matter of fact , I would like to introduce your midget ass to the officers who put him in jail and made the decision to protect the 14 yr old girl. So please don’t compare yourself to them, that’s a joke. Don’t get your feelings hurt because someone reading all your nonsense from your parents of “wrongly accused sex affenders” that you are not such a hero. Come tell the DA or the officers or the parents of the 14 year old girl what a stud you are. Put your name on all the people you let out . Don’t get so uptight, I was just asking a question that you couldn’t answer, as I expected. Sleep on it big boy and pray for your kids and all kids.

    • Angry 11pm emails, big guy? I’m sure you were entirely blameless in the divorce.

      That you blame everyone else but yourself for your inability to keep your kids safe doesn’t hurt my feelings; it saddens me, and amuses me a little, and that it amuses me a little saddens me a little too. Because this is what America is coming to: a society of people determined to put responsibility for their families’ safety in the hands of the government. A society of people who elevate victimhood above manhood, and so look for reasons to call themselves victims.

      I’m sorry: I shouldn’t have told you to man the fuck up. It’s not you, it’s the society. Besides, I was presumptuous. That would have been your father’s job, or a brother’s, or a best friend’s. The men in your life should be telling you that, not some guy who doesn’t even know your name.

      • I was actually out playing some tennis explaining what a great job you did in protecting the people. Why do you keep bringing up my divorce Mark? It really has nothing to do with the divorce. But keep diverting the conversation is what you do. I’m not blaming anyone for his actions except him. You bring up me blaming my father, brother, what is that? My whole point to you was that your latest so called accomplishment isn’t so much. You keep saying don’t rely on the government to protect our children, then who should it be? Under this constitution you are so proud to uphold, there are so called laws that we are as a society to try and follow. And those who don’t are to be punished. You want to state you are as equal to police officers and soldiers ,but hypocritically stating they didn’t do there job, nor did the judge who passed down the sentence? Don’t take my criticism of this latest ruling so personal and don’t try and turn it on me and my divorce of 12 yrs ago. It’s not personal, just freedom speech . Have a great day and a blessed holiday and we will do the same

    • Trey, world doesn’t revolve around you or your family. As you may know, most sex offenders are family members. If he went online, maybe he is not interested in your kids. If you are still concerned, go to court instead of whining here. Or, just move.

  14. Trey,

    I defend the Constitution; that’s all this case was about. Cops and prosecutors have sworn to do the same. Cops get a pass for relying on unconstitutional statutes, but any lawyer—including any prosecutor and any judge—who gave it any thought should have seen in 2005 that this statute was unconstitutional. The most conservative criminal court in the country, Texas’s Court of Criminal Appeals, unanimously held that the statute was unconstitutional the first time the issue was presented to it.

    This will get some people out of prison who didn’t belong there. It will also get some people out of prison who might belong there, but for other reasons than that they violated an unconstitutional statute. Had the legislature not written an unconstitutional statute, and had prosecutors not enforced it, this wouldn’t be an issue. You don’t like that side effect of the statute being held unconstitutional? Blame the legislators who wrote it and the prosecutors who depended on it instead of being patient and making their cases under Section 15.031. You actually said it yourself: “I wish the police would have con­tin­ued with the inves­ti­ga­tion and set up a meet­ing with him, there­fore there would be no doubt of his ‘inten­tions.’”

    You keep asking, “Who should we rely on to protect our children?”

    I’ve answered that question clearly, in words of a single syllable. I suspect that you’re so soaked in the American statist victimocracy that you just can’t accept it. If you don’t like the answer, I’m happy to discuss it, but don’t pretend that you don’t have an answer.

    Your complaints have everything to do with your divorce. If your daughters were in your home, you wouldn’t have to worry about this guy living with them. That’s a given.

    I can see why you are afraid to use your name: your cavalier attitude toward your own role in putting your daughters in a situation where they are ten times as likely to be sexually abused does not reflect well on you. Don’t flatter yourself that your opinion matters to me.

  15. my son was arrested before law overturned. he has been under house arrest for 18 months and now faces prison. first time ever arrested in Texas they say he was there to meet this person but never got out of truck now he may lose his career and freedom

  16. My husband received deferred adjudication for part b. He is still on probation and registered, and we have nothing left to fight this, after spending everything we had to fight this in the beginning. An attorney friend, who is not a criminal attorney, has been trying to help us with this mess. He originally filed a writ and it was returned by the court for being on the wrong form. He has since re-filed, but there has been no action on the case. My husband has done everything probation has asked of him, until 2 weeks ago. We literally do not have the money to pay for the weekly therapy sessions, and the therapist is unwilling to work with us. Now the PO is working to get an MTR. How can they continue to hold you to conditions and try to revoke your probation for a non-crime? It’s not like the court isn’t aware of the situation since they returned the original writ. Is there no recourse for people who can’t afford to fight the system?

  17. So a few months back my son was snarled in one of these online fiching expeditions by Fort Bend County. He who is 20 and the so called minor (a undercover cop) stated they were 15. He has been charged with online solicitation of a minor. How or woudl this ruling affect someone now in 2015? The DA wants 4 years prison time. The court appointed attourney has been rescheduling and rescheduling I guess in hopes of getting soem sort of Probation.

  18. As an update to my previous post. My son had posted a online add, not for a minor to have sex with, the add did not say looking for a minor and the undercover responded. Well into the exchange of email did the undercover state they were 15.


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