What Happens Next

So now that the dirty-talk portion of Texas’s online-solicitation-of-a-minor statute, Section 33.021(b) of the Texas Penal Code, has been held unconstitutional, what happens to those people who have been convicted or put on deferred-adjudication probation for violating the statute in the last eight years?

Alan Curry, Chief of the Harris County District Attorney’s Office’s Appellate Division, “said pending cases would likely be dismissed and the office will have to review what to do about anyone convicted under the voided law.” (Chron.)

I don’t know what the DA’s Office will wind up doing, but it doesn’t seem like a difficult call: the right thing to do (once the decision is final) is to give everyone convicted or placed on deferred-adjudication probation for violating Section 33.021(b) the option of reopening their cases.

Why give them the option, instead of just reopening the cases? Because some of them may have pled more serious charges (with longer maximum sentences or lifetime sex-offender registration requirements) down to 33.021(b) violations, and they should have the benefit of their bargain if they still want it.

But most would likely not choose to remain in prison or on probation, and register as sex offenders for ten years after they have done their time, for something that is not a crime.

Is there some reason they should have to?

28 responses to “What Happens Next”

  1. I wonder if one of your children, if you have any, was a victim of one of these crimes if you would feel the same way. Makes since for you to be for this since I am sure you defend tons of these creeps.

    • If one of my kids were a victim of the “crime” of “someone talking dirty to them,” I might have some discouraging words for the perpetrator, but I wouldn’t call 9-1-1.

      The little darlings are stronger than you think, and some pervert texting them sweet nothings is not going to permanently scar them.

      Parents need to parent instead of leaving it to the government to do so.

  2. And, what about all of those who ran the stings, gleefully pushing some poor SOB over the edge? Will John Walsh and his band of perverts get off with an Emily Litellia “Nevermind!”?

  3. First, Mark, congratulations on a fine piece of lawyering.

    As to “what’s next?,” procedurally what would “reopening the case” look like? Do you envision the DA dismissing old charges on their own (and potentially refiling under some other statute)? Would the Ds have to file habeas writs? What would that look like on the ground?

    • The DA’s Office should notify convicted defendants and their trial lawyers, and be willing to agree to relief. But I think defendants are going to have to do something to get relief—file a motion for new trial, or file a writ of habeas corpus.

      How they best get the appropriate relief is something I’m working on—there are procedural hurdles, but procedural hurdles can be overcome by agreement; there may be substantive hurdles (was each lawyer who forewent a First Amendment challenge to 33.021(b) without getting her client something in return ineffective? my opinion is that she was) as well.

      If a defendant chooses to reopen a case, the State may refile under some other statute for which the statute of limitations has not passed (though the pendency of a prosecution under an invalid statute doesn’t toll the running of limitations), but if they could file more serious charges now, they probably could have (and probably did) back then. That’s something that the defendant and his lawyer ought to carefully consider before deciding whether there’s a fire waiting outside the frying pan.

      • Excellent, informative answer, thanks Mark.

        And good response to adrian’s knee-jerk reaction, too. Haters gonna hate. He’s lucky there are folks like you willing to stand up for his First Amendment right to spout ignorant, jerkwad comments (replete with grammar and spelling errors).

  4. What if it is a sting operation? Someone who gets trapped talking to a law enforcement officer pretending to be a minor, who doesnot have child porn on his computer, who has not talked to a child before that, whose home computer, cell phone, work computer came up with nothing….under what logic or law should that person be convicted? This is the USA not some backward country….why would that person be convicted and have to register as a so…..if there is no victim, where is the crime

    • I don’t understand the question. If you’re talking about a violation of Texas Penal Code Section 33.021(c), I think there’s a Free-Speech challenge to be mounted there.

      There’s nothing inherently wrong with convicting someone of conspiring or agreeing to commit a crime, even if the crime couldn’t be committed because the “victim” didn’t exist. Entrapment is wrong, but entrapment isn’t necessarily what you think.

    • It’s heartbreaking to imagine.

      I’ve dealt with Perverted Justice types; their organization is aptly named.

      Fortunately, their credibility is shot; I don’t know a Harris County prosecutor who will take a Perverted Justice case anymore.

    • Absolutely, how unfortunate! But there have been 5 Florida suicides now that were a result of sting operations and no publicity like the Conradt case. There is a reason for that

  5. I plead guilty to 33.021(b) in 2009. I served 2 years on a 3 1/2 year sentence. I’m now registering for ten years. What happens to me now? Can I get them to deregister me?

    • Whatever is going to happen, you can’t do it on your own yet. Maybe once the path has been cleared you will be able to.

      I expect that the path will be cleared by a few defendants with the resources to pay lawyers for the required litigation.

      I fear that those lawyers will screw things up for the rest of the world.

      • Your message seems as clear as humanly possible to me, and yet it’s as if you’re using a foreign language. This is why I cry every time a futurist contends that if we just give people open access to laws and decisions, they can be their own lawyer. It’s snatching defeat from the jaws of victory. What a shame.

      • Thanks for the information. I will keep and eye on your blog. You’ll probably hear from me once I get some resources lined up. Thankfully, I was able to find a well-paying job and got back on my feet. It’s hard when you have an ape on your back.

  6. Im here searching for help… a friend of mine took a plea because his court appointed told him if now he would be found guilty and get the max.. i know without all details you cannt asure me of anything but is there anyway this could help him?

  7. My husband was paroled a couple days after this ruling after doing 2 of 5 yrs. Now Parole is battling with state trying to force him to register as sex offender for an offense that isn’t an offense now! And it’s looking like Parole might win!! How can that be???

    • I know it doesn’t make sense, but relief is not going to happen on its own. Unless the legislature does something (unlikely) everyone convicted of this non-offense is going to need a lawyer to get them out from under it. My work has just begun.

  8. My friend was convicted of this (non)crime few years back because this unstable teenager had a crush on him and mom find out and made everything to ruin his life. I saw the text messages this girl sent and told him not to answer back anything and I know for a fact there was’t ever going to happen anything illegal. And then the worst case scenario happened and he had to register as sex offender and got 10 year parole and his life got totally ruined. He is so depressed that he has lost his reason to live. I’m european and don’t understand your laws but after some googling found out about this new ruling. Can this give any hope to people like him? Is there anything he can do to get his life back or anyone who could help?

    • This situation is not going to fix itself. With the help of a good lawyer, he should be able to undo the conviction, but there are some pretty substantial procedural hurdles in the way.

  9. I was convicted of Online Solicitation of a Minor in 2007. I got 2 years probation which is completed and are a RSO for 10 years. this was a sting by a city PD in the valley.

    I never agreed t meet the girl and all we did was talk “dirty” online.. which is wrong. the undercover cop told me that they loved me which got to me since the picture they sent of of “her” was a very attractive girl who didn’t look 16. I was 24 at the time of the crime.

    me and my lawyer have now filed a writ of habeas corpus since this statue was the exact one that was ruled unconstitutional. I was charged with online Solicitation of a Minor to arouse or gratify.

    just curious n how you think my chances are and how long does this process take?


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