2015.68: A Texas Online-Solicitation Law Roadmap

Here’s a quick summary (more than a soundbite, less than a brief) of the status of the remains of Texas’s online-solicitation-of-a-minor statute.

The statute forbids adults soliciting people whom they believe are minors to have sex, but it also forbids their soliciting other adults whom they believe to be adults to have sex, as well as soliciting people to not have sex (that is, fantasy communications or communications with no intent to meet).

Soliciting a child to have sex, with the intent that a crime be committed, is unprotected speech.

Soliciting someone you believe to be a child to have sex, with the intent that a crime be committed, is probably unprotected speech.

But soliciting an adult to have sex is generally protected speech. And making solicitive noises to a child, with no intent to actually carry through, is protected speech. It’s the intent to commit a (non-speech) crime that makes the speech unprotected.

So section 33.021, as it currently stands, forbids protected speech as well as unprotected speech.

The law will change as of September first, to correct this problem. ((The new law comes close to being right; it may be close enough to survive an as-written challenge, but I can envision as-applied challenges.))

Here’s what Joan Huffman, the sponsor of Senate Bill 344, wrote in her Statement of Intent:

The current statute is overbroad. Though the statute was enacted to impose sanctions upon those who engage in Internet conversations with minors with an intent for physical contact to take place, the statute’s sexually explicit communication provision contains no requirement that an actor ever possess the intent to meet the child.

Like Section 33.021(b), the current Section 33.021(c) contains no requirement that an actor ever possess the intent to meet the child. It appears to, but the requirement that subsection (c) gives, subsection (d) takes away:

(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: …

(2) the actor did not intend for the meeting to occur; or

(3) the actor was engaged in a fantasy at the time of commission of the offense.

“The actor did not intend for the meeting to occur” would, if not for (d)(2), be an inferential-rebuttal defense: it negates the “intent that the minor will engage…” element of the offense. If “the actor did not intend for the meeting to occur” is not a defense, then “intent that the minor will engage…” is not an element (because inferential rebuttal of an element is always a defense).

Likewise, “The actor was engaged in a fantasy at the time of commission of the offense” would inferentially rebut intent; if “fantasy” is not a defense then “intent” is not an element.

So what have the courts said about this argument? There are four cases:

In Ex Parte Lo, the Court of Criminal Appeals addressed 33.021(c) in dicta:

Section 33.021 of the Texas Penal Code is titled “Online Solicitation of a Minor.” It includes subsection (c) — a provision that prohibits and punishes an actor who uses electronic communications to “solicit” a minor, “to meet another person, including the actor, with the intent that the minor will engage in” certain sexual behavior.[20] Such solicitation statutes exist in virtually all states and have been routinely upheld as constitutional because “offers to engage in illegal transactions [such as sexual assault of a minor] are categorically excluded from First Amendment protection.”[21] Thus, it is the conduct of requesting a minor to engage in illegal sexual acts that is the gravamen of the offense. The First Court of Appeals previously upheld the constitutionality of the Texas online-solicitation-of-minors statute.[22] That specific provision is not at issue in this case, but it provides an excellent contrast to the provision that is at issue.

Subsection (c) was not at issue in Lo; to my eternal embarrassment I hadn’t yet looked closely at the interplay of (c) with (d) and (a), so I held out (c) as an example to the Court of Criminal Appeals of a constitutional statute, which resulted in this bit of dicta. Fortunately, though, dicta are not binding.

Footnote 22 of Lo links to Maloney v. State, the First Court of Appeals’ 2009 case upholding 33.021(c) in the face of overbreadth and vagueness challenges. Maloney, a published opinion, is the major obstacle to relief. Justice Higley wrote the opinion in Maloney, and made the same mistake that that intermediate court later made in Lo: “applying an incorrect standard of review.” That is, a content-based restriction on speech is presumptively invalid, and the First Court in Maloney treated 33.021(c) as presumptively valid. When the burden shifts to the State, everything changes.

At the end of April I had oral argument in Ex Parte Wheeler, in the First Court of Appeals. The panel to which I argued included Justice Jennings (who wrote the erroneous opinion in Ex Parte Lo) and Justice Higley (whose opinion in Maloney v. State the First Court will have to overrule to invalidate the statute). We’re waiting for an opinion on that case, which will — thanks to the court hearing oral argument — at least apply the correct standard of review. If the court reaches the correct result, the Court of Criminal Appeals will most likely grant discretionary review; if the court applies the correct standard but reaches the wrong result, I will petition for discretionary review, and hope the Court of Criminal Appeals is interested.

So Lo‘s 33.021(c) language is dicta and is not binding. Maloney‘s 33.021(c) language is published and binding on courts within the First Court of Appeals’ geographic jurisdiction, but Maloney applied the wrong standard of review and will be revisiting 33.021(c) in light of Lo.

There are two other cases that the State relies on in support of the remnants of Section 33.021. First, there is the published San Antonio opinion in Ex Parte Zavala. In Zavala the defendant argued that the statute was vague, but not that it was overbroad. In finding that the statute, with conflicting subsections (c) and (d), was not vague, the San Antonio court made this baffling statement:

The crime of soliciting a minor under section 33.021(c) is committed, and is completed, at the time of the request, i.e., the solicitation. … Indeed, it is the requirement that the defendant must solicit “with the intent that the minor will engage in sexual contact” that operates to make otherwise innocent conduct, i.e., soliciting a minor to meet, into criminal conduct. It follows then, that for purposes of a subsection (c) solicitation offense, … it does not matter … that the defendant did not intend for the meeting to actually occur, or that the defendant was engaged in a fantasy at the time of the solicitation.

Zavala didn’t answer the overbreadth question; it’s a published opinion, but it is binding only on courts within the geographic jurisdiction of the San Antonio Court of Appeals.

The case that did answer the overbreadth question is Victorick, out of the Beaumont Court of Appeals. In Victorick the Court of Appeals, like the First Court in Lo and Maloney, applied the wrong test:

Victorick makes a facial challenge to the statute and he must therefore prove the statute is unconstitutional in every application, and that it could never be constitutionally applied to any defendant under any set of facts or circumstances.

This is not the law. When the statute is a content-based restriction on speech, the burden is on the State to show that the statute is constitutional, and the State must prove that the statute meets the very high standard of strict scrutiny.

The Beaumont court ignored this standard, writing:

On the other hand, if the statute punishes conduct rather than speech, the courts apply a “rational basis” level of review to determine if the statue has a rational relationship to a legitimate state purpose.

For this proposition the Beaumont court cited Broadrick v. Oklahoma. Neither on the cited page nor on any other does Broadrick say anything about a “rational basis” test. The Beaumont court seems to have pulled its proposition from thin air.

The Beaumont court and others (including the State in every brief they’ve filed anywhere in Texas) reads far too much into this line from Broadrick:

where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep

They read too much into it because recent Supreme Court cases ((Such as Ferber, in 1982, but there’s no reason the State should know about that.)) make clear that whether speech or expressive conduct is involved the overbreadth of a statute must be real and substantial.

The Supreme Court does not treat expressive conduct differently than speech, and speech does not become unprotected merely because you call it conduct. But the State’s defense of Section 33.021(c) hinges on this:

A conduct based restriction is presumed constitutional and requires a rational basis standard of review.

For this proposition the State cites Victorick, which in turn cites Broadrick, which doesn’t say that.

In any case, Victorick is an unpublished opinion, and is not binding authority anywhere.

To sum up: Lodicta, not binding; Zavala — vagueness only, binding only in San Antonio area; Maloney — under attack in Wheeler, binding only in Houston appellate district; Victorick — goofy, unpublished, not binding.

Next I’ll talk, in light of this roadmap, about the litigation this week in Conroe that has brought Judge Kelly Case unfair and unethical criticism from Phil Grant and the Montgomery County District Attorney’s Office.

Then I’ll talk about why Phil Grant’s criticism was unethical, and what it shows about his fitness for office.

49 responses to “2015.68: A Texas Online-Solicitation Law Roadmap”

    • No, it doesn’t mean that. I believe that ultimately 33.021(c) will be held unconstitutional by the Court of Criminal Appeals, but we’re a long way from that point.

  1. So what is in store for these 21 guys arrested in the recent Montgomery County Sting for soliciting minors online for sex?

    • PDR is filed in Ex Parte Wheeler; waiting to hear if the Court of Criminal Appeals is going to review it.

      Argued Ex Parte Fisher in Lubbock; waiting to see if the Amarillo Court of Appeals will be as friendly to my argument on paper as they were in the courtroom.

      • Mr. Bennett, I would like to thank you for everything you have done. I was charged for (B) in 2008, placed on deferred adjudication in 2010, finished in 2014, filed a writ this past October, and just notified by my lawyer, that they reversed my conviction to not guilty, and now we’re waiting to file an expungement.

        And I hope I can finally have my life back and put this experience in the past.

        Thank you again.

        The reason why I ask about Section (C), is that I met a few people who was charged with the intent. And just curious to know if there is any chance of them having a second chance as well.

        • If you still show up on the DPS SO list, have your lawyer contact me and I’ll tell him how to get you off it immediately.

          I’m working on (c). Unfortunately I didn’t snap to its unconstitutionality early on, so now that the statute has changed, there’s a dwindling number of cases in which we might win that issue. Sewell is our best hope, followed by Fisher.

      • I was just informed this last Monday, she said, due to the holiday, it may take some time. But to be honest with you sir, being on probation, I’ve learned to have patience. I know I’m supposed to be off the SO registry if I was found not guilty, but I’m just glad this is almost over. The only thing is what I’m somewhat frustrated on, is the fact that the expungement might take some time to get it finalized.

  2. Hi Mr. Bennett,
    I was overturned last June for 33.021(b) for charges in 2008. This was great news and I thank you for my freedom from this law.
    I was also charged at the same time in Harris county for (b) and (c) and plea bargained to 5 years deferred and probation ended in 2011. I was given 10 years registration after probation and will still be SO list till 2021. I never showed up or even contemplated coming to Harris county. Neal Davis is my attorney in the case and I am pleased with his help.
    My question. How can a unconstitutional law (b) be attached to another law (c) and still hold up as a legal conviction? Especially, when the person only talked online to a police officer and never showed up?
    I appreciate your fearless defense and hope you will be able to help people like me.

    • It’s an excellent question. This is the next frontier in postconviction 33.021(b) litigation: attacking pleas to other charges attached to 33.021(b) charges. I still have hopes that the Court of Criminal Appeals will see the light on 33.021(c), though.

      • Thank you for your reply. Do you have any idea how long that may take. I know the wheels of justice grinds very slowly.
        Dan Keen

      • Mr Bennett,
        First off I would like to express my thanks to you and your team for giving me a chance to get my life back I live right. Like so many others, I too was charged with Penal Code 33.21 B. But thanks to you an ex parte Lo, my lawyer, Mr. Chad Van Brunt, of San Antonio, TX was able to file a writ of habeas corpus to the Texas Court of Appeals. I am glad to say that I was granted relief and I am now happily married. So to comment on the matter, my lawyer did talk to the prosecutor in San Antonio and inquired if he would be attempting to file a federal offense or even linking another offense in hopes to re-incarcerated. I was a little nervous in that fact that such a thing could happen should I try to challenge the state for my freedom. My lawyer did quickly informed me that the prosecutor would not be attempting to file against me. I’m not sure if it would be of any good to you, but perhaps maybe it would be of some benefit if you would contact Chad Van Brunt in San Antonio Texas.
        He was also trying to get me relief have I believe it’s called restitution for the four years I was incarcerated. However the Criminal Court of Appeals stated that simply because I was granted relief doesn’t make me innocent. The money would have been great but all I care about is my freedom. My biggest challenge currently is to get this expunged to which I have been unsuccessful. If you could provide me any help on that matter that would be most appreciated. Thank you so much for your hard work.
        Sincerely, John

        • I have gotten expunctions for a number of people in this situation.
          Lately, the Texas Attorney General has been opposing expunctions for people who got habeas relief, but I have been winning in the trial courts. The AG has been appealing to the courts of appeals, and I’ve been winning there too (EJH, SEH, HCV). The AG has been appealing from there to the Supreme Court of Texas, and I expect to win there.

  3. Hi Mark,

    First, I want to thank you for your hard work and dedication to fighting these laws. As a result of your fight and success, I am waiting on my final court order to dismiss my conviction in July 2013 under 33.021(b). This is a relief but not over yet. Unfortunately, Taylor County is reprosecuting me under (c). I have confidence in my attorney in beating this new case. I have raised this question with him and seek a second opinion about if this new charge falls under double jeopardy. I have been doing my own research just to seek answers. I have found this along with many other cases bearing information about double jeopardy.
    Holt v. State, No. 5D14-3269, 2015 WL 4768997 (Fla. Dist. Ct. App. Aug. 14, 2015)
    Convictions for traveling to meet a minor under section 847.0135(4)(a), Florida Statutes (2013), and unlawful use of a two-way communications device under section 934.215, Florida Statutes (2013), violate double jeopardy because they were a part of the same criminal episode and the elements to prove unlawful use of a two-way communications device are subsumed within the elements for traveling to meet a minor.

    In my opinion, since a two-way device (email and text messages) was used to communicate in both 33.021(b) and (c) then it would be considered double jeopardy. What do you think or suggest?

    • Florida law doesn’t help in Texas. In any case, double jeopardy is not an issue because the effect of undoing the 33.201(b) is to make it (legally) as though you were never prosecuted. If you were never legally prosecuted for the 33.021(b), jeopardy never attached.

      There is still the possibility of a constitutional attack on 33.021(c), and I have some other ideas about these cases, if your lawyer wants to drop me an email.


      • I’m aware that Florida law doesn’t apply. I was mainly just referring to the meat of their discussion about the part of being a single criminal episode and use of email and text being sustained in both statues as part of th grounds for double jeopardy.

        I am just brainstorming on technicalities here. Let’s say my original conviction hasn’t finalized yet in dismissal (which it hasn’t) and I go to trial under the new charge, then technically wouldn’t I be put into jeopardy since I am still technically convicted under the old charge? I’m not the expert but I just want to ask and cover the bases so I don’t become a nuisance.

        You may be familiar with me and my attorney as I have meet you before. My attorney named Patrick out of Dallas invited me to partake in that attorney retreat in late 2013 just south of Austin. You were leading the group at the time I do believe.

        I will see if he will contact you but I cannot guarantee.


      • No. For double jeopardy to prevent prosecution for crime Y because you have been prosecuted for crime X, Y and X have to be the same offense, or one has to be a lesser-included offense of the other. For one to be a lesser-included offense of the other, all of the elements of one have to be elements of the other. If each has an element that the other does not have (for example, “intent to arouse” and “intent to meet”) then they are separate offenses, and both can be prosecuted, even if both crimes were committed through the same conduct. “Let’s fuck” could have been prosecuted under (b), under (c), or under both.

  4. Ok, thank you. That helps to clear it up. I was hoping that would have been another avenue to fight and win.

  5. Mr. Bennett,
    I’m curious to know, are there some people would be entitled to compensation for wrongful imprisonment or does this not apply I this case? Or is there an open argument for that?

  6. Hello,

    Is there anything pending on any other parts of this law? Or is this law as it stands now intact for the foreseeable future?

    • There are a couple of viable attacks on it pending. The Court of Criminal Appeals has refused PDR so far, but I will keep trying until they grant it or until there are no more attacks to be made.

  7. Question,

    So if a random weird guy hits you up on a dating site or craigslist acting as a “young” girl convinced you to drive to meet this said person and it ends up being a big joke. Nothing happens. But on the other hand that person happens to be a cop acting as a “young ” person it’s illegal?? I don’t understand how this can be. From what I’ve seen if a sting for a drug deal takes place, the actual transaction happens before the cops swarm in.
    There is no victim. So In a sense it’s all a type of fantasy.
    I can’t tell you how many times in the past a guy poses as a girl to chat for fun. He just gets some crazy kick out acting as a girl. And you’d never know until the end!
    I still can’t wrap my head around how you can get in so much trouble for a fake person and nothing ever happened.

    • I’ve did some searches on the net and have found a case or two in another state where the judge threw out the case because the “victim” wasn’t real, it was a cop.

  8. If I went to the homeless shelter here in Austin and said hey, there is a bunch of cocaine at certain address for 1 dollar a pop. A bunch of people show up and they then get arrested for attempting to purchase drugs. It would never stand!!!

  9. Mr. Bennett I hate to bother you, but I have another concern.

    I have been removed from the Texas DPS website, but how do I go about removing myself from independent websites, such as texaspredators.com, homefacts.com, soarchive.com, etc.

    It seems like those sites don’t update their records.

    • That’s the problem with expunctions in the 21st century. It used to be that the government was the central repository for criminal information … mainly because that’s where everything took place (convictions, filings, etc.). It was public information but trying to obtain that information, especially in bulk, was onerous. And if your conviction was overturned … the courts deleted the documents and they would likely never be heard from again … unless you were famous.
      Enter the internet, online public data and the technology to “scrape” data every minute of every day in every jurisdiction on everyone … and a place to store it … and a fancy application to search and view that public data (google, spokeo).
      That data was public at some time … and therefore will be available for the ages. Even if the US were to do something as bizarre as forcing “online people search services” to remove legal expunction data … I’m sure some entrepreneur would setup an off-shore service to provide the same data … along with lots of paid advertisement (remember, there must be prosperity in good deeds).
      Getting an expunction today, in my view, is only of value for a small set of technical advantages. An expunction will not (can not) remove the “event” … it will remove the conviction … but the event still took place, it’s recorded and it will be searchable … forever. An expunction may help lower a loan rate or get approved for a home loan/credit card … it will allow you purchase a firearm … and, if someone really wants to hire you but is afraid your prior conviction would leave them liable for any accusations in the office (e.g., harassment charges) … then an expunction should provide some protection for that employer … although Greg Abbott would prefer you never be employed in Texas again (sorry, couldn’t help myself).
      I’ve seriously considered a name change … although Google’s face recognition will eventually catch up … maybe some botox and a nose job … a beard? I’m not a big fan of facial hair (sorry Mark) … or … I could just move on and continue to nurture those relationships that have supported me and helped me to become a better person. After all, what’s important … what makes life happy … are the people that share it with you.

    • I don’t like to Market but it seems like you’re in need of a little help. So here is what I tried to do. I did look up online for the same thing as you. Although I got my freedom it’s been rough getting a good job. So I found this website called [redacted]. They give you a little test and see if you’re eligible for expungement or perhaps non-disclosure. When I answered my penal code 33.021(b) it showed that I was eligible for expungement. However after paying approximately $1,400 to this team of lawyers I was unable to get it expunged. The only plus side that I got out of this was that they contacted 30 reporting websites I believe to update their list or take you off of their website. Yes I was granted a refund for not being able to get the expungement, but I did check those 30 websites did my information was nowhere to be found. I hope that the criminal court of appeals May one day grant any of those convicted under a void law to be able to get that law for conviction expunged.

  10. Any new updates on pending arguments against this law? The more I read and study up on attacks against all or portions of this law, the more it upsets me. I’m praying something more is done in these appeal processes.

    • Travis, the CCA has ordered briefing on 1) whether unconstitutionality can be raised for the first time on habeas; and 2) the constitutionality of 33.021(c). It is not my case, but I have read the briefs, and I think (2) could have been argued much better.

  11. Do you think there is a chance the CCA will hear the case? Also do you have a timeline this might take?

    • CCA has asked for briefing on the constitutionality of 33.021(c) along with whether unconstitutionality can be raised for the first time on habeas. If they answer the second question “yes” they will likely address the first.

      • Mr. Bennett,

        I want to thank you for all your work in getting 33.021(c) ruled unconstitutional. I was convicted by entrapment back in 2014 and while I am out on parole I am still hoping that this gets removed and I can try to get my life back. Is there a way to get updates on what is happening this, or a website that follows the pending cases? I would really like to be kept informed on the progress.

        Thank you!!!

        • CCA today granted PDR in Leax, and will hear argument. The issue there is whether 33.021(c) is a content-based restriction; if the CCA agrees with me that it is, they may send it back to the 9th Court to apply strict scrutiny.

  12. If I have a deferred from two and a half months ago can I hire a new attorney to review the case and see if something was missed. My attorney I used only cared about money and frequently made comments about its in court. I was convicted under C. I was lied to and set up but the evidence isn’t there, from what I know. I don’t think the attorney did shit. Even my probation officer has frequently said that I’m not high risk cause “there was no victim”!! How am I treated like the worst of the worst with no victim! I have more money now and am willing to peruse new legal counsel. The judge nor anyone made anything know to me the exact ramifications of the probation. A lot of what was not signed nor addressed till after all was said and done and I went to the probation office.. 20 days later! There is only one guy who handles this case load and he serves multiple counties. So I had to come back almost a month later. Small town.
    Any information would be helpful.

  13. What is the difference between a person convicted for sex crime under Texas Law where one is charged with Criminal Solicitation of Minor and the other is charged with Online Solicitation of Minor. Also, what Tier does it fall under Texas State Law and Federal Law for each of these crimes?

    • Mark,

      First thank you very much for fighting relentlessly against the government on the bullshit of internet sex stings conducted by law enforcement and other vigilantes. The internet sex stings do not catch sex predators–but rather manufacturer them and ruin not only people's lives, but also their families.

      If an individual is caught in an internet sex sting and charged with criminal solicitation of a minor INSTEAD of online solicitation of a minor, what defense(s) can used by the individual who is falsely accused?

  14. Mr. Bennett,
    I’ve been reading a lot of the comments about this statute, and Keep trying to pull up what the most current definition is on it. My husband was arrested 12/6/2016. He’s bonded out, and we are awaiting trial, unfortunately in Montgomery county. We have a horrible court appointed attorney, and he appears to be absolutely clueless about this statute. My husband had spoken briefly with an attorney about his case, and was told that it was not solicitation, however that attorney wanted $20K. There was no intent, nor were there any comments (via text) about meeting the other party. Yes the comments were not appropriate, however, when I read this statue, it clearly states whom the defendant believes to be a minor (under 17). This person was a co-worker at his former employer, The employee manual states one must be at least 17 to operate the equipment that that particular position utilizes. The PI, states it is his fault if he didn’t clarify that she was 16 instead of 17. There was a interview of said party at CPS, where she states they are just friends, there was never a request to meet, and nothing ever happened. They never saw each other outside of work.
    We feel like we are being Bamboozled by the court appointed that is retiring and the PI, that just want him to accept a plea instead of taking this to trial (scheduled on 10/2).
    I know in another state (Mass ? ) there is a case against the county for the meet and plead with indigent defense cases, and I feel like this is a type of discrimination based on a person’s inability to afford counsel that would put an effort into defending you. The prosecutor has changed, there is not really a witness list out, and we were just informed that the offer is now 9 years. (started out at 10, then 15, and now 9) The PI has told us that the prosecution may not have a case if she is being uncooperative and does not want to testify against him (which she doesn’t) this was all her grandmother’s doing.
    Sorry for being long winded, but I do not feel like we are being treated fairly., and by the way, twice the attorney has stated ” why don’t you just go to Australia”

    [email protected]

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