Texas on-line solicitation of a minor statute vs. The 1st Amendment of the U.S Constitution

On-line solicitation of a minor for a sexual purpose, that is, with intent to commit a sexual activity with that minor, is one of the most investigated and targeted activities by both federal and state law enforcement in this day and age. The on-line solicitation as it is known as, is usually in the form of contact by electronic mail (e-mail), instant messaging, or other use of the Internet. 

The on-line communication with a "minor" (underage person), often a male contacting an underage female, becomes a violation of state and federal law when the conversation turns to content of a sexual nature to the extent that it appears that the contacting person is communicating in a sexually explicit manner with the contacted person.

The law has been changed in recent years, broadened, so that it not only encompasses communication with actual minors (as required by the old law), but now, also with law enforcement posing as minors. As you will see below, this was achieved by simply redefining the term minor  for purposes of the statute.

This change was to eliminate what had been a viable defense under the old law, that being that if no actual minor was involved, no crime had been committed. But the state legislature took it a step further in writing the new law by trying to envision any scenario that would be a defense and specifically listing it as a non defense, and I think they may have gone too far, and by doing so, written and unconstitutional law.  See if you can figure out why.

Hint: the problem I see is in BOLD

Below is the law in state courts in Texas against solicitation of a minor using the Internet (on-line solicitation), as set out in Texas Penal Code Section 33.021:

ONLINE SOLICITATION OF A MINOR (Texas Penal Code 33.021)
(a) In this section:
(1)”Minor” means:

     (A) an individual who represents himself or herself to be younger than 17 years of age; or

     (B) an individual whom the actor believes to be younger than 17 years of age.

(2) “Sexual contact,” “sexual intercourse,” and “deviate sexual intercourse” have the meanings assigned by Section 21.01.

(3) “Sexually explicit” means any communication, language, or material, including a photographic or video image, that relates to or describes sexual conduct, as defined by Section 43.25.

     (b) A person who is 17 years of age or older commits an offense if, with the intent to arouse     or gratify the sexual desire of any person, the person, over the Internet or by electronic mail or a commercial online service, intentionally:

(1) communicates in a sexually explicit manner with a minor; or

(2) distributes sexually explicit material to a minor.

(c) A person commits an offense if the person, over the Internet or by electronic mail or 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.

DEFENSES TO AN ON-LINE SOLICITATION CHARGE

The following are defenses to the On-Line Solicitation of a Minor per Section 33.021 of the Texas Penal Code, and are contained in paragraph (e) of this statute:

(e) It is a defense to prosecution under this section that at the time conduct described by Subsection (b) or (c) was committed:
(1) the actor was married to the minor; or
(2) the actor was not more than three years older than the minor and the minor consented to the conduct.

The following are not defenses to this state statute of on-line solicitation, as per the statute itself, Section 33.021. This portion of the statute actually prevents a person from claiming that he was not serious about the content of the communication with the minor:
(d) It is not a defense to prosecution under Subsection (c) that:
(1) the meeting did not occur;
(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.

So, what if two adults have a fantasy where one pretends to be a minor for purposes of their banter?  That, under this statute would still be a crime. 

You can call this type of fantasy play between adults anything you want: sick, twisted, kinky, unusual, perverted, hot, it doesn't matter. It would still be protected by the free speech provisions of the 1st Amendment of the U.S. Constitution, or at least it did when I went to law school.  This one could be coming back to bite them someday, or maybe not.

Comments are very welcome. 

If you or a loved one is facing charges of Online Solicitation of a Minor For Sexual Purposes in Texas, contact Matthew Arnold, Dallas defense attorney.

Don't believe the hype

The first thing a defense attorney needs to really acquire is a healthy distrust of all pretenses to authority. Question everything, not matter how seemingly authoritative the source. Sometimes, the guys that are supposed to uphold the law lie. It's sad, but true.

They may not be out to get you, that is rare. What happens more often than many realize is that they will lie to cover their asses, perhaps at your expense.

DWI laws in Texas a defense attorney's best friend

It's a not so well kept secret among criminal defense lawyers, but the ever increasing punishment for DWI cases is the defense lawyers best friend. Why? DWI cases, are offenses that an otherwise normal and productive citizen can run afoul of very easily. One too many drinks at an office happy hour, a lapse of judgement, and you could be looking at serious consequences.

Back when I was growing up, it was not uncommon to have Dad drive us kids around with a cold one in the console of the car. A DWI used to be a case where one could get deferred adjudication. No longer. Thanks to the good folks at Mothers Against Drunk Driving the laws have changed.

In Texas, the legal limit for intoxication is now .08 BAC (blood or breath alcohol concentration). It used to be .10

If law enforcement thinks your driving is impaired, you can be stopped and arrested for driving while intoxicated (DWI) regardless of your BAC. Penalties get worse with every DWI offense.

First conviction

$2,000 fine

Six months behind bars

Suspended driver's license for up to a year

$1,000 every year for three years to keep your driver's license

Second conviction

$4,000 fine

One year in jail

Suspended driver's license for up to two years

$1,500 every year for three years to keep your driver's license

Get two DWIs within five years and your vehicle will be equipped with an very expensive special ignition switch that prevents it from starting if you've been drinking.

Third conviction

$10,000 fine

Two to ten years in prison

Suspended driver's license for up to two years

$2,000 every year for three years to keep your driver's license

DWI with a kid in the car

Get arrested for drunk driving with a child under 15 in your vehicle, and it's a felony that comes with a $10,000 fine, two years in a state jail and losing your license for two years.

Needless to say, with these stiffer penalties, the otherwise law abiding and productive citizen (one who can afford a good criminal defense attorney) is more willing to fight such an accusation. After all, the key word in the list of penalties following a DWI conviction is just that, conviction.

So the irony is that the best friend of the criminal defense attorney in private practice are these increasingly draconian DWI laws. While I always sympathize with my clients, in the rare spells when business gets slow I sometimes joke with the police at the courthouse that they need to stop slouching off, get to work, and drum up some business for me.

(In truth, the best friend of the insurance defense lawyer is the plaintiff's lawyer, so the irony is not limited solely to criminal defense practice)

Questions or comments?

Please feel free to contact me via my website at www.arnoldlegal.com

Basement Flood Closes County Records Building

Basement Flood Closes County Records Building

Dallas County Criminal Database has DROWNED

For those of you not familiar with the wonderful local government we have here in Dallas county, it's the epitome of incompetence. Over the weekend the Dallas county records building flooded when an 8 inch water main broke. this flooded the basement where our wise county officials had the power and servers for all the counties computers. No one knows for sure if they will be able to get them up and running anytime soon, or if any data was lost. There was no offsite backup.

The Dallas county criminal courthouse is essentially shut down. If you have a loved one who was arrested over the Memorial day weekend, perhaps on a DWI, or a DUI, or any other misdemeanor criminal offense, it is going to take an extraordinary amount of time to get them bonded out and released from jail. In addition, the county just went" paperless", so all the criminal files including the indictments, police reports, etc. are unavailable to the defense lawyers, prosecutors, and judges. The Frank Crowley Courthouse is essentially shut down until that data can be retrieved and no one knows how long that will take. I will keep you posted if I hear anything new when it come available.

State Cases VS. Federal Cases: the snail and the rocket dockets

One of the biggest differences between State and Federal cases is the timeline. In a State case, your client may be arrested by a law enforcement agency and it could be weeks before the case is filed with the D.A.'s office, weeks before the case is presented to the Grand Jury (in the case of a Felony), and a few weeks before the trial prosecutors get the case and the real negotiations begin. If your client can't make bond for whatever reason, they could be sitting in jail for quite a while, but as a defense attorney you have a little time to do your own investigation before taking your initial stance with the prosecutors, and a great deal of time before the case would actually go to jury trial (if that is required).

Federal cases are a completely different animal. Because Federal cases must go to trial withing 90 days of the indictment being returned (unless that is later waived), the Federal law enforcement agencies and the US Attorney's offices investigate for months and perhaps years before they present their case to the Federal Grand Jury. The first time your client finds out that they are even under investigation may be after they are arrested on a post indictment warrant. When this happens, the attorney is given the discovery by the US attorney, usually a massive amount of information, and must make some key decisions in consultation with their client very quickly.

Case in point. I get a call yesterday at about 11:45 to represent a guy in Federal Court on a case. I am told to show up at 1:00. When I get there, I meet briefly with my client and at 1:01 the chamber doors open and the magistrate comes in and does the initial appearance hearing, the appointment of the attorneys, the arraignment, and detention hearings, all in about 10 minutes. I met the US Attorney handling the case and she gives me the discovery consisting of 5 Cd's of information! Today the judge issues a scheduling order giving us a motion deadline in two weeks and a trial date in May!

While I would never recommend choosing someone inexperienced in criminal jurisprudence to handle any criminal case, your buddy or relative who is an attorney might be able to get up to speed in the pace of a State prosecution. In a Federal case however, you had better go with someone who already knows what their doing because it's a fasten your seat belts, peddle to the metal game of chicken with a freight train in Federal Court.

Why I am here

As a former prosecutor with the Van Zandt County and Dallas County District Attorney's Offices and as a criminal defense attorney in private practice since 2003, I have had my share of battles, both in the courtroom and with all the characters that inhabit our criminal justice system. The purpose of this blog is to share some of the wisdom I have acquired that will hopefully help people who have to deal with "the system." Hopefully we can have a chuckle or two along the way.