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Buying Sex in Texas: Texas is First State in USA to Make Solicitation of Prostitution a Felony Offense

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The term “john” is defined by the Merriam Webster Dictionary as “a man who pays money to a prostitute for sex.In some parts of the world being a john, i.e., buying sex, is legal – although that has never been the case in Texas.  For instance, just a few hours’ drive south on IH-35 from Dallas, and you’ll find that Mexico has a national law recognizing prostitution with thirteen Mexican states regulating sex-for-pay businesses and some Mexican cities allowing for “red-light districts.”

Another example: within a day’s drive from Dallas-Fort Worth area, it is also legal to buy sex right here in the United States: johns can frequent legalized prostitution establishments in a handful of counties within the State of Nevada.  While the Coronavirus Pandemic did shut brothel doors during quarantine orders, this spring the prostitution business in Nevada was re-opening and predicted to have a very profitable year.  Read, “Brothels near Las Vegas, legal sex workers prepare for reopening amid loosening restrictions,” written by Joe Bartels and published by KTNV on April 17, 2021.

Texas: First State in the Country to Make Buying Sex a Felony Crime

Of course, the attitude towards johns, and the commercial sex industry, is very different in Texas than it is in either Nevada or Mexico.  Anyone seeking to buy sex anywhere in the Lone Star State has always risked arrest, because any aspect of prostitution is illegal in Texas.

However, very soon things will become much more serious for johns who are caught by law enforcement because a new law becomes effective that re-defines the act of soliciting prostitution as a serious felony even if it is the customer’s first offense. For more, read “Texas becomes first state to ‘punish sex buyers with felonies’ written by Art Benavidez and published in the Dallas Express on July 7, 2021.

Attorney General Ken Paxton made the following statement regarding the new law:

“Texas is the first in the country to punish sex buyers with felonies, which is a substantial step towards curbing the demand for commercial sex. Human trafficking is modern day slavery – targeting vulnerable men, women and children in our communities. I commend our legislature for passing laws that fight this inexcusable offense.”

New Texas Penal Code §43.021: Full Text

On September 1, 2021, anyone arrested, charged, and convicted of being a john can be sentenced for committing a serious felony pursuant to HB1540.  The new law will appear within the Texas Penal Code as Section 43.021, entitled Solicitation of Prostitution, with the law providing as follows (full text)(emphasis added):

Sections 43.02(b) and (c-1), Penal Code, are transferred to Section 43.021, Penal Code, as added by this Act, redesignated as Sections 43.021(a) and (b), Penal Code, respectively, and amended to read as follows:

                       (a) [(b)] 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) [(c-1)] An offense under Subsection (a) [(b)] is a state jail felony [Class A misdemeanor], except that the offense is:

                             (1)  a [state jail] 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 [(b)]; 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. 

Texas Targets the Customer in Efforts to Combat Trafficking and Prostitution

Many voices are commending the State of Texas for passing this landmark legislation.  The idea to focus felony punishment on any individual who is purchasing sex is seen by some as a way to combat sex abuse and human trafficking in this country.  Explains National Center on Sexual Exploitation CEO Dawn Hawkins:

“Texas’ new law is a prime way to deter people from engaging in the sex trade and will decrease the demand for prostituted persons, ultimately shrinking the exploitation industry. We are grateful to Texas for implementing a strong solution to combat the demand and to hold men accountable.…

“Despite claims that prostitution is a job like any other, the truth is that there is lifelong physical, emotional, and mental trauma, from prostitution. This is why it is imperative to shrink the commercial sex trade, and the most efficient way to do that, which would solve sex trafficking and so many other ills, is to go after the people driving the demand for exploited persons.”

Solicitation of Prostitution Under the Old Texas Law

Johns were vulnerable to arrest in Texas before the passage of this new statute.  Buying sex has been illegal here for many years, defined in the criminal code within the definition of prostitution found in  Texas Penal Code §43.02(a), (b) which defines the crime of prostitution as either (emphasis added):

(a)  the person knowingly offers or agrees to receive a fee from another to engage in sexual conduct; or

(b) 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.

However, under Texas Penal Code §§43.02 – 43.06, these offers to buy sex are considered to be misdemeanors, increasing to felony charges only if the accused has been convicted on at least three prior occasions; then the offense raises to a state jail felony.  When children are involved, things escalate: it is a third-degree felony to solicit sex from someone between the ages of 14 and 18 years and it is a second-degree felony to do so when someone younger than 14 years of age Is involved.  Texas Penal Code §43.02(c).

From the current statute, prior to amendment:

(c)  An offense under Subsection (a) is a Class B misdemeanor, except that the offense is:

(1)  a Class A misdemeanor if the actor has previously been convicted one or two times of an offense under Subsection (a); or

(2)  a state jail felony if the actor has previously been convicted three or more times of an offense under Subsection (a).

(c-1) An offense under Subsection (b) is a Class A misdemeanor, except that the offense is:

(1)  a state jail felony if the actor has previously been convicted of an offense under Subsection (b); 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.

Solicitation of Prostitution Under the New Texas Penal Code §43.021

Under the new Texas law, it remains a crime to solicit prostitution even if no money is exchanged (or other form of payment) and/or no sexual conduct transpires.  It remains a crime in Texas merely to ask for sex in exchange for any type of payment. What is changing is the severity of punishment:  the new law increases the potential sentence facing anyone convicted of the crime of solicitation of prostitution.

Beginning September 1st, the arrested john will be charged with the new crime of “Solicitation of Prostitution” under Texas Penal Code §43.021 and will be facing a state jail felony or a 3rd degree felony sentence, and if a minor is involved, that of a felony of the second degree:

the person with whom the actor agrees to engage in sexual conduct is either (1) younger than 18 years of age, regardless of whether the actor knows the age of the person at the time of the offense; (2) represented to the actor as being younger than 18 years of age; or (3) believed by the actor to be younger than 18 years of age.

For more on sex crimes involving minors, read:

What is a State Jail Felony in Texas?

The Texas Legislature has created a range of felony punishments for criminal acts as defined by state law, and state jail felonies are the lowest level felony sentence.  The highest is a capital felony where the death penalty can be sought.  Texas Penal Code §12.04.

Those convicted of a state jail felony face incarceration for a time period ranging from six months (180 days) to two years along with a monetary fine of up to $10,000.  Texas Penal Code §12.35.

Criminal Defense after Texas Solicitation of Prostitution Arrests

Before this new statute was passed, experienced sex crime criminal defense lawyers in Texas knew prosecutors would try to find ways to boost the potential sentencing of offenders on solicitation of prostitution charges.  It’s not new to target johns in the fight against the commercial sex industry.

Not only has Texas, including Dallas, Fort Worth and other areas of North Texas, seen an increase in law enforcement arresting johns alongside prostitutes and pimps, but the various District Attorneys’ Offices have become more and more zealous in the state’s fight against human trafficking and child sex abuse, among other things.

The Texas Sex Crimes Criminal Defense Lawyer knows to expect clients arrested as alleged prostitution customers to have as many various criminal charges thrown against them as the state can find (stacking).  Defense attorneys have to fight in these cases, as for example aggressively pursuing prosecutors in plea negotiations to give first-timers the opportunity for pre-trial diversion, when they have no prior criminal record and no violence or any other aggravating factor involved in their case.

What is pre-trial diversion?  Pre-trial diversion allows the offender to complete a community service program and then to be able to get the case dismissed with a clear criminal record.  An aggressive criminal defense attorney, in the right circumstances, can successfully negotiate (plea bargain) the first-time offender to a pre-trial diversion and give that person a second chance at life without a criminal record for solicitation of prostitution following him in his future.

However, with the new statute and the felony charges facing even first-time offenders, the ability to negotiate for a second chance may not be as easily achieved.  Felony charges by definition are much more serious than misdemeanors, and solicitation of prostitution is a crime that law enforcement and state prosecutors are oftentimes emotionally invested in pursuing.

Accordingly, future criminal defense strategies become more complicated in these Texas Penal Code §43.021 cases.  The experienced sex crimes defense lawyer will focus upon every element of the prosecution’s case, looking for holes in the proposed evidence that is vulnerable to admissibility challenges as well as investigating law enforcement involvement for potential constitutional infractions, such as illegal search and seizures.  The defense will also involve an independent investigation into mitigating circumstances in the particular situation, and possible challenges to the charge itself (e.g., was this a “knowing offer” as required by the statute?).

For more, read:

Arrested for Buying Sex or Soliciting Prostitution in Texas: Criminal Defense

For those living in Dallas, Fort Worth, and the rest of Texas, it is perfectly legal to buy sex in Nevada or Mexico but it is a crime to do so anywhere in the Lone Star State.  Furthermore, beginning September 1, 2021, anyone who is arrested for offering to pay for sex is facing serious felony charges.  This is true even though the same act is considered a misdemeanor up and until midnight on August 31, 2021.  It is true even if the accused has no prior record and the situation did not involve any kind of aggravating factors (like carrying a weapon or using violence).

There are public policy reasons that must be considered in the defense of this cases.  Anyone arrested for solicitation of prostitution in the State of Texas is considered by victims’ advocates, law enforcement, and state prosecutors as being part of a wider problem involving exploitation.  Targeting those who are buying sex for felony charges is viewed as a way to decrease demand within the Texas commercial sex industry, while efforts continue to crack down on prostitutes and pimps in order to lessen its supply.

Having this new statute in hand is predicted to serve as incentive for more johns being arrested and facing felony charges in Texas.  Experienced Texas sex crime defense attorneys are preparing now for an increase in these new felony solicitation of prostitution cases.

For more on prostitution and trafficking crimes, read:

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read Sex Crimes in Texas: How Soon Do You Need to Call a Criminal Defense Lawyer?

 


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