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Online Solicitation of a Minor: Texas Penal Code §33.021

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One of the many consequences of the unprecedented COVID-19 Pandemic has been the skyrocketing use of the internet by minors, since remote schooling for many required the ability to access the web.  More children in the United States are online than ever before.  Read, “Growing up on screens: How a year lived online has changed our children,” written by Heather Kelly and published in the Washington Post on March 5, 2021.

Of course, from a criminal defense perspective, this upswing in internet usage by minors is a red flag for corresponding increases in state and federal law enforcement investigations into criminal activities involving minors online, including specifically the violation of Texas Penal Code §33.021 for Online Solicitation of a Minor.

Online Sting Operations Focusing Upon Online Solicitation Arrests

Law enforcement has become adept, in particular, at online sting operations where police officers or investigators are trained to mimic children and teenagers online, using their vernacular and understanding their social culture and norms. These professionals enter into communications with subjects on the internet via social media, chat rooms, etc. When the topic turns to something sexually-related, the subject may end up arrested for violating Texas Penal Code §33.021 even if they had absolutely no intent of having sex with someone who is under the age of adulthood.

These sting operations happen all the time.  Sometimes, it involves only state or local law enforcement; in other scenarios, there is a coordinated effort between federal and state authorities.  See, e.g.:

Of particular impact are the coordinated efforts between various state and federal agencies to combat Human Trafficking in the State of Texas, where sting operations can result in arrest for the online solicitation of minors as defined in Texas Penal Code §33.021. Read, Texas Human Trafficking Prevention Task Force Report, December 4, 2020, page 10.

Criminal charges based upon the state criminal statute prohibiting solicitation of a minor via the internet can be some of the most serious and tough allegations that an accused can face in Texas.  It is extremely important that anyone being investigated or charged for online solicitation of a minor consider obtaining criminal defense representation to advocate on their behalf as soon as possible. 

Who is Considered a Minor Under Texas Penal Code §33.021?

The Texas Legislature has drafted a special definition for “minor” when considering the crime of online solicitation which bears careful consideration.  This is because it is possible to arrested and charged for violation of TPC §33.021 even though no one under the age of legal consent is involved in the circumstances.

Two adults can be involved in the situation and one of them can still be arrested for online solicitation of a minor in Texas.

TPC §33.021 defines “minor” as:

(A)  an individual who is younger than 17 years of age; or

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

Key here is the belief of the person charged that the adult was not at least 17 years old.  The word “believes” is not defined by the statute.  Understandably, there have been significant challenges to this statutory definition pursued by defendants in the appellate courts.  In fact, the definition of “minor” has already been amended once (in 2015) in response to constitutional concerns.  See, e.g., Ex parte Ingram, 533 S.W.3d 887 (Tex. Crim. App. 2017).

Still, individuals need to understand this is good law in the Lone Star State.  Furthermore, federal, state, and local law enforcement today are very (VERY) active in the investigation and pursuit of individuals engaged in behavior which they deem to be in violation of TPC §33.021 as the illegal online solicitation of a minor.

What is the Crime of Online Solicitation of a Minor in Texas?

According to Texas Penal Code §33.021(b), anyone who is at least 17 years old has committed the crime of online solicitation of a minor in Texas if:

  • First, they have the intent to commit an offense listed in Texas Code of Criminal Procedure Art. 001(5)(A), (B), or (K); and then,
  • Second, this person, over the Internet – by electronic mail or text message or other electronic message service or system, or through a commercial online service – intentionally:

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

(2)  distributes sexually explicit material to a minor.

Notice how wide the phrase “sexually explicit” applies here: it can be read to include all sorts of communications, materials, images, etc., related to sexual behavior or conduct.  As a result, these allegations can overlap with charges of possession or distribution of child pornography.

There is also the arranging-a-date violation.  Pursuant to TPC §33.021(c), it is also illegal Online Solicitation of a Minor if a person who is 17 years old or older 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.

One key factor from a criminal defense perspective is the defined age of someone who can be arrested on this serious Texas online solicitation charge.  The accused need be only a 17-year-old teenager and he or she can meet the statutory definition of a criminal under TPC §33.021.

As for the terminology within the statute:

  • “Sexual contact,” “sexual intercourse,” and “deviate sexual intercourse” have the meanings assigned by TPC 21.01; and
  • “Sexually explicit” means any communication, language, or material, including a photographic or video image, that relates to or describes sexual conduct, as defined by TPC 43.25.

Defenses to TPC §33.021 Online Solicitation of a Minor

The statute does provide some defenses to prosecution within its own language.  It also makes it clear that it is not a defense under that any arranged meeting did not occur as described in TPC §33.021(c).  See, TPC §33.021(d).  If the date didn’t happen, an arrest can still be made.

Changing one’s mind will not be enough to avoid criminal charges for the online solicitation of a minor.  As the courts have explained, quoting from McCann v. State, No. 02-19-00397-CR (Tex. App. Oct. 29, 2020):

The “gravamen of the offense” under Subsection (c) is the “knowing solicitation of a minor to meet a person, with the intent that the minor will engage in some form of sexual contact with that person.” Ex parte Zavala, 421 S.W.3d 227, 231-32 (Tex. App.-San Antonio 2013, pet. ref’d). This crime “is committed, and is completed, at the time of the request, i.e., the solicitation,” and the requisite intent “arises within the conduct of soliciting the minor and must exist at the time of the prohibited conduct of solicitation.” Id. at 232. That is, the offense has been committed even if “the solicitor lost the specific intent to meet or changed his mind about meeting after the solicitation occurred.” Ganung v. State, 502 S.W.3d 825, 829 (Tex. App.-Beaumont 2016, no pet.)see Tex. Penal Code Ann. § 33.021(d).

However, according to the Texas legislature, no crime has been committed as described by described in TPC §33.021(c) if:

  • the actor was married to the minor; or
  • the actor (a) was not more than three (3) years older than the minor; and (b) the minor consented to the conduct. For more, read When Sexting Is A Crime in Texas.

There are also defenses that exist in other areas of the law, as well as within case precedent, that may apply in the specific matter outside the defenses provided within the statute itself.  These include challenges to the sufficiency of the evidence (hearsay, admissibility, etc.) as well as constitutional challenges that include how this very broad statute, as applied in the particular case, may be an unconstitutional application of the law by the prosecution.

Punishment: Online Solicitation of a Minor is Serious Felony Offense

Pursuant to the statute, a violation of TPC §33.021 results in a felony conviction of varying severity depending upon the offense involved:

  • An offense under TPC 33.021(b) is a felony of the third degree, except that the offense is a felony of the second degree if the minor is younger than 14 years of age or is an individual whom the actor believes to be younger than 14 years of age at the time of the commission of the offense.
  • An offense under TPC 33.021(c) is a felony of the second degree.

Both felony convictions come with serious jail time.  Anyone sentenced to second degree felony punishment faces imprisonment in the Texas Department of Criminal Justice system (TDC) for two (2) to twenty (20) years.  The sentence also comes with a monetary fine of up to $10,000.00.  TPC §12.33.

Conviction for a third-degree felony results in TDC imprisonment for two (2) to ten (10) years, and a monetary fine of up to $10,000.00.  TPC §12.34.

Things can become much more serious for the accused than a conviction for a single count of violating TPC 33.021, however.  Not only can the prosecution pursue charges for more than one offense or count under this statute, but the state may also prosecute the accused for violations of other criminal statutes that deal with sexual activity and minors, such as child pornography if the facts will support additional charges.

If the state is successful here, these convictions will result in additional jail time, and the years can quickly add up to a significant, if not lifetime, term of imprisonment.

TPC §33.021 makes it clear that this is allowed in Texas by stating that “[i]f conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section, the other law, or both.”

Sex Offender Registry

Another punishment facing anyone who is arrested, charged, and convicted of Online Solicitation of a Minor is the likelihood they will be required to register with the State of Texas as a sex offender.

Conviction for violating TPC §33.021 is a reportable conviction as defined in Texas Code of Criminal Procedure §62.001(5)(J).  It comes with a ten (10) year post-discharge under TCCP §62.101(b),  which provides that the duty to register “… ends on the 10th anniversary of the date on which the person is released from a penal institution or discharges community supervision or the court dismisses the criminal proceedings against the person and discharges the person, whichever date is later ….”

See also, the Texas Department of Public Safety Comparison Table, “Texas Length of Duty to Register Compared to the Minimum Required Registration Period Under Federal Law (34 USC §20911),”  published January 2021.

For more on the Texas Sex Offender Registry, read:

Criminal Defense of Texas Arrest for Online Solicitation of a Minor

It is possible to defend against the serious felony charge of Online Solicitation of a Minor in Texas.  An experienced Texas sex crimes criminal defense attorney will understand the intricacies of the state’s investigations and how best to counter the prosecution’s stance.

  • Legal research is important, as the defense may include a variety of issues addressed by case precedent, including illegal search and seizure and other constitutional concerns.
  • Defending against charges of Online Solicitation of a Minor will also involve a detailed evaluation of the prosecution’s case, item by item. This can be followed by defensive motions, such as a Motion to Suppress any evidence that fails to meet legal muster.
  • Investigation into the defendant’s past criminal history (if any) must be undertaken, as well: someone with a clean record will be viewed differently by the judge than someone with a lengthy record.

Anyone who suspects they may be a target of a state investigation into online solicitation of a minor will be wise to enlist the aid of a criminal defense attorney as soon as possible.  These are serious felony charges that come with significant social stigma and the ramifications can be permanent for both the accused and his family and friends, even if there is only an allegation without a successful conviction.

For more, read:

  1. New Texas Sex Crimes:  The Online Prostitution Laws Effective September 1, 2019;
  2. Photographs as Sex Crimes: Changes to the Texas Revenge Porn Law (Texas Penal Code §21.16);
  3. Online Impersonation: Catfishing is Illegal in Texas;
  4. Federal Child Pornography Charges Often Involve Federal Surveillance of Online Communications, Personal Email Records, Stored Computer Files; and
  5. Expect More People to Face Child Pornography Charges as Online Investigation into E-Mail and Search Queries Expand in 2014.

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article,” Pre-Arrest Criminal Investigations.”

 


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