Prostitution Crimes in Texas: Promotion of Prostitution and Compelling Prostitution

Arrested for Violation of Texas Penal Code §43.03 or TPC §43.05

Prostitution has been a thriving business in Texas for a long time; indeed, one could argue that sex workers have made their own significant contributions to the Lone Star State’s uniquely colorful and intriguing past.

Brothels: Integral Parts of Texas History

Consider, for instance, the infamous San Antonio brothel owned and operate by Fannie Porter in the late 1800s, where the “Wild Bunch” frequently visited and where the Sundance Kid allegedly met his wife, Etta Place.

You may remember the movie “Butch Cassidy and the Sundance Kid,” where Etta was played by Katherine Ross while Robert Redford portrayed the Sundance Kid and Paul Newman was Butch Cassidy.

Jump forward several decades, and another infamous Texas brothel comes to mind, also the subject of a major Hollywood movie:  the Chicken Ranch of La Grange, Texas.

Today, the town of La Grange promotes the Chicken Ranch as “the Oldest Continually Operating Non-Floating Whorehouse in the United States when it shuttered its doors in 1973,” and offers “souvenirs and memorabilia” at its online gift shop.

The story of the Chicken Ranch was made into a movie starring Dolly Parton as Miss Edna, the owner of the brothel, with Burt Reynolds playing the local county sheriff in 1982’s “The Best Little Whorehouse in Texas.”  The brothel also gained fame in ZZ Top’s hit song “La Grange.”

After the place was shut down, the Chicken Ranch building was bought and moved to Dallas, housing a restaurant on Greenville Avenue with Miss Edna serving as hostess.  The enterprise was not successful; for details on that story, read Texas Monthly’s article by John Nova Lomax entitled “The Road to the Chicken Ranch.”

Texas Lawmakers Define Business of Prostitution as Felony Crimes

Hollywood and Classic Rock aside, the Texas Legislature has been stalwart in its perception of the brothel business and prostitution activities in our state.  A series of laws have been passed to make prostitution illegal and to hold those who profit from it guilty of serious felony crimes.

The approach of Texas lawmakers to the crime of prostitution is to divide the focus of criminal laws into three areas:  (1) those actively providing sexual conduct in exchange for compensation, usually money (“the prostitute”); (2) those managing or overseeing their activities (“the pimp” or “the madam”); and (3) those paying for sexual conduct (“the john”).   All these activities are outlawed in Chapter 43 of the Texas Penal Code as “Public Indecency.”

Today, we will consider those who are arrested and charged for activities in either the promotion of prostitution or in compelling prostitution in the State of Texas, i.e., the pimp or the madam.

Prostitution Defined in Texas Penal Code 43.02

The crime of prostitution is defined in Section 43.02 of the Texas Penal Code as involving the following:

(a) A person commits an offense if the person knowingly offers or agrees to receive a fee from another to engage in sexual conduct.

(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.

Misdemeanor to Second Degree Felony

For those who are convicted of prostitution, Texas Penal Code 43.02 also provides the range of sentences that can be imposed by law.  They range from a Class B Misdemeanor (first offense) to a Second Degree Felony if the person with whom the actor agrees to engage in sexual conduct is:

• younger than 18 years of age, regardless of whether the actor knows the age of the person at the time of the offense;
• represented to the actor as being younger than 18 years of age; or
• believed by the actor to be younger than 18 years of age.

Texas Penal Code 43.02(c)(3).

Promotion of Prostitution

For those who are alleged to have assisted in the crime of prostitution by soliciting business or working with the prostitute in such a way that they receive compensation from the revenue generated by the prostituting activities, there are additional charges which can be filed against them.

As “pimps,” or “madams,” these individuals may face charges of prostitution (as defined above) along with violating Texas Penal Code 43.03 which makes the promotion of prostitution illegal in the State of Texas.

Promotion of Prostitution is defined as when a person, acting other than as a prostitute, receives compensation for personally rendered prostitution services, and he or she knowingly:

• receives money or other property pursuant to an agreement to participate in the proceeds of prostitution; or
• solicits another to engage in sexual conduct with another person for compensation.

Texas Penal Code 43.03(a).

Felony Sentencing for Promotion of Prostitution

Anyone sentenced for promotion of prostitution in Texas is facing significant incarceration time because this is defined as a felony under the law.  There is range in felony punishment, however, defined in the statute as follows:

An offense under this section is a state jail felony, except that the offense is:

(1) a felony of the third degree if the actor has been previously convicted of an offense under this section; or

(2) a felony of the second degree if the crime involving a person younger than 18 years of age engaging in prostitution, regardless of whether the actor knows the age of the person at the time of the offense.

Texas Penal Code 43.03(b).

Aggravated Promotion of Prostitution: The Prostitution Enterprise

The crime of Promotion of Prostitution involves only one person who is offering sexual conduct for money.  For those who “knowingly owns, invests in, finances, controls, supervises, or manages a prostitution enterprise that uses two or more prostitutes,” there is a separate charge under Texas Penal Code 43.04 for “Aggravated Promotion of Prostitution.”

This crime is considered a second degree felony, and can be enhanced to a first degree felony if the prostitution enterprise uses as a prostitute one or more persons younger than 18 years of age, regardless of whether the actor knows the age of the person at the time of the offense.

Texas Penal Code 43.04(a),(b).

Compelling Prostitution

Pimps and madams may also be charged with the distinct crime defined in Texas Penal Code 43.05 as Compelling Prostitution.  Here, the charge is that the person knowingly:

(1) causes another by force, threat, or fraud to commit prostitution; or

(2) causes by any means a child younger than 18 years to commit prostitution, regardless of whether the actor knows the age of the child at the time of the offense.

This is another, independent felony charge.  It is a second degree felony unless the prostitute is  under the age of 18 years; compelling prostitution of a minor is a first degree felony in Texas.

Texas Penal Code 43.05(a)-(c).

Law Enforcement Focus:  Sex Trafficking and Prostitution Rings

Today, most law enforcement efforts are concerned with prostitution profits that are being generated by criminal organizations, including eight Mexican Drug Cartels as well as the various transnational gangs that operate in Texas.

For more on these organizations, read our earlier discussion of the drug cartels doing business in Texas (Sinaloa, Juarez, Gulf, etc.) as well as Tier 1 gangs like Tango Blast, MS-13, etc.

The Sex Business in Texas: Fastest Growing Business of Organized Crime

In its latest “Texas Public Safety Threat Overview,” the Texas Department of Public Safety (DPS) described sex trafficking as “… the fastest-growing business of organized crime and the third-largest criminal enterprise in the world. “  Report, page 18.

See, e.g., SEN, LAW ENFORCEMENT. “Texas Public Safety Threat Overview.” (2017).

Use of Minors in the Prostitution Enterprise

According to DPS, the main concern of both state and local law enforcement agencies is the use of minors in prostitution enterprises.   Often, joint task forces will be formed in order to investigate and charge sex traffickers (pimps, madams) who are coordinating underage prostitutes in meeting with customers and generating revenue for the illegal operation.

See, e.g.:  Gang Crime Charges: Increasing Prosecution of Gang-Related Crimes in Texas.

Marketing, Transportation, Recruitment

How does the business operate? It is understood that the pimp/madam will not only handle marketing but also transportation.  Sometimes, sophisticated routes are established between cities or states so prostitutes can rotate from place to place.  Often, hotels are used near interstates to host the enterprise while they are operating in that area.

Arrests can include pimps/madams in the act of recruiting or transporting as well as controlling their workers along with advertising or marketing their business to potential customers (johns).

The DPS study describes how investigators look for sex traffickers seeking out young people who are especially vulnerable to their proposals, such as under-age runaways and illegal aliens.  It is part of the crime to lure these people into the sex business in any way whatsoever, from threats of physical violence to emotional manipulation and fraud.

Someone who is in dire need of a warm place to stay, a hot shower, or a good meal, may be lured into a prostitution enterprise by the pimp / madam.  Social media on the internet is another source for recruitment of workers for the prostitution business.

Evidence of these recruitment efforts can be used as part of the charge of compelling prostitution.

Law enforcement will work to demonstrate that efforts to help those in great need (physically or emotionally) are in reality criminal acts of coercion with the goal of recruiting the individual into the prostitution operation.

One example provided in the DPS report comes out of Houston, where three women and one man were caught and convicted of running a prostitution enterprise set up in local apartments (“apartment brothels”).   They had recruited illegal aliens to provide commercial sex at the rate of $40 / 15 minutes in the apartments.  Report, page 19.

Cartels and Gangs

According to Texas authorities, law enforcement investigators understand that prostitution offers “high profits” and that transnational gangs operating in Texas consider prostitution to be a “preferred, low-risk alternative to other criminal activities such as drug trafficking, robbery, and theft.”  Report, page 20.

Compelling prostitution and acting as a pimp/madam is seen as a lucrative branch of the gang’s illegal business enterprises.  DPS also documents that in addition to gang endeavors, individual members of these gangs may moonlight in their own side-gig prostitution operation.   Report, page 20.

Defending against Charges of Promotion of Prostitution or Compelling Prostitution

For those who are arrested as alleged pimps or madams, and either promoting and/or compelling prostitution, it is important to understand the defense strategy can be complicated in these cases.

1.  Statutes Providing Evidence for the Prosecution

First, there are advantages provided to the prosecution in building the state’s case that are provided by statute:

A.  Defense for the Worker in Compelling Prostitution Prosecutions

The Texas Penal Code provides a specific defense to anyone who might otherwise  face arrest as a prostitute under Texas Penal Code 43.02 if they can show they engaged in the activity because they were a “victim of conduct that constitutes an offense under Section 20A.02 (human trafficking) or 43.05 (compelling prostitution).”  Texas Penal Code  43.02(d).

This means that anyone arrested and facing felony charges for compelling prostitution can expect the prosecution to use witness testimony from those involved in prostitution activities as part of its case against the pimp/madam.

B.  Prosecution Can Use Accomplice Witness Testimony and Immunity

Additionally, under Texas Penal Code 43.06, anyone facing charges of prostitution, promoting prostitution, or compelling prostitution, may be forced to provide evidence for the government with a promise of immunity (i.e., snitch):

 (b) A party to an offense under this subchapter may not be prosecuted for any offense about which he is required to furnish evidence or testify, and the evidence and testimony may not be used against the party in any adjudicatory proceeding except a prosecution for aggravated perjury.

(c) For purposes of this section, “adjudicatory proceeding” means a proceeding before a court or any other agency of government in which the legal rights, powers, duties, or privileges of specified parties are determined.

(d) A conviction under this subchapter may be had upon the uncorroborated testimony of a party to the offense.

Texas Penal Code  43.06.

2.  Arrests Possible On Probable Cause

Second, arrests can be made on evidence that is much less than the burden of proof to be met at trial.

The District Attorney’s Office can file charges against someone for compelling prostitution or promoting prostitution as long as they find “probable cause” that you committed the crime(s).  You can be arrested on evidence that might never be enough to convince a jury: probable cause is a long way from “beyond a reasonable doubt.”

Still, these kinds of charges can be extremely harmful.  Jobs can be lost, families can break apart, and lives can be destroyed on arrests for these kinds of criminal charges – even if the charges are later dismissed.

3.  Arrests Based Upon Any Means of Compelling the Act if Minor Involved

Third, it is important to understand the ADA need only find evidence that you did something to compel an underage worker to offer sexual services for compensation.  There is no need under the law for there to be evidence of scary threats of violence, or actual violence or force.

If you knowingly cause “by any means” someone under the age of 18 to commit prostitution, then you can be charged (and convicted if proven).

This gives the prosecution lots of leeway in interpreting the evidence to support a charge of compelling prostitution when a minor is involved.

Criminal Defense to Compelling or Promoting Prostitution Charges in Texas

The crimes of compelling prostitution or promoting prostitution are often brought alongside other charges, including human trafficking, drug possession or distribution, and perhaps conspiracy, money laundering and other allegations affiliated with gang activities or cartel operations.

Accordingly, criminal defense in these matters may be complex and multi-faceted.  While instituting an independent investigation into the underlying facts, the defense lawyer must also consider the extent of the prosecution’s file and the evidence he or she intends to use against the accused in the case.

There must be a consideration of the state investigation in detail, as well.  Was there a search? Was it legal? Were there privacy violations during surveillance?  Was the arrest improper?

Motions to suppress evidence may be needed.  Constitutional challenges based upon invasions of the right to privacy or illegal search and seizure may be required.

See, e.g.:

• What is a Motion to Suppress?
• Do Police Need Search Warrants to Access Digital Information?  The Importance of Carpenter v. United States
• The Police and Your Phone: Invasion of Privacy by Police.

Finally, plea negotiations must be considered where a dismissal or a lessening of the charges and/or sentencing are considered.

Anyone facing charges of compelling prostitution or promotion prostitution is facing serious felony charges and significant prison time, especially if a minor is involved.  Having an immediate, zealous criminal defense strategy is imperative.

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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.”