Revised Online Solicitation of a Minor Statute set for hearing this Wednesday.

As most defense attorneys in Texas know, the State’s Online Solicitation of Minor statute, Texas Penal Code Section 33.021, has run into trouble.  The Court of Criminal Appeals ruled part “b” of the statute unconstitutional in 2013 in the unanimous decision styled Ex parte Lo. The Court reasoned that the statute was overbroad and unconstitutionally vague, and that the speech it criminalized included too many types of speech protected the First Amendment of the Constitution.

Attacks of other parts of Section 33.021 have followed, most centering on either the problematic definition of “minor” (according to the statutory definition, a “minor” can be someone who represents themselves as younger than 17, regardless of whether the defendant actually believed this person to be the represented age) and on part d of the statute, which, strangely, prohibits a “fantasy” defense (so that a defendant could engage in sexual exchanges online that the person fully intended as merely age role-play, for example, with another person whom the defendant did not believe to be younger than 17, and still be guilty of a felony).

Attacks on other parts of 33.021 are percolating through the appellate system now, but at least the Beaumont Court of Appeals appears to be skeptical of further assaults on the statute. Take a look at Beaumont’s rejection of some of the above arguments in Ex parte Victorick. I’m not impressed with the reasoning of that opinion, but this may be a moot point, at least for those persons charged after September 2015.

Rep. Tony Dale has introduced House Bill 861, which aims to correct potential problems with the current law.

Here’s the suggested changes:

A BILL TO BE ENTITLED
AN ACT
relating to the prosecution of the offense of online solicitation
of a minor.
       BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
       SECTION 1.  Section 33.021(a)(1), Penal Code, is amended to
read as follows:
             (1)  “Minor” means:
                   (A)  an individual who is [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.
       SECTION 2.  Section 33.021, Penal Code, is amended by
amending Subsections (b), (d), and (e) to read as follows:
       (b)  A person who is 17 years of age or older commits an
offense if, with the intent to commit an offense listed in Article
62.001(5)(A), (B), or (K), Code of Criminal Procedure [arouse or
gratify the sexual desire of any person], the 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.
       (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].
       (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.
       SECTION 3.  The change in law made by this Act applies only
to an offense committed on or after the effective date of this Act.
An offense committed before the effective date of this Act is
governed by the law in effect on the date the offense was committed,
and the former law is continued in effect for that purpose. For
purposes of this section, an offense was committed before the
effective date of this Act if any element of the offense occurred
before that date.
       SECTION 4.  This Act takes effect September 1, 2015.

The purpose of HB861 is being spun as an effort to “narrow down certain legal definitions involving minors” and to provide Texas law enforcement with “the tools they need to protect Texas children from online predators.” See Rep Dale’s February 4, 2015 post here regarding his sponsorship of the bill.

But make no mistake about it, this bill is an attempt to correct a massive over-reach by the drafters of the original statute. As you can see from the suggested changes above, HB861 totally guts the original definition of minor, backtracks away from the preclusion of the “fantasy” defense, and ties the intent of the actor directly to offenses that trigger sex offender registration. In other words, our appellate courts may not be persuaded by the the on-going attacks on Penal Code section 33.021, but our Legislature certainly got rattled.

This bill is scheduled for public hearing this Wednesday, March 18. So stay tuned.