Prostitution: Texas Penal Code §43.02

The Texas Prostitution law makes it illegal to offer or agree to receive a fee from another to engage in sexual conduct, thereby prohibiting the selling of sex.

The Texas legislature codified this criminal offense in Texas Penal Code Section 43.02. The legislature made significant changes to the Prostitution offense over the course of several legislative sessions.

The “John” version of the Prostitution offense in Texas is Solicitation of Prostitution, in that that law prohibits agreements to pay and offers to pay. Prostitution, on the other hand, prohibits offers to receive and agreements to receive.

There are several other offenses related to Prostitution, including Compelling Prostitution, Promotion of Prostitution and Aggravated Promotion of Prostitution. The state of Texas prosecutes these offenses aggressively, even if no one is hurt.

The Penal Code codifies the Texas Prostitution law under Title 9 “Offenses Against Public Order and Decency,” Chapter 43 “Public Indecency.” These “public indecency” crimes are sex crimes, but they are not of a violent or assaultive nature. Learn more about the Texas offense of Prostitution below.

What is the current Texas law about Prostitution?

The current Texas law defines the offense of Prostitution in Penal Code Section §43.02 as follows:^[1]

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

The definitions section at the beginning of Chapter 43 of the Penal Code provides a definition for “sexual conduct” that applies to this statute – “sexual conduct includes deviate sexual intercourse, sexual contact, and sexual intercourse.”^[2]

In 2017, the legislature also added a definition of “fee”:^[3]

“Fee” means the payment or offer of payment in the form of money, goods, services, or other benefit.

The Statutory History – How We Got Here

The Texas Prostitution law has changed numerous times in the last few years. The Texas Prostitution law was expanded significantly in 2015^[4] to cover the conduct of “Johns” (the people paying for sex), and then the law changed again in 2017 and 2021. In 2017, the offense of Prostitution was described as follows (the language in strikethrough was removed in 2017, and language in brackets was added in 2017):^[5]

(a) A person commits an offense if, in return for receipt of a fee, the person knowingly [offers or agrees to receive a fee from another to engage in sexual conduct]:

[(1) offers to engage, agrees to engage, or engages in sexual conduct; or

(2) solicits another in a public place to engage with the actor in sexual conduct for hire.

(b) A person commits an offense if, based on the payment of a fee by the actor or another person on behalf of the actor, 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]:

(1) offers to engage, agrees to engage, or engages in sexual conduct; or

(2) solicits another in a public place to engage with the actor in sexual conduct for hire.

(b-1) An offense is established under Subsection (a) regardless of whether the actor is offered or actually receives the fee. An offense is established under Subsection (b) regardless of whether the actor or another person on behalf of the actor offers or actually pays the fee.

Therefore, under the law as it existed at that time, you could be convicted of Prostitution whether you were offering to pay or be paid for sex (whether you were the “prostitute” or the “John”).

In 2019 the legislature repealed subsection (b-1).^[6] Then, in 2021, the legislature removed all of the law related to “Johns” in subsections (b) and transferred it along with the accompanying penalty provisions in subsection (c-1) to a new offense they created called Solicitation of Prostitution.^[7]

Can I be charged with prostitution if I…?

You can be charged with Prostitution if the police or other law enforcement believe that you engaged or attempted to engage in the exchange of sex for money. Virtually any sexual behavior could possibly qualify. It does not matter whether any sexual activity eventually occurred because it is the “offer” and “agreement” that is outlawed under the law, but evidence of sexual activity could be used to support the state’s prosecution case.

Law enforcement agencies frequently engage in “stings” to catch both “prostitutes” (those who are offering sex for money) and “Johns” (those who offer to pay for sex). Sometimes these prostitution stings can catch innocent bystanders. But frequently, law enforcement will charge anyone caught up in the sting with a Prostitution offense and “let the courts sort it out later.”

What happens if I plead guilty to a prostitution charge?

If you plead guilty or “no contest” to a “typical” Class B Prostitution charge, one of several outcomes may occur:

• 1. You may be found guilty and sentenced to jail and/or a fine. If you are sentenced to jail time, you will serve in the county jail unless you get a time served conviction, in which case you will not do any additional jail time.
• 2. You may be found guilty and sentenced to community supervision (probation). If you are sentenced to a term of community supervision, you will be released to the supervision of the court, and the court will impose certain restrictions on you for several months.
• 3. The judge may not enter a finding of guilt and instead place you on “deferred adjudication community supervision.” This is identical to the community supervision described above, except that if you complete the term successfully, your case will be dismissed and you will be eligible to receive an order of non-disclosure, removing most of the records of the arrest. However, the state will still be able to use this to enhance any future Prostitution convictions to a higher penalty level.

Are there any defenses to prosecution?

There is one defense to prosecution described in the statute:^[8]

It is a defense to prosecution for an offense under Subsection (a) that the actor engaged in the conduct that constitutes the offense because the actor was the victim of conduct that constitutes an offense under Section 20A.02 or 43.05.

A defense to prosecution means that you can be found not guilty even if you violated the law. You would have to raise evidence of the defense at trial, and if a judge finds that you raised enough evidence, the judge would enter a charge in the jury instructions that would require the state to prove that the defense did not apply to you.

What happens if I am arrested for prostitution?

If you are arrested for Prostitution, the first thing that will happen is that you will be booked into jail or issued a citation to appear before a judge at a later date. Sometimes the police may inform you that they will seek a warrant at a later date. Once you appear before a magistrate judge, the judge will set a bond. If you are able to post the bond, you will be released from jail and certain conditions will be set for you to obey while you are on bond. After you are arrested or charged with the crime of Prostitution, the record of the arrest may be visible to the public. However, the record will indicate only that you have been arrested or charged, not that you have been convicted.

How can I be charged with a Prostitution offense in Texas?

You can be charged with Prostitution in Texas if the state’s attorneys believe that each of the elements of 43.02 as described in the section above have been met.

While police stings sometimes seem to focus on sex trafficking and underage sex crimes, police do still regularly target regular people engaged in the sex trade. One of the more recent examples of this resulted in the arrest of 11 people.

What is the statute of limitation for Prostitution in Texas?

Misdemeanor level Prostitution charges have a two-year limitations period.^[9] Felony level offenses have a three-year limitations period.^[10]

What is the penalty for a Texas Prostitution offense?

Convictions for first-offense Prostitution convictions are currently punished as a Class B misdemeanor.^[11] For second and third convictions, Prostitution is classified as a Class A misdemeanor.^[12] For fourth and subsequent convictions, Prostitution is classified as a state jail felony.^[13] Also, note that under this statute, any plea of guilty, even if you got deferred adjudication, counts as a conviction.^[14]

The law regarding penalty level classifications for the Prostitution offense has changed numerous times over the past few years. Most recently, in 2023, the legislature “transferred” subsection (c-2), which created a penalty enhancement for Prostitution offenses that occurred near schools, to the Solicitation of Prostitution offense and redesignated it as subsection (b-1) there.^[15] Subsection (c-2) was itself enacted by the legislature in the immediately prior legislative session in 2021.^[16]

Can you get probation for Prostitution in Texas?

The Texas Code of Criminal Procedure allows both judges and juries to grant probation for Prostitution, and judges are also allowed to accept deferred adjudication plea deals.^[17]

Effective as of September 1, 2019, under certain circumstances, a judge must grant you community supervision after a Prostitution conviction.^[18] However, there are also mandatory probation conditions.^[19]

Do I have to register as a sex offender in Texas if guilty of Prostitution?

The Prostitution offense does not currently appear on the list of offenses requiring registration under Chapter 62 of the Texas Code of Criminal Procedure.^[20]

Prior to September 1, 2021, Prostitution did appear on the list, but only in one specific circumstance.^[21] In 2021, the legislature removed Prostitution altogether from the list of offenses requiring registration and added Solicitation of Prostitution, the “John” corollary to the Prostitution offense.^[22]

However, the legislature can add this offense back to the list at any time. If that happens, people convicted of Prostitution would have to register, even if the offense did not appear on the list at the time they accepted a deferred adjudication plea (even if later dismissed), pled guilty or were founty guilty.

What level of crime is Prostitution in Texas?

The Penal Code classifies Prostitution as a Class B misdemeanor, Class A misdemeanor, or state jail felony, depending on the circumstances.

Learn more about the penalty range for this offense in the section above.

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Legal References:

^1. Texas Penal Code §43.02. This law is current as of the 88th Legislature Regular Session.^2. Texas Penal Code §43.01(4)^3. See HB 29, 85th Legislature, Section 35. Originally codified at Texas Penal Code §43.01(1-a), the “fee” definition later moved to §43.01(1-b)^4. See SB 825, 84th Legislature, Section 1. The law effective until September 1, 2015, was as follows:

(a) A person commits an offense if, in return for receipt of a fee, the person knowingly:

(1) offers to engage, agrees to engage, or engages in sexual conduct for a fee; or

(2) solicits another in a public place to engage with the person in sexual conduct for hire.

(b) An offense is established under Subsection (a)(1) whether the actor is to receive or pay a fee. An offense is established under Subsection (a)(2) whether the actor solicits a person to hire the actor or offers to hire the person solicited.

The law effective until September 1, 2017, is as follows:

(a) A person commits an offense if, in return for receipt of a fee, the person knowingly:

(1) offers to engage, agrees to engage, or engages in sexual conduct; or

(2) solicits another in a public place to engage with the actor in sexual conduct for hire.

(b) A person commits an offense if, based on the payment of a fee by the actor or another person on behalf of the actor, the person knowingly:

(1) offers to engage, agrees to engage, or engages in sexual conduct; or

(2) solicits another in a public place to engage with the actor in sexual conduct for hire.

(b-1) An offense is established under Subsection (a) regardless of whether the actor is offered or actually receives the fee. An offense is established under Subsection (b) regardless of whether the actor or another person on behalf of the actor offers or actually pays the fee.

^5. See HB 29, 85th Legislature, Section 36, effective September 1, 2017^6. HB 29, 85th Legislature, Section 44(2)^7. HB 1540, 87th Legislature, Section 29^8. Texas Penal Code §43.02(d)^9. Code of Criminal Procedure 12.02(a)^10. See Code of Criminal Procedure 12.01(9)^11. Texas Penal Code §43.02(c)^12 Texas Penal Code §43.02(c)(1)^13. Texas Penal Code §43.02(c)(2)^14. Texas Penal Code §43.02(d)^15. HB 4595, 88th Legislature, Section 17.003, and SB 1527, 88th Legislature, Section 2.04^16. SB 1831, 87th Legislature, Section 9^17. See Chapter 42, Texas Code of Criminal Procedure, Art. 42A.054, Art. 42A.056, Art. 42A.102 .^18. Code of Criminal Procedure, Article 42A.515(a),(b),(e) and (f), as enacted by SB 20, 86th Legislature, Section 2.01–

Art. 42A.515. COMMUNITY SUPERVISION FOR CERTAIN PROSTITUTION OFFENSES.

(a) Except as provided by Subsection (e), on a defendant’s conviction of a Class B misdemeanor under Section 43.02(a), Penal Code, the judge shall suspend imposition of the sentence and place the defendant on community supervision.

(b) Except as provided by Subsection (e), on a defendant’s conviction of a state jail felony under Section 43.02(c)(2), Penal Code, that is punished under Section 12.35(a), Penal Code, the judge shall suspend the imposition of the sentence and place the defendant on community supervision. This subsection does not apply to a defendant who has previously been convicted of any other state jail felony under Section 43.02(c)(2), Penal Code, that is punished under Section 12.35, Penal Code.

….

(e) In any case in which the jury assesses punishment, the judge must follow the recommendations of the jury in suspending the imposition of a sentence or ordering a sentence to be executed. If a jury assessing punishment does not recommend community supervision, the judge must order the sentence to be executed in whole.

(f) The judge may suspend in whole or in part the imposition of any fine imposed on conviction.

^19. Code of Criminal Procedure, Article 42A.515(c) and (d), as enacted by SB 20, 86th Legislature, Section 2.01 –

(c) A judge who places a defendant on community supervision under Subsection (a) or (b) shall require as a condition of community supervision that the defendant participate in a commercially sexually exploited persons court program established under Chapter 126, Government Code, if a program has been established for the county or municipality where the defendant resides. Sections 126.002(b) and (c), Government Code, do not apply with respect to a defendant required to participate in the court program under this subsection.

(d) A judge who requires a defendant to participate in a commercially sexually exploited persons court program under Subsection (c) may suspend in whole or in part the imposition of the program fee described by Section 126.006, Government Code.

^20. Code of Criminal Procedure, Article 62.001^21. See HB 1540, 88th Legislature, Section 36. Prior to September 1, 2017, subsection (c)(3), as it existed at that time, was the subsection that would require registration, but for offenses occurring between September 1, 2017, and September 1, 2019, the subsection that required registration was (c-1)(3), which has also been repealed. See SB 20, 86th Legislature, Section 2.03 However, the 86th Legislature again amended the law in 2019, and from September 1, 2019, until September 1, 2021, the subsection designated as the registrable offense was (c-1)(2), which has also since been repealed. See SB 20, 86th Legislature, Section 2.03^22. HB 1540, 88th Legislature, Section 36