Online Solicitation of a Minor is a criminal offense in the state of Texas that makes it illegal to intentionally or knowingly communicate certain sexual content to a minor, or try to induce or “solicit” a minor to perform a sexual act. The statute was recently amended, effective September 2015, after a part of the earlier law was found to be unconstitutional. We discuss the Online Solicitation of a Minor law and the recent changes to the offense in depth below.

The Texas Online Solicitation of a Minor offense is frequently charged as a result of ‘sting’ operations conducted by various law enforcement agencies. Most often, police or other state investigators pose as teenagers on various internet platforms. This tactic was popularized by the TV show “To Catch a Predator.” Police will record all of these conversations, and then the state’s attorneys will try to use the transcripts from the communication to prove the intent required under the law.

This offense criminalizes a wide range of speech, and as such has been subject to review for being unconstitutionally overbroad in violation of the 1st amendment. In addition, law enforcement frequently crosses a line into “entrapment.” Appellate challenges to this law may have important implications in the future. This is a developing topic. Learn more about the most recent case law

Online Solicitation of a Minor is classified in the Texas Penal Code under Title 7 “Offenses Against Property”, Chapter 33 “Computer Crimes.” Online Solicitation of a Minor is not the same as the Texas offense of Solicitation of a Minor. Learn more about the crime of Criminal Solicitation of a Minor

What is the current Texas law about Online Solicitation of a Minor?

The current Texas law defines the offense of Online Solicitation of a Minor in Penal Code Section §33.021 as follows:¹

(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, 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.

Alternatively, under subsection (c):

(c) A person commits an offense if the person, 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.

Under this law, there are two separate and specific ways of being charged with Online Solicitation of a Minor. First, sending sexual explicit messages to a minor is an offense under Section (b). Second, soliciting a minor to engage in sexual behavior is an offense under Section (c).

Someone under the age of 17 cannot be convicted under Section (b) of this statute. However, anyone, including someone under 17, can be convicted of Online Solicitation of a Minor if they solicit (which means to ask, demand, or try to convince) a minor to engage in some sort of sexual contact under Section (b). However, there is a defense available, discussed in more detail below, that provides a safety net defense to someone who is not more than 3 years older than the minor and the minor consented.

Subsection (b) was recently amended, effective September 1, 2015, in Senate Bill 344, after the Court of Criminal Appeals determined that the law was unconstitutional. As it is currently written, in order for the messages to be a criminal violation under this statute, the person must have intent to commit any of the offenses listed in Article 62.001(5)(A), (B), or (K). Those offenses are:

• Continuous sexual abuse of young child or children (Penal Code Section 21.02)
• Indecency with a child (Penal Code Section 21.11)
• Sexual assault (Penal Code Section 22.011)
• Aggravated sexual assault (Penal Code Section 22.021)
• Prohibited sexual conduct (Penal Code Section 25.02)
• Compelling prostitution (Penal Code Section 43.05)
• Sexual performance by a child (Penal Code Section 43.25)
• Possession or promotion of child pornography (Penal Code Section 43.26)
• Trafficking of Persons (Section 20A.02(a)(3), (4), (7), or (8))

What is the range of punishment for Online Solicitation of a Minor? Do I have to register as a sex offender?

If someone is charged under Section (b) of this statute, the offense is a third degree felony, unless the minor is under the age of 14 (or if the accused person believed the person being talked to was under 14), in which case the penalty is enhanced to a second degree felony. Under Section (c), the penalty is a second degree felony.² Learn more about the range of punishments for Texas crimes

If you are convicted of Online Solicitation of a Minor, or even if you plead guilty or no contest, you will be required to register as a sex offender.³ Even deferred adjudication pleas bargains will require that you register.

What are the defenses against a charge of Online Solicitation of a Minor?

The statute lists two specific defenses.⁴ One defense is that the minor in question is a spouse of the defendant. The other defense listed in the statute is that the minor was less than 3 years younger than the defendant and the minor consented. Consent is a tricky issue to handle, and it is important to work closely with your criminal defense attorney on that issue.

Of course, there are many other ways to defend against an Online Solicitation of a Minor charge, but those are two ways specifically described in the statute. Another important defense that comes up in cases like this is the entrapment defense. Entrapment is a complicated legal concept, but it essentially means that law enforcement induced you to commit a crime that you otherwise wouldn’t commit. There is an objective and subjective qualification for winning on this ground, however, so it is not easy.

I never intended to meet with the person I was talking to online, can I still be charged?

Prior to the 2015 revisions, the statute specifically stated that for subsection (c) cases, it was not a defense that you never intended to meet with the person. However, the legislature repealed that provision effective September 2015.

I never met with the minor, can I still be charged?

For prosecutions under subsection (c), the statute specifically states that it is no defense that you didn’t meet the minor.⁵ The law here is concerned with the actual act of the communication, not necessarily the end result. This provision did not get repealed in the recent changes to the law.

Because this offense and the offense of “Solicitation of a Minor” are so similar, doesn’t that mean I can’t be charged with both?

The law of the United States protects individuals from “Double Jeopardy,” which means facing prosecution twice for the same crime. However, the operative word is crime, not event. Even though the two offenses are very similar, someone can still be charged with both offenses because they are listed as separate crimes. The state attorney has the option to choose which charges to pursue, but both offenses could possibly be brought against a defendant.

Only one section of this offense talks about being over 17. If I am a minor, can I be charged under either section?

The statute specifically lists an offense for someone who is over the age of 17, while the second section does not mention an age. Because the second section does not specifically limit the age, it is presumed to include anyone of any age. A minor might not be charged under the first second because they are under 17 but could be charged under the second. The age requirement does not apply to the second section.

Is Online Solicitation of a Minor constitutional?

Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013), was a seminal case in this area in which the Texas Court of Criminal Appeals held that Penal Code Ann. § 33.021(b), as it was written at the time, was facially unconstitutional. It was found overbroad because it barred constitutionally protected speech and was not narrowly drawn to only protect children from sexual abuse, as narrower means could achieve its legitimate object. Since then, the legislature has revised subsection (b), and subsequent challenges to the constitutionality of the law have not been successful.

Other challenges have been mounted to attack the statute. The 9th Court of Appeals found that subsection (c) was constitutional in State v. Paquette, 487 S.W.3d 286, 2016 Tex. App. LEXIS 1858 (Tex. App. Beaumont 2016). So far, several other Courts of Appeals have followed the lead of this decision in regards to subsection (c). See Parker v. State, 2016 Tex. App. LEXIS 7613 (Tex. App. Austin July 19, 2016). In 2017, the Texas Court of Criminal Appeals came down on the side of the facial constitutionality of subsection (c) in Ex parte Ingram, 533 S.W.3d 887, 2017 Tex. Crim. App. LEXIS 588 (Tex. Crim. App. June 28, 2017). However, there may still be an issue cognizable if a situation arose where the record establishes an anti-defensive issue or an unusual as-applied challenge. See Ex parte Ingram, 533 S.W.3d 887, 900, 2017 Tex. Crim. App. LEXIS 588, *23 (Tex. Crim. App. June 28, 2017).

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Legal References:

^1. Texas Penal Code §33.021^2. Texas Penal Code Section 33.021 (f)^3. Texas Code of Criminal Procedure 62.001(5)(J)

(5) “Reportable conviction or adjudication” means a conviction or adjudication, including an adjudication of delinquent conduct or a deferred adjudication, that, regardless of the pendency of an appeal, is a conviction for or an adjudication for or based on:
…
(J) a violation of Section 33.021 (Online solicitation of a minor), Penal Code

^4. Texas Penal Code Section 33.021 (e)(1-2)^5. Texas Penal Code Section 33.021 (d).