Prostitution text over flags in background

Prostitution

Prostitution is a Texas crime that prohibits the buying and selling of sex. The law has received attention from the Legislature in the last two legislative sessions, as discussed below.

UPDATE: SB 20, 86th Texas Legislature, made significant changes to the Prostitution offense penalty scheme, effective September 1, 2019. Learn more about these changes below

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.

Have you been charged with Prostitution? Call criminal lawyer Paul Saputo at (888) 239-9305.

There are several offenses related to Prostitution, including Compelling Prostitution, Promotion of Prostitution and Aggravated Promotion of Prostitution. We have worked on all of these different types of cases and can assure you that the state of Texas takes these crimes seriously, even if no one is hurt.

What is the prostitution offense in Texas?

The Texas Prostitution law changed in 2015 with the passage of S.B. 825, 84th Legislature1, which significantly expanded the law. The law will change again, effective September 1, 2017, with the passage of H.B. 29, 85th Legislature.2 The old law will apply to offenses alleged to have been committed prior to the effective date of the new law.

The law is codified in Section 43.02(a), (b) and (b-1) of the Texas Penal Code, and the law in effect since the 2015 update, effective until September 1, 2017 (with language removed effective September 1, 2017, in strikethrough and language added effective on the same date in brackets) is as follows (see footnote 1 for the older law):

(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, whether you are offering to pay or be paid for sex (whether you are the “prostitute” or the “John”), you can be convicted for Prostitution.

The 85th Legislature also added a definition of “fee” effective September 1, 2017.3 Effective in September 2017:

(1-a) “Fee” means the payment or offer of payment in the form of money, goods, services, or other benefit.

How 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, although case law may set some limits. In addition, the Prostitution statute would apply to both those seeking to pay or be paid for sex. It does not matter whether any sexual activity eventually occurred, 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 is the penalty for a conviction for prostitution?

Beginning on September 1, 2019, the default Prostitution offense will be a Class A misdemeanor (up from a Class B), with penalties of up to one year in county jail and up to a $4,000 fine. This change was brought about by SB 20, 86th Texas Legislature, and is discussed more below. Those are the maximum penalties, but that is not the typical outcome. Learn more about the classes of misdemeanors in Texas and other information about criminal penalties and jail time

What happens in any given case depends on your criminal defense lawyer, the specific facts of the case, the county in which you are charged, your criminal history, the judge and the district attorney(s) working your case, among various other factors.

As described in more detail below, the “standard” Prostitution offense can be upgraded to a state jail felony or second degree felony based on the factors described below. The penalty ranges are described in Penal Code Section 42.02(c) and (c-1). The law regarding punishment for the Prostitution offense has changed in each of the last three Texas legislative sessions.4, 5, 10 is below, with strikethroughs showing the language that was removed from the prior law and brackets around the language that has been added:

(c-1) An offense under Subsection (b) is a Class [A] B misdemeanor, except that the offense is:

(1) a Class A misdemeanor if the actor has previously been convicted one or two times of an offense under Subsection (b);

(2) a state jail felony if the actor has previously been convicted three or more times of an offense under Subsection (b); or

(2) (3) a felony of the second degree if the person with whom the actor agrees to engage in sexual conduct is:

(A) younger than 18 years of age, regardless of whether the actor knows the age of the person at the time of the offense;

(B) represented to the actor as being younger than 18 years of age; or

(C) believed by the actor to be younger than 18 years of age.

The 86th Texas Legislature also made significant changes to probation laws regarding Prostitution offenses. Learn more about these changes to probation laws

The law effective for offenses occurring before September 1, 2017, is below, and the punishment law that became effective September 1, 20175 follows afterwards:

Effective through September 1, 2017

(c) An offense under Subsection (a) is a Class B misdemeanor, except that the offense is:

(1) a Class A misdemeanor if the actor has previously been convicted one or two times of an offense under Subsection (a); or

(2) a state jail felony if the actor has previously been convicted three or more times of an offense under Subsection (a).

(c-1) An offense under Subsection (b) is a Class B misdemeanor, except that the offense is:

(1) a Class A misdemeanor if the actor has previously been convicted one or two times of an offense under Subsection (b);

(2) a state jail felony if the actor has previously been convicted three or more times of an offense under Subsection (b); or

(3) a felony of the second degree if the person solicited is younger than 18 years of age, regardless of whether the actor knows the age of the person solicited at the time the actor commits the offense.

H.B. 1808, 85th Texas Legislature, version effective on and after September 1, 20176

(c) An offense under Subsection (a) is a Class B misdemeanor, except that the offense is:

(1) a Class A misdemeanor if the actor has previously been convicted one or two times of an offense under Subsection (a);or

(2) a state jail felony if the actor has previously been convicted three or more times of an offense under Subsection (a).

(c-1) An offense under Subsection (b) is a Class B misdemeanor, except that the offense is:

(1) a Class A misdemeanor if the actor has previously been convicted one or two times of an offense under Subsection (b);

(2) a state jail felony if the actor has previously been convicted three or more times of an offense under Subsection (b); or

(3) a felony of the second degree if the person solicited is:

(A) younger than 18 years of age, regardless of whether the actor knows the age of the person solicited at the time of the offense;

(B) represented to the actor as being younger than 18 years of age; or

(C) believed by the actor to be younger than 18 years of age.

H.B. 29, 85th Texas Legislature, version effective on and after September 1, 20177

(c) An offense under Subsection (a) is a Class B misdemeanor, except that the offense is:

(1) a Class A misdemeanor if the actor has previously been convicted one or two times of an offense under Subsection (a); or

(2) a state jail felony if the actor has previously been convicted three or more times of an offense under Subsection (a).

(c-1) An offense under Subsection (b) is a Class B misdemeanor, except that the offense is:

(1) a Class A misdemeanor if the actor has previously been convicted one or two times of an offense under Subsection (b);

(2) a state jail felony if the actor has previously been convicted three or more times of an offense under Subsection (b); or

(3) a felony of the second degree if the person with whom the actor agrees to engage in sexual conduct is:

(A) younger than 18 years of age, regardless of
whether the actor knows the age of the person at the time of [the actor commits] the offense;

(B) represented to the actor as being younger than 18 years of age; or

(C) believed by the actor to be younger than 18 years of age.

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. You may be eligible for Judicial Clemency later on.
  • 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.

How can I get a prostitution charge dismissed?

You should hire a criminal lawyer to defend you against a criminal charge of Prostitution. There are numerous ways in which a criminal defense lawyer can get a prostitution case dismissed. If the alleged behavior doesn’t meet the definition under the statute, or if the evidence is insufficient under Texas case law, we may be able to get your case thrown out. Alternatively we may discover that the sting was conducted illegally or that evidence was conducted illegally. Sometimes your criminal lawyer may be able to work out a deal with state attorneys to dismiss your case in exchange for certain conditions. There is also a defense built into the statute at Section 42.02(d):

(d) It is a defense to prosecution under this section 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.

Do I have to register as a sex offender if I am convicted of prostitution?

Only one category of Prostitution is a “Reportable Conviction” under Texas state law. Prior to September 1, 2017, (c)(3) was the subsection that would require registration, but for offenses occurring between September 1, 2017, and September 1, 2019, the subsection that requires registration is (c-1)(3).8 However, the 86th Legislature again amended this law in 2019, and from September 1, 2019, the subsection designated as the registrable offense is (c-1)(2).8a

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.

Can I get probation for prostitution?

If you are convicted for Prostitution, you are generally eligible for probation. Under the SB 20, 86th Legislature, effective September 1, 2019, under certain circumstances, a judge must grant you community supervision.9 Under this new law, however, there are also mandatory probation conditions. See footnote 9 below.


Legal References (all 85th Texas Legislature):

1Senate Bill 825, Section 1, 84th Legislature

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.

2Texas Penal Code Sections 43.02(a)&(b), as amended by House Bill 29, 85th Legislature, Section 36, effective September 1, 2017

3Texas Penal Code Section 43.01(1-a), as created by House Bill 29, 85th Legislature, Section 35, effective September 1, 2017

4House Bill 10, Section 14, 84th Legislature

5Texas Penal Code Section 43.02(c)&(c-1), as amended by House Bill 1808, 85th Legislature, Section 8, effective September 1, 2017

6There is a conflict between the H.B. 1808 version and the H.B. 29 version.

7Texas Penal Code Section 43.02(c)&(c-1), as amended by House Bill 29, 85th Legislature, Section 37, effective September 1, 2017

8Code of Criminal Procedure, Article 62.001(5), as amended by H.B. 29, 85th Legislature, Section 15, effective September 1, 2017

8aCode of Criminal Procedure, Article 62.001(5), as amended by SB 20, 86th Legislature, Section 2.03, effective September 1, 2019

9Code of Criminal Procedure, Article 42A.515, as created by SB 20, 86th Legislature, effective September 1, 2019 –

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.

(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.

(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.

10Penal Code Section 43.02(c-1), as amended by SB 20, 86th Legislature, Section 2.05, effective September 1, 2019

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