What is online solicitation of a minor in Texas?
Online Solicitation of a Minor is a felony offense in Texas that occurs when an adult communicates online with a person who is actually under 17 (a minor) or someone whom the adult believes is under 17 (law enforcement posing as a minor) and:
- has a sexually explicit conversation, or
- sends a sexually explicit photo or video, or
- asks to meet the minor to engage in sexual contact.
This is generally a third-degree felony, but under certain circumstances, it can be a second-degree felony.
What Conduct Gives Rise to an Online Solicitation of a Minor charge?
There are two ways a person can be charged with online solicitation of a minor:
- Under Penal Code Section 33.021(b): A person commits an offense by using the internet to communicate in a sexually explicit manner with a minor or distribute sexually explicit material to a minor. Sexually explicit means any communication, language, or material, including a photographic or video image, that relates to or describes sexual conduct. This conversation is a third-degree felony if the minor is 14 or over. It’s a second-degree felony if the minor is under 14.
- Under Section 33.021(c): A person commits an offense if they use the internet to knowingly solicit a minor to meet with the intent that the minor would engage in sexual contact, sexual intercourse or deviate sexual intercourse. This is a second-degree felony regardless of whether the minor was under 14 or not. It does not matter whether or not the meeting occurred or even if the accused intended for the meeting to occur.
Online Solicitation of a Minor in Texas
| Offense | Penal Code Section | Felony Level | Punishment Range |
|---|---|---|---|
| Sexually explicit communication with a minor (age 14-16) | Texas Penal Code § 33.021(b) | Third-Degree Felony | 2 – 10 years in prison & up to $10,000 fine |
| Sexually explicit communication with a minor (under 14) | Texas Penal Code § 33.021(b) | Second-Degree Felony | 2 – 20 years in prison & up to $10,000 fine |
| Sending sexually explicit material to a minor (age 14-16) | Texas Penal Code § 33.021(b) | Third-Degree Felony | 2 – 10 years in prison & up to $10,000 fine |
| Sending sexually explicit material to a minor (under 14) | Texas Penal Code § 33.021(b) | Second-Degree Felony | 2 – 20 years in prison & up to $10,000 fine |
| Soliciting a minor (any age) to meet for sexual purposes | Texas Penal Code § 33.021(c) | Second-Degree Felony | 2 – 20 years in prison & up to $10,000 fine |
| Soliciting a minor (any age) to meet when certain school-related conditions apply (e.g., offense occurred during school hours and the minor was enrolled in school) | Texas Penal Code § 33.021(c) | Second-Degree Felony | 2 – 20 years in prison & up to $10,000 fine |
Who is a Minor for Purposes of Online Solicitation?
The Texas Penal Code defines a minor as:
- Any person who represents themselves as being under the age of 17 when the crime was committed.
- Any person that the defendant believed was under the age of 17 when the crime was committed.
In other words, anyone actually under the age of 17 or anyone who the accused believed was under the age of 17 is considered a minor. As mentioned, in many online solicitation of minor cases, the person on the other end of the conversation is a law enforcement agent who in no way resembles the minor they are purporting to be. As a result, a police officer pretending to be a minor can become the basis to file this case. Keep in mind online solicitation is illegal at any age in an educator-student relationship. There may be other factual defenses that apply to your case if statutory defenses do not apply.
What if there was no actual child involved in the Online Solicitaton?
To many, the most surprising fact about this offense is that people are often arrested and charged with online solicitation of a minor even if they never had contact with an actual child. In fact, most online solicitation charges arise from an undercover officer posing as a minor in a sting operation using a website or app to lure in suspects.
As this article describes in greater detail below, it is very common for law enforcement agencies, including the Tarrant County Sheriff’s Office, Fort Worth, Arlington, Harris County, Fort Bend, Denton, DPS, and the FBI to conduct online solicitation stings. It is extremely important if you are arrested for online solicitation of a minor to contact a skilled criminal defense attorney who has experience handling cases involving online solicitation of a minor in Texas.
Are there statutory defenses to Online Solicitation of a Minor?
There are only two statutory defenses – that the minor was married to the person with whom they were talking or the person with whom they were talking was three or less years older. Keep in mind online solicitation is illegal at any age in an educator-student relationship. There may be other factual defenses that apply to your case if statutory defenses do not apply.
What is the Punishment for Online Solicitation of a Minor in Texas?
Online solicitation of a minor is a felony offense in Texas that carries significant consequences, including prison time, hefty fines, and registration as a sex offender. Online solicitation of a minor is generally a third-degree felony with a punishment range of 2 to 10 years in prison. However, online solicitation of a minor can be a second degree felony with a punishment range of 2 to 20 years in prison.
How Does Online Solicitation of a Minor Become a Second Degree Felony?
An online solicitation charge becomes a second degree felony in three main scenarios:
- When the minor is under 14 years old, or the actor believes them to be under 14 years old at the time of the offense;
- The conversation with the minor was to meet with the intent the minor would engage in sexual contact; or
- If certain education-related conditions are met:
- The offense occurred during regular school hours AND
- The actor knew or should have known the minor was enrolled in school
Federal Prosecution for Online Solicitation of a Minor
While most online solicitation cases are filed at the state-level, it is possible for the feds to charge someone for the same conduct – whether or not the state prosecutes the conduct. Pursuant to 18 USC 2242 using the internet to entice someone younger than 18 is punishable by 10 years to life in federal prison.
Online Solicitation Sting Operations
Police are allowed to (and do) lie during these investigations. For instance, if you ask the person on the other end of a chat if they are law enforcement, chances are they are not going to say yes. Additionally, the law does not require that the alleged victim be a minor; it can be a police officer posing as a minor. Arrests often take place when the person goes out to meet the alleged victim at a park or parking lot, but even in instances where the person never leaves home, officers can obtain internet service provider records to determine the identity or the location of the person engaged in the conversation and follow up with a subpoena that often leads to incriminating evidence and confessions.
An Example of Online Solicitation of a Minor
The following example is fictional, but it is a conversation that we’ve seen hundreds of times: A police officer or other law enforcement agent gets on an app like Whisper, YikYak, and Kik or websites like Craigslist (back when personal ads were still allowed) and posts a message that baits responses.
During these conversations, law enforcement will say they are some age under 17. (Note: If they say they are under 14, the punishment range doubles). Many of these conversations result in the suspect sending photos of themselves to the law enforcement agent, which will later be used against the suspect.
The conversations also often lead to a meet up – which is not necessary for the agents to prove their case – but they love intercepting individuals who agree to meet up. For those who don’t meet up, police will issue administrative subpoenas to get the IP addresses related to the accounts, usernames, or devices.
When the online solicitation of a minor arrest occurs – be it at the intercept or based on an arrest warrant obtained months later – law enforcement is adept at pressuring individuals to the point their lives seem to be flashing before their eyes. These interrogations often lead to individuals confessing to crimes.
A common police tactic is to suggest the individual sitting in front of them is a suspected pedophile who they believe has touched young children. That suggestion makes the person in the hot seat much more likely to say, “No! I never did that. The most I’ve ever done is chat.” Little does the suspect know that’s all law enforcement suspected.
Confessions do not make prosecutors’ cases slam dunks in every situation, but they sure can make their jobs easier in many cases. Another way the prosecution can prove online solicitation is by proving explicit materials – such as a photo or video – was sent to the minor.
The online solicitation statute is so broad that it has been challenged successfully in the past. The most recent revision came in 2015 after the Court of Criminal Appeals determined the statutory language was too broad. The statute explicitly removes a defense that the meeting with a minor or purported minor did not occur. Instead, certain portions of the statute criminalize mere conversations.
Not a Defense to Online Solicitation
In Texas, it not a defense to online solicitation of a minor if:
- the meeting did not occur;
- the accused did not mean for a meeting to occur;
- the actor was only fantasizing about the meeting occurring.
Statutory Defense to Online Solicitation
It is a legal defense if the accused was married to the minor, or if the accused was not more than three years older than the minor and the minor consented to the conduct.
Examples of Other Defenses to Online Solicitation
Insufficient Evidence
What It Is: The prosecution must prove every element of the crime beyond a reasonable doubt.
How It Might Apply: Even if there were messages exchanged, the defense might argue that the messages do not clearly show intent to commit an offense or that the evidence is too weak or unreliable (for example, incomplete messages or questionable digital forensics).
Mistaken Identity
What It Is: This defense is used when the defendant asserts they were not the person who actually sent the messages.
How It Might Apply: Online communications can be difficult to trace. If someone else used the accused’s account, or if an account was hacked, the defense may argue the wrong person is being charged.
Credibility of Witnesses or Investigation
What It Is: Challenging the methods and credibility of the individuals who investigated or brought forth the accusations.
How It Might Apply: If the arrest stemmed from questionable investigative techniques, unreliable online evidence, or contradictory witness statements, the defense could argue these flaws undermine the trustworthiness of the prosecution’s case.
Are Online Solicitation of Minor Stings Entrapment?
A lot of people ask themselves if it is entrapment when the police pretend to be a minor and are involved in sting operations in online solicitation of a minor cases. The answer is to prove entrapment you have to show more than the officer provided the means to commit the offense, you have to show they overbore your will in facilitating the crime causing you to do something you otherwise would not have to do. So it’s a possible defense – albeit a difficult one to establish.
What is the Statute of Limitations for Online Solicitation of a Minor in Texas?
The Statute of Limitations for Online Solicitation of a Minor in Texas is 3 years.
Does a conviction for online solicitation of a minor require sex offender registration?
Yes, anyone convicted of online solicitation of a minor is required to register as a sex offender for 10 years. Even with deferred adjudication or probation, offenders are required to register. Individuals who enter a plea of guilty or are found guilty of Online Solicitation of a Minor will be required to register as a sex offender for a period of 10 years. Even if they are placed on deferred adjudication or straight probation, they will be required to register as a sex offender.
If you or a loved one is facing charges of online solicitation of a minor in Texas, it’s imperative that you contact a seasoned defense attorney who is experienced in these types of case. The stakes are too high to leave anything to chance.
Can you be federally prosecuted for online solicitation of a minor?
Most online solicitations of a minor cases are filed by the state. It’s possible, however, for the federal government to file charges for the same offense whether the state prosecutes or not. Using the internet to lure anyone 17 or younger is punishable by 10 years to life in federal prison, according to 18 USC 2242.
What are police allowed to do in online solicitation sting operations?
Law enforcement agents are allowed to lie about their true identities during online solicitation investigations. The law allows for the alleged victim to be an adult posing as a minor. As you’ve likely seen on news programs, arrests often occur when the alleged offender tries to meet the “victim” in person.
Contact us for Online Solicitation of a Child Charges
Have you or a loved one been accused of online solicitation of a minor? Call us today for a complimentary strategy session with an experienced defense attorney.
ONLINE SOLICITATION FAQS
Is it a defense that you did not know you were talking to someone under the age of 17?
No. The law does not require a defendant to know the age of the minor, if the person the defendant was speaking to was actually a minor.
What is considered electronic communication for online solicitation of a minor?
Electronic communication includes any online communication including email, text messages, instant messaging, and social media platforms.
Can I be charged with online solicitation of a minor if I never met the minor in person?
Yes, you can be charged based solely on electronic communication with the intent to engage in sexual activity or based on sending sexually explicit content.
Is online solicitation of a minor a federal crime as well?
Yes, online solicitation of a minor can also be charged as a federal crime under 18 U.S.C. § 2422. Penalties for a federal conviction can be severe, including up to life imprisonment in some cases.
Can a sting operation by law enforcement lead to online solicitation of a minor charges?
Yes, law enforcement often uses sting operations to catch individuals soliciting minors online. However, entrapment can be a defense if the officers induced the crime.
Does the minor have to actually exist for someone to be charged with online solicitation of a minor?
No, a person can be charged even if the “minor” was an undercover law enforcement officer or a fictional persona created by law enforcement.
