Make no mistake, prostitution in all its forms has always been illegal in Texas. That includes personal promotion, online promotion, aggravated promotion, and compelling prostitution. But HB 1540, now enshrined in Texas Penal Code Section 43.021 Solicitation of Prostitution, ups the ante on the level of criminal charges and punishment.
Promoting or Soliciting Prostitution Always Has Been Illegal in Texas
Texas recognizes and levels charges and punishment for the following:
- Promoting prostitution: pimping or pandering, when a third party knowingly receives money or other forms of payment in exchange for soliciting another to engage in sexual conduct.
- Online promotion of prostitution: any person who owns, manages, or operates a computer service that intends to promote or facilitate prostitution.
- Aggravated promotion of prostitution: knowingly owning, investing in, financing, controlling, supervising, or managing a prostitution enterprise that uses two or more prostitutes.
- Compelling prostitution: knowingly causing a child younger than 18 years old to commit prostitution whether the person receiving services knew the age of the prostitute at the time of the transaction.
Details of HB 1540 – Texas Penal Code Section 43.021
Soliciting prostitution, bluntly put, is purchasing or buying sex. As of last September, Texas is the first state to make this act a felony. It escalated from a Class B misdemeanor to a state jail felony with harsher penalties.
Also, the new law increases penalties for those who try to recruit victims for use as prostitutes from shelters and specific residential treatment centers. The intent is to reduce demand to combat human trafficking and deter people from engaging in the sex trade.
Texas treats those who purchase sex as active supporters of human trafficking, although many prostitution crimes do not involve trafficking. However, the punishment for everything has increased. The exact terms defining a “transaction” have been left quite vague, and now the state only needs to demonstrate intent.
It is still a crime to merely ask for sex in exchange for any type of payment, even if no money or other compensation is actually exchanged. The request and agreement are enough.
This means that you can be charged with solicitation if you are caught offering or agreeing to engage in paid sexual contact, regardless of whether the transaction is completed. The state can use any of the following to show intent:
- Withdrawing cash from an ATM after contacting a pimp or sex worker
- Picking up a prostitute or having a sex worker enter your car
- Driving to a location for sexual conduct for cash payment (such as a motel)
- Asking an individual to engage in sexual conduct for payment
Police officers often pull a sting operation, going undercover to set up a prostitute, client, or third party to agree to the transaction. Again, the only thing they need to arrest someone is the intent to buy or sell sex for a fee.
So what is not considered solicitation?
- Giving a prostitute a cup of coffee (as long as it isn’t in payment for sex)
- Offering money or drugs to a prostitute
- Waving to a person standing on the sidewalk
- Talking with a pimp about something unrelated to prostitution
Still, there are plenty of ways police can attempt to establish intent, which is all the law requires to charge you with solicitation of prostitution.
If you knowingly buy sex, you can be charged with one of the following:
- A state jail felony with additional penalties
- A third-degree felony if you have one previous conviction of solicitation as defined before September 1, 2021
- A second-degree felony if the person you engage in sex with is younger than 18, regardless of whether you knew it at the time or not.
In short, the highest level of charges and penalties come with engaging with a prostitute who is younger than 18, whether or not it’s true and whether or not you knew it at the time.
A state jail felony is the lowest level of felony offense. You can be jailed for six months to two years and be fined up to $10,000.
A third-degree felony for a second offense carries two to ten years in jail and a maximum fine of $10,000.
A second-degree felony for soliciting someone younger than 18 can get you up to 20 years in prison and a maximum fine of $10,000.
How an Experienced Attorney Can Help You Fight Solicitation Charges
Since the law changes soliciting to a felony for the first offense, this type of mistake can enormously impact a person’s life, reputation, and career. If convicted, the felony will show up forever on a criminal background check, regardless of the circumstances.
However, there are ways to protect you against this devastating charge. Your attorney can look into one of several potential defenses:
- Police entrapment
- Lack of sufficient or trustworthy evidence against you (false accusations)
- Legal impossibility such as lack of a request
- You agreed to a sexual act but not to exchange any payment
- Duress – you were threatened to make you engage in sexual conduct for a fee against your will or better judgment
- There was no fee paid for sexual conduct
- You didn’t know the other person was a prostitute
Entrapment is a common defense in solicitation cases because law enforcement can be seen as coercing the defendant into soliciting during a sting operation. However, we have more ammunition in our pack.
The Law Office of Brett Podolsky understands the nuances of the new law and its increased potential for impacting your life. We have the expertise to help you fight these charges.