2015.55: Texas SB344 vs. HB861

Texas Senate Bill 344:

By: Huffman S.B. No. 344

A BILL TO BE ENTITLED AN ACT relating to the prosecution of the offense of online solicitation of a minor.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 33.021(a)(1), Penal Code, is amended to read as follows:
(1) “Minor” means:
(A) an individual who is [represents himself or herself to be] younger than 17 years of age; or
(B) an individual whom the actor believes to be younger than 17 years of age.
SECTION 2. Section 33.021, Penal Code, is amended by amending Subsections (b), (d), and (e) to read as follows:
(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 [arouse or gratify the sexual desire of any person], 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.
(d) It is not a defense to prosecution under Subsection (c) that[:
[(1)] the meeting did not occur[;
[(2) the actor did not intend for the meeting to occur; or
[(3) the actor was engaged in a fantasy at the time of commission of the offense].
(e) It is a defense to prosecution under this section that at the time conduct described by Subsection [(b) or] (c) was committed:
(1) the actor was married to the minor; or
(2) the actor was not more than three years older than the minor and the minor consented to the conduct.
SECTION 3. The change in law made by this Act applies only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is governed by the law in effect on the date the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense occurred before that date.
SECTION 4. This Act takes effect September 1, 2015.

Texas House Bill 861:

84R17156 JRR-F By: Dale, King of Parker, Sheffield, Burkett,
H.B. No. 861
Frullo, et al. Substitute the following for H.B. No. 861: By: Herrero
C.S.H.B. No. 861

A BILL TO BE ENTITLED AN ACT relating to the prosecution of the offense of online solicitation of a minor.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Sections 33.021(b), (d), and (e), Penal Code, are amended to read as follows:
(b) A person who is 17 years of age or older commits an offense if, with the intent to induce a minor to engage in conduct with the actor or another person that would constitute an offense under Section 21.11, 22.011, 22.021, 43.25, or 43.26 [arouse or gratify the sexual desire of any person], 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.
(d) It is not a defense to prosecution under Subsection (c) that[:
[(1)] the meeting did not occur[;
[(2) the actor did not intend for the meeting to occur; or
[(3) the actor was engaged in a fantasy at the time of commission of the offense].
(e) It is a defense to prosecution under this section that at the time conduct described by Subsection [(b) or] (c) was committed:
(1) the actor was married to the minor; or
(2) the actor was not more than three years older than the minor and the minor consented to the conduct.
SECTION 2. The change in law made by this Act applies only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is governed by the law in effect on the date the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense occurred before that date.
SECTION 3. This Act takes effect September 1, 2015.

Both bills restore the “fantasy” defense, which is the other half of the amendment required to bring Section 33.021(b) and (c) in compliance with the First Amendment.

Huffman’s Senate Bill 344 is plainly superior, on First Amendment grounds, to Dale’s House Bill 861 because Huffman’s bill eliminates the prosecution of a defendant who is talking with an adult and knows it despite the adult’s “representing” himself as a child. Dale’s bill leaves the door open to such prosecutions.

Huffman’s bill is also superior on general legal grounds. Dale’s description of the required intent under subsection (b) is “to induce a minor to engage in conduct with the actor or another person that would constitute an offense….” This language comes from Section 15.031 of the Texas Penal Code, the general solicitation-of-a-minor statute, and it will not serve the intended purpose. When a defendant induces a child to have sex with him, the child’s conduct does not constitute an offense. It is the defendant’s conduct that constitutes an offense. We know what the legislature is trying to say; Huffman’s bill says it, but Dale’s does not.

Both bills limit the subsection (e) defense to violations of subsection (c) (actual solicitation). I think the reasoning may be that a defendant who is married to a child does not intend to commit a crime if he solicits her for sex. But age proximity and marriage are affirmative defenses under the predicate statutes; does the existence of an affirmative defense mean that the conduct would not be an offense?1 We don’t want to prosecute defendants for talking dirty to their spouses or their age-appropriate girlfriends, so why not simplify by applying the defense to (b) and (c)?


  1. Further, the 18-year-old boyfriend who solicits his three-years-young girlfriend for sex may still be violating Texas Penal Code Section 43.25, which has an affirmative defense only for a two-year age difference 

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2015.54: Statute of Limitations Law Geekery

In 2010 D is charged with communicating through a commercial online service in a sexually explicit manner with a minor under Section 33.021(b) of the Texas Penal Code.

He is convicted in 2011 and put on probation, which he complies with until 2014, when the Texas Court of Criminal Appeals rules that Section 33.021(b) is unconstitutional.

In 2015  D files an application for writ of habeas corpus in the trial court. His case is reopened and the charge is dismissed.

The State charges D under Section 33.021(c) of the Texas Penal Code with soliciting the same minor to meet him, through a commercial online service, with the intent that the minor would engage in sexual contact with him.

The statute of limitations for online solicitation of a minor is the catch-all three years under Texas Code of Criminal Procedure article 12.01(7).1 So at first blush it would appear that the 33.021(c) prosecution is barred by limitations.2

The statute of limitations is tolled during the pendency of an indictment, information, or complaint.3

But there is no charge pending while the defendant is on probation.4

But “during the pendency” begins with the day the charge is filed in a court of competent jurisdiction, and ends with the day the accusation is, by an order of a trial court having jurisdiction, determined to be invalid for any reason.5

But if there was a charge pending, it was not a 33.021(c) charge.6

But the Court of Criminal Appeals has held (in Hernandez, which was the appeal of a drug case) “that the first indictment tolls the statute of limitations if both indictments allege the same conduct, same act, or same transaction, even if the offenses charged do not fall within the same statute.”7

So the question comes down to whether both indictments allege the same conduct, same act, or same transaction. That’s a really interesting question to this law geek.

In Hernandez the defendant was charged in both indictments with the possession of the same drugs; the first indictment charged it as amphetamine, and the second charged the same substance as methamphetamine.

Since you can communicate explicitly without soliciting a meeting, and you can solicit a meeting without communicating explicitly, they could be separate acts. But since you could solicit a meeting in a sexually explicit way, they could be the same act.

Absent some indication of what specific message D was prosecuted for in 2010, whether the statute of limitations is tolled might depend on whether any soliciting communication was also sexually explicit.

If D’s lawyer had filed a motion to quash the 33.021(b) indictment in 2010 because it didn’t give him sufficient notice “to plead the judgment that may be given upon it in bar of any prosecution for the same offense”—Texas Code of Criminal Procedure article 21.04—the State might have had to plead the specific communication that was explicit, so that now the State could only prosecute him under 33.021(c) for that communication.

But who among us thought to file such motions to quash? I didn’t, and I doubt that anyone else did. So D is left in 2015 fighting about whether the State is prosecuting him now for the same conduct, same act, or same transaction. There may be a lesson in there.


  1. You could argue, depending on the conduct that was solicited, that there is no limitation under article 12.03(c); I don’t think that’s right 

  2. Hooray! 

  3. Booo! 

  4. Hooray! 

  5. Booo! 

  6. Hooray! 

  7. Booo! 

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2015.53: Get a Grip, Gaas

That’s a cop allowing a girl to get out of a minor-in-possession ticket by winning a game of rock-paper-scissors.

Here‘s Burleson County Precinct 2 Constable Dennis Gaas’s take:

Gaas says he found out about the incident last night. This morning he told all three officers that they will not be allowed to work security at future Chilfests. He also notified the two departments the officers work for so they can decide whether further action is warranted. Gaas declined to say what departments the three officers work for.

Giving the underage drinker a break is not what got the officers in trouble. Gaas says doing so is an officer’s discretion. But when they “play games to get someone out of a ticket, I have a problem with that,” Gaas said.

Gaas said he hired officers from nearly 60 agencies to work security. They issued 113 citations. According to the Burleson County Sheriff’s Office, 44 people were arrested at Chilifest.

Gaas was upset by the officers’ actions saying, “it gives all of us a bad name.”

No, it doesn’t. Humorless twits like you give “all of you” a bad name. The cop cut a girl a break; he should have. He gave her a few seconds of stress; that’s okay too. Texas Monthly’s take is smart, but I think they’re missing what’s really going on here. They’re missing it because the girl won the first round.

I think that Gaas and Texas Monthly’s Dan Solomon assume that the officer would have written the girl a ticket had she thrown paper the first time. I’m not convinced. Rock-paper-scissors can be played best-of-n, where n is any positive odd number.

I hunch that if the girl had lost the first round the officer would have offered best-of-three, and kept throwing scissors.

If the girl hadn’t caught on to the game by best-of-five, then, well, she was intoxicated and probably should have been ticketed.

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2015.52: Hot Texas First Amendment Action

Ex Parte J.I.L. (that’s the real name; it’s a juvenile case) is pending in the Fifth Court of Appeals in Dallas. Cocounsel Josh Andor of McKinney and I are challenging the constitutionality of the Online Impersonation statute, Texas Penal Code Section 33.07. I had to go to Collin County to make this challenge because the Harris County DA’s Office had been dismissing online-impersonation cases out from under me when I filed writs.

But recently in the 209th District Court here in Harris County the State filed a response to my writ challenging Section 33.07. So maybe the Online Impersonation statute isn’t dead in Harris County. Amusingly but unfortunately the State included this in its response: Continue reading

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2015.51: Trends in Policing

I was picking one of my kids up from school the other day when a guy in a clapped-out Ford Taurus drove by the crowded schoolyard honking his horn and screaming obscenities (“shitbag” was one).

Curious, I tracked the car to the City of Houston, then to the Houston Police Department, then to Senior Police Officer George Garcia of the Criminal Intelligence Division, who was using the car on city business. I guess the Houston Police Department has a new policy of drive-by shitbaggings at elementary schools.

Well done, Senior Police Officer George Garcia. Well done.

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2015.50: Possibly the Worst Scaled Question Ever

From a sexual-assault appeal I’m working on:

I want to ask everybody on the panel the following question: How likely do you think a child would be to lie about being sexually abused? One is very likely; two, likely; three, unlikely; four, very unlikely.

As a criminal-defense lawyer who has represented people who have been falsely accused of sexually abusing children, my answer is “four, very unlikely.” But I interpret the question to mean, “any given child.” And that’s the truth: any given child will most likely not lie about being sexually abused—will never have the opportunity or the motivation. But it just takes one false accusation to ruin a guy’s whole day.1

Now, if I, despite being more skeptical about allegations of sexual abuse than the vast majority of people, would be likely answer at the conservative conviction-friendly end of your scale, how likely is it that you’ll get any meaningful information from a jury panel?

Four.

What a waste of time. About par for the course for the State’s voir dire.


  1. If I read the question to mean “how likely is it that some child somewhere will lie at some time about being sexually abused,” my answer would be “one, very likely; in fact, inevitable.” And you wouldn’t know how I was interpreting your stupid fucking question. 

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2015.49: Unlawful Disclosure of Intimate Visual Material in Texas

House Bills 101, 496, and 603, which I wrote about here and testified against in Austin, have been left pending in committee.

Senate Bill 1135, “UNLAWFUL DISCLOSURE OR PROMOTION OF INTIMATE VISUAL MATERIAL,” was voted out of the Senate Criminal Justice Committee. (I didn’t go to Austin to testify; I considered my public duty done, and my right to say “I told you so” earned, the first time.) It provides:

(a) In this section:
(1) “Promote” and “sexual conduct” have the meanings assigned by Section 43.25.
(2) “Visual material” has the meaning assigned by Section 43.26.
(b) A person commits an offense if:
(1) without the effective consent of the depicted person, the person intentionally discloses visual material depicting another person engaged in sexual conduct;
(2) the visual material was obtained by the person or created under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private;
(3) the disclosure of the visual material causes harm to the depicted person; and
(4) the disclosure of the visual material reveals the identity of the depicted person in any manner, including through:
(A) any accompanying or subsequent information or material related to the visual material; or
(B) information or material provided by a third party in response to the disclosure of the visual material.
(c) A person commits an offense if the person intentionally threatens to disclose, without the consent of the depicted person, visual material depicting another person engaged in sexual conduct and the actor makes the threat to obtain a benefit:
(1) in return for not making the disclosure; or
(2) in connection with the threatened disclosure.
(d) A person commits an offense if, knowing the character and content of the visual material, the person promotes visual material described by Subsection
(b) on an Internet website or other forum for publication that is owned or operated by the person.
(e) It is not a defense to prosecution under this section that the depicted person:
(1) created or consented to the creation of the visual material; or
(2) voluntarily transmitted the visual material to the actor.
(f) It is an affirmative defense to prosecution under Subsection
(b) or
(d) that:
(1) the disclosure or promotion is made in the course of:
(A) lawful and common practices of law enforcement or medical treatment;
(B) reporting unlawful activity; or
(C) a legal proceeding, if the disclosure or promotion is permitted or required by law;
(2) the disclosure or promotion consists of visual material depicting only a voluntary exposure of sexual conduct in a public or commercial setting; or
(3) the actor is an interactive computer service, as defined by 47 U.S.C. Section 230, and the disclosure or promotion consists of visual material provided by another person.
(g) An offense under this section is a Class A misdemeanor.

….

For this statute to be constitutional, the nonconsensual and harmful disclosure of visual material depicting an identifiable person engaged in sexual conduct in violation of the person’s reasonable expectation of privacy would have to fall into some category of unprotected speech.

The category does not yet exist:

  • Harmful speech is not unprotected, and should not be. We are not a nation of snowflakes who need government protection from hurt feelings.
  • Speech depicting sexual conduct is not unprotected, and should not be.
  • Speech violating privacy and nonconsensual speech about another person are not unprotected, and should not be. The idea that we can control what is said about us is inimical to American ideals of free speech.

Since the speech restricted does not fall into a recognized category of unprotected speech, under current Supreme Court (and Court of Criminal Appeals) jurisprudence this statute does not pass First Amendment muster. Proponents of this law would have to convince the Supreme Court to recognize a new category of historically unprotected speech that covers most of the speech forbidden by the statute. That’s long odds.

I’d like for this bill to pass so that I can make a few bucks,1 and put another notch on my gun,2 killing this statute.  But the Senate doesn’t look like it’s in a hurry to vote on it.


  1. Please can we make it a felony? 

  2. What’s the record for getting Texas penal statutes held unconstitutional? 

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2015.48: To the Potential Client

Dear PNC (we call you PNCs, for “Potential New Clients”; it’s redundant, I suppose, but “PC” is already assigned to “probable cause” and “personal computer” and “politically correct”):

You have told me repeatedly that you are innocent. You don’t mean “legally innocent”—that is, unconvicted—but “factually innocent.” I don’t know whether you’re telling me the truth or not (people lie to me all the time), but please know that it doesn’t matter to me. It won’t decrease my fee, and it won’t make me do any better job.

I consider the act of putting people in boxes to be fundamentally immoral in virtually all cases, and I don’t believe that I—or any human—have the wisdom to distinguish the few cases in which putting people in boxes is moral from the many in which it is not. So it doesn’t matter to me whether they’re factually innocent. If anything, I prefer factually guilty clients—there is less stress, and I confess that I get impish joy from cutting loose a malefactor. I’ll do the same job on behalf of the innocent, but there is no innocent-client discount.

You might wonder whether I believe your protestations of innocence. Don’t wonder. At this point, I listen without judgment. I neither believe nor (unless your story is bad to the point of incredibility) disbelieve. You don’t want a dumb lawyer, so if you are factually guilty, you don’t want a lawyer who is dumb enough to believe you when you lie to him. And you don’t want a lawyer who thinks it’s his job to judge you, so if you are factually innocent, you don’t want a lawyer who is judgmental enough to care. 

I have been training for more than twenty years for this fight against the people who are trying to put you in a box. Law school, Trial Lawyers College, trial upon trial, appeal upon appeal, hundreds upon hundreds of hours of teaching and studying continuing legal education, hundreds upon hundreds of hours of psychodrama and improv training, board certification: everything has led up to your case. 

If you really want someone to whom it is important whether you “did it,” who won’t take your case or will do a lesser job if he believes you to be factually guilty, you can get that for a lot less than my fee, but you will be buying a duller blade.

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2015.47: HB101, HB 496, HB603 Unconstitutional

There are three nonconsensual-pornography-criminalization bills before the Texas House of Representatives' Criminal Jurisprudence Committee tomorrow:

HB101 (Guillen) and HB603 (Davis of Harris) are identical:

(b) A person commits an offense if the person: (1)  intentionally displays, distributes, publishes advertises, offers, or otherwise discloses visual material depicting another person engaged in sexual conduct; and (2)  knows or should have known that the depicted person has not consented to the disclosure.

(c) It is a defense to prosecution under this section that: (1) the disclosure is made in the course of: (A) lawful and common practices of law enforcement or medical treatment; (B) reporting unlawful activity; or (C) a legal proceeding, if the disclosure was permitted or required by law; (2) the disclosure consists of visual material depicting only a voluntary exposure of sexual conduct in a public or commercial setting; or (3) the actor is an interactive computer service, as defined by 47 U.S.C. Section 230, or a provider of an information service, as defined by 47 U.S.C. Section 153, and the disclosure consisted of visual material provided by another person.

 (d)  An offense under this section is a state jail felony.

The careceral portion of HB496 (González) follows:

(b) A person commits an offense if the person: (1) by electronic means, intentionally discloses visual material depicting another person engaged in sexual conduct; (2) was in an intimate relationship with the depicted person when the visual material was created or transmitted to the person; (3) knows or should have known that the depicted person has not consented to the disclosure; and (4) discloses the visual material with the intent to cause harm to the depicted person, including mental anguish, emotional distress, actual or threatened physical violence, economic harm, harm to reputation, or harassment by a third party.

(c) A person commits an offense if, knowing the character and content of the visual material, the person promotes visual material described by Subsection (b) on an Internet website or other forum for electronic publication that is owned or operated by the person. (d) It is not a defense to prosecution under this section that the depicted person: (1) created or consented to the creation of the visual material; or (2) voluntarily transmitted the visual material to the actor.

(d) It is not a defense to prosecution under this section that the depicted person: (1) created or consented to the creation of the visual material; or (2) voluntarily transmitted the visual material to the actor.

(e) It is an affirmative defense to prosecution under this section that the actor is an interactive computer service, as defined by 47 U.S.C. Section 230, and the disclosure consisted of visual material provided by another person.

(f)  An offense under this section is a Class A misdemeanor.

The penal statutes these bills propose would create a restriction on speech ("visual material") that is content-based ("depicting another person engaged in sexual conduct"). Such restrictions are presumptively unconstitutional under the First Amendment.

The United States Supreme Court has, in its recent cases  involving First Amendment challenges to content-based restrictions on speech (United States v. Stevens, 559 U.S. 460, 130 S.Ct. 1577 (2010); United States v. Alvarez, 567 U.S. ___ (2012)), applied a categorical test: if the speech restricted does not fall into one of a few narrowly-defined categories of historically unprotected speech, the statute is unconstitutional. These categories are:

  1. Advocacy intended, and likely, to incite imminent lawless action;
  2. Obscenity;
  3. Defamation;
  4. Speech integral to criminal conduct;
  5. So-called “fighting words”;
  6. Child pornography;
  7. Fraud;
  8. True threats; and
  9. Speech presenting some grave and imminent threat the government has the power to prevent (“Although,” says the Supreme Court, “a restriction under the last category is most difficult to sustain”).

The expression that House Bills 101, 496, and 603 would forbid falls into none of these categories. All three bills implicate violations of privacy, but the Supreme Court has never held that violations of privacy are unprotected. House Bill 496 has an intent-to-harm element, but the Court has never held that speech is unprotected because it is intended to cause harm.

The "defenses" in subsection (c) of House Bills 101 and 603 and the "affirmative defense" in subsection (e) of House Bill 496 will not save the statutes from unconstitutionality.

Nationwide, proponents of bills like these have shown a vague handwaving lack of understanding of the First Amendment issue. In Arizona, enforcement of the nonconsensual-pornography criminalization statute was almost immediately stayed on First Amendment grounds by a U.S. District Court.

Free expression is robust in Texas criminal courts. The Court of Criminal Appeals has recently held unconstitutional two felony statutes (Online Solicitation of a Minor and Improper Photography) on First Amendment grounds. The courts are still working on unraveling the consequences to the many people who were convicted of violating these statutes. It's a bad idea for the Texas Legislature to pass another void statute.

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2015.46: Boom Goes the Thoughtcrime.

Whether he wrote DOWN WITH BIG BROTHER, or whether he refrained from writing it, made no difference. Whether he went on with the diary, or whether he did not go on with it, made no difference. The Thought Police would get him just the same. He had committed — would still have committed, even if he had never set pen to paper — the essential crime that contained all others in itself. Thoughtcrime, they called it. Thoughtcrime was not a thing that could be concealed for ever. You might dodge successfully for a while, even for years, but sooner or later they were bound to get you.

George Orwell, Nineteen Eighty-Four.

Today I got word that a district judge in Montgomery County, Texas held unconstitutional the "posession" portion of Texas's Fraudulent Use of Identifying Information statute. By criminalizing the possession of information (including knowledge) combined with the intent to harm (which is a constitutionally protected intent) or defraud the State has created a thought crime.

in Texas, unlike in Oceania, we are free to daydream, to intend to defraud as long as we do not act on that intent. The statute that creates a thought crime is unconstitutionally overbroad under the First Amendment: “Whatever the power of the state to control public dissemination of ideas inimical to the public morality, it cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts.” Stanley v. Georgia, 394 U.S. 557, 566 (1969).

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