2016.037: Before You Plead that Online-Solicitation Case …

Regular readers know that for nearly three years, since right after killing the dirty-talk portion of Texas’s Online Solicitation of a Minor statute, I’ve been going after the balance of that statute, which appears at first to forbid only actual solicitation (which is unprotected speech), but on further reading explicitly criminalizes protected fantasy by eliminating lack-of-defense and fantasy defenses. The argument is that the statute is constitutionally overbroad.

Texas lawyers know that I’ve racked up an impressive record of failure in the intermediate courts of appeals, which have uniformly held that the statute forbids “conduct” rather than speech.

Friends know that I’m not going to let that bunch of Mensa-aspiring civil lawyers running for reelection tell me what the U.S. Constitution protects. After all, until the Court of Criminal Appeals ruled 9–0 in Lo every court had upheld section 33.021(b) of the Texas Penal Code as well.

So I filed petitions for discretionary review in the cases in which the courts of appeals upheld the statute: Wheeler, Fisher, Alvarez, Chapman, Radford, Mahmoud, Leax, Parker, each petition different than the one before. The Court of Criminal Appeals refused the first couple (no telling why). Five of them are still pending. Last month the Court of Criminal Appeals granted discretionary review (with oral argument) in Leax.

In Leax I have presented a single issue: The Ninth Court of Appeals erred when it held that Section 33.021 is not a content-based restriction. Whether the statute is a content-based restriction (on communication) is the key to an as-written overbreadth challenge such as this one because a content-based restriction is presumed to be unconstitutional, and the State has the burden of showing that it meets strict scrutiny (by demonstrating that it is the least restrictive means of achieving a compelling government interest).

Last year the Texas Legislature amended section 33.021 to permit fantasy and lack-of-intent defenses. So conduct post September 1, 2015 is covered by a statute that probably passes constitutional muster as written. This is a good thing for three reasons. First, because it allows the State to prosecute people who intend to commit sex crimes against children. Second, because it doesn’t allow the State to prosecute people who are engaged in age play. And third, because it is proof that the pre-9/1/15 statute is not the least restrictive means of achieving the compelling government interest.

The Texas Court of Criminal Appeals has already held that if it is necessary to look at the content of the communication to decide if the speaker violated a statute — true of 33.021 — the statute is content based.

Because the Texas Legislature has already passed a less restrictive statute that achieves the same compelling government interest, section 33.021 is not likely to survive a finding that it is content based.


  1. “because it doesn’t allow the State to prosecute people who are engaged in age play”

    Does that include the “To catch a predator” series where the actor is 18 or older??

    1. “Age play” would be where the defendant thought he was communicating with an adult who was pretending to be a child. There is no intent, in such a case, for a sex crime to be committed.

  2. Will the state or federal courts come after people who have part c overturned with federal charges or different state charges?

      1. Have people with overturned 33.021(b) convictions also experienced the state charging them with other offenses?

        If both 33.021(b) and (c) aren’t options for recharging on pre-lege rewrite cases, what offenses have they been throwing at people to recharge them?

        If you prevail in Leax, would you expect to see the state to stop recharging on overturned 33.021(c) (and (b)?) convictions, or will winning make no difference one way or the other in terms of what happens after a conviction is overturned?

      2. A few counties have charged people with other offenses (for example, 33.021(c), which is still an option until we prevail on Leax, or attempted sexual assault or actual solicitation) when their 33.021(b) convictions are overturned. Most have not.

      3. My conviction under “b” was dismissed earlier this year. Taylor County has came back after me under “c”. I’m set to go to trial again in a few months. Im hoping for the best outcome. I believe it will but do have concerns at the same time. It is well documented in transcripts and evidence that this was police entrapment. It is just a matter proving it as legal or not.

        I’ve been following your posts, Mark. And I too hope for your success. Thank you for pursuing this fight.

  3. What factors would come into play with the county deciding to pursue different charges if a defendants case is over turned? Would it have to have been a real minor or is A police sting Enough to merit new charges?

  4. A friend was charged with (c) in 2009, and pled open and received deferred in 2012 after a habeas corpus denial. In this case, not only was it expressly stated that the ‘offender’ did not believe the affiant was a minor, it was an impossibility for the meeting which was arranged to occur, further exhibiting lack of intent. Neither, as you know, were a defense for someone charged under the previous statute, and remain an indefensible position as the new statute is not retro-active.

    If this case can be of any help, feel free to contact.

    Good luck in PDR. This is a law that has certainly been abused by the State’s representatives and needs to be ruled unconstitutional.

      1. State’s brief is due 11/21. They’ll likely seek and get an extension. Once they have eventually filed their brief the court will set oral argument. Maybe Februaryish. Then some time for them to decide. Don’t bet on a decision before April unless you get odds.

  5. I am super excited by this. I believe my case is unique. Mr. Bennett, your work is really appreciated, I contacted you several months ago and I am monitoring the progress of Leax. I will be in touch.

    For the readers:

    I see a lot of questions but how did it actually go down for you? I know each individual experiences these types of things differently. Not everyone in those line ups on the news just set out to do this one day. Without giving dates and exact details I will try my best to share my story with you.

    One night I was chatting and ended up in a conversation that became inappropriate, it would have constituted the (b) part of my offense. That same night as I turned my computer off and layed down next to my wife I could not even believe that I just engaged in that type of communication. So I did get up and turn the computer back on, I then logged back into the messaging platform and deleted and blocked this user. The next morning I woke up with few if any thoughts of the conversation I had the night before. I went to work and on with my life.

    14 weeks later…

    Just because I deleted and blocked this user did not mean that I quit chatting. I had been chatting for years under this same username on this same platform. I met the lady that was my wife by the very same means and we had a great life, the only imperfection was me. I was playing a game on the web portion of the platform on this night 14 weeks later. I never dreamed of this happening but it did. In almost 10 years of talking to people and blocking unwanted users I had filled up my block list. Amazing, huh? It is true… I received a message on this night that said, “You have exceeded the maximum number of users allowed in your block list. In order to continue you must delete [some] or [all] users.” I selected [all] users, continued playing the game and eventually went home from work for the night.

    2, maybe 3 days later…

    “Hey, what’s up?” was the message. I never thought about it but when you block and delete someone it doesn’t do the same on their end. It only does it on your end. Evidently I had a friend I did not know about from a conversation 14 weeks ago that still had something to say. This time and regrettably so I was not at the same place mentally and I let it get to the point where plans to meet were made, which constitutes the (c) part of the offense.

    Or did it? In the Smith v. State case it states this: “We have recognized that “an unconstitutional statute is void from its inception” and that “ ‘when a statute is adjudged to be unconstitutional, it is as if it had never been’ ” and that such “an unconstitutional statute is stillborn[.]” Reyes v. State, 753 S.W.2d 382, 383 … so it might have been legal when they did solicit me to come and say “hey, whats up?” but doesn’t this statement mean that on that night 14 weeks earlier that no crime had been committed as of the October 2013 Lo ruling? Namely 33.021(b) since it no longer exists. Wouldn’t you agree that this changes things a little?

    I have spoken via email to Mr. Bennett about this and I respect his viewpoints. Look forward to hearing your thoughts.

  6. Very compelling arguments made by Appellant and some made by State in the Briefs. State has self admitted holes in its argument, which Appellant sheds clear light upon. The case seems to come down to whether or not the statute is content-based or conduct-based. In portions of its brief, State seems to admit that in some instances it is content-based, but in not enough instances to be substantially over broad or substantially chill free speech. With State seemingly admitting content-based (and Appellant seemingly proving it in Brief) and Appellant obviously demonstrating that if the statute is content-based, it is not the least restrictive means to satisfy a compelling state interest, it seems likely that Appellants be granted relief. This seems like a no-brainer to me, but I am biased.

    Couple of questions:

    1. If the CCA agrees with Appellant, will the Court simply send this back to the 9th Court, or will the Court rule that (c),etc. are unconstitutional? If sent back to the 9th, I assume a finding of unconstitutionality will only apply to the 9th’s jurisdiction?

    2. When will oral arguments be heard and the Court’s decision be made?

    1. 1. The State agreed with Appellant in oral argument on the issue presented (whether the statute is content based) but argued that we had lost standing to make the argument. If the court agrees with us that we still have standing, and agrees with both parties that the statute is content based, they may remand to the Ninth Court for the ultimate issue, or they may make it themselves. We asked them to make it themselves.
      2. Oral arguments have been heard. The recording is here. We may have a decision in the next month or two, but nobody outside the court knows for sure.

    1. The State conceded that the statute is content based, and conceded that it is “broad.” It relied on the “lack of standing” argument rejected by a five-judge Supreme Court concurrence in Massachusetts v. Oakes. I think that argument ultimately fails, not only because of the Oakes concurrence but also because standing is fixed at the time that the trial court rules. Unless the issue becomes moot (for example, the State dismisses the prosecution, not possible in this case) that standing endures.

    1. Yes, but some conduct under 33.021(c) might also have been prosecuted under 15.031 or another statute, and might be prosecuted under one of those statutes if the 33.021(c) case is reopened and dismissed.

  7. How would someone prosecuted under 33.021c, know if they were also prosecuted under another statute like 15.031 if the final judgment only states 33.021c

    1. They probably weren’t. 15.031 is harder to prove than 33.021(c), so prosecutors used the latter instead of the former. But some conduct that violated 33.021(c) could have been prosecuted under 15.031 instead, had the prosecutor chosen to do that.

  8. What is the next step ? How would one begin the process of challenging a prior conviction ? And finally is there any recourse for the expenses?

    1. Email me. We can discuss.

      There may be some small recourse — I have managed to get several thousand dollars back for each of four or five clients after reopening their 33.021(b) cases.

  9. What would one need to do now, if they made an plea deal under duress, and was charged under 33.021c. What means of recourse would one have.

    1. I advise you to wait until Leax comes out. If the Court of Criminal Appeals rules in our favor, getting relief will be (relatively) easy. If the Court of Criminal Appeals rules against us, I still have a couple of cards to play.

  10. Listened to oral arguments (thank you for providing that). I found you remarkably convincing; the arguments were quite sound and very well presented. State was convincing on the ‘substantially chilling’ issue, although obviously any chilling of a protected speech is substantial. One judge was obviously opposed (haha), but others seemed receptive.

    Seems it was established that the statute was content-based and overbroad – congratulations on that! If the CCA agrees that it is content-based and overbroad, and if Leax has standing, what would allow the CCA to not rule in favor of Leax?

  11. So from what I understand. if the connection between this law being unconstitutional or causing undo harm was argued in court. Then it should be fixed? But if it was not argued then it no longer can be an issue? Seems hard to understand how they can argue lack of standing if it’s obviously fixed.. unless I’m understanding it incorrectly. Just getting my info from other cases that standing was argued. Guess it’s a 50/50 on what they will do…

  12. so you have asked the court to make the decision and not remand it. Are there major differences in the court making the final decision Vs remanding it to the 9th? Also, if the court does not rule in your favor, can it still go to the 9th for a decision?

    1. I trust the CCA more on First Amendment issues than I do any intermediate court of appeals.

      No, it can’t still go to the 9th for a decision if the CCA holds the statute constitutional (or holds that we lost standing 9/1/15).

  13. What would cause the cca to say you have no standing. ? How long does it typically take to get a ruling from the cca.?

  14. Its frightening. To think that since the CCA knows that what they decides goes, that they can possibly just say you lost standing as a excuse to deem the statute constitution. Even though you actually did not lose standing. I would hope they make a decision based on what’s right and their duty to uphold the constitution. And not use their power based on personal feelings or beliefs.

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