Houston Defense Attorney Explains Prostitution
After an arrest for engaging in or soliciting prostitution in the greater Houston area, including all of Harris County and the Woodlands in Montgomery County, contact experienced sex crimes defense attorney. Call attorney Matt Horak to discuss your case today.
Law enforcement officers engage in elaborate sting operations targeting adult entertainment establishments, clubs, massage businesses, swingers clubs, and escort services. Numerous defenses can be used to fight the charges including the entrapment defense.
The statutory scheme in Texas for such offenses makes a distinction between:
- the person who engages in the sexual conduct for compensation (“the prostitute”); and
- the person who solicits the prostitution (commonly called “the john”); and
- the person who engages in the promotion or aggravated promotion of prostitution (the “pimp” or “madame”) as an organized activity.
Penalties for Engaging in Prostitution under Texas Law
The prostitution statute in Texas, Section 43.02(a) provides:
(a) A man or woman commits an offense of prostitution if the person knowingly:
(1) offers to engage, agrees to engage, or engages in sexual conduct for a fee
Tex. Penal Code Ann. § 43.02(a) (Vernon 2003). For the prostitution statutes, Texas law defines the term knowingly to mean that “[a] person acts knowingly, or with knowledge, with respect to the nature of his conduct … when he is aware of the nature of his conduct.” § 6.03(b).
For decades, the State of Texas reserved the same penalty for both engaging in prostitution and solicitation. However, that all changed in September 2021 when House Bill 1540 passed in both the House and Senate. The newly passed legislation would increase the punishment for solicitors (also commonly referred to as “Johns”) so they instead face a felony offense upon conviction.
Those who engage in prostitution will still face a class B misdemeanor, which is punishable by:
- Up to 180 days in jail
- A fine of up to $2,000
If the defendant has a one or two previous convictions for prostitution, their sentence will be enhanced to a class A misdemeanor. The maximum penalty for a class A misdemeanor includes:
- Up to one year in jail
- A fine of up to $4,000
Defendants with three or subsequent prior convictions will instead face a state jail felony. Under Texas Law, a person convicted of a state jail felony offense will face the following:
- Up to two years in state jail
- A fine of up to $10,000
The court will increase the punishment prescribed to the next highest category offense if it is proven at trial that the offense was committed in one of the following locations.
- On the premise of or within 1,000 feet of the premise of a school
- On the premise or within 1,000 feet of an official school function
- On the premise or within 1,000 feet of an event sponsored or sanctioned by the University Interscholastic League
Solicitation of Prostitution
With the passing of HB 1540, Texas became the first state in U.S. history to charge solicitors with a felony on the first offense. In the past, the State of Texas charged solicitors and those who engaged in prostitution with a class B misdemeanor offense. Over time, legislators and other groups advocated for a penalty enhancement for solicitors in an effort to decrease human trafficking offenses–even though there is little to no evidence that the majority of prostitution offenses are linked to human trafficking or smuggling.
Now, offenders charged with solicitation will instead face a state jail felony on their first conviction. The maximum penalty for a state jail felony is two years in jail and a fine of up to $10,000. In addition, the offense carries a minimum jail sentence of at least 180 days upon conviction. Offenders with a prior solicitation conviction on their record will instead face a third-degree felony, which is punishable by up to 10 years in prison and a $10,000 fine.
Solicitation for Prostitution in a Public Place
See Tex. Penal Code Ann § 43.02(a)(2) (Vernon 2003). This subsection requires the prosecution to prove that the conduct occurred in a public place, whereas subsection 43.02(a)(1) does not so require. Depending on the particular facts of the case, certain places can be considered either public or not public depending on whether the public has access to the area at the time of the alleged offense. Texas law defines the term “public place” as any place to which the public or a substantial group of the public has access and includes, but is not limited to the common areas of:
- apartment buildings;
- schools (including colleges and educational institutions);
- office buildings;
- retail establishments and shops;
- transport facilities such as airports or bus stations; or
- the streets and highways.
See Tex. Penal Code Ann. § 1.07(a)(40) (Vernon Supp.2008).
Promotion and Aggravated Promotion of Prostitution under Texas Law
Texas law defines prostitution enterprise as a design or plan for a venture or undertaking in which two or more persons agree to, offer to, or engage in sexual conduct in return for a fee. A man or woman can be accused of the criminal offense of aggravated promotion of prostitution if he or she:
- knowingly acts;
- supervises, manages, invests in, owns, finances or controls a prostitution enterprise;
- when the enterprise uses two or more prostitutes.
See Tex.Penal Code Ann. § 43.04(a).
Protecting Children from Sexual Exploitation Related to Prostitution
The Texas Legislature has passed a number of statutes providing greater protection against sexual exploitation for underage children. By enacting these statutes, the Texas Legislature has expressed both the awareness that children are more vulnerable to exploitation by others even in the absence of fraud or explicit threats or fraud and the extreme importance of protecting children from sexual exploitation.
Texas law provides for misdemeanor penalties when an adult promotes prostitution involving another adult, without the use of fraud, threat or force. However, the penalties are much harsher for criminal offenses regarding the sexual exploitation of children for prostitution related offenses include:
- trafficking a child under eighteen for purposes of compelling prostitution or sexual performance also carries harsher penalties under Tex. Penal Code § 20A.02;
- inducing a child under fourteen to engage in sexual conduct or performance also carries harsher penalties under Tex. Penal Code § 43.25(e);
- sexual assault of a child under fourteen is considered “aggravated sexual assault” and is subject to the same consequences as the rape of an adult involving serious bodily injury or other aggravating circumstances under. Tex. Penal Code §§ 22.011, .021; and
- compelling a child under eighteen to commit prostitution is treated as a crime equivalent to using “force, threat, or fraud” to compel an adult to commit prostitution, and is a second-degree felony under Tex. Penal Code §§ 43.03, .05.
Strip Clubs Could Face a Felony for Hiring Dancers Under 21
HB 1540 wasn’t the only piece of legislation that was passed in a performative effort to “decrease human trafficking.” The State of Texas has also raised the legal age for those working in a strip club or any “sexually oriented business” from the ages of 18-21 years old. Once the law was put into effect, hundreds of young people were put out of work instantly. Employers had no choice as they could face serious legal penalties for hiring them even though those aged 18-21 are clearly adults and aren’t minors.
Violation of this newly passed law will result in a second-degree felony. The maximum penalty for a second-degree felony includes up to 20 years in prison and a fine of up to $10,000. The employer must have hired a person aged 18-20 to work nude, topless or in a sexually oriented commercial activity in order to face a felony offense.
Not only that, but any “sexually oriented business” found employing someone aged 18-20 years old in any capacity (including positions that don’t involve exotic dancing or other commercial sexual activity) will face a class A misdemeanor. The maximum sentence a person can face for a class A misdemeanor includes up to one year in jail and a $10,000 fine. Please note, a sexually oriented business can include places such as sex shops, adult goods stores, adult cam studios, certain modeling studios, and more.
Finding a Defense Attorney for Solicitation Charges
If you are charged with prostitution or soliciting a prostitute, then contact an experienced Houston criminal defense attorney. Matt Horak represents individuals in prostitution cases throughout the greater Houston area including all of Harris County and The Woodlands in Montgomery County, Texas.