WHAT IS CRIMINAL SOLICITATION OF A MINOR IN TEXAS?
The Texas law against criminal solicitation of a minor prohibits requesting, commanding, or attempting to induce a minor under 17 years of age to commit human trafficking of a child for sexual purposes, continuous sexual abuse of a child, indecency with a child, sexual assault, aggravated sexual assault, prostitution, solicitation of prostitution, compelling prostitution, sexual performance by a child, or other offense listed in Article 42.054(a) of the Texas Code of Criminal Procedure.
WHAT IS THE CRIMINAL SOLICITATION OF A MINOR LAW IN TEXAS?
Tex. Penal Code § 15.031. CRIMINAL SOLICITATION OF A MINOR.
(a) A person commits an offense if, with intent that an offense listed by Article 42A.054(a), Code of Criminal Procedure, be committed, the person requests, commands, or attempts to induce a minor to engage in specific conduct that, under the circumstances surrounding the actor’s conduct as the actor believes them to be, would constitute an offense listed by Article 42A.054(a) or make the minor a party to the commission of an offense listed by Article 42A.054(a).
(b) A person commits an offense if, with intent that an offense under Section 20A.02(a)(7) or (8), 21.02, 21.11, 22.011, 22.021, 43.02, 43.021, 43.05(a)(2), or 43.25 be committed, the person by any means requests, commands, or attempts to induce a minor or another whom the person believes to be a minor to engage in specific conduct that, under the circumstances surrounding the actor’s conduct as the actor believes them to be, would constitute an offense under one of those sections or would make the minor or other believed by the person to be a minor a party to the commission of an offense under one of those sections.
(c) A person may not be convicted under this section on the uncorroborated testimony of the minor allegedly solicited unless the solicitation is made under circumstances strongly corroborative of both the solicitation itself and the actor’s intent that the minor act on the solicitation.
(d) It is no defense to prosecution under this section that:
(1) the minor solicited is not criminally responsible for the offense solicited;
(2) the minor solicited has been acquitted, has not been prosecuted or convicted, has been convicted of a different offense or of a different type or class of offense, or is immune from prosecution;
(3) the actor belongs to a class of persons that by definition of the offense solicited is legally incapable of committing the offense in an individual capacity; or
(4) the offense solicited was actually committed.
(e) An offense under this section is one category lower than the solicited offense, except that an offense under this section is the same category as the solicited offense if it is shown on the trial of the offense that the actor:
(1) was at the time of the offense 17 years of age or older and a member of a criminal street gang; and
(2) committed the offense with the intent to:
(A) further the criminal activities of the criminal street gang; or
(B) avoid detection as a member of a criminal street gang.
WHAT IS THE PENALTY CLASS FOR CRIMINAL SOLICITATION OF A MINOR IN TEXAS?
Solicitation of a minor is the same category as the solicited offense if the accused was part of a criminal street gang, the offense solicited was in furtherance of the gang’s criminal activities, or to avoid detection by law enforcement. Otherwise, the penalty category for criminal solicitation of a minor is one offense category lower than the solicited offense. For example, if a person solicits a minor to commit murder, a first degree felony, the solicitation will be punishable by two to 20 years in prison as a second degree felony.
- Soliciting a minor to commit capital murder is a first degree felony, punishable by five to 99 years or life in prison.
- Soliciting a minor to commit a first degree felony is a second degree felony, by two to 20 years in prison.
- Soliciting a minor to commit a second degree felony is a third degree felony, which carries two to ten years in prison.
- Soliciting a minor to commit a third degree felony is a state jail felony, with a punishment range of 180 days to two years in a state jail facility.
WHAT IS THE PUNISHMENT RANGE FOR CRIMINAL SOLICITATION IN TEXAS?
Solicitation of a minor is the same category as the solicited offense if the accused was part of a criminal street gang, the offense solicited was in furtherance of the gang’s criminal activities, or to avoid detection by law enforcement. Otherwise, the punishment range for criminal solicitation of a minor is one category below the solicited offense.
- Soliciting a minor to commit capital murder is a first degree felony, which carries five to 99 years or life in prison, and a maximum fine of $10,000.
- Soliciting a minor to commit a first degree felony is a second degree felony, by two to 20 years in prison, and a maximum $10,000 fine.
- Soliciting a minor to commit a second degree felony is a third degree felony, which carries two to ten years in prison, and a maximum $10,000 fine.
- Soliciting a minor to commit a third degree felony is a state jail felony, with a punishment range of 180 days to two years in a state jail facility, and up to a $10,000 fine.
WHAT ARE THE PENALTIES FOR CRIMINAL SOLICITATION OF A MINOR IN TEXAS?
A person charged with criminal solicitation of a minor may be eligible for probation after a conviction, or deferred adjudication without a conviction. A judge or jury may grant probation if the defendant’s underlying prison sentence does not exceed ten years, the person has no prior felony convictions, and a deadly weapon was not used to commit the offense.
A person may also receive deferred adjudication after a plea of guilty or nolo contendere (“no contest”) to a judge. The length of community supervision depends on the offense category:
- First degree felony, second degree felony, or third degree felony community supervision may not exceed ten years;
- State jail felony community supervision may range between two and five years, with the possibility of extending supervision for up to ten years.
WHAT ARE THE DEFENSES TO CRIMINAL SOLICITATION OF A MINOR IN TEXAS?
In addition to the justification defenses available in most criminal prosecutions, a person may attempt to negate the elements of the offense the State must prove at trial.
- If there is no sexual contact, can a person be convicted of solicitation of a minor in Texas? Yes. Texas law prohibits soliciting a minor for sex, even if there is no actual sexual contact. However, a person may not be convicted of criminal solicitation of a minor on the uncorroborated testimony of the minor allegedly solicited unless the solicitation is made under circumstances strongly corroborative of both the solicitation itself and the actor’s intent that the minor act on the solicitation. See Smitherman v. State, No. 05-21-00197-CR (Tex. App.—Dallas June 10, 2022, no pet.).
- What if the minor solicited could not have actually committed the offense solicited? The Texas law against criminal solicitation of a minor provides it is not a defense if the minor could not have actually committed the offense, is not prosecuted or convicted, or is otherwise not criminally responsible. In fact, a person may be prosecuted for criminal solicitation of a minor even if the minor does not exist.In Sanchez v. State, the defendant was convicted of soliciting a minor to have sex with him online, even though the purported minor was actually an undercover police officer. The officer posed as a 15-year-old girl, and the defendant was 18 years old at the time. They agreed to have sex while talking in a chatroom, and the defendant was arrested when he arrived at the agreed-upon location with condoms in his pocket. Even though there was no actual minor solicited, the defendant could still be convicted of soliciting a minor to have sex.
- Is the Texas three-year rule applicable in sexual assault cases available in criminal solicitation of a minor prosecutions? Yes. The three-year rule, or “within-three-years” defense in Texas sexual assault of a child statute, Section 22.011(e), applies in criminal solicitation of a minor prosecutions. If the victim is between 14 and 17 years old, the accused is no more than three years older than the victim, they are not related or married to other people, and the sexual contact was consensual, a person may raise the defense.
WHAT IS THE STATUTE OF LIMITATIONS FOR CRIMINAL SOLICITATION OF A MINOR IN TEXAS?
The limitation period for criminal solicitation of a minor is the same as that of the felony offense solicited. For example, if a person solicits a minor to commit murder, there is no limitation, because murder has no limitation.
CRIMINAL SOLICITATION OF A MINOR IN TEXAS
Texas law punishes “inchoate” offenses, or acts in preparation of committing crimes. Inchoate offenses such as criminal solicitation of a minor become punishable when a person forms the intent to commit a specific crime, and takes the affirmative step to solicit another to commit the crime.
TEXAS CRIMINAL SOLICITATION OF A MINOR COURT CASES
The case law regarding criminal solicitation of a minor in Texas illustrates the statute’s application.
- In Smitherman v. State, the defendant was a long-time friend of the 13-year-old victim’s family. He followed her into an RV on their property, and started saying vulgar sexual things. He touched her thigh and grabbed her face, but she punched him, screamed, and he left. Another family friend living on the property heard the victim scream, saw the defendant leave the RV, and rushed in. She also called the victim’s grandmother, who quickly arrived to find the victim distraught. The defendant was convicted of criminal solicitation of a minor with intent to commit aggravated sexual assault, and the appellate court affirmed.
