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Prostitution Is Now A Felony In Texas

January 09, 2023

In 2021, the State legislature decided to fight crime by amending Texas Penal Code §43.02, and adding §43.021, turning solicitation of prostitution into a State Jail felony. Previously, the crime had been a Class B misdemeanor. So why did the legislature upgrade solicitation? The attorney’s general report claims an economic reason for the change. According to the AG, “The current punishment range for buying sex does not curb demand, and as long as there is demand, there will be supply.” This argument is familiar to the “war against drugs” mentality that convicted and incarcerated thousands of addicted users in the 80’s and 90’s. This war wreaked havoc on many families and ultimately laws had to be changed.

The change in the penalty range for solicitation of prostitution was worrisome to me. Prior to §43.021, criminal defense attorneys would resolve these cases through a dismissal with conditions or pre-trial diversion contracts. The main question I had when I learned of the law change was what the response would be from the prosecution in Harris County? These felonies have now been assigned to the Human Trafficking division of the District Attorney’s office, which heightened the concern about resolution. As a misdemeanor, these cases were handled by the court prosecutors, who also handled the thefts, DWIs and Assault cases and they were treated with the same level of importance. What would the new division do?

Most prostitution cases are made in organized stings. As a result, the evidence usually includes audio or video recordings of the interaction between my client and the undercover police officer. Resolution of the case is delayed while we seek to obtain this evidence and verify the allegations in the offense report.  The goal of these stings is to arrest as many people as possible in the shortest amount of time. Frankly, it’s a numbers game. When criminal lawyers see a numbers game, we start asking whether there is a financial incentive for the arrests. When prostitution was a misdemeanor, we could satisfy ourselves that the regular stings were designed to justify local budgeting. Now that solicitation has been made a felony, we have to ask whether Federal funding is now part of the game?  Will that change the philosophy of the prosecution?

So far it’s been good news. Since the law change, I have represented three individuals caught up in prostitution stings. Naturally, the courts have changed, along with pre-trial conditions. However, my experience has been that Pre-trial diversion is still on the table depending on the characteristics of the defendant. The length of the contract is still only a year, but the conditions have become slightly more burdensome. Of course, this policy can change at any minute, so if you have a pending case it is best to hire me or another qualified criminal defense lawyer and let him or her get to work on your case asap.

A felony charge becomes a real problem for those who have prior criminal convictions on their record, irrespective of whether it was for a sex crime. They are unlikely to be eligible for diversion. A felony deferred is always a possibility but comes complete with all kinds of difficult conditions. Further, there is a five year wait for any felony deferred to be non-disclosed.   Although I have yet to represent someone in this position, I am confident that, absent aggravating circumstances, many of these cases can be worked out to a reduction as an attempt. It all depends on the attitude of the prosecution. I will be monitoring that closely.

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