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Solicitation Crime is Unconstitutional

Last year the Texas Court of Criminal Appeals, the highest court for criminal cases, ruled that Texas Penal Code §33.021, Online Solicitation of a Minor, was unconstitutional. The argument by the defense and ultimately agreed to by the court in a rare unanimous opinion was based on the First Amendment. This is naturally big news for those who have been convicted or placed on deferred adjudication for these offenses!

In addition to being under the yoke of the criminal justice system, they are identified by the public as being sex offenders. Because the Court ruled that the statute was facially unconstitutional, this means that any conviction or liberty restraint resulting from a prosecution under this statute is in and of itself invalid. In Harris County, the District Attorney has claimed that it has identified 90 defendants that have been wrongfully been convicted of this offense and has taken the affirmative step of notifying these defendants or their attorneys of their right to a writ reversing their pleas.

I don’t know about this. I have been getting far too many calls from people who learned of this issue on the internet, and wondering what they needed to do to get relief. None have told me that they were notified by the District Attorney.

To the credit of the Harris County District Attorney and Fort Bend, they clearly understand the importance of the issue, and have streamlined the process needed to reverse this injustice. In Harris County, for instance, a prosecutor has been appointed to handle writs based on unconstitutional pleas or convictions under Penal Code §33.021. They routinely agree to filings and the District Courts are quickly scheduling hearings based on the ruling in Ex Parte Lo.

Some lawyers are charging an exceptional amount of money for these writs. I don’t want to create controversy here, but I think this is a disservice to the community. The number of attorney hours needed for this service simply doesn’t justify a $10,000 fee, especially in cases filed in Harris and Fort Bend County. There are people in need who can’t afford such exorbitant fees, and they are identified online as sex offenders!

I also think we lawyers need to consider the impact this decision may have on other statutes in the penal code that we have often questioned. For instance, if solicitation is “over broad and vague”, can we not also say the same thing about the exceptionally vague Harassment statute? I understand this has been attacked in the past, but come on! As written, it makes almost every angry text message a crime in Texas. I’ve tried several, and the jurors are as dumbfounded as I when the State presents its case.

Bottom line: Lets clean this mess up for every single individual who pled to this crime. And then lets get to work cleaning up the rest of the Penal Code.