Texas Statute for Online Solicitation of a Minor Ruled Unconstitutional

On October 30th the Texas Supreme Court ruled that part of a Texas statute prohibiting online solicitation of a minor is unconstitutional.  Texas Penal Code Section 33.021(b)(1) states “A person who is 17 years of age or older commits an offense if, with the intent to arouse or gratify the sexual desire of any person, the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, intentionally communicates in a sexually explicit manner with a minor.”  Under this statute, online solicitation of a minor is a third degree felony, punishable by two to ten years in state prison, and a fine of up to $10,000.

However, as a result of the Texas Supreme Court ruling, online solicitation of a minor under this section of the Penal Code is no longer illegal.  In its opinion, the court stated that this sort of “dirty talk” is protected free speech under the U.S. Constitution.  The court went on to say that “Section 33.012(b) of the Texas Penal Code is overboard because it prohibits a wide array of constitutionally protected speech and is not narrowly drawn to achieve the legitimate objective of protecting children from sexual abuse.”

This section of the online solicitation of a minor statute cannot be used to prosecute anyone for conduct alleged to violate it, even though this law still remains on the books.  Furthermore, under relevant case law, anyone who has been previously convicted under this section of the online solicitation of a minor statute should seek to have his conviction overturned, inasmuch as an unconstitutional statute cannot support a conviction, past or present.