If you've been arrested for soliciting a prostitute in Texas, you're no doubt embarrassed by also scared and worried about what will happen next. What happens after your arrest? What are the possible penalties if the court convicts you? Unfortunately, as of September 1, 2021, soliciting prostitution is now a state jail felony in Texas. The possible repercussions can be severe, and one mistake can affect you for the rest of your life. That's why you need an expert in criminal law guiding you every step of the way.
Soliciting Prostitution: Misdemeanor Becomes a State Jail Felony
Before the legislature revised the law, soliciting prostitution was a Class B misdemeanor for a first offense and a Class A misdemeanor for a second offense. Soliciting prostitution will only become a third-degree misdemeanor after a third or subsequent offense. Soliciting a minor, or someone the solicitor believed was a minor, was a second-degree felony.
A person commits an offense if the person knowingly offers or agrees to pay a fee to another person to engage in sexual conduct with that person or another.
9 Tex. Penal Code § 43.021(a) (2021).
Under the revised law, soliciting prostitution is now a state jail felony. The crime becomes a third-degree felony if the accused has a prior conviction. Soliciting prostitution becomes a second-degree felony if:
- The person solicited is under 18,
- The accused believes the person solicited is under 18, or
- The person solicited represents themselves as being under 18.
The revised law states:
An offense under Subsection (a) is a state jail felony, except that the offense is:
(1) a felony of the third degree if the actor has previously been convicted of an offense under Subsection (a) or under Section 43.02(b), as that law existed before September 1, 2021; or
(2) a felony of the second degree if the person with whom the actor agrees to engage in sexual conduct is:
(A) younger than 18 years of age, regardless of whether the actor knows the age of the person at the time of the offense;
(B) represented to the actor as being younger than 18 years of age; or
(C) believed by the actor to be younger than 18 years of age.
Id. at § 43.021(b).
Unfortunately, Texas law enforcement often interprets "soliciting" prostitution very broadly. Let's take an example of a possible arrest scenario:
Jane was standing on a street corner in sexy, revealing clothes and high heels. She waves at someone in a car driving by. John pulls up to the corner and rolls down his window to talk to her. He asks Jane if she wants to have a date, and she gets in the car. John takes Jane to a hotel and asks her, "how much?" and she says, "$200." No sexual conduct takes place, and the police arrest them.
Considering Jane's clothing and location and how she waved, law enforcement could argue that Jane solicited "clients" as a prostitute. When John asks, "How much?" law enforcement can also argue that this was soliciting prostitution considering the circumstances of the conversation and the discussion of money. A prosecutor might even convince the jury that Jane and John were soliciting prostitution or engaged in prostitution without an experienced defense attorney representing each of them in court.
As you can see, Texas has dramatically increased the possible penalties and enforcement for soliciting prostitution. These legal revisions make it imperative that you retain an experienced criminal lawyer as soon as possible to avoid a felony conviction.
The Arrest for Soliciting Prostitution
Contrary to popular belief, the police can't simply follow a couple to a hotel, barge into the room, and arrest them for prostitution or soliciting prostitution. That would be a violation of your constitutional rights.
- Probable Cause
The police must have probable cause to search or arrest you; they can't simply arrest you because they have a hunch that you might be soliciting prostitution when you're driving around an area where prostitutes are known to hang out. Under the Fourth Amendment to the U.S. Constitution, "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." The Fourth Amendment expands on this, stating, "no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
To avoid "unreasonable searches and seizures," when detaining and arresting someone, they must have probable cause. Because the Fourth Amendment doesn't define "probable cause," the courts have addressed this issue. In Brinegar v. United States, the U.S. Supreme Court opined that probable cause exists "where the facts and circumstances within the officers' knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed." In easier to understand terms, probable cause exists when an officer has observed reasonably trustworthy evidence from which the officer may "reasonably believe" the suspect committed a crime. If the police don't have sufficient probable cause, it could invalidate your arrest and any evidence they collected as a result. In that case, your attorney could bring a successful motion to suppress any related evidence in your case or succeed in having the court dismiss your charges.
- Reasonable Suspicion
In some cases, the police may stop you and talk to you before arresting you if they have "reasonable suspicion" that you committed a crime. Reasonable suspicion exists if an objective person, given the particular facts and circumstances of your situation, would believe that you are engaged in illegal behavior."
However, reasonable suspicion is not a standard sufficient for the police to arrest you for soliciting prostitution. In that case, a police officer may try to ask you questions about what you're doing and why to try to gain probable cause for an arrest. You don't have to answer their questions; you can simply be polite and respectful while refusing to answer. If the police stop you or detain you without reasonable suspicion, it violates your constitutional rights, and your attorney can challenge your arrest in court.
After the Arrest for Soliciting Prostitution
After an arrest, the process is similar for most criminal charges, involving a booking, arraignment, bail, preliminary hearing, trial, and sentencing.
First, the police will book you and take your personal data, fingerprints, and photograph. Booking is the official process of entering your information and the criminal charge you're facing. If you need to find someone after an arrest, you can usually find their location online after a few hours. They'll need some basic information, including their:
- Full name
The Harris County Sherriff's Department has an online search tool to find someone arrested in Houston. After looking someone up, take note of their System Person Number (SPN) to look up future information about a case. You can also call the Joint Processing Center, where many people end up after an arrest. Their helpline is 713-837-0311.
At the arraignment, you will officially hear the charges against you in court. A prosecutor, grand jury, or police officer may tell you the charges you're facing, and you may also receive a copy of the police report. During the arraignment, after the court informs you of the charges against you, you will enter a plea of guilty, not guilty, or no contest. If you enter a not guilty plea, the court will set a trial date.
While for more serious crimes, the accused may have to stay in jail after the arraignment until trial, in many cases, the court will set bail. Bail is a payment you make to the court, allowing you to be released from jail to await trial. Your release from jail is conditional, and if you fail to appear, you will lose the bail you paid, and the court will issue a warrant for your arrest. The amount of bail can vary based on the severity of the crime, your flight risk, and any prior convictions you may have.
If you can't afford bail, a surety bond may be an option for you. A surety bond is a bail bond involving a bond agent. The bond agent pay's the defendant's bail to secure their release from jail in exchange for some collateral. For example, many people use a home as collateral for a bail bond. If the defendant doesn't appear in court, the bond agent will forfeit the bail paid and take possession of any collateral. If you fail to appear in court after using your house as collateral for a bail bond, the bond agent may foreclose on your home to recover the money.
The Court Process for Charges of Soliciting Prostitution
Before you head to trial, you'll first have discovery and a pretrial or preliminary hearing. Discover is the process where the prosecution will turn over the evidence it has in the case against you, including any evidence that may exonerate you. Your attorney may also bring motions to exclude evidence or dismiss your case if your arrest violated your constitutional rights, the police obtained evidence illegally, or your attorney believes the evidence shouldn't be admitted in court.
At the preliminary hearing, the prosecutor bringing the case against you must present their case. The judge will determine if there's enough evidence that you committed the crime to bring the case to trial. If not, the judge will dismiss the charges.
- The Trial
Your trial will follow a predictable pattern, no matter the crime. First, each party will have an opening statement where the attorneys discuss the charges and what they intend to prove or disprove at trial. The prosecution will then put on its case, introducing witnesses and evidence in its case against you. Your attorney will have the opportunity to cross-examine the witnesses and challenge the evidence, poking holes in the prosecution's case against you. The prosecution will need to prove each element of solicitation of prostitution against you beyond a reasonable doubt. If the prosecution fails to do this, the court should rule in your favor.
Next, your attorney will put on your defense, calling witnesses and presenting evidence to support your innocence. The prosecutor will have the opportunity to cross-examine your witnesses and challenge your evidence. However, your attorney doesn't have the burden of proving your innocence. Rather, the burden of proof of your guilt rests with the state of Texas and the prosecutor in your case.
After each party has presented their case, both sides will deliver a closing statement. This statement is usually a summary of the case, and the evidence presented. After closing statements, the judge or the jury will review the evidence and deliberate before delivering a verdict. You are entitled to a jury trial, but you may also choose to have a judge alone hear your trial and deliver a verdict.
If the judge or jury finds you guilty, the judge will read your sentence. Similarly, if you pled guilty or no contest to the charges, the judge would skip to this step, delivering your sentence and the penalty you will face for the conviction.
The Penalties for Soliciting Prostitution
Because soliciting prostitution is now a state jail felony, third-degree felony, or second-degree felony, depending on the circumstances or prior convictions, the repercussions of a conviction can be long-lasting.
- Statutory Penalties
The statutory penalties for soliciting prostitution in Texas can be harsh:
- A first conviction for soliciting prostitution is now a state jail felony in Texas. A state jail felony in Texas carries up to two years in state jail and up to a $10,000 fine.
- Conviction of a second offense for soliciting prostitution is a third-degree felony. A third-degree felony conviction in Texas can lead to two to ten years in prison and up to a $10,000 fine.
- A conviction for soliciting someone under 18, you believe to be under 18, or holds themselves out as under 18 is a second-degree felony in Texas. A second-degree felony conviction can result in two to twenty years in prison and up to a $10,000 fine.
- Repercussions of a Felony Conviction
In addition to the statutory penalties you can face with a felony conviction, a criminal record can lead to even more fall-out in your personal and professional life as well. You could lose a security clearance, professional license, your right to vote, and your right to own or possess a firearm. If you are engaged in a custody dispute, you could lose visitation or custody of your children. You could also find it difficult to find a job, particularly in law enforcement or any profession that requires a clean criminal background check. It can even be difficult to obtain a loan, a mortgage, or rent an apartment with a felony conviction.
Defending a Soliciting Prostitution Charge
To convict you of solicitation, the prosecutor must prove beyond a reasonable doubt that:
- You knew the person you were talking to was a prostitute or possibly a client,
- You asked for sex or sexual conduct in exchange for a fee,
- You asked in a public place.
You may have a viable defense to a solicitation of prostitution charge if:
- You agreed to sexual conduct, but there was no agreement to give or take money or anything of value in exchange,
- You didn't have any idea the person was a prostitute,
- If the conversation was just one via text or online and it was legally impossible to solicit prostitution,
- A police officer entrapped you using strong language, intimidation, or coercion to compel you to do something you wouldn't have normally done,
- The evidence is insufficient, meaning the prosecution can't prove the elements of the crime beyond a reasonable doubt, or
- The evidence isn't trustworthy, meaning it comes from a source that isn't reliable or a witness that isn't credible.
Law enforcement in the Houston area can be very aggressive in pursuing prostitution and solicitation arrests. They will set up stings on internet sites, use Craig's list or dating apps, stand on corners soliciting clients, and even disguise themselves as strippers to entrap people. If you end up in the wrong place at the wrong time, you could find yourself wrongfully arrested for soliciting a prostitute. An expert in criminal law can help devise the best strategy for your defense, attacking the evidence and telling your side of the story.
Hire an Experienced & Board Certified Houston Criminal Defense Lawyer
If you're facing a possible conviction for soliciting prostitution in Texas, it's a serious matter. A state jail felony conviction can have lasting repercussions on your life, custody matters if you have children, your ability to get a job, and even your ability to buy a home or rent an apartment. But you don't have to go through this alone. You need the guidance of an expert in Texas criminal law.
Attorney Doug Murphy is an expert in criminal law. He is one of only two attorneys in Texas who are Board Certified in Criminal Defense Law and DWI Defense, making him an expert in criminal defense and a highly seasoned litigator. U.S. Best Lawyers in America also recently named Doug the "Lawyer of the Year" for 2021 in DWI defense. Give us a call at 713-229-8333 to set up a consultation today. You are innocent until proven guilty, and the Doug Murphy Law Firm can help.