Effective September 1, 2021, attempting to purchase sex has become a felony. This is an aggressive move by the Texas government and makes Texas the first state to make a first-time prostitution offense a felony. Specifically, a first-time prostitution offense has gone from being a Class “B” misdemeanor, punishable by up to 180 days in jail, to a third-degree felony punishable by up to ten years in prison.
This change in the law appears to have been accompanied with aggressive enforcement from law enforcement in the form of stings in the Greater Houston area. The Houston Police Department, as well as law enforcement agencies in Conroe and Richmond have renewed prostitution stings in an effort, they claim, to combat human trafficking. These stings take several shapes, but typically, an undercover officer will approach men in areas known for prostitution and attempt to get them to agree to purchase sex for money.
Another common sting targets websites in the Houston area known for prostitution. In these types of stings, the police will post an ad with a female offering sex for money. Typically, the suspected john will begin communicating with the police via text and enter into an agreement to purchase sex for money. Once the john arrives to meet who he believes is a prostitute, he will be arrested.
Before a criminal defense attorney can challenge a prostitution case, it is necessary to obtain all of the evidence. In a prostitution case, typically the most critical piece of evidence will be a recording of the interaction – either audio or video – or the text message at issue. In a surprising number of cases, the agreement to enter into an agreement to purchase sex is vague or not established. Criminal defense lawyers know that police officers often misrepresent conversations, so it is important that the audio or video is obtained.
One question is how intent is proved in a prostitution case. Since we can’t know what people were actually thinking, prosecutors and criminal lawyers look to the facts of a case to try and infer intent. Recently, I spoke to a man who was arrested by the Houston Police Department in a sting in an area known for prostitution. As in many cases, he was approached by a female undercover officer who offered sex for money. According to the police, he accepted, and he was arrested. But some of the facts in the case seriously draw his intent to purchase sex into question. First of all, the man did not speak fluent English and says he did not understand what the officer was saying. He also did not have the money that the undercover officer was asking for, drawing into question his intent to enter into the transaction. Perhaps even more importantly, he drove away from the scene and was stopped by officers almost a mile away from where the transaction took place. If this man truly intended to purchase sex, then it does not make sense that he would make an agreement and then leave the scene.
These facts strongly suggest that this man did not have an intent to purchase sex for money and I am optimistic that the case will be dismissed for that reason. Given these facts, one way to get this case dismissed might be to file a grand jury packet to try and get the case “no billed” by a Harris County Grand Jury, possibly by getting a polygraph examination. Of course, every factual scenario will be different but before your criminal defense lawyer can look for these sorts of problems, he will need to obtain the evidence, which can be a lengthy process. In the Greater Houston area, it typically takes at least three or four months.
The reality is that most cases will not be dismissed due to weak evidence. In many cases, the prosecutor will be able to prove its case and it will be necessary to find other ways to get your prostitution case dismissed. One possibility is sometimes pre-trial diversion. Pre-trial diversion is an agreement – sometimes formal or sometimes informal – with the District Attorney’s Office that your case will be dismissed if you fulfill certain conditions, like community service or a prostitution class.
In Houston, it is common that prosecutors are willing to offer some type of deal resulting in dismissal in a prostitution case, particularly where a defendant has no criminal history. This is worth considering, particularly if the evidence against a defendant is strong. When entering into a pre-trial diversion, the less formal the arrangement, the better, particularly if a defendant is not a United States Citizen (it is sometimes possible for an admission of guilt in a pre-trial diversion contract to be used against someone in an immigration proceeding). In Harris County, Fort Bend County and Montgomery County, prosecutors will sometimes offer a dismissal of a prostitution case in exchange for completion of an AIDS class without any admission of guilt.
Trials in prostitution cases are somewhat rare, but also an option that should be considered to beat the case. Interestingly, a large percentage of the public in the Houston area does not believe that prostitution should be illegal, or that resources should be spent enforcing or prosecuting prostitution laws. As a result, prostitution cases are good cases for the defense to take to trial, although the fact that they have become felonies makes a conviction much more costly.
If your prostitution case is dismissed or if you are acquitted at trial, you will most likely be eligible to have your records expunged. It is important to understand that dismissal does not wipe all records of the case off of your record. Even after your prostitution case is dismissed, the case would still appear on your record (although it would show a dismissal). To truly restore your good name, I recommend obtaining an expunction, which is a separate legal procedure that results in the destruction of all records relating to your prostitution case. Once your prostitution case is expunged from your record, it will not appear on your criminal history in any way and you can legally deny the existence of the arrest under Texas law.
Texas has raised the stakes of prostitution cases by making first-time offenses for buyers felonies. But an experienced criminal defense attorney can help you clear your record. Attorney Jose Ceja is a former prosecutor who regularly handles prostitution cases in Houston, Conroe, Richmond and throughout the Greater Houston area. Call today for a free consultation.