In Texas, the offense of prostitution requires that prosecutors prove a knowing agreement to exchange money (or something of value) for a prohibited sexual act. As a result, almost all defendants who are arrested for prostitution are arrested after a sting, since it is necessary for the police to prove that such an agreement took place by having a recording of the conversation or a witness (the undercover police officer), who can testify that such an agreement existed.
The police in Houston regularly run prostitution stings to arrest the buyers and sellers of sex. To catch prostitutes, the police will frequently set up stings in hotel rooms and contact prostitutes to come to the hotel room, where they will be arrested after an agreement is entered into. Police will also send undercover officers into strip clubs or spas in Houston that are known for prostitution activity and attempt to get dancers or masseuses to agree to engage in a sex act in exchange for money. To catch the buyers of sex, the police also employ a variety of stings, including stings at hotel rooms and stings on the street, in areas known for high levels street prostitution.
The elements of the offense of prostitution are essentially the same for the buyer and seller of sex, but what is different is the penalty for each. In Texas, a first-time alleged prostitute faces a Class “B” misdemeanor. A second or third conviction is a Class “A” misdemeanor. For the buyer of sex, however, the penalties are significantly steeper. For the buyer (also known as the “john”), a first offense solicitation of prostitution is charged as a State Jail Felony. If a buyer has a prior conviction for prostitution, an additional arrest will be charged as a third-degree felony.
The difference in penalty means that a first-time buyer and first-time seller of sex will end up in different courts. In Texas, misdemeanors are handled in County Courts at Law (in Harris County there are 16 county courts at law). Felonies are assigned to District Courts. Having a case in a District Court rather than a County Court could result in more strict bond conditions, but other than that (and the higher potential penalty for a conviction), there is not a major practical difference between having a prostitution case in county court or district court.
To get the best result in a prostitution case, a criminal defense attorney should have a clear plan along with several fall-back plans (in other words, a plan “a,” plan “b,” etc.). In order to effectively defend any prostitution case, plan “a” should always be to challenge the facts. Of course, to be able to challenge the facts of a prostitution case, a defense attorney must obtain all of the evidence, which typically includes a police report and audio or video. With the exception of cases from strip clubs (where the music makes audio completely inaudible), all prostitution cases in Houston will contain at least audio. Obtaining the evidence in a prostitution case in Houston can be a lengthy process and sometimes take six months or more.
The most common way to challenge the facts in a prostitution case is by challenging the existence of a knowing agreement to exchange money for a sexual act. In Texas, the offense of prostitution does not require that a sexual act actually be completed, but the law does require that a knowing agreement is present. In some cases, it may be possible to challenge the existence of knowing agreement. Recently, our office was hired on a prostitution case in Houston where there was a language barrier and there was a serious doubt as to whether our client properly understood what was being discussed, and actually offered sexual services. This case was dismissed the night before trial.
Depending on the facts of a case, it is also possible to argue a case of mistaken identity (sometimes possible in a dark strip club). There are also some statutory defenses to prostitution, like entrapment, although they can be difficult to prove.
In any event, an effective prostitution defense attorney should first attempt to obtain a dismissal due to the facts of the case. The advantage of getting a case dismissed outright is that there are no conditions to the dismissal and a defendant will typically be entitled to an expunction.
Of course, not every prostitution case will have a factual flaw that will lead to a dismissal. If after a thorough review of the evidence, a criminal defense attorney does not believe that a prostitution case will be dismissed outright, then it is possible for him to sometimes negotiate a dismissal with the District Attorney’s office.
In general, the Harris County District Attorney’s office priority is not giving a person charged with prostitution (whether as a buyer or seller of sex) a criminal record. The official office policy (and this seems to be true), is that the goal is combatting human trafficking. As a result, depending on the facts and on the criminal history of the defendant, it may be possible to obtain a dismissal of a prostitution charge even if the facts are not in a person’s favor.
For alleged prostitutes, the Harris County District Attorney’s Office has a program known as P180 that results in the dismissal of a case if an alleged prostitute participates in a forensic interview where the facts and circumstances of the alleged incident are discussed and the alleged prostitute is given access to resources to help her if she is the victim of human trafficking. Although there is no specific program for the alleged buyers of sex in Houston, many prosecutors are willing to offer pre-trial diversions to those charged with prostitution. A pre-trial diversion program is like a contract with the State that a prostitution case will be dismissed if certain conditions are met.
Regardless of the reason for a dismissal, a dismissed prostitution case will be eligible for an expunction. In Texas, an expunction is the best possible result in a prostitution case as it results in records of an arrest being physically destroyed. Additionally, once a prostitution case is expunged, a person will be legally entitled to deny the existence of the arrest on a job, school or work application.
At Ceja Law Firm we regularly obtain dismissals and expunctions for clients charged with prostitution throughout the Greater Houston area. If you are charged with prostitution in Houston, call Ceja Law Firm today for a free consultation.