More Than Just One Night, the Impact of a Conviction for Soliciting Prostitution
Prostitution is an offense that is regularly charged throughout Texas. In the Houston area, law enforcement regularly conducts sting operations targeting alleged prostitutes, buyers of sex and those who profit on the illegal sex trade. The most commonly charged offenses are prostitution, solicitation of prostitution and promotion of prostitution. All of these offenses are serious and can lead to jail time, fines, a permanent stain on your record and even sex offender registration in some instances. However, it is possible to protect your freedom and reputation from the damage of a prostitution charge. If you have been charged with any prostitution offense, it is crucial to consult an experienced criminal defense lawyer.
Ceja Law Firm is a leading criminal defense practice in the Greater Houston area. As a former prosecutor, attorney Jose Ceja has firsthand knowledge of the tactics the state uses to gain convictions in sex crime cases. When you work with us, we will work tirelessly to protect your rights and defend your freedom.
What Constitutes Prostitution Under Texas Law?
In Texas, it is a crime for a person to knowingly offer, solicit, or agree to pay a fee to another person for the purpose of engaging in sexual conduct. “Sexual conduct” is broadly defined and includes sexual intercourse as well as touching of the genitals with the intent to arouse or gratify. Either the person alleged to be the prostitute or the “john” (the one paying for sex) can be charged. Prostitution and solicitation of prostitution contain very similar elements but are treated as distinct offenses under Texas law:
- Solicitation of Prostitution: Under Texas Penal Code 43.021 a person commits the offense of solicitation of prostitution by knowingly offering or agreeing to pay a fee to another for the purpose of engaging in sexual conduct with another person.
- Prostitution: Under Texas Penal Code 43.02 a person commits the offense of prostitution by knowingly offering or agreeing to receive a fee for sexual conduct.
It is important to understand that a person does not actually have to engage in or complete a sexual act to be convicted of prostitution or solicitation of prostitution. Under Texas law, the offense of prostitution or solicitation of prostitution has been committed when the agreement or solicitation is made. Of course, it is the job of a criminal defense lawyer to challenge the existence of the agreement or solicitation and in many cases, it is possible to successfully do so. The goal of a prostitution arrest should always be to obtain a dismissal or an acquittal of the charge.
What Constitutes Promotion of Prostitution?
Promotion of prostitution can be charged when a person is alleged to make money off of prostitution. Under Texas Penal Code 43.03 a person can be charged with promotion of prostitution for receiving the proceeds of prostitution. Promotion of prostitution is punished much more severely and can be charged when a person receives money or other property as a part of an agreement to participate in the proceeds of prostitution or solicits another to engage in sexual conduct for a fee. If it is alleged that the prostitution-related business has two or more employees, the person profiting from the business can be charged with aggravated promotion of prostitution.
Proving Prostitution and Solicitation of Prostitution
As discussed above, the offenses of prostitution and solicitation of prostitution hinge on the existence of an agreement or offer to exchange money for a sexual act. As a result, in most cases, one party to the agreement will need to be able to testify in order to have the evidence needed to prove a case. In most prostitution cases filed in the Houston area, the “party to the agreement” is usually an undercover officer. In Houston, prostitution stings are very common and target both prostitutes and buyers of sex.
Undercover operations targeting prostitutes often take place in strip clubs or spas that are known for prostitution. In these stings, an undercover officer will enter a business posing as a customer and attempt to get an employee to offer or agree to a sexual act in exchange for money. The undercover officer will typically be audio recording the conversation. Due to language barriers, poor recording quality (particularly in strip clubs), and vague “agreements,” these cases are frequently difficult for prosecutors to prove.
In the Houston area, stings targeting the buyers of sex usually take place on the street where a female undercover officer poses as a prostitute or hotels. For hotel stings, the police will typically put an ad out on websites known for advertising prostitution. When a person replies to the ad, they will be lured to a hotel and arrested after an agreement is reached with the undercover officer. Hotel stings usually have audio and video evidence.
Proving Promotion of Prostitution
The offense of promotion of prostitution requires prosecutors to prove that a person knowingly received money to participate in the proceeds of prostitution or solicited another person to engage in sexual conduct with another person. In other words, promotion of prostitution typically involves a third party who shares in the profits of a business involved in prostitution.
Due to the nature of the charge, it will typically be necessary for another person – such as an alleged prostitute who was familiar with the business – to testify that the defendant knowingly financially profited from the enterprise or solicited others to work as a prostitute. If the business is a massage parlor, prosecutors may attempt to prove the offense of promotion of prostitution through business records and receipts from the business. Although the penalties for promotion of prostitution are extremely severe, these cases can often be difficult for prosecutors to prove.
Penalties for Prostitution in Texas
The penalties for prostitution-related offenses vary greatly in Texas and range from misdemeanors to very serious felonies depending on the nature of the allegation. In recent years, the penalties for prostitution have been increased for some offenses with the goal of combatting human trafficking. Accordingly, in 2021 Texas became the first state in the United States to make a first-time solicitation of prostitution charge a felony. The penalties for prostitution offenses in Texas are as follows:
- Penalties for prostitution: A first-time conviction for prostitution is a Class B misdemeanor punishable by up to 180 days in jail, a fine of up to $2,000, or both. If a defendant has one or two previous convictions for prostitution, the punishment increases to a Class A misdemeanor punishable by up to one year in jail, a fine of up to $4,000, or both. Prostitution is charged as a State Jail felony punishable by up to 2 years in jail and a $10,000 fine if the defendant has three prior convictions.
- Penalties for solicitation of prostitution: The alleged buyer of sex faces significantly more severe punishment. A first-time solicitation of prostitution case is charged as a State Jail Felony, punishable by 180 days to 2 years in jail and a $10,000 fine, or a third-degree felony, punishable by 2-10 years and a $10,000 fine, if the defendant has a prior conviction.
- Penalties for promotion of prostitution: Promotion of prostitution is a third-degree felony punishable by 2-10 years and a $10,000 fine. If a defendant has a prior conviction, it is charged as a second-degree felony punishable by 2-20 years and a $10,000 fine.
When is Prostitution Subject to Sex Offender Registration?
There are several instances under Texas law where a prostitution-related offense is subject to sex offender registration. Fortunately, these do not include most first-time arrests for prostitution or solicitation of prostitution. Under Texas Chapter 62 of the Penal Code the following prostitution-related offenses are subject to 10-year sex offender registration when a defendant is convicted or placed on a deferred adjudication (the 10-year registration period begins after the jail sentence or term of probation is complete):
- Solicitation of Prostitution if a defendant is convicted of offering or agreeing to pay a person who was, or the defendant believed, to be under the age of 18.
- Aggravated promotion under Texas Penal Code 43.04.
- Compelling prostitution under Texas Penal Code 43.05.
Registration as a sex offender may restrict where a person may live and who a person has contact with. For instance, convictions involving minors may prevent someone from living near parks, schools, or other places children gather. Registering as a sex offender requires informing law enforcement of the location of one’s residence and place of employment and providing other information, such as fingerprints. Much of this information then becomes available to the public. Failing to register or to comply with the terms of sex offender registration can result in serious criminal charges.
What Factors Influence the Outcome of Your Prostitution Case?
The outcome of a prostitution or solicitation of prostitution case can be influenced by many factors. Of course, the most important factor is the strength of the prosecutor’s case. In a criminal case, prosecutors always have the burden of proving every element of a criminal offense and they must present evidence to prove the allegation beyond a reasonable doubt. As noted above, in many cases, it may be difficult for a prosecutor to establish that a knowing agreement to exchange money for a sexual act existed. At Ceja Law Firm, we have obtained dismissals of prostitution cases where the prosecutor’s evidence is weak or vague.
The criminal history of the defendant can also have a big impact on the outcome of a prostitution case. For prostitution and solicitation of prostitution charges, a defendant is punished more severely with a prior conviction for prostitution. But apart from the increased penalties, a person with more criminal history is generally less likely to receive lenient treatment from prosecutors. On the other hand, when a person has minimal criminal history, it is sometimes possible to negotiate a favorable result (like a dismissal or a reduction of the charges), even where the evidence is not favorable to the defense, based on the fact that the defendant is not a habitual criminal and should be given a second chance.
Finally, the county, court and prosecutor are the other major factors that can influence a prostitution case. In the Houston area, for example, neighboring counties can have drastically different philosophies regarding the prosecution of prostitution cases. Harris County generally takes a more progressive approach to prostitution cases and prosecutors may be more open to avoiding giving a person charged with prostitution or solicitation of prostitution a criminal record, while other counties may be more geared toward punishment.
Defenses for Prostitution Cases
The best defense in a prostitution or solicitation of a prostitution charge will depend on the exact facts and circumstances of the arrest. However, because the offenses of prostitution and solicitation of prostitution both require that prosecutors prove a knowing agreement or solicitation to exchange a sexual act for money, the most effective defenses are focused on challenging the existence of that element.
Depending on the facts, it is frequently possible to show that the police lied or were mistaken about the discussion that allegedly contained an agreement or solicitation to exchange money for sex. Police in so-called “vice” units who investigate prostitution offenses are often over-zealous about arresting individuals for prostitution and are known to do so when the evidence is highly questionable or completely absent.
The defense of entrapment, which is rarely used in Texas criminal cases, is sometimes raised in prostitution or solicitation of prostitution cases. Under Texas law, entrapment occurs when the police persuade an individual – who was not already pre-disposed to commit an offense – to engage in criminal conduct, such as prostitution. However, the defense of entrapment can be difficult to establish and requires proof that law enforcement were overly aggressive in enticing a person to commit a crime. Other defenses to prostitution cases involve mistaken identity or a legal defense, such as a violation of a defendant’s Miranda rights.
As noted above, prostitution cases will generally have some type of audio or video recording and it is critical that your criminal defense attorney obtain the evidence and challenge it. It is also important to look into the background of law enforcement and see if they have been accused of inappropriate behavior or reprimanded as a result of their investigation of prostitution cases.
How Can You Keep a Prostitution Charge Off of Your Record?
If you have been arrested for any prostitution charge, the goal should be to keep the charge off of your record. In Texas, there are two ways to erase a prostitution charge from your record: an expunction and a non-disclosure.
An expunction of a prostitution charge is the best possible outcome as it results in the destruction of all records relating to the arrest held by all agencies (police, District Attorney, etc.). After an expunction is complete you are legally permitted to deny the existence of the arrest in most instances so legally speaking, it is as if the offense never happened. However, it is important to understand that a person is generally only eligible for an expunction if a case is dismissed or a person is acquitted (found “not guilty”) at trial. If you plead guilty or are assessed any type of probation, you would not be eligible for an expunction of a prostitution charge in Texas.
The other way to protect your record after a prostitution charge is by obtaining a non-disclosure of the arrest (this is also referred to as “sealing” your record”). If you successfully completed a deferred adjudication probation for a prostitution arrest, a non-disclosure allows you to “seal” the arrest from many private entities and even to deny the existence of the arrest under some circumstances. Although a non-disclosure is not as good as an expunction, for many people it can be an effective way to put a prostitution charge behind you.
Unfortunately, if you were convicted of any prostitution-related offense because you were sentenced to jail (including “time served”) or completed regular probation, then you are not eligible for an expunction or a non-disclosure of a prostitution charge. It is also important to understand that expunctions and non-disclosures do not occur automatically and it is typically a good idea to hire an experienced attorney to file one for you.
Contact Our Houston Prostitution and Solicitation of Prostitution Attorney
Ceja Law Firm has an extensive and established track record of successfully defending prostitution charges throughout the Houston area. The goal is to protect our client’s freedom and reputation against any criminal offense, including a prostitution charge. Call Ceja Law Firm today for a free consultation.
Ceja Law Firm handles prostitution and solicitation cases throughout Texas including Houston, Brazoria County, Chambers County, Fort Bend County, Galveston County, Harris County, Liberty County, Montgomery County, Walker County, and Waller County.
