In the Greater Houston area, hundreds of people are charged with prostitution every month. Historically, the vast majority of these cases were misdemeanors, although that has changed in recent years due to changes in the law for the alleged buyers of sex that result in many more cases being charged as felonies. But whether your case is charged as a felony or misdemeanor, it is critical that you do everything possible to keep the case off of your record to protect your reputation and potentially your freedom. The goal should always be dismissal.
How are First Time Prostitution Cases Charged in Texas?
First-time prostitution cases are charged differently depending on whether the person charged is the alleged buyer of sex or the alleged prostitute. Under Texas Penal Code 43.021, the penalties are significantly steeper for the alleged buyer of sex (known as the “john”). In fact, penalties for johns in Texas are among the toughest in the nation. After September 1, 2021, first-time buyers of sex are charged with a State Jail felony, punishable by 180 days to 2 years in state jail.
Alleged prostitutes face relatively less severe penalties over a first-time arrest. Under Texas Penal Code 43.02, a first-time prostitution case is charged as a Class “B” misdemeanor punishable by up to 180 days in jail and a $2000 fine. Prostitution cases do not require sex offender registration upon conviction.
How do I get a first-time prostitution case dismissed?
Although being charged with first-time prostitution can be overwhelming, the good news is that it is possible to get your case dismissed. An experienced criminal defense attorney will first want to gather all of the evidence in the case. Most prostitution cases in the Greater Houston area are charged after some kind of sting operation, where an undercover police officer poses as either a prostitute or a john. As a result, the evidence will typically consist of audio or video recordings and text messages between the parties, in addition to police reports and other evidence typically found in criminal cases.
An experienced criminal defense attorney should work to aggressively challenge the evidence. In some cases, an agreement to purchase sex will be too vague for prosecutors to be able to prove a crime was committed. Under Texas law, the charge of prostitution is based on an agreement to receive a payment in exchange for engaging in sexual conduct. Although “sexual conduct” is defined broadly, it would not cover something like a massage, and in many cases the evidence may be vague about what the parties agreed to exchange. It is important to remember that it is always the burden of the State of Texas to prove all of the elements of a prostitution case, including that there was an agreement that was sexual in nature. If a basic element, like an agreement, cannot be established, that could lead to the dismissal of your case. In some cases, the identity of the alleged prostitute or john may be in question. If the alleged transaction occurred in a dark club, for example, the police’s identification of the defendant may be in question.
Even if it appears that the elements of a prostitution case can be established, many District Attorneys offices in the Greater Houston area understand that defendants charged with first-time prostitution should be given a second chance to keep their records clean. This is why many District Attorneys offices offer programs known as pre-trial diversion to those accused of first-time prostitution. A pre-trial diversion is a contract with the District Attorney that a defendant will complete certain requirements in exchange for a dismissal. The terms and availability of these programs vary greatly depending on whether the person is charged with prostitution as a john or as the alleged prostitute.
In Houston, for example, the alleged prostitute is typically eligible for a very short pre-trial diversion program known as P180 that does not require an admission of guilt and takes very little time and effort to complete. An alleged john, on the other hand, will usually have to submit a mitigation packet showing why they deserve a second chance, and could be asked to complete a much lengthier pre-trial diversion program.
An effective criminal defense attorney should first obtain and challenge the evidence before considering any pre-trial diversion program. For many reasons, it is much better to obtain an unconditional dismissal of a case, rather than complete a program. To get the best result, a criminal defense attorney should look at a pre-trial diversion program as “plan b” in a first-time prostitution case.
What if I was cited and released after a prostitution sting?
In most criminal cases, after being placed under arrest, you will be taken to jail where you will be booked, processed, have a bail amount set, and then bond out of jail with a future court date already scheduled. In some first-time prostitution cases filed in the Greater Houston area however, the police will cite and release a defendant without a future court date. Typically, the police do this in order to not disrupt a sting investigation by having to divert manpower by taking defendants to jail and booking them.
If you have been cited and released after a prostitution sting, it is very important that you be on the lookout for a warrant for your arrest. Unfortunately, the time it takes for a case to be filed and a warrant to show up in the system can vary from a week to several months. An experienced criminal defense attorney can help by monitoring your warrant status or you may learn about the warrant by getting mail from bail bond companies or attorneys.
If you have an open warrant for your arrest, a criminal defense attorney can help you understand your options to clear the warrant. Depending on the county and court, you may be able to do a “walk through” arrest, which involves turning yourself in while court is in session, and asking the judge to let you leave with a bail bondsman.
Is a sex act required to be completed for a prostitution charge?
It is not required that a sex act be completed for the State of Texas to be able to charge a person with prostitution. The offense of prostitution is based on an agreement to purchase a sexual act for money. Once the agreement is reached between the parties, the elements of the crime have been met.
Is entrapment a defense to prostitution in Texas?
Although it is very difficult to use, entrapment is theoretically a defense to prostitution cases. Under Texas Penal Code 8.06(a), entrapment is a defense to prosecution that a person was “induced” by a law enforcement agent to commit an offense.
Texas cases say that the entrapment defense may be effective if the “criminal intent originates in the mind of the police agent and the agent then induces the accused to commit the offense.” However, caselaw also makes clear that entrapment does not exist where the police agent merely “furnishes the opportunity for the commission of the offense.” In other words, it has to be shown that the defendant was not already disposed to engage in prostitution and was convicted to do so by law enforcement. In a prostitution case, entrapment would typically have to be proved through the testimony of the defendant since it is a very subjective inquiry (i.e., what was going on in the mind of the defendant).
Will a prostitution arrest appear on my record?
If you have been arrested for first-time prostitution, the arrest will likely appear on your record, even while your case is pending. If your case is pending and someone runs a criminal background check on you, it would likely show an arrest, but not a conviction (because your case is pending and you have not been convicted).
If your case is dismissed, or if you go to trial and win, you would likely be eligible for an expunction of your prostitution case. An expunction is considered to be the best possible result in a criminal case, since it results in records of your arrest being destroyed. After an expunction is complete, no record of your prostitution arrest will appear in a criminal history search and you will even be able to deny the existence of the arrest. It is important to remember that an expunction is not automatic after your case is dismissed or are acquitted. Even if you win your case, the case will still appear on your criminal history unless it is expunged.
If you complete a deferred adjudication probation for a prostitution case, then the best way to protect your record would be through a petition for non-disclosure (also known as “sealing” your record). A non-disclosure is not as good as an expunction because records of the arrest are still visible to many government and law enforcement agencies. But for many people, a non-disclosure is still helpful in that it prevents many private companies and entities from seeing a record of the arrest.
If you have been convicted of prostitution because you completed a jail sentence or a regular (not deferred) probation, then you will have a conviction that cannot be sealed or expunged.
What bond conditions can I expect?
Bond conditions in a first-time prostitution case filed in the Greater Houston area vary depending on the facts of the case, criminal history of the defendant and the judge. Typically bond conditions will not be especially restrictive. At a minimum, judges will order that you engage in no new law violations, not leave the State, and not consume drugs or alcohol, particularly if drugs or alcohol were present at the time of the arrest. Although there is typically not a great need to rush and hire an attorney after an arrest, having a criminal defense attorney present at your first court setting can be helpful since the lawyer can advocate on your behalf regarding bond conditions.
What if I am not a US citizen and charged with prostitution?
If you are not a United States citizen and are charged with first-time prostitution, it is critical that you do everything possible to get your case dismissed. Under immigration law, a prostitution case can be considered a “crime of moral turpitude” which could cause you to lose legal status or make it difficult to become a United States Citizen or Resident.
What can I do to help my first-time prostitution case?
The most important thing you can do to help your case is to ensure you carefully follow any bond conditions set by the court. If you violate your bond conditions, your bond could be revoked and you could be put back in jail. But beyond being put into jail, violating your bond conditions makes it more difficult for your attorney to obtain a good result in your case, since the judge and prosecutor are likely to think you cannot follow the rules and no not deserve a second chance.
Depending on the facts of your case and the prosecutor, it can sometimes help to seek treatment for any underlying problems proactively. Getting treatment for drug and alcohol abuse, or sexual addiction, can be an effective way to show the court that you are taking responsibility for any potential issues that might have led to your arrest. However, it is a good idea to speak with an experienced criminal defense attorney before taking it upon yourself to begin treatment or take any other steps to help your case.
Attorney Jose Ceja represents citizens charged with prostitution throughout the Greater Houston area. He regularly helps his clients charged with first-time prostitution get their cases dismissed. If you have been arrested for prostitution, Mr. Ceja would be happy to offer a free consultation.