Texas Stamp


PD-0578-16 08/24/2016

"Whether the Fourth Court of Appeals erred by failing to recognize and apply the analysis of the United States Supreme Court and this Court's past rulings under the First, Fifth, Sixth and Fourteenth Amendments to the U.S. Constitution, the Dormant Commerce Clause, and Article 1 § 19 of the Texas Constitution regarding the unconstitutionality of Texas Penal Code Section 33.021."

Ingram filed a pretrial habeas application, arguing that subsections (c) and (d) of the online solicitation statute, Tex. Penal Code § 33.021, are unconstitutional. Subsection (c) prohibits a person from knowingly soliciting a minor, by electronic means, to meet another to engage in sexual conduct. Subsection (d) precludes the following defenses: (1) that the meeting did not occur; (2) that the actor did not intend to meet; or (3) that the actor was engaged in a fantasy. The trial court denied relief.

The court of appeals affirmed. First, it rejected Ingram's due process argument that (d) violates the right to present a defense because (d) negates the mens rea of the offense. It also rejected his due process argument that (d) precludes a defense that there was no intent to meet a minor because "minor" includes a person who represents themselves as under 17. Though (d) may not be a defense per se, it may be a valid factor or element to a valid, no intent defense. Next, the court rejected Ingram's claim that (c) is overly broad because it criminalizes the solicitation to meet for sex even if the actor does not intend that an actual meeting take place. The statute is not content-based and any protected speech covered is insubstantial compared to the State's interest. Third, the court disagreed with Ingram's claim that (c) and (d) conflict and are therefore vague. Although "solicitation" that is not intended to result in a meeting is forbidden, the mens rea in (a) is attached to "solicitation" and (d) addresses the intent to actually meet. Fourth, the court concluded that Ingram's argument that the Commerce Clause is burdened is without merit. Subsection (c) criminalizes online solicitation with minors, not the communication of explicit materials to minors. Further, it does not differentiate intrastate commerce from interstate commerce.

Ingram contends that the court of appeals erred to disregard the Legislature's 2015 removal of (d)(2) and (3), which recognized the unfairness associated with limiting the right to present a defense. Additionally, when constitutional infirmities are corrected, the amended version should apply. Ingram then challenges the court of appeals' ruling on each issue. He maintains, again, that (d)(2) and (3) deny the right to present certain mens rea defenses. Next, he claims that the court of appeals failed to recognize that the statute is content-based. The speech here does not fall within an unprotected category, so the burden shifts to the State. Third, he claims that the statute is overbroad because "minor" includes persons who represent themselves to be younger than 17, even if they are not; thus, it prohibits protected speech between adults. The lack of a mens rea as to age or the availability of an age defense leaves no defense for adults. The statute is also both overbroad or vague because solicitation without intent to meet is forbidden. Finally, he argues that the Commerce Clause is implicated because it reaches conduct outside of Texas.

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