Felony Versus Misdemeanor Prostitution

Legal Insights on Felonies and Misdemeanors

For a long time in Texas, prostitution was a misdemeanor for both prostitutes and the "johns" who sought their services. But with a heightened awareness of human trafficking and the number of vulnerable children, women, and men who end up sex trafficked, the laws are changing across the U.S. The state of Texas reports that about one-third of sex trafficking victims are children, and more than a third of those children are probably victims of international sex trafficking. Moreover, vulnerable young people are more likely to become victims of sex trafficking, making runaways and those with substance abuse issues the most vulnerable.

Because of awareness of human trafficking issues, in Texas, we had a major overhaul of prostitution and human trafficking laws in 2021. Now, if you're arrested for prostitution or soliciting a prostitute, you're much more likely to face a felony charge than a misdemeanor. This page will discuss the aggravating factors that can result in a felony versus a misdemeanor prostitution charge.

Prostitution in Texas

Before 2021, first convictions for soliciting prostitution or prostitution were Class B misdemeanors, punishable by up to 180 days in jail. Now, the penalties have increased dramatically for those who solicit prostitutes. A first conviction for soliciting prostitution is now a state jail felony, punishable by up to a $10,000 fine and two years in jail.

Under Texas law, prostitution happens if someone "knowingly offers or agrees to receive a fee from another to engage in sexual conduct." Tex. Penal Code § 43.02 (2021). With two or more convictions, prostitution can rise to a Class B misdemeanor. In Texas, a conviction for a Class B misdemeanor is punishable by up to 180 days in jail and a $2,000 fine. You'll face up to a year in jail for a Class A misdemeanor conviction and a $4,000 fine.

Felony Prostitution Under Texas Law

Prostitution charges in Texas are more likely to be felonies than misdemeanors. While the basic charge for accepting money for sex is still a misdemeanor, some aggravating factors make prostitution charges more serious, including having multiple prostitution convictions, soliciting a prostitute, and soliciting a minor.

1. Three or More Prostitution Convictions: If you have three or more previous convictions for prostitution, the charge becomes a state jail felony. For a state jail felony conviction, you'll face up to two years in prison and up to a $10,000 fine. If prostitution happens close to a school, school function, or an event hosted by the University Interscholastic League, the state can enhance a prostitution charge by one degree, making a state jail felony into a third-degree felony. For a third-degree felony conviction, you'll face up to ten years in prison and a $10,000 fine.
2. Solicitation of Prostitution: Even a first conviction for soliciting a prostitute is a felony in Texas. "Solicitation of prostitution" happens under Texas law if someone "knowingly offers or agrees to pay a fee to another person for the purpose of engaging in sexual conduct with that person or another." Tex. Penal Code § 43.021 (2021). After 2021 changes to the law, a first conviction for soliciting prostitution is a state jail felony, punishable by up to two years in prison and a $10,000 fine. With a prior conviction for solicitation, the crime becomes a third-degree felony, punishable by up to ten years in prison and a $10,000 fine. If the person solicited was under 18, the person soliciting believed they were under 18, or the prostitute claimed to be under 18, soliciting a prostitute becomes a second-degree felony, punishable by up to 20 years in prison and a $10,000 fine.
3. Online Solicitation of a Minor: When you solicit someone for sex online, it's important to remember that you have no idea if the person on the other end of the message or text is an adult or a minor. In Texas, online solicitation of a minor carries serious penalties and is a felony charge. Under Texas law, a person can be charged with online solicitation of a minor if "over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, [they] knowingly solicit a minor to meet another person, including the actor, with the intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person." Tex. Penal Code § 33.021 (c) (2021). You can face charges for online solicitation of a minor even if:
   • You never followed through with meeting them or payment,

• • You had no idea they were under 18, or
  • You solicited them to meet with someone else and not you.
• Online Sexual Contact with a Minor: You can also face serious charges for online solicitation of a minor if you communicate with someone online in a sexually explicit manner or send them sexually explicit material, even if you didn't realize they were under 18 and you hadn't solicited them for sex or sexual contact. Under Texas law, "A person who is 17 years of age or older commits an offense if [they], over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, intentionally communicates in a sexually explicit manner with a minor; or distributes sexually explicit material to a minor." Tex. Penal Code § 33.021 (b) (2021).

Whether the communication is "sexually explicit" means "any communication, language, or material, including a photographic or video image, that relates to or describes sexual conduct." Id. at § 33.021 (a)(3).

Under Texas law, online solicitation of a minor is a felony charge. The grading of your offense can vary depending on how old the minor is, the circumstances of your case, and when you communicated with the minor. If you knew or should have known that the minor was enrolled in a K-12 school, and you communicated with them during school hours, the law increases the grade of your charge by one degree.

Soliciting a minor is generally a third-degree felony, punishable by up to ten years in prison and a $10,000 fine in Texas. If the minor is under 14, online solicitation rises to a second-degree felony. If convicted, a second-degree felony carries penalties of up to 20 years in prison and a $10,000 fine. If your charge increases a degree because the minor was under 14 and you communicated during school hours, solicitation of a minor becomes a first-degree felony charge. You can face up to 99 years in prison and a $10,000 fine if convicted.

Federal Felony Prostitution

In some cases, if you bring a prostitute across state lines or solicit someone across state lines, you could also face felony human trafficking charges at the federal level. More than 100 years ago, Congress passed the Mann Act, also known as the White Slave Trade Act, to combat prostitution and human trafficking. The purpose of the law was initially to crack down on "immoral activity," making it illegal "to engage in interstate commerce of any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose."

In the years since, Congress changed the law, narrowing it to apply to transporting someone across state lines for prostitution and other crimes. 18 U.S.C. §§ 2421 - 2424 (2015). Now, the Mann Act covers transporting prostitutes; promoting prostitution, including online promotion; and coercing or enticing someone across state lines for promotion. These crimes are felonies under federal law, and maximum penalties for convictions under the Mann Act can range from ten to 25 years in prison.

Contact Our Harris County Prostitution Attorney

If you're facing charges for prostitution in Texas, the consequences and penalties can be severe. You need the guidance of an attorney with experience in criminal defense law immediately to protect your rights through the criminal justice system. Attorney Doug Murphy is Board Certified in both Texas Criminal Defense Law and DWI Defense. Because of Doug's extensive experience, practical courtroom knowledge, and litigation experience in criminal defense law, you can be sure you'll get an aggressive defense.

Doug is well-regarded in the legal community in Houston and across the state. He's served on the Harris County Criminal Lawyers Association board of directors and as a past president of the organization. Doug has also served on the Texas Criminal Defense Lawyers Association and received many TCDLA President's Awards for leadership in the Texas legal community. He shares his knowledge with his peers across the country as an instructor for many legal education seminars across Texas and the U.S.

Doug's peers in Houston have also supported him as U.S. News & World Report's Best Lawyers in America named him to their prestigious "Lawyer of the Year" list for Houston DWI defense. Doug received this award through the nomination and votes of Houston-area defense lawyers. Find out how he can help you. Call the Murphy & McKinney Law Firm, P.C. at 713-229-8333 or contact us online to schedule your consultation.