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  • Writer's pictureBrian Foley

Solicitation of Prostitution in Montgomery County, Texas - Conroe Criminal Defense Attorney

Solicitation of Prostitution cases in Montgomery County, Texas often start as a police sting. Most major cities prosecute these operations. Brian Foley in Conroe, Texas handles all types of solicitation of prosecution defense cases. www.brianfoleylaw.com


In Montgomery County, Texas the District Attorney's Office prosecutes Solicitation of prostitution cases in two ways. 1. Through a diversionary court for the prostitutes and 2. through filing of felony charges on the predominantly male clients. The Texas law actually makes the same agreement for payment of a fee for sex a misdemeanor for the prostitute and a felony for the "John." Most cases are the result of a sting operation that starts on a webpage like craigslist or others. Police will create a fake advertisement for a prostitute online and then begin texting back and forth with a potential suspect and developing probable cause for an arrest when the suspect agrees to meet them at a hotel and exchange money for sex. Typically the officer will go to the bathroom at some point after discussing the fee. When she gets there then other male officers will come into the room and effect the arrest. This is followed by an interrogation where Miranda rights are read. It is as this point that any person arrested for this offense should stop talking and request a lawyer. When a lawyer is requested the police must honor this request. In practice what will happen is that they will stop asking you questions and take you to the jail.


Once at the jail you will be asked basic booking questions like your name and address. These are fine to answer and you'll delay the process of bonding out if you fail to answer basic identification questions. You will have to see the judge in the morning at what is called probable cause court. This is a hearing under article 15.17 of the Texas Code of Criminal procedure which allows a magistrate judge to set a bond and hear probable cause in your case. Just because the magistrate finds probable cause doesn't mean that you are going to be found guilty or end up with a felony conviction.

Sec. 43.02.  PROSTITUTION.
(a)  A person commits an offense if the person knowingly offers or agrees to receive a fee from another to engage in sexual conduct.
(b-1)  Repealed by Acts 2017, 85th Leg., R.S., Ch. 685 (H.B. 29), Sec. 44(2), eff. September 1, 2017.
(c)  An offense under Subsection (a) is a Class B misdemeanor, except that the offense is:
(1)  a Class A misdemeanor if the actor has previously been convicted one or two times of an offense under Subsection (a); or
(2)  a state jail felony if the actor has previously been convicted three or more times of an offense under Subsection (a).
(c-2)  The punishment prescribed for an offense under Subsection (b) is increased to the punishment prescribed for the next highest category of offense if it is shown on the trial of the offense that the actor committed the offense in a location that was:
(1)  on the premises of or within 1,000 feet of the premises of a school; or
(2)  on premises or within 1,000 feet of premises where:
(A)  an official school function was taking place; or
(B)  an event sponsored or sanctioned by the University Interscholastic League was taking place.
(d)  It is a defense to prosecution for an offense under Subsection (a) that the actor engaged in the conduct that constitutes the offense because the actor was the victim of conduct that constitutes an offense under Section 20A.02 or 43.05.
(e)  A  conviction may be used for purposes of enhancement under this section or enhancement under Subchapter D, Chapter 12, but not under both this section and Subchapter D, Chapter 12.  For purposes of enhancement of penalties under this section or Subchapter D, Chapter 12, a defendant is previously convicted of an offense under this section if the defendant was adjudged guilty of the offense or entered a plea of guilty or nolo contendere in return for a grant of deferred adjudication, regardless of whether the sentence for the offense was ever imposed or whether the sentence was probated and the defendant was subsequently discharged from community supervision.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.  Amended by Acts 1977, 65th Leg., p. 757, ch. 286, Sec. 1, eff. May 27, 1977;  Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994;  Acts 2001, 77th Leg., ch. 987, Sec. 1, eff. Sept. 1, 2001.

Some view this distinction as sexist as it predominantly targets men for more severe punishment which would be prohibited by the equal protection clause of the 14th amendment to the United States Constitution. However the Texas Statute phrases it not by sex but by either agreeing to pay a fee or receive a fee. If you agree to receive a fee then you are guilty of prostitution. If you agree to pay a fee you are guilty of solicitation of prostitution. Solicitation is a state jail felony while actual prostitution is a class B except for certain circumstances of repeat violations. Other jurisdictions deal with similar issues about which you can read here.

Sec. 43.021.  SOLICITATION OF PROSTITUTION.  (a)  A person commits an offense if the person knowingly offers or agrees to pay a fee to another person for the purpose of engaging in sexual conduct with that person or another.
(b)  An offense under Subsection (a) is a state jail felony, except that the offense is:
(1)  a felony of the third degree if the actor has previously been convicted of an offense under Subsection (a) or under Section 43.02(b), as that law existed before September 1, 2021; or
(2)  a felony of the second degree if the person with whom the actor agrees to engage in sexual conduct is:
(A)  younger than 18 years of age, regardless of whether the actor knows the age of the person at the time of the offense;
(B)  represented to the actor as being younger than 18 years of age; or
(C)  believed by the actor to be younger than 18 years of age.
(c)  A conviction may be used for purposes of enhancement under this section or enhancement under Subchapter D, Chapter 12, but not under both this section and that subchapter. For purposes of enhancement of penalties under this section or Subchapter D, Chapter 12, a defendant is considered to have been previously convicted of an offense under this section or under Section 43.02(b), as that law existed before September 1, 2021, if the defendant was adjudged guilty of the offense or entered a plea of guilty or nolo contendere in return for a grant of deferred adjudication, regardless of whether the sentence for the offense was ever imposed or whether the sentence was probated and the defendant was subsequently discharged from community supervision.
Added by Acts 2021, 87th Leg., R.S., Ch. 807 (H.B. 1540), Sec. 28, eff. September 1, 2021.
Amended by: 
Acts 2021, 87th Leg., R.S., Ch. 807 (H.B. 1540), Sec. 29, eff. September 1, 2021.
Acts 2021, 87th Leg., R.S., Ch. 807 (H.B. 1540), Sec. 30, eff. September 1, 2021.

The most common question I get about these offenses is the defense of entrapment. The defense of entrapment is a legal doctrine that allows a defendant to argue that they were induced or persuaded by law enforcement officers to commit a crime that they would not have committed otherwise. However, the Supreme Court of the United States has made it clear that this defense is often unsuccessful and difficult to prove.


In the 1973 case of United States v. Russell, the Supreme Court held that entrapment is not a defense when the defendant was predisposed to commit the crime. In other words, if the defendant was already willing and able to commit the crime, the fact that law enforcement officers provided an opportunity to do so does not constitute entrapment. This ruling was reaffirmed in the 1992 case of Jacobson v. United States, in which the Court emphasized that entrapment requires a showing that the government induced the defendant to commit a crime they were not otherwise inclined to commit.


Furthermore, in the 1985 case of Mathews v. United States, the Supreme Court held that entrapment is a difficult defense to establish, as the defendant must prove that the government's conduct was so egregious that it would have induced a law-abiding citizen to commit the crime. In that case, the Court found that the defendant's conduct, which included selling cocaine to undercover officers on multiple occasions, demonstrated a predisposition to commit the crime and therefore rejected the entrapment defense.



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