Texas Penal Code § 33.021 criminalizes (1) sexually explicit communication with someone the actor believes is under 17 and (2) soliciting a person believed to be under 17 to meet for sexual activity. Solicitation is a third-degree felony, or second-degree if the believed-minor is under 14. Section 33.021(d) provides an affirmative defense for reasonable belief that the person was 17 or older.
Online solicitation cases are almost always built by police sting operations — undercover officers posing as 14- or 15-year-olds on dating apps, social media, or chat sites. The cases hinge on chat logs, preserved transcripts, and (often) a recorded meeting at a pre-arranged location. The statutory affirmative defense and good cross-examination of the sting officer are the keys to defense.
Two Distinct Offenses
Section 33.021 creates two offenses:
- (b) Online Solicitation of a Minor — Sexual Communication: communicating in a sexually explicit manner with a minor (or a person the actor believes to be a minor) over the internet, by email, or by text — third-degree felony;
- (c) Online Solicitation of a Minor — Solicitation to Meet: soliciting a minor (or believed minor) to meet for sexual activity — second-degree felony if the believed minor is under 14, otherwise third-degree.
The two offenses can be charged together for the same chat — typically the sting officer first builds a sexual conversation (subsection (b)) then arranges a meeting (subsection (c)).
The Affirmative Defense
Section 33.021(d) provides an affirmative defense if the actor:
- Reasonably believed the person was 17 years of age or older at the time of the conduct;
- Took reasonable steps to verify the person's age;
- Was not more than three years older than the person solicited.
The defendant bears the burden by a preponderance of the evidence. In sting cases, the affirmative defense is rarely successful because officers carefully establish the "minor's" age in chat logs.
Sting Operations and Police Conduct
Most § 33.021 prosecutions involve a multi-agency task force — often ICAC (Internet Crimes Against Children). Common patterns:
- Officer creates a fake profile on a dating app or social media platform;
- Officer establishes "minor" age (typically 14-15) in early messages;
- Officer engages target in sexually explicit conversation;
- Officer suggests an in-person meeting;
- Officer arranges a specific location and time;
- Target is arrested at the location.
Defense counsel must obtain and review every chat log, every device, every officer's notes, and the predicate for the operation. Entrapment is a defense in some cases but requires showing the officer's conduct went beyond ordinary sting tactics.
Defenses
Entrapment
Texas Penal Code § 8.06 — police inducement that would cause a person not otherwise predisposed to commit the offense. High bar to meet: must show the officer planted the criminal idea and persistently pressured the defendant.
Lack of Specific Intent
Section 33.021(c) requires intent that the meeting be for sexual activity. Discussion of sexual topics alone — without a clear intent to meet for sex — may not satisfy the element.
The Affirmative Defense
Most viable when the dating app has minimum-age requirements (e.g., Tinder requires 18+) and the actor reasonably relied on the platform's age verification. The 3-year age difference must still be satisfied.
Suppression of Digital Evidence
Cell phone searches and seizures must comply with Riley v. California, 573 U.S. 373 (2014). Search warrants for cloud accounts must satisfy particularity. Stored Communications Act compliance is required for ISP data.
Statute of Limitations
Three years under CCP Article 12.01(7) — extendable to ten years from the alleged victim's 18th birthday for offenses against minors.
Evidence Preservation
If you are under investigation:
- Do not delete chat logs, profiles, or apps — destruction can become tampering with evidence under Penal Code § 37.09;
- Do not access the account from new devices — preservation orders may be in place;
- Do request preservation of social media data through your attorney — tech companies' retention policies vary;
- Preserve location data — phone logs may show you were not at the alleged meeting location.
Penalties and Registration
- Third-degree solicitation: 2-10 years TDCJ;
- Second-degree solicitation (believed minor under 14): 2-20 years TDCJ;
- Third-degree explicit communication: 2-10 years TDCJ;
- Lifetime sex offender registration for solicitation under § 33.021(c);
- 10-year registration for explicit communication under § 33.021(b) when no actual minor is involved.
What to Do If You Are Under Investigation or Charged
- Do not speak with police or investigators without an attorney — even to "explain" or "clear things up." Anything you say can be used.
- Do not contact the complainant, the complainant's family, or witnesses — directly, through social media, or through third parties.
- Preserve digital evidence — text messages, dating-app conversations, location data, emails — but do not delete anything.
- Do not post on social media about the allegations, your relationship with the complainant, or anything related to the case.
- Contact L and L Law Group immediately at (214) 466-1398 — we answer 24/7.
Frequently Asked Questions
Is online solicitation of a minor a felony in Texas?
Yes — a third-degree felony, or second-degree if the believed minor is under 14. There is no misdemeanor version.
What is the affirmative defense to online solicitation?
Reasonable belief that the person was 17 or older, reasonable steps to verify age, and the actor was no more than 3 years older. The defendant bears the burden by a preponderance.
Can I be convicted if no real minor was involved?
Yes. Section 33.021 explicitly extends to communications with a person the actor believes to be a minor. Sting operations using adult officers are the most common vehicle for these prosecutions.
Is entrapment a viable defense?
Sometimes, but the bar is high. Defendant must show police inducement that would cause a person not otherwise predisposed to commit the offense. Standard sting tactics usually do not qualify.
Does online solicitation require sex offender registration?
Solicitation under § 33.021(c) requires lifetime registration. Sexually explicit communication under § 33.021(b) requires 10-year registration.
Speak With a Frisco Criminal Defense Attorney
If you or a loved one is facing sexual assault defense charges in Frisco, Collin County, or anywhere in the Dallas-Fort Worth metroplex, the time to act is now. L and L Law Group attorneys are available 24 hours a day, 7 days a week. Call (214) 466-1398 for a free, confidential consultation, or submit your case online and a licensed attorney will contact you directly.
This article is general information, not legal advice. Texas and federal criminal law are complex and fact-specific — please consult a licensed attorney about your particular situation. Past results do not guarantee future outcomes.