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H.B. No. 2228
AN ACT
relating to the creation of the offense of online sexual
solicitation of a minor.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 33, Penal Code, is amended by adding
Section 33.021 to read as follows:
Sec. 33.021. ONLINE SOLICITATION OF A MINOR. (a) In this
section:
(1) "Minor" means:
(A) an individual who represents himself or
herself to be younger than 17 years of age; or
(B) an individual whom the actor believes to be
younger than 17 years of age.
(2) "Sexual contact," "sexual intercourse," and
"deviate sexual intercourse" have the meanings assigned by Section
21.01.
(3) "Sexually explicit" means any communication,
language, or material, including a photographic or video image,
that relates to or describes sexual conduct, as defined by Section
43.25.
(b) A person who is 17 years of age or older commits an
offense if, with the intent to arouse or gratify the sexual desire
of any person, the person, over the Internet or by electronic mail
or a commercial online service, intentionally:
(1) communicates in a sexually explicit manner with a
minor; or
(2) distributes sexually explicit material to a minor.
(c) A person commits an offense if the person, over the
Internet or by electronic mail or a commercial online service,
knowingly solicits 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.
(d) It is not a defense to prosecution under Subsection (c)
that:
(1) the meeting did not occur;
(2) the actor did not intend for the meeting to occur;
or
(3) the actor was engaged in a fantasy at the time of
commission of the offense.
(e) It is a defense to prosecution under this section that
at the time conduct described by Subsection (b) or (c) was
committed:
(1) the actor was married to the minor; or
(2) the actor was not more than three years older than
the minor and the minor consented to the conduct.
(f) An offense under Subsection (b) is a state jail felony,
and an offense under Subsection (c) is a felony of the third degree,
except that an offense under Subsection (b) or (c) is a felony of
the second degree if the minor is younger than 14 years of age or is
an individual whom the actor believes to be younger than 14 years of
age.
(g) If conduct that constitutes an offense under this
section also constitutes an offense under any other law, the actor
may be prosecuted under this section, the other law, or both.
SECTION 2. Article 62.01(5), Code of Criminal Procedure, is
amended to read as follows:
(5) "Reportable conviction or adjudication" means a
conviction or adjudication, regardless of the pendency of an
appeal, that is:
(A) a conviction for a violation of Section 21.11
(Indecency with a child), 22.011 (Sexual assault), 22.021
(Aggravated sexual assault), or 25.02 (Prohibited sexual conduct),
Penal Code;
(B) a conviction for a violation of Section 43.05
(Compelling prostitution), 43.25 (Sexual performance by a child),
or 43.26 (Possession or promotion of child pornography), Penal
Code;
(C) a conviction for a violation of Section
20.04(a)(4) (Aggravated kidnapping), Penal Code, if the defendant
committed the offense with intent to violate or abuse the victim
sexually;
(D) a conviction for a violation of Section 30.02
(Burglary), Penal Code, if the offense is punishable under
Subsection (d) of that section and the defendant committed the
offense with intent to commit a felony listed in Paragraph (A) or
(C);
(E) a conviction for a violation of Section 20.02
(Unlawful restraint), 20.03 (Kidnapping), or 20.04 (Aggravated
kidnapping), Penal Code, if the judgment in the case contains an
affirmative finding under Article 42.015;
(F) the second conviction for a violation of
Section 21.08 (Indecent exposure), Penal Code;
(G) a conviction for an attempt, conspiracy, or
solicitation, as defined by Chapter 15, Penal Code, to commit an
offense listed in Paragraph (A), (B), (C), (D), or (E);
(H) an adjudication of delinquent conduct:
(i) based on a violation of one of the
offenses listed in Paragraph (A), (B), (C), (D), [or] (G), or (N)
or, if the order in the hearing contains an affirmative finding that
the victim or intended victim was younger than 17 years of age, one
of the offenses listed in Paragraph (E); or
(ii) for which two violations of the
offense listed in Paragraph (F) are shown;
(I) a deferred adjudication for an offense listed
in:
(i) Paragraph (A), (B), (C), (D), [or] (G),
or (N); or
(ii) Paragraph (E) if the papers in the case
contain an affirmative finding that the victim or intended victim
was younger than 17 years of age;
(J) a conviction under the laws of another state,
federal law, the laws of a foreign country, or the Uniform Code of
Military Justice for an offense containing elements that are
substantially similar to the elements of an offense listed under
Paragraph (A), (B), (C), (D), (E), [or] (G), or (N);
(K) an adjudication of delinquent conduct under
the laws of another state, federal law, or the laws of a foreign
country based on a violation of an offense containing elements that
are substantially similar to the elements of an offense listed
under Paragraph (A), (B), (C), (D), (E), [or] (G), or (N);
(L) the second conviction under the laws of
another state, federal law, the laws of a foreign country, or the
Uniform Code of Military Justice for an offense containing elements
that are substantially similar to the elements of the offense of
indecent exposure; [or]
(M) the second adjudication of delinquent
conduct under the laws of another state, federal law, or the laws of
a foreign country based on a violation of an offense containing
elements that are substantially similar to the elements of the
offense of indecent exposure; or
(N) a conviction for a violation of Section
33.021 (Online solicitation of a minor), Penal Code.
SECTION 3. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2005.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 2228 was passed by the House on April
12, 2005, by the following vote: Yeas 146, Nays 0, 2 present, not
voting.
______________________________
Chief Clerk of the House
I certify that H.B. No. 2228 was passed by the Senate on May
25, 2005, by the following vote: Yeas 31, Nays 0.
______________________________
Secretary of the Senate
APPROVED: _____________________
Date
_____________________
Governor