Comment

Improper relationship between educator and student is prohibited by and defined in Tex. Penal Code § 21.12. The multiple subsections of the statute and enumeration of disjunctive conduct and attendant circumstance elements within those subsections offer numerous permutations of offenses. This pattern charge is drafted for an offense committed under section 21.12(a)(1), involving a defendant who is engaging in sexual contact—specifically, touching of the breast—with a student enrolled at the same school where the defendant is employed. Practitioners faced with different fact patterns under section 21.12(a)(1) (e.g., different varieties of sexual contact, or conduct involving sexual intercourse or deviate sexual intercourse) should tailor the instruction to fit their cases.

Background of Section 21.12. Section 21.12 was enacted by the Texas legislature in 2003 as the first specific criminal prohibition on sexual relationships between educators and students. See Acts 2003, 78th Leg., R.S., ch. 224, § 1 (H.B. 532), eff. Sept. 1, 2003. It has been amended five times: in 2007, adding online solicitation as a means of committing the offense (see Acts 2007, 80th Leg., R.S., ch. 610, § 1 (H.B. 401), eff. Sept. 1, 2007); in 2009, adding the affirmative defense of spousal relationship (see Acts 2009, 81st Leg., R.S., ch. 260, § 2 (H.B. 549), eff. Sept. 1, 2009); in 2011, expanding class of educators who can be charged (see Acts 2011, 82d Leg., R.S., ch. 761, § 3 (H.B. 1610), eff. Sept. 1, 2011); in 2017, amending the definition of the offense for defendants not employed by the same school as the complainant (see Acts 2017, 85th Leg., R.S., ch. 178, § 1 (S.B. 7), eff. Sept. 1, 2017); and in 2021, adding a new offense-specific definition of “sexual contact” and providing certain limits on schools’ disclosure of the names of individuals charged under the statute (see Acts 2021, 87th Leg., R.S., ch. 631, § 2 (H.B. 246), eff. Sept. 1, 2021).

Relatively few appellate cases have interpreted the statutory language of section 21.12, and only a single court of criminal appeals case has. See State v. Sutton, 499 S.W.3d 434 (Tex. Crim. App. 2016). Decisions construing other statutes contained within chapter 21, however, may be instructive, particularly with regard to offense elements that appear repeatedly in statutes within that chapter. Defendants have challenged the constitutionality of section 21.12(a) under a number of theories, typically grounded in the assertion of a fundamental right to engage in consensual sexual relationships. The courts of appeals have uniformly rejected these challenges. See, e.g., Ramirez v. State, 557 S.W.3d 717, 718–19, 722 (Tex. App.—Corpus Christi–Edinburg 2018, pet. ref’d), cert denied, 139 S. Ct. 799 (2019) (rejecting contention that defendant had fundamental right to consensual sexual relationship and finding that statute is rationally related to legitimate state interest); Toledo v. State, 519 S.W.3d 273, 278 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d) (rejecting substantive due process and equal protection challenges); Berkovsky v. State, 209 S.W.3d 252, 253–54 (Tex. App.—Waco 2006, pet. ref’d) (rejecting challenges based on asserted fundamental right to consensual sexual relationship); In re Shaw, 204 S.W.3d 9, 19 (Tex. App.—Texarkana 2006, pet. ref’d) (rejecting substantive due process, vagueness, and overbreadth challenges); Ex parte Morales, 212 S.W.3d 483, 490, 503 (Tex. App.—Austin 2006, pet. ref’d) (rejecting equal protection, due process, and First Amendment challenges premised on asserted fundamental right to consensual sexual relationship). The court of criminal appeals has not addressed the constitutionality of section 21.12(a).

Formulation of Charge—Element of Sexual Contact. In formulating a charge for section 21.12(a)(1), the Committee grappled with how the element of “sexual contact” fits within the larger structure of the statute. The element, as defined in section 21.12(e), poses several challenges in terms of drafting a charge. First, without looking to the definition of “sexual contact,” enumeration of the statutory elements of the offense of improper relationship will be silent as to any culpable mental state; the requirement that the defendant have “intent to arouse or gratify the sexual desire of any person” is a component of the definition of “sexual contact.” The Committee was concerned that not specifically instructing the jury that it should determine whether that culpable mental state was proved risked inadequately advising the jury as to a critical aspect of the state’s proof. See Victory v. State, 547 S.W.2d 1, 2, 5 (Tex. Crim. App. 1976) (op. on orig. subm. & reh’g) (holding in prosecution for indecency with a child that “intent to arouse or gratify” clause in statutory definition of “sexual contact” was an element of the offense required to be alleged in the indictment). This concern counsels in favor of integrating the definition of “sexual contact” into the application paragraph, rather than simply instructing the jury to determine whether the element of “sexual contact” was proved and directing them to an instruction on the definition of that phrase.

A second challenge in drafting is posed by the disjunctive phrasing of the definition of “sexual contact” and the risk of erroneously instructing jurors in a manner that permits a non-unanimous verdict. The conduct amounting to sexual contact under section 21.12(e) is “any touching . . . of the anus, breast, or any part of the genitals” of the enrolled person, or “any touching of any part of the body of the enrolled person . . . with the anus, breast, or any part of the genitals of the employee.” Tex. Penal Code § 21.12(e) (emphasis added). The court of criminal appeals has held that the nearly identical definition of “sexual contact” contained in Tex. Penal Code § 21.01 “criminalizes three separate types of conduct—touching the anus, touching the breast, and touching the genitals with the requisite mental state,” and that “[t]herefore, each act constitutes a different criminal offense and juror unanimity is required as to the commission of any one of these acts.” Pizzo v. State, 235 S.W.3d 711, 719 (Tex. Crim. App. 2007). The court in Pizzo reversed the guilty verdict because the judge’s instruction, which was based on the language of the indictment, improperly charged the jury in the disjunctive and thereby permitted the jury to convict without agreeing upon the body part that was touched. Pizzo, 235 S.W.3d at 719. In Loving v. State, the court of criminal appeals reaffirmed its conclusion in Pizzo in holding, for double jeopardy purposes, that a defendant who exposed himself to a minor and touched the same minor minutes later had violated the indecency with a minor statute twice. Loving v. State, 401 S.W.3d 642, 649 (Tex. Crim. App. 2013). Although not binding for purposes of construing section 21.12, Pizzo and Loving provide a strong indication that the various ways of touching enumerated in section 21.12(e) are also separate offenses on which the jury must be separately instructed. This also counsels in favor of a more integrated approach to crafting the application paragraph.

Ultimately, the Committee elected to draft an application paragraph that integrates the definition of “sexual contact” into the first two elements of the offense (one, touching, and two, intent to arouse or gratify). The inclusion of a single act of touching in the first element reflects the Committee’s view that, like the offense of indecency with a child, unanimity is required as to each incident of sexual contact. The Committee determined that this was the better view of the law in light of Pizzo and the structural and substantive similarities between the indecency and improper relationship offenses. Nevertheless, some Committee members noted that, statutory language aside, the title of the offense perhaps supplies the basis for an argument that the gravamen of the offense is not the particular acts that constitute sexual contact but rather the “relationship” between educator and student.

Finally, an additional definitional issue arises with respect to the element of “sexual contact”: whether the element is established on proof of touching over or under clothing, or whether instead touching under clothing is required to be proved. The question arises because of inconsistency among three separate statutory definitions of “sexual contact” that exist in chapter 21 of the Penal Code. Some history is required to explain the point.

Prior to 2001, section 21.01(2) provided the only definition of the term “sexual contact”: “any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person.” Tex. Penal Code § 21.01(2). See Williams v. State, No. 05-03-00648-CR, 2004 WL 95204, at *1 (Tex. App.—Dallas Jan. 21, 2004, no pet.) (mem. op., not designated for publication). The definition applied for any offense contained within chapter 21 of the Penal Code. In Resnick v. State, a case involving prosecution for public lewdness, the court of criminal appeals rejected the contention that “touching” within the meaning of section 21.01(2) required that the defendant make skin-to-skin contact; because “the essence of the act of touching is to perceive by the sense of feeling,” the element of touching is proved by evidence of contact under or over clothing. Resnick v. State, 574 S.W.2d 558, 560 (Tex. Crim. App. [Panel Op.] 1978). Then, in 2001, the legislature amended the offense of indecency with a child, Tex. Penal Code § 21.11, to add an offense-specific definition to the statute. See Acts 2001, 77th Leg., R.S., ch. 739, § 2 (S.B. 932), eff. Sept. 1, 2001. The definition provided (and still provides) that for purposes of section 21.11, “sexual contact” means, inter alia, “any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child.” Tex. Penal Code § 21.11(c)(1) (emphasis added). The legislature’s specific inclusion of “touching through the clothing” raised the question—or at least caused some defendants to raise the question—whether the definition of “sexual contact” in section 21.01(2) was thereby impliedly limited to touching under clothing.

In Gonzalez v. State, the court of appeals rejected this argument in a prosecution under section 21.12. Gonzalez v. State, No. 13-15-00509-CR, 2017 WL 1281390 (Tex. App.—Corpus Christi–Edinburg Apr. 6, 2017, pet. ref’d) (mem. op.). The court observed that the 2001 amendments were to a different statute—necessarily, since section 21.12 was first enacted two years later, in 2003. Gonzales, 2017 WL 1281390, at *3. Relying on the canon of construction that the legislature is presumed to know the case law construing the meaning of the statutory language it enacts, the Gonzalez court concluded that the meaning of the phrase “sexual contact,” chosen by the legislature in 2003, was presumptively what governing case law held it to be: inclusive of touching under and over clothing. Gonzales, 2017 WL 1281390, at *2–3. Other courts have reached the same conclusion in post-2001 prosecutions for public lewdness, which also incorporates the section 21.01 definition of “sexual contact.” See Perales v. State, No. 03-13-00511-CR, 2014 WL 5107130, at *3 (Tex. App.—Austin Oct. 10, 2014, pet. ref’d) (mem. op.); Williams, 2004 WL 95204, at *1–2.

The issue in Gonzalez may be posed in a different light in the aftermath of the 2021 amendments to section 21.12, which added a new, offense-specific definition of sexual contact. Tex. Penal Code § 21.12(e). See Acts 2021, 87th Leg., R.S., ch. 631, § 2 (H.B. 246), eff. Sept. 1, 2021. Like section 21.01, and unlike section 21.11, section 21.12(e) defines sexual contact as, inter alia, “any touching” without specifying that the touching may be over or under the clothing. Given not only Resnick but also the more recent opinions from the courts of appeal construing the section 21.01 definition to include touching over and under clothing, the presumption is even stronger that the legislature intended for “touching” to be defined in a manner consistent with that case law. Although the Committee’s view was that touching over or under clothing would satisfy the element of “sexual contact” as defined in section 21.12(e), the pattern charge does not include reference to that fact because no such language appears in the statute. See Walters v. State, 247 S.W.3d 204, 212 (Tex. Crim. App. 2007) (“[G]enerally speaking, neither the defendant nor the State is entitled to a special jury instruction relating to a statutory offense or defense if that instruction . . . is not grounded in the Penal Code.”).

Practitioners should note that September 1, 2021, is the effective date of the legislation that created subsection (e). Acts 2021, 87th Leg., R.S., ch. 631, § 2 (H.B. 246), eff. Sept. 1, 2021. Offenses committed prior to September 1, 2021, are governed by the definition contained in section 21.01.

Culpable mental state. A third question of statutory construction posed by section 21.12(a) is whether the state must prove any culpable mental state element with respect to the attendant circumstance of the student being enrolled in the school where the defendant was employed. Put differently and more practically, may a defendant who sincerely and reasonably is unaware that the individual with whom they engaged in sexual contact was a student at the school where the defendant is employed offer a mistake defense? See Tex. Penal Code § 8.02. The question perhaps takes on additional importance in light of the fact that section 21.12 criminalizes relationships between school employees and students regardless of whether the student is a minor.

Only one court of appeals decision has squarely addressed this issue—albeit in abbreviated fashion—and has stated that at least a culpable mental state of recklessness must be proved with respect to the enrollment status of the student. Rejecting the defendant’s contention that “the statute does not include the element of knowledge in its definition and, as applied, did not require appellant to know the ‘complaining witness’ is a student,” the court observed first that the argument was not properly raised in the defendant's pretrial motion for a writ of habeas corpus. It went on to state that “while section 21.12 lacks a specific mental state, section 6.02(c) of the penal code supplies the applicable mental state,” such that a culpable mental state of at least “recklessness suffices to establish criminal responsibility.” Ex parte Guerrero, No. 05-06-01316-CR, 2006 WL 3718339, at *3 (Tex. App.—Dallas Dec. 19, 2006, pet. ref’d) (mem. op., not designated for publication). The court’s conclusion on the merits is arguably dicta, given its strong suggestion that the argument was not properly raised at that stage of litigation. Moreover, the court’s acceptance of the defendant’s premise that section 6.02(c) was applicable in construing section 21.12(a) is questionable in light of Victory, 547 S.W.2d at 2, in which the court of criminal appeals held that the “intent to arouse or gratify” mental state component of the “sexual contact” definition was an element that must be alleged in the indictment. If section 21.12 in fact has a mental state element of “intent to arouse or gratify,” then the definition of the offense does not fail to prescribe a culpable mental state, and section 6.02(c) is inapplicable.

An additional basis for arguing that section 6.02(c) is inapplicable to section 21.12(a) lies in section 6.02(b)’s proviso that “a culpable mental state is nevertheless required” if the definition of an offense does not supply one “unless the definition plainly dispenses with any mental element.” Tex. Penal Code § 6.02(b) (emphasis added). Section 21.12(a)(1) contains no mental state element whatsoever. By contrast, three other subdivisions of the statute do contain mental state elements: section 21.12(e), defining “sexual contact” to require proof of “intent to arouse or gratify,” and (perhaps more significantly), sections 21.12(a)(2) and (3), which make it a crime for school employees holding certain positions to engage in sexual contact, deviate sexual intercourse, or sexual intercourse, and for any employee to engage in online solicitation, with “a person the employee knows is a person” who is a student at a school other than the one where the employee works, or is a participant in a school-sponsored activity. Tex. Penal Code § 21.12(a)(3), (e) (emphasis added). In Long v. State, 931 S.W.2d 285, 291 (Tex. Crim. App. 1996), the court of criminal appeals found evidence that the legislature had “plainly dispensed” with a culpable mental state element in one subdivision of a statute, when another subdivision of the same statute did contain a culpable mental state element.

For these reasons, and given the statute’s silence and the absence of guidance from the court of criminal appeals, the Committee opted not to include in the charge any culpable mental state element with respect to the attendant circumstance of the student being enrolled in the school where the defendant worked. Practitioners, however, should be aware of this issue. Some members of the Committee were of the view that the absence of such a mental state element might pose a particularly grave risk of unfairness in cases where the student was seventeen or older—that is to say, of an age where the conduct would not otherwise constitute a crime. In such instances, the offense may be more like a “circumstances of the conduct” offense in which “otherwise innocent behavior becomes criminal because of the circumstances under which it is done,” such that “a culpable mental state is required as to those surrounding circumstances.” McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989). Even then, perhaps a fairness concern arises only when it is truly onerous to place the burden of ascertaining whether the complainant was a student on the defendant—such as when the defendant is only a periodic employee of the school or when the student body is quite large. Practitioners should be alert to the possibility that there may be special situations where prudence counsels adding a culpable mental state element of knowledge or recklessness as to the attendant circumstance of the student being enrolled at the school where the defendant worked.

Other Elements—Case Law. Texas courts have had occasion to construe two other attendant circumstance elements of the improper relationship statute. In State v. Sutton, the court of criminal appeals reversed the conviction of a school district police officer for improper relationship on the ground that the element of “employee of a public or private primary or secondary school” was not proved. In the course of his duties, the officer occasionally visited the school at which the complainant was a student, but he was employed by the Conroe ISD Police Department, not the school itself. The court rejected the state's argument that the legislature intended to include within the term “employee” all employees of the school district as well as the school. Sutton, 499 S.W.3d at 436–37 (holding police officer employee of school district is not “employee of the school” within meaning of 21.12 and that police officer did not “work at” school at which victim was enrolled by virtue of occasionally going there in course of responsibilities).

In Brookins v. State, the court of appeals took an expansive view of the meaning of “public secondary school” under section 21.12(a), holding that the phrase includes a Texas Youth Commission facility offering “educational programs [that] cover substantially the same field as typical high schools,” and rejecting the defendant’s argument that the term was meant to exclude nontraditional educational facilities. Brookins v. State, No. 08-10-00243-CR, 2011 WL 6382531, at *5–6 (Tex. App.—El Paso, Dec. 14, 2011, pet. ref’d) (mem. op., not designated for publication).

No Definition of “Employee” or “Solicit.” Because there are no statutory definitions of “employee” or “solicit” specific to this offense (or online solicitation of a minor) or for the Penal Code more generally, no definitions of those terms appear in the instruction. See Ex parte Victorick, 453 S.W.3d 5, 15 (Tex. App.—Beaumont 2014, pet. ref’d) (recognizing “solicit” is not defined for online solicitation of a minor and applying common definition).