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 a school other than the one in which 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.

Optional Language Regarding Lack of Certificate, Permit, License, or Credential. Section 21.12(a)(2) brings within the offense statute all school employees who hold positions described in section 21.003(a) or (b) of the Education Code, “regardless of whether the employee holds the appropriate certificate, permit, license, or credential for the position.” The Committee thought it appropriate to include this language in the relevant statutes unit of the charge, given that it is part of the statutory language of the offense. The Committee debated how, if at all, to incorporate this into the enumeration of the elements of the offense in the application paragraph. The clause does not add anything to the burden the state bears in proving the elements of the offense; indeed, it subtracts any need to prove that the school employee has the credentials that section 21.003 mandates. Additionally, the Committee believed it likely that in the majority of cases, the issue of whether the defendant-employee was legally credentialled would not arise and that directing the jury to the issue by including this language in the ordinary course risked confusing rather than clarifying the jury’s task. On the other hand, the Committee was mindful of the possibility that cases might arise where evidence was adduced of a defendant’s lack of credentials and the arguable need in such cases for jurors to be apprised of the statutory language. The Committee therefore crafted optional language to be included with the fourth element in the application paragraph concerning the defendant holding the position of teacher, which corresponds to the statute’s placement of the “regardless” clause to modify the “position of teacher” element.

Other Elements—Case Law. One appellate court has had occasion to construe the attendant circumstance of “public secondary school” within the meaning of section 21.12(a). In Brookins v. State, considering appeal of a conviction under section 21.12(a)(1), the court of appeals defined “public secondary school” expansively, holding that the phrase includes a Texas Youth Commission facility offering “educational programs [that] cover substantially the same field as typical high schools.” The court rejected 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.” Because there is no statutory definition of “employee” specific to this offense or for the Penal Code more generally, no definition of the term appears in the instruction.