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)(3), involving a defendant who engages in conduct constituting the offense of online solicitation of a minor, Tex. Penal Code § 33.021, with a person enrolled in the school where the employee works. Specifically, the charge is drafted assuming a fact pattern in which the online solicitation conduct falls under section 33.021(c)—solicitation by text message with intent to engage in oral sex amounting to sexual contact. Practitioners faced with different fact patterns under section 21.12(a)(3) (e.g., different conduct facts under section 33.021) should tailor the instruction to fit their cases. Further modifications to the instruction will be required for a complainant who—instead of being an enrolled student—is a student participant in an educational activity that was sponsored by a school or school district. See Tex. Penal Code § 21.12(a)(2)(B).

Background and Constitutionality of Section 21.12 and Section 33.021. 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).

The court of criminal appeals has, however, addressed the constitutionality of the online solicitation of a minor offense, Tex. Penal Code § 33.021, which section 21.12(a)(3) incorporates, and has in dicta affirmed the constitutionality of section 33.021(c). In Ex parte Lo, the court of criminal appeals considered a First Amendment challenge to the law brought by a defendant prosecuted under a prior version of section 33.021(b), which prohibits “communicat[ing] in a sexually explicit manner with a minor” and “distribut[ing] sexually explicit material to a minor.” The court held that the provision was overbroad in violation of the First Amendment, because it prohibited “the dissemination of a vast array of constitutionally protected speech and materials,” and therefore was not narrowly drawn to serve the state’s conceded compelling interest in protecting children from sexual predators. Ex parte Lo, 424 S.W.3d 10, 23 (Tex. Crim. App. 2013). The court observed by contrast that section 33.021(c), which prohibits solicitation of a minor to meet for the purpose of engaging in sexual behavior, and which supplies the basis for the Committee’s pattern charge, was a narrowly drawn prohibition on conduct. Ex parte Lo, 424 S.W.3d at 16–17, 23. In Collins v. State, 479 S.W.3d 533, 539–40 (Tex. App.—Eastland 2015, no pet.), the court of appeals held that a conviction under section 21.12(a)(3) premised on engaging in conduct prohibited by section 33.021(b) was unconstitutional, based on the holding of Lo, but rejected constitutional challenges to other provisions of 21.12.

Relevance of Minor Status. An offense is committed under section 21.12(a)(3) where the defendant “engages in conduct described by Section 33.021” with a person described in subdivision (1), “regardless of the age of that person.” Section 33.021(c), however, prohibits solicitation of a “minor.” Two issues are therefore presented: whether the student with whom the defendant engages in a relationship in violation of section 21.12(a)(3) must be a minor, and how to instruct the jury on the proper answer to that question.

As to the first issue, the Committee debated the matter and ultimately determined that the student's minor status is not an element of section 21.12(a)(3). The statute’s plain text points to this conclusion. It prohibits engaging in the “conduct” described by section 33.021. Section 1.07 of the Texas Penal Code defines “conduct” to mean “an act or omission and its accompanying mental state.” The definition of conduct does not encompass attendant circumstances. It is therefore consistent with the definition of “conduct” to read section 21.12(a)(3) as incorporating only “knowing solicitation . . . to meet” and the accompanying “intent” to engage in enumerated sexual activity from section 33.021(c). The final clause of section 21.12(a)(3) confirms this intention by stating that the offense is committed “regardless of the age” of the person. Only one appellate court has directly considered this question, and it, too, reached the conclusion that a solicited person’s minor status was not part of the “conduct described by Section 33.021,” and that “the legislature made it an offense for an educator to have an improper relationship with a student even if the student was not a minor at the time.” Collins, 479 S.W.3d at 537–38.

As to the issue of how to incorporate the statutory language of “regardless of the age of [the solicited] person” into the charge, 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. Additionally, the Committee believed it likely that in the majority of cases, which typically involve solicitation of an individual who is indisputably a minor, the issue of the solicited person’s age would not arise. Accordingly, directing the jury to the issue by including this language in the ordinary course risks 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 concerning the solicited person’s actual or apparent age is introduced 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 circumstance of the solicited person’s status as being enrolled in the school where the defendant worked. This placement corresponds to the placement of the “regardless” clause in section 21.12(a)(3).

Instruction on Meeting Not Occurring. An offense is committed under section 21.12(a)(3) where the defendant “engages in conduct described by Section 33.021.” Section 33.021(c), in turn, prohibits solicitation of a minor to “meet” for the purpose of enumerated sexual activity, and section 33.021(d) provides that it is “no defense” that the solicited “meeting” described in section 33.021(c) did not occur. The Committee was therefore presented with the question of how, if at all, this “no defense” language should be incorporated into the charge for a section 21.12(a)(3) offense premised on commission of conduct described in section 33.021(c). The Committee settled on an optional instruction to be given if non-occurrence of the solicited meeting was raised by the evidence. The language of the optional instruction tracks the language of section 33.021(d).

Culpable Mental State Concerning Enrollment of Student. A third question of statutory construction posed by section 21.12(a)(3) 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, as discussed above, 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 addressed this issue in a prosecution under section 21.12(a)(1), which contains an identical attendant circumstance of student enrollment in the school at which the defendant worked. The court stated, with little analysis, 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 writ of habeas corpus application. It went on to state, “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 premise that section 6.02(c) was applicable in construing section 21.12(a)(1) is questionable in light of Victory v. State, 547 S.W.2d 1, 2 (Tex. Crim. App. 1976) (op. on reh’g), 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.

Even stronger arguments supporting the conclusion that section 6.02(c) is inapplicable to section 21.12(a)(3) lie 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). In contrast to section 21.12(a)(1), which contains no mental element, section 21.12(a)(3) requires (by virtue of incorporating section 33.021) that the defendant have the “intent” to engage in sexual activity. Hence, section 6.02(b) appears to be inapplicable to section 21.12(a)(3).

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.

No Definition of “Employee” or “Solicitation.” Because there is no statutory definition of “employee” or “solicitation” specific to this offense or for the Penal Code more generally, no definitions of those term appear in the instruction.