Texas prostitution — Penal Code § 43.02

Prostitution under Texas Penal Code § 43.02 is a Class B misdemeanor for a first offense — up to 180 days in jail and a $2,000 fine — rising to Class A with priors and a state jail felony with three or more. Since 2021 the statute reaches only the person receiving the fee. Below: penalties, defenses, the trafficking-victim defense, and record sealing.

Peer Recognition

Martindale-Hubbell® 2026 Honors

Independent peer-review ratings recognizing legal ability and ethical standards.

Awards reflect peer-reviewed ratings only. Past results do not guarantee future outcomes.

What Is Prostitution Under Texas Law?

Texas Penal Code § 43.02(a) now contains a single, short prohibition: a person commits an offense if the person knowingly offers or agrees to receive a fee from another to engage in sexual conduct. Every word in that sentence is doing work. The direction of the money matters — receiving, not paying. The verbs matter — an offer or an agreement completes the crime, with no requirement that anything physical ever happen. And the mental state matters — the State must prove the defendant acted knowingly, aware of the nature of the exchange being discussed.

The definitions come from § 43.01, and they are broader than most people assume. A "fee" is the payment or offer of payment in the form of money, goods, services, or other benefit — a definition the Legislature added in 2021 that sweeps in drugs, rent, rides, and anything else of value. "Sexual conduct" includes sexual intercourse, deviate sexual intercourse, and sexual contact, and "sexual contact" reaches any touching of the anus, breast, or genitals with intent to arouse or gratify sexual desire. The exchange being negotiated does not have to be intercourse for the statute to apply.

Texas appellate courts spent decades construing the predecessor version of this statute, whose offer-and-agreement language carries forward into the current text. The modes are distinct ways of committing the offense, and the State's proof must match the manner it pleads: an offer is the defendant's own proposal, while an agreement is assent to terms someone else put on the table. In Steinbach v. State, 979 S.W.2d 836 (Tex. App. 1998), the court catalogued the framework — the offense can be committed by offering, by agreeing, or (under the former text) by engaging, each mode standing on its own, and a person can commit the offense by offer or agreement without ever intending to follow through.

Section 43.02 sits in Chapter 43 of the Penal Code, the public-indecency chapter, alongside promotion, compelling prostitution, and the obscenity offenses. That placement has consequences that surface later on this page: chapter 43 offenses carry their own waiting periods in the record-sealing statutes, and the Legislature has built a victim-protective architecture around § 43.02 specifically — an affirmative defense, a mandatory-supervision rule, and a dedicated nondisclosure path — that exists for almost no other misdemeanor.

Who Gets Charged Under § 43.02 — the Buyer or the Seller?

Only the seller side, and that is recent. House Bill 1540 — the 87th Legislature's omnibus trafficking bill — split the old combined statute effective September 1, 2021. Offering or agreeing to receive a fee stayed in § 43.02 as a misdemeanor; offering or agreeing to pay a fee moved into a new statute, § 43.021, graded as a state jail felony. With that change Texas became the first state to grade buyer-side solicitation as a felony for a first offense — a deliberate policy choice to aim the heavier hammer at demand.

The split has practical consequences for charging and for criminal history. A single sting operation now produces asymmetric cases: the person alleged to be selling faces a Class B misdemeanor in county court, while the person alleged to be buying faces a felony in district court. The enhancement ladders run on separate tracks, too. The seller ladder in § 43.02(c) counts only prior convictions under subsection (a), so a § 43.021 buyer conviction does not elevate a later § 43.02 charge. The buyer statute, by contrast, counts its own priors including convictions under the former combined statute as it existed before September 1, 2021.

One more wrinkle worth knowing: because the operative offer-and-agreement language survived the split, the older case law construing those verbs — including the decisions discussed below — remains the working authority on what the State must prove. The 2021 change rerouted who gets charged with what; it did not soften the elements.

What Are the Penalties for Prostitution in Texas?

Section 43.02(c) builds a three-step ladder keyed entirely to prior convictions under the same subsection:

The ranges come from Penal Code chapter 12 — § 12.22 for Class B, § 12.21 for Class A, § 12.35 for state jail felonies. At the state-jail tier, § 12.44(a) gives the judge discretion to punish the felony as a Class A misdemeanor where the ends of justice would be served, which is a meaningful negotiating target in three-priors cases. Deferred adjudication and community supervision are available across the ladder under Code of Criminal Procedure chapter 42A.

The quieter and more surprising rule sits in Code of Criminal Procedure article 42A.515: on conviction of a Class B misdemeanor under § 43.02(a) — and for certain first state-jail-tier convictions punished under § 12.35(a) — the judge shall suspend imposition of the sentence and place the defendant on community supervision. The exception is a jury verdict on punishment that does not recommend supervision. The statute also requires, as a condition, participation in a commercially sexually exploited persons court program established under Government Code chapter 126 where one operates in the county, and it lets the judge suspend the program fees and the fine. Texas misdemeanor law contains almost no other offense where probation is the legislatively mandated outcome of a conviction.

Elements the State Must Prove

To convict under § 43.02(a), the State must prove each of these beyond a reasonable doubt:

A knowing mental state

Under § 6.03(b), the defendant must be aware of the nature of the conduct — that what is being offered or agreed to is an exchange of sexual conduct for a fee. Knowledge is almost always proved circumstantially: courts allow the trier of fact to infer mental state from the defendant's acts, words, and conduct, which is why the exact phrasing of a recorded conversation becomes the battlefield.

An offer or an agreement

These are distinct manners of committing the offense, and the proof must match what the charging instrument alleges. An offer is the defendant's own proposal to exchange sexual conduct for a fee. An agreement is assent — words or conduct accepting a proposal someone else made. In Robinson v. State, 643 S.W.2d 141 (Tex. Crim. App. 1982), the Court of Criminal Appeals held there is no requirement that a definite sum certain be ascertained or that any final agreement be reached for an offer-theory conviction, and that implied offers arising from protracted negotiations can suffice even where the officer made the initial inquiry.

To receive a fee

Post-2021, the fee must flow toward the accused — that is what makes the case a § 43.02 misdemeanor rather than a § 43.021 felony. The fee itself is defined broadly in § 43.01(2) as payment or offer of payment in money, goods, services, or other benefit, and no money ever has to change hands: as Steinbach put it, a fee need not be paid for the offense to be complete.

To engage in sexual conduct

The negotiated exchange must be for sexual intercourse, deviate sexual intercourse, or sexual contact as defined in § 43.01. The line matters at the margins — exotic dancing, companionship, and time-based fees are not sexual conduct by themselves, and Steinbach drew the distinction while also holding that touching through clothing can satisfy the sexual-contact definition.

Two evidentiary rules from the case law round out the picture. First, no express discussion of a particular sex act or a particular price is required: Steinbach affirmed a conviction where the understanding that sexual contact would follow a continued flow of money was inferred from the circumstances, acts, and conduct of the accused. Second, the intent to actually consummate the conduct is not an element of the offer and agreement modes — the crime is the commercial proposal itself, not the follow-through.

How Do Prosecutors Prove a Prostitution Case?

Almost every § 43.02 filing in North Texas starts as a sting. The traditional version is a decoy operation: an undercover officer in a hotel room, a wired conversation, a takedown team in the next room, and an arrest the moment words cross the statutory line. The modern version is digital — officers post or answer online ads, move the conversation to text, and build the case entirely out of the message thread before anyone meets. Either way, the State's file is usually a recording or screenshot stack plus the officer's testimony, and Texas law permits conviction on the testimony of a single witness if the jury believes it.

What the prosecutor must mine from that file is a communicated offer or agreement tying a fee to sexual conduct. Express words make easy cases; most files are not express. Operators and decoys both tend to talk in euphemism — "donations," "roses," time-based rates, screening questions — and the State will argue the code language, the setting, and the conduct together prove what was really being negotiated. The defense works the same record from the other side: time-based pricing is consistent with lawful companionship or dancing, euphemism cuts both ways, and the inference of an agreement has to be proved beyond a reasonable doubt, not assumed from atmosphere.

The recording itself deserves scrutiny in every case. Gaps, inaudible passages, and the difference between what the officer reports and what the audio captures are cross-examination material. So is the question of who supplied the essential terms: when the officer names the act, names the price, and pushes past deflections, the State may still argue an agreement, but the defense gains both an element argument — assent versus acquiescence — and the foundation for an entrapment instruction.

What Defenses Work Against a Prostitution Charge?

L and L Law Group builds § 43.02 defenses around the statute's own limits and the sting-file record:

• No offer, no agreement. The words have to carry the element. Ambiguous replies, banter that never lands on an exchange, and conversations where sexual conduct or the fee is never actually linked leave the State short. Because offer and agreement are distinct manners of commission, proof of one does not automatically prove the other — the evidence must support the manner alleged in the information.
• Entrapment, § 8.06. If law enforcement induced the offense using persuasion or other means likely to cause persons to commit it, entrapment is a defense; by the statute's own terms, conduct merely affording a person an opportunity to commit an offense does not constitute entrapment. The inducement inquiry has subjective and objective components, so repeated pressure after refusals, manufactured sympathy, or escalating inducements matter — a routine decoy posting does not.
• The trafficking-victim affirmative defense, § 43.02(d). Discussed fully in the next section — where the accused engaged in the conduct because they were a victim of trafficking or compelling prostitution, the Legislature has provided a complete defense.
• Mental-state failure. Knowledge of the nature of the exchange is an element. Language barriers, third parties running the ad or the room, and conversations the accused never saw can all break the State's knowledge proof, particularly in spa and storefront cases where the person arrested is not the person who wrote the advertisement.
• Suppression. Warrantless phone seizures, searches that outrun consent, and statements taken in custody without warnings are all motion targets under Code of Criminal Procedure article 38.23. In digital stings the phone is usually the case; excluding it can end the prosecution.
• Identity and attribution online. An ad posted from a shared device, an account with multiple users, or messages sent by someone else raise a straightforward question the State must answer: who typed the words that supply the elements?

Strategy selection is record-driven. An entrapment defense admits the conduct and attacks the inducement, so it forecloses an it-never-happened defense in front of the same jury. Which lever to pull — element failure, inducement, suppression, or the affirmative defense — is the first real decision in the case, and it should be made after the recordings are reviewed, not before.

The Trafficking-Victim Affirmative Defense

Section 43.02(d) provides that it is an affirmative defense to prosecution that the actor engaged in the conduct because the actor was the victim of conduct constituting trafficking of persons under § 20A.02 or compelling prostitution under § 43.05. It is one of the clearest legislative statements in the Penal Code that the person selling is often the person being exploited, and it converts that recognition into a complete defense rather than a sentencing argument.

Because it is an affirmative defense, the mechanics come from Penal Code § 2.04: the accused must raise it and prove it by a preponderance of the evidence. That is a lower standard than the State's, but it puts a build-the-record burden on the defense — evidence that someone else controlled the money, the phone, the ads, or the movement; forensic extraction showing a trafficker running the account; services and outreach records; medical and housing history; and, where it exists, the parallel investigation into the trafficker.

The defense also connects to the record-sealing architecture. Government Code § 411.0728 — covered in the next section — lets a person whose § 43.02 case ended in conviction or deferred adjudication petition for nondisclosure on a showing the offense was committed solely as a victim of trafficking or compelling prostitution. Raising the victimization evidence early therefore serves two purposes at once: it supports the affirmative defense now and builds the sealing record for later.

Can a Prostitution Charge Be Dismissed, Sealed, or Expunged?

Dismissal and diversion. Outright dismissals follow from suppression wins, element failures, and proof problems in the recording. Short of that, several DFW counties have operated diversion or specialty-court tracks for seller-side cases — availability and entry criteria change over time and should be confirmed against the county's current practice at filing. A negotiated dismissal after a diversion program is the cleanest outcome on the record because it preserves expunction eligibility.

Expunction. An arrest that ends in acquittal or dismissal without a final conviction or court-ordered community supervision can be expunged under Code of Criminal Procedure chapter 55A — the records are destroyed, not merely hidden. See our expunction page for the eligibility mechanics. A plea that produces a conviction or ordinary deferred takes expunction off the table for that arrest, which is why the record endgame should be priced into any plea decision.

Nondisclosure (sealing). Chapter 43 offenses carry a structural quirk in Government Code chapter 411, subchapter E-1. Deferred adjudication on a § 43.02 charge is not eligible for the automatic path in § 411.072, so sealing runs through the petition route in § 411.0725 — and misdemeanors from chapters 20, 21, 22, 25, 42, 43, and 46 require a two-year wait after discharge and dismissal, plus a judicial finding that the order serves the interest of justice. A conviction with completed community supervision — which article 42A.515 makes the default outcome of a first-offense conviction — can be sealed by petition under § 411.073 on the same two-year clock. Our order of nondisclosure and deferred adjudication nondisclosure pages walk the paperwork.

The trafficking-victim path, § 411.0728. For people whose cases are tied to their own exploitation, the Legislature built a dedicated route: a person convicted of or placed on deferred adjudication for a § 43.02 offense may petition for nondisclosure if the court finds the offense was committed solely as a victim of trafficking of persons or compelling prostitution, with the petition available on the first anniversary of completing the sentence or receiving the dismissal and discharge. Two features make it unusual — it reaches convictions, not just deferreds, and the person must have assisted the investigation or prosecution of the trafficking offense unless age or disability excused that assistance.

How DFW Counties Handle Prostitution Cases

Class B and Class A prostitution charges are filed by information and heard in the county-level criminal courts; the state-jail tier is indicted by a grand jury and moves to the district courts. Where your case lands depends on the county of arrest:

• Collin County — County Courts at Law at the Collin County Courthouse (Russell A. Steindam Courts Building), 2100 Bloomdale Road, McKinney. Frisco, Plano, McKinney, and Allen arrests route here, including hotel-corridor operations along the Sam Rayburn and Dallas North Tollway growth spine.
• Dallas County — County Criminal Courts at the Frank Crowley Courts Building on Riverfront Boulevard. Dallas runs one of the busiest misdemeanor dockets in Texas, and vice operations there have produced both street-level and web-based cases for decades; specialty-court programming for exploited persons has operated in the county, with criteria that change over time.
• Denton County — County Criminal Courts at the Denton County Courts Building in Denton; arrests from Lewisville, The Colony, and the Denton-side slice of Frisco file here.
• Tarrant County — County Criminal Courts at the Tim Curry Criminal Justice Center in Fort Worth.

Three general observations hold across the region, without promising anything about any particular file. Sting volume tracks events and enforcement grants — operations cluster around large conventions and sporting weekends. Charging decisions after the 2021 split are cleaner than they used to be: intake divisions now route seller-side and buyer-side cases to different courts at different grades from the same operation. And the commercially sexually exploited persons court programs authorized by Government Code chapter 126 exist in some counties and not others, so whether the article 42A.515 program condition has real content depends on where the case is filed.

What Happens After a Prostitution Arrest in Texas?

The procedural spine is the standard misdemeanor track, with a few wrinkles specific to sting cases:

1. Arrest and booking. Sting arrests happen at the operation site, and phones are routinely seized as evidence — in a digital case, the phone is the case, and what happens to it next is a Fourth Amendment question worth litigating.
2. Magistration. Within roughly 48 hours a magistrate gives the statutory warnings under Code of Criminal Procedure article 15.17 and sets bond. Class B bonds in DFW are typically modest, and personal-recognizance release is common for clean records.
3. Filing by information. The county's misdemeanor intake division screens the offense report and files an information in a county criminal court. This is where the manner of commission — offer, agreement, or both — gets pleaded, and the pleading choice shapes what the State must later prove.
4. First settings and discovery. Article 39.14 requires the State to produce the offense report, the recordings, the message threads, and the operation paperwork on request. The defense review of the actual audio against the officer's summary is the single highest-value hour in the case.
5. Motions and negotiation. Suppression motions, entrapment development, and diversion applications occupy the pretrial settings. Where the trafficking-victim defense is in play, this is also when the victimization record gets built and presented to the State.
6. Resolution. Dismissal, diversion, deferred adjudication, trial, or a plea. On a first-offense Class B conviction, article 42A.515 directs community supervision rather than jail in nearly every posture except a contrary jury punishment verdict. The misdemeanor limitations period is two years under Code of Criminal Procedure article 12.02, which bounds how long a re-filing decision can hang overhead.

Collateral Consequences Beyond the Courtroom

The conviction's reach outside the courtroom is narrower than people fear in one respect and wider in others:

• No sex-offender registration. Prostitution under § 43.02 is not a reportable conviction under Code of Criminal Procedure article 62.001(5). Registration attaches to other chapter 43 offenses — compelling prostitution, aggravated promotion, sexual performance by a child — and to § 43.021 solicitation when punished as a second-degree felony, but not to the seller-side misdemeanor.
• Employment and licensing. A § 43.02 conviction is visible on background checks until sealed, and licensing boards may treat it as a crime involving moral turpitude — a label that matters for nurses, teachers, security licensees, and other regulated professionals, who may also carry independent reporting duties after an arrest.
• Immigration. Federal immigration law contains prostitution-specific inadmissibility provisions that operate differently from ordinary criminal grounds, and consequences are intensely case-specific. Non-citizens should have immigration counsel review any proposed plea before it is entered; nothing here is immigration advice.
• Firearms. A misdemeanor § 43.02 conviction does not trigger the Texas felon-in-possession statute (Penal Code § 46.04) or the federal prohibition in 18 U.S.C. § 922(g). A state-jail-felony conviction at the three-priors tier is a felony for both — one more reason the § 12.44(a) misdemeanor-punishment option matters at that level.
• Family and housing fallout. The arrest and any conviction are discoverable in custody litigation and visible to landlords running criminal-history screens, which is why the sealing timeline deserves attention from day one rather than after the case closes.

How § 43.02 Compares with Neighboring Offenses

Chapter 43 and its neighbors form a graded ecosystem, and confusing the rungs is common — sometimes even in charging decisions:

• Solicitation of prostitution, § 43.021 — the buyer-side companion offense: knowingly offering or agreeing to pay a fee for sexual conduct. A state jail felony at baseline, third-degree with a prior, and second-degree when the person solicited is a minor or is represented or believed to be one.
• Compelling prostitution, § 43.05 — knowingly causing another to commit prostitution by force, threat, coercion, or fraud, or causing a child or disabled individual to engage in it by any means. A first-degree felony across the board, and a registrable offense.
• Promotion of prostitution, § 43.03 — receiving money under an agreement to share prostitution proceeds, or soliciting another to engage in sexual conduct with a third person for compensation. Third-degree at baseline, second-degree with a prior, first-degree when a minor is involved; aggravated promotion under § 43.04 escalates further and carries registration.
• Trafficking of persons, § 20A.02 — the felony framework for causing another to engage in commercial sex through force, fraud, or coercion, or involving children. This is the statute whose victims the § 43.02(d) affirmative defense protects, and its felony exposure dwarfs anything in chapter 43's seller-side ladder.
• Continuous trafficking of persons, § 20A.03 — trafficking conduct repeated over 30 days or more, prosecuted as a single continuing offense.
• Online solicitation of a minor, § 33.021 — the felony that controls when the communication is with a minor or someone the actor believes to be one; it displaces the chapter 43 analysis entirely.
• Public lewdness, § 21.07 — a Class A misdemeanor for sexual acts in public or in the reckless presence of an offended observer; prosecutors sometimes file it alongside or instead of § 43.02 when the proof of a fee is thin.
• Indecent exposure, § 21.08 — a Class B misdemeanor with no commercial element at all; it appears in the same operations when the exposure happens before any exchange is discussed.

Two Hypothetical Examples

Hypothetical one — the ambiguous hotel conversation. A massage advertisement leads an undercover officer to book a session at a Plano hotel. On the recording, the officer repeatedly steers toward specific acts; the masseuse deflects twice, quotes only her hourly rate, and finally answers "whatever you want, it is your hour" before the takedown. Charged with offering to engage in sexual conduct for a fee, she has two element arguments — her words never proposed sexual conduct, and an hourly rate is not a fee for it — plus a developing entrapment record if the officer's persistence crossed from opportunity into inducement. Whether the inference of an agreement survives depends on the whole recording, not the arrest report's summary. This is a composite illustration, not a case result or a prediction.

Hypothetical two — the trafficking-victim defense. A 20-year-old is arrested in a web sting in Dallas County. Her phone extraction shows someone else wrote the ads, set the prices, and collected the money; outreach records document her recruitment at 17 and an earlier runaway report. Her lawyer notices the § 43.02(d) affirmative defense, builds the victimization record, and presents it to the State alongside a referral to the trafficking unit. Whatever the disposition — dismissal, diversion, or a deferred — the same record supports a later § 411.0728 nondisclosure petition one year after discharge. Again, a hypothetical built to show how the statutes interlock.