Online Conduct Charge Identifier

1. Texas §42.072 — Stalking

Texas Penal Code §42.072 punishes a course of conduct directed at a specific person that the actor knows or reasonably should know will place that person in fear of bodily injury or death (for the target or a family or household member) or that causes the target to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended in a way that a reasonable person would also feel. The key word is course — two or more acts. A single message rarely qualifies. Direct contact, indirect contact through third parties, surveillance, tracking, and electronic communications can all count toward the course of conduct.

Stalking is a third-degree felony for a first offense and a second-degree felony for a second or later offense or where certain aggravators apply (such as violation of a protective order). Because stalking sits at the intersection of speech and conduct, prosecutors typically build cases on a documented pattern — screenshots, call logs, location data, and witness statements — rather than any single communication. Defense theory often focuses on whether the alleged acts actually form a course, whether the actor knew (or should have known) of the fear, and whether each component act is itself protected expression.

2. Texas §42.07 — Harassment

Section 42.07 covers single or repeated communications made with intent to harass, annoy, alarm, abuse, torment, or embarrass another. The subsections that come up most often in online cases are §42.07(a)(4) (repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend), §42.07(a)(7) (sending repeated electronic communications), and §42.07(a)(1) (obscene communications). The Texas Court of Criminal Appeals has rejected facial overbreadth challenges to the electronic-communications subsections, holding the statute reaches conduct rather than pure speech.

Most §42.07 offenses are Class B misdemeanors. The grade rises to Class A when the actor has a prior harassment conviction, when the target is a child under 18 and the actor intends to cause the child to commit suicide or serious self-harm, or under other specific aggravators. Volume alone is not the test — intent is. A defense often turns on context (one-sided business dispute, custody friction, a public figure receiving criticism) and whether the communications were directed at the complainant in the manner the statute requires.

3. Texas §33.021 — Online Solicitation of a Minor

Section 33.021 criminalizes online communications with a minor (or someone the actor believes to be a minor) directed toward sexual purposes. The history of the statute matters. In Ex parte Lo, 424 S.W.3d 10 (Tex.Crim.App. 2013), the Court of Criminal Appeals struck down the prior §33.021(b), which had punished sexually explicit communications themselves, as unconstitutionally overbroad under the First Amendment. The Legislature then amended the statute. The surviving and routinely charged subsection is §33.021(c) — solicitation of a minor to meet for sexual conduct. Subsection (c) survived because it punishes the conduct of solicitation to meet, not speech alone.

Critical features: it is no defense that the meeting did not occur, that the actor did not intend that it actually occur, or that the other party was not in fact a minor. Sting cases — where an officer poses as a minor — are squarely covered when the actor believed he was communicating with a minor. Subsection (c) is a third-degree felony when the believed-age is 14 to under 17, and a second-degree felony when the believed-age is younger than 14. Registration consequences attach upon conviction.

4. Texas §21.16 — Unlawful Disclosure or Promotion of Intimate Visual Material

Texas's revenge-porn statute, §21.16, reaches disclosure of visual material depicting another person's intimate parts or sexual conduct without that person's effective consent when the depicted person had a reasonable expectation that the material would remain private and the disclosure causes harm to the depicted person. It is no defense that the depicted person originally shared the material with the actor in confidence; the statute distinguishes between consent to share with one person and consent to publish to the world.

Unlawful disclosure under §21.16(b) is a Class A misdemeanor. A related subsection, §21.16(c) (unlawful promotion), addresses commercial promotion. A separate statute, §21.165, addresses unlawful production or distribution of deepfake visual material. Defense theory typically focuses on identity (who actually posted), reasonable-expectation-of-privacy, consent at the time of disclosure, and whether the material qualifies as intimate visual material under the statutory definition.

5. Federal Interstate Stalking and Threats (18 U.S.C. §2261A, §875)

When conduct crosses state lines or uses interstate communication facilities — the modern reality of most online conduct — federal jurisdiction attaches. 18 U.S.C. §2261A(2) reaches use of the mail, an interactive computer service, or any facility of interstate commerce to engage in a course of conduct that places a person in reasonable fear of death or serious bodily injury, or causes, attempts to cause, or would reasonably be expected to cause substantial emotional distress. 18 U.S.C. §875(c) reaches the interstate transmission of any communication containing a threat to injure the person of another. Section 2261A carries up to five years (longer with aggravators); §875(c) carries up to five years.

The Supreme Court's decision in Counterman v. Colorado, 600 U.S. 66 (2023), now governs the mens rea for true-threat prosecutions: the government must prove the speaker had at least a reckless mental state regarding whether the communication would be viewed as threatening. The earlier Elonis v. United States, 575 U.S. 723 (2015), required more than negligence under §875(c). For child-exploitation material the relevant federal statutes are 18 U.S.C. §2252 and §2252A. Whether a federal indictment lands in addition to or instead of state charges depends on volume, interstate nexus, the investigating agency, and U.S. Attorney resources.

6. First Amendment Overlays and Defenses

Online conduct cases sit closer to the First Amendment than most criminal cases, and defense theory has to engage that overlay directly. Reed v. Town of Gilbert, 576 U.S. 155 (2015), confirms that content-based speech restrictions trigger strict scrutiny. Counterman v. Colorado, 600 U.S. 66 (2023), forecloses a purely objective true-threat standard; recklessness about the threatening character of the communication is the constitutional floor. Ex parte Lo struck down a Texas statute that punished speech itself rather than conduct. Defense lawyers in this space watch for facial and as-applied challenges, for course-of-conduct allegations that collapse into protected commentary, and for prosecutorial reliance on the complainant's subjective reaction without the required mental state on the actor's side.

Other common defenses include lack of intent (drafted but never sent; sent by a third party with access to the device); identity (account hacked, shared device, spoofed sender); statutory privilege (communications with counsel, with media in a matter of public concern); reasonable-expectation-of-privacy challenges in image cases; consent at the time of disclosure; and venue or jurisdiction challenges where the interstate nexus is thin. None of these is a magic-bullet result. They are the framework counsel applies after reviewing the specific record.