By Collin County Criminal Defense Lawyer Jeremy Rosenthal
Texas criminalizes an “Improper Relationship Between Educator and Student” in Texas Penal Code 21.12. It is a 2nd Degree Felony Carrying between a 2 and 20 year jail sentence upon conviction.
These cases tend to be news-worthy and create a loud splash every time they occur. Along with the publicity come the humiliation, shame, and feelings of helplessness for the accused and their loved ones.
A Broad Dragnet of a Law
The central problem with the law is its breadth… this is to say its sweeping nature.
Think about it this way — Everyone agrees it would be reprehensible for a teacher (regardless of age) to have sexual contact in the classroom with a student they teach in the 4th grade. But what about if an 18 year old student (over the age of consent) has sexual relations with say a cafeteria worker, janitor, or even a teacher at a private residence — and the school employee has no regular supervision or contact with the student while at school? In other words — sex between two consenting adults.
This statute is a dragnet which treats both instances the same.
A major distinction between the two scenarios is the abuse of the child under the age of 14 would be a separate offense of aggravated sexual assault of a child or indecency with a child and could still be prosecuted as such. The latter would otherwise not be a crime at all but for Section 21.12.
How Courts Have Analyzed This Law
A round of cases after this law was passed actually challenged the constitutionality of the improper relationship between educator and student for this reason. At least one trial Court found the statute to be facially unconstitutional before an appellate court reversed it. See e.g. Ex Parte Morales, 212 S.W.3d 483, (Tex.App. — Austin, 2006).
In a recent case limiting the scope of the law, a Court of Appeals actually acquit a person originally convicted by a jury because as a police officer employed by the school district’s PD, he was not an “employee” of the school even though part of his responsibilities would have been to assist at the school if needed. See State v. Sutton, 499 S.W.3d 434 (Tex.Crim.App.– 2016).
Defending These Charges
Defending charges of improper relationships between an educator and a student takes a lot of diligence and creativity. Obviously if the sexual relationship and/or contact itself can be contested or challenged this should be done. If the facts seem difficult then the attorney should be prepared to lodge more creative challenges.
The Sutton opinion demonstrates even the Court’s discomfort with how broadly this law can be applied – or misapplied. If jurors share the same sentiment then challenging these cases in trial could yield positive results.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas and has been designated as a Texas Super Lawyer By Thomson Reuters.