Law ruled unconstitutional, overturns child sex crime convictions

There are registered sex offenders in Brazos County who are registered because of a crime that is, simply put, no longer a crime--and people who have gotten off the list for the same reason.

It's called "online solicitation of a minor," and it's a law about how adults are--and are not--allowed to talk to kids online about sexually explicit topics.

This law was ruled unconstitutional in October 2013, and since then, the Brazos County District Attorney's Office has been working to make sure the right people still end up behind bars for saying or doing the wrong things.

"They would have a conversation," said Assistant DA Kara Comte of these offenders. "Meet someone on an online chat room, or just chatting online, and they would have conversations that were sexually explicit."

A child logs on, loosens up, and is tracked down by a sexual predator online: it's every parent's nightmare, and one of the many reasons Comte has been prosecuting child sex crimes in Brazos County for 12 years.

"Our job is also to protect our community and protect the children," she said.

Now, some of those people she helped convict no longer have to register as sex offenders--not because they've served their time, but because the Texas Court of Criminal Appeals says they were convicted under a law that was unconstitutional.

"We're dealing with a situation where you've got individuals who are preying on minors online, and as long as they are not taking additional steps to try and meet those minors, the court said, that's okay," Comte said. "The court said, that's free speech."

'Free speech,' that which is protected by the First Amendment. It's why the 2013 decision known as "Ex Parte Lo" said that one subsection of the statute for 'online solicitation of a minor' was too broad.

And just like that, sex offenders become instead former sex offenders. Cases were dismissed, and sentences were thrown out all across the state.

In Brazos County, 19 had been convicted under the law since 2007. Now, that number is down to 14 as those convicted bring their cases back to court.

But they won't all get off that easy. Comte and her team are working to re-charge and re-try these released offenders whenever possible.

"If a case comes back, and the person who's been convicted under the statute comes and says, 'Hey, this isn't illegal,' they're entitled to relief from the court--and we give them that relief," said Comte. "However, we are also looking at if there are any other laws that they violated, and if we can, we'll file charges over those statutes."

It's a process that frustrates Comte.

"You know, [it's] hard," she said. "Because we're talking about child predators, and we may have caught them before they are able to actually harm a child--which is great. But for us to not be able to hold them accountable for that? It really is tough."

Comte says that the DA's office is under no legal obligation to reach out to those convicted to let them know that the law has been overturned. She also says that some offenders may even choose not to challenge their conviction so that they aren't then charged with a greater crime.

As for the law itself, the loophole has been partially closed since that 2013 decision. In 2015, the state legislature amended the law to reflect the decision regarding Ex Parte Lo, now adding that this online solicitation of a minor must include intent to commit another crime, like sexual assault.

But, Comte says, intent is tricky to prove in court.