A Texas district court judge declared the state’s online sexual solicitation of a minor law unconstitutional on Wednesday afternoon.
The judge ruled that the law violates the First Amendment of the U.S. Constitution regarding freedom of speech. The state’s law prohibits using the internet or any other electronic communication to arrange a meeting with a minor for sexual relations.
Judge Kelly’s 9th District Court ruling could have a devastating effect on prosecutions of online child predators if allowed to stand. The ruling came out of the case of Texas v. Paquette in which Daniel Paquette was arrested and charged with allegedly using email to solicit a meeting with a minor with the intent of engaging in sexual intercourse, according to court records obtained by Breitbart Texas.
“This statute forms the basis of a large portion of the work that the county’s Internet Crimes Against Children (ICAC) task force has been so effectively using to target child predators in the Montgomery County area,” said Montgomery County 1st Assistant District Attorney Phil Grant in a statement obtained by Breitbart Texas. “The defense argued that the law infringed on the right to freedom of speech because some internet users engage in the sexual fantasy of ‘ageplay,’ where one or more participants in a sexually-oriented conversation falsely represent themselves to be under-aged children.”
Grant said the state responded by citing numerous cases that held that these portions of the law are not related to free speech. “These portions of the statute require that the online conversations be made with the attempt to lure a minor child to engage in an illegal sexual relationship,” he explained. “In most of these cases, the defendants are arrested when they arrive at the location designated in the online ‘chat’ where they have arranged to have the illegal sexual encounter.”
Judge Case discounted the argument by the state and ruled the entire law violated the First Amendment. He then granted the defendant’s motion for dismissal and threw out the indictment.
Grant explained the case against Paquette:
In the case before the court, Daniel Paquette, age 35 of Kingwood, arranged to meet a 14 year old girl he contacted through Craigslist. Mr. Paquette offered the 14 year old money for sex and then traveled to Porter to meet at an apartment in Montgomery County. When he arrived at the location, he was taken into custody by ICAC task force members. When arrested they found the agreed upon money in his possession and a condom.
Judge Kelly W. Case was elected to his first term as a state district court judge in November, 2012. He defeated fellow Republican, incumbent Judge Fred Edwards, in the 2012 primary election. His term expires at the end of 2016. Prior to 1994, Case served as a prosecutor in the Galveston County district attorney’s office. Following that, he served in private practice.
This is not the first time Case has attacked the state’s law regarding online solicitation of a minor. In September, 2014, the Houston Chronicle reported that there had been five skirmishes between the judge and the Montgomery County district attorney’s office. In each incident, District Attorney Brett Ligon “has taken the rare step of filing court papers challenging the judge’s orders and asking the appellate courts to order him to follow the law,” the Chronicle’s Cindy Horswell reported. “So far Ligon has been victorious, with the appeals courts slapping down the judge’s orders three times.”
“Judge Case continues his one man war on our proactive efforts to protect the children of Montgomery County,” stated First Assistant Grant. “This statute is designed to identify and arrest individuals searching for children online to victimize. The methods and procedures used by our investigators specifically weed out those who are merely engaged in twisted sex talk, and arrests are made only when adults get in their car and drive to a location to meet the minor child. The defendants we arrest have made proactive efforts to find and molest children. Judge Case’s rulings continue to place the children of Montgomery County in danger.”
Grant told Breitbart Texas he will appeal the judge’s ruling to the 9th Court of Appeals where he hopes to win a reversal.
Breitbart Texas has reached out to the Texas attorney general’s office for comment. An immediate response was not available at press time. This article will be updated when that statement is available.
The AG’s office has been extremely active in ICAC education and prosecution, both under former AG, and now governor, Greg Abbott and the current AG, Ken Paxton.