By MITCH MITCHELL
He was 30 and she was 13 — a teacher and his student — but their relationship went far beyond the classroom, authorities say.
In six days in October 2012, they sent 688 text messages to each other, and the conversation became sexual, according to an arrest warrant affidavit.
The messages — known as “sexting” — included descriptions of sexual preferences and fantasies and discussions of dreams about each other, the affidavit says.
_____, now 31, who was a junior high school teacher in the Everman district, was eventually arrested on a charge of online solicitation of a minor, which was later changed to improper relationship between an educator and student.
But this month, based on a recent appeals court ruling dealing with a similar case in Harris County, Tarrant County prosecutors dismissed his case.
The Texas Court of Criminal Appeals ruled in October that a 2005 statute, which made sexually explicit online communication between an adult and minor illegal, violates the First Amendment right to free speech. The court examined the case of _____, who was arrested in 2010 after being accused of sending sexually explicit text messages to a student he met while working as a choir director in a school district outside Houston.
“It’s OK for adults to talk dirty to children,” said Mark Bennett, the Houston attorney who defended _____.
Bennett had argued that the statute is too broad because “simple profanity or vulgarity — not rising to the level of obscenity — is constitutionally protected speech.”
Lawyers for the state contended that without the law “perverts will be free to bombard our children with salacious emails and text messages.”
The court’s opinion said sexual expression that is indecent but not obscene is protected by the First Amendment, and includes sexually explicit literature such as 50 Shades of Grey and Lady Chatterley’s Lover, as well as Miley Cyrus’ “twerking” during the 2013 MTV Video Music Awards.
Jurisprudence experts say the ruling, depending on the appellate process, could throw other cases into a legal black hole and could force state legislators to rewrite the law.
Bennett said that in the meantime, prosecutors should contact those convicted under the 2005 statute and tell them they have an avenue for redress, Bennett said.
“I believe they have a duty to go back and set things right,” Bennett said.
Tarrant County prosecutors dismissed their case against _____ on Feb. 10.
“The recent opinion by the Texas Court of Criminal Appeals has certainly caused us to re-examine a handful of cases and, where appropriate, seek to re-indict them under … online solicitation of a minor,” said Melody McDonald, spokeswoman for the Tarrant County district attorney’s office. “In this particular case, however, the facts didn’t fit that statute and that wasn’t an option.”
Attempts to contact _____ were unsuccessful. His attorney, Jim Shaw, said the statute is clearly unconstitutional.
“It’s like having a 16-year-old talking to a 20-year-old and although 16-year-olds aren’t naive I guess state lawmakers figured they need protection,” Shaw said.
Used ‘bad judgment’
The student, identified in court documents by the pseudonym Mary Swan, had two classes with _____ at Baxter Junior High, which is located in Fort Worth and is governed by the Everman school district.
After school officials found that _____ had been sending the text messages to the student, they called the enforcement authorities and contacted her mother.
The mother contacted Fort Worth police, who interviewed the student. The student told police that she had exchanged phone numbers and began texting with _____ on Oct. 2, 2012. The messages became sexual, she said, and she told detectives that he had asked her not to tell anyone about their conversations, according to the arrest warrant affidavit.
The text messages included “talking about if either of them walked around naked in their homes, keeping the relationship secret until the victim graduates, dreams that each of them had about each other, virginity and showing restraint while they are in the classroom,” the affidavit says.
Photographs were exchanged, including one of the student wearing a bra with no shirt.
In November 2012, police interviewed _____, who said that he had used “bad judgment” in sending the messages and that he knew she was a minor. He said he had not touched the student or met with her alone, according to the affidavit.
He was arrested Jan. 18, 2013, on a charge of online solicitation of a minor and was booked into jail on the improper relationship charge May 20. He was released on bail after three days, according to court records.
Still has teaching certificate
_____, who began working in the Everman district in August 2007, left the district Nov. 30, 2012. District officials declined to discuss the reasons for _____’ departure or the district’s response to the criminal investigation of his behavior.
_____’ teacher certification remains valid until July 2017 for teaching secondary history and social studies classes. But _____’ certification is under review by the State Board of Education’s Professional Discipline Unit, according to Texas Education Agency records.
“There are instances when a teacher is under a criminal investigation and we suspend our investigation until the criminal investigation plays out,” a TEA spokeswoman said. “There also have been instances where a person might be exonerated in a criminal investigation but his certificate becomes invalid because of something that comes out during a school district investigation.”
A legislative matter?
Though the case against _____ has been dismissed, a motion for rehearing _____’s case is pending at the appeals court level.
Because the appellate jurists voted 9-0 to overturn the statute, Bennett, who defended _____, said he doubts that the petition for a rehearing will be successful.
If the Court of Criminal Appeals denies the petition, the state could petition the U.S. Supreme Court.
Alan Curry, chief of the appellate division for the Harris County district attorney’s office, said his staff is awaiting a decision on the petition before deciding on the next step.
He said the best option may be for state lawmakers to rewrite the law so that it satisfies the courts, “but that’s way down the road,” Curry said.
State Rep. Bill Zedler, R-Arlington, said the 2005 statute was originally proposed to keep children from being groomed by sexual predators. If the courts continue to block the law, lawmakers may have to sit down with the attorney general and come up with acceptable language, Zedler said.
“The purpose of the First Amendment was to allow political dissent, not to allow adults to be vulgar with minors,” Zedler said.
‘Vague or ambiguous’
Shaw, _____’ attorney, said it would not matter whether an adult sent 2,000 sexually explicit text messages to a minor or just one, unless the adult is trying to get the minor to do something illegal, such as a meeting for sex, or is texting something obscene or pornographic; nonetheless, the state cannot get a conviction using the 2005 statute.
This is not the first time lawmakers in Austin have written a law that did not pass constitutional muster.
“A lot of times these statues are vague or ambiguous,” Shaw said. “A lot of times they fail to say what’s illegal.”
Chad Ruback, an appellate attorney who worked at the Fort Worth office of the Court of Criminal Appeals, said the court’s message is directed to state lawmakers, saying they need to rewrite the law so that it achieves its stated purpose of protecting minors against sexting.
“Our courts have ruled that limits on free speech are permissible but those limits need to be reasonable,” Ruback said. “I know lawmakers are disappointed in this opinion but they would be better off drafting new legislation that is more narrowly tailored and more likely to pass constitutional scrutiny.”