Texas Child Protection Law Bench Book

2023 version: As effective November 1, 2023

Commercial Sexual Exploitation of Children

Introduction

Please see the Checklist Section for the Commercial Sexual Exploitation of Children Judicial Checklist.

A. Definition of Human Trafficking

Commercial sexual exploitation of children, also known as human trafficking, is a term that refers to labor and sex trafficking of minors and adults. While all forms of trafficking are dangerous and exploitative, children and youth in foster care are especially vulnerable to child sex trafficking.

1. Federal Law

Under the federal Trafficking Victims Protection Act,[233] severe forms of trafficking in persons are defined as:

•   Sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; or

•   The recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery. 22 U.S.C. § 7102(11).

The term “sex trafficking” means the recruitment, harboring, transportation, provision, obtaining, patronizing, or soliciting of a person for the purpose of a commercial sex act. 22 U.S.C. § 7102(12). A “commercial sex act” is defined as any sex act on account of which anything of value is given to or received by any person. 22 U.S.C. § 7102(4).

2. Trafficking of Children Defined

In Texas, “trafficking” is defined as transporting, enticing, recruiting, harboring, providing, or otherwise obtaining a person by any means. Tex. Penal Code § 20A.01(4).

For sex and labor trafficking offenses, a “child” is defined as a person younger than 18 years of age. Tex. Penal Code § 20A.01(1). Both child sex and labor trafficking are offenses in Texas regardless of whether the actor knew the age of the child at the time of the offense. Tex. Penal Code § 20A.02(b)(1).

3. Child Sex Trafficking

Texas law defines child sex trafficking as knowingly trafficking a child and by any means causing the trafficked child to engage in, or become the victim of, conduct prohibited by:

•   Continuous Sexual Abuse of Young Child or Disabled Individual, Tex. Penal Code § 21.02;

•   Indecency with a Child, Tex. Penal Code § 21.11;

•   Sexual Assault, Tex. Penal Code § 22.011;

•   Aggravated Sexual Assault, Tex. Penal Code § 22.021;

•   Prostitution, Tex. Penal Code § 43.02;

•   Solicitation of Prostitution, Tex. Penal Code § 43.021;

•   Promotion of Prostitution, Tex. Penal Code § 43.03;

•   Online Promotion of Prostitution, Tex. Penal Code § 43.031;

•   Aggravated Promotion of Prostitution, Tex. Penal Code § 43.04;

•   Aggravated Online Promotion of Prostitution, Tex. Penal Code § 43.041;

•   Compelling Prostitution, Tex. Penal Code § 43.05;

•   Sexual Performance by a Child, Tex. Penal Code § 43.25;

•   Employment Harmful to Children, Tex. Penal Code § 43.251; or

•   Possession or Promotion of Child Pornography, Tex. Penal Code § 43.26. Tex. Penal Code § 20A.02(a)(7).

Alternatively, a person commits the crime of child sex trafficking if that person knowingly receives a benefit from participating in a venture that involves an activity described by Tex. Penal Code § 20A.02(a)(7) or engages in sexual conduct with a child trafficked in the manner described in Tex. Penal Code § 20A.02(a)(7). Tex. Penal Code § 20A.02(a)(8).

The landmark case of In re B.W. addressed the issue of whether a thirteen-year-old child can be adjudicated a juvenile delinquent for committing the offense of prostitution. The Supreme Court of Texas held that a child under the age of 14 lacks capacity to consent to sex and thus cannot be charged with the offense of prostitution. The court found that, “[c]hildren are the victims, not the perpetrators, of child prostitution. Children do not freely choose a life of prostitution, and experts have described in detail the extent to which they are manipulated and controlled by their exploiters.” In re B.W., 313 S.W.3d 818, 826 (Tex. 2010).

Another defense to the offense of prostitution that the actor engaged in the conduct that constitutes the offense because the actor was the victim of conduct that constitutes an offense under Tex. Penal Code § 20A.02 or Tex. Penal Code § 43.05. Tex. Penal Code § 43.02(d).

4. Child Labor Trafficking

In Texas, a person commits child labor trafficking by knowingly trafficking a child with the intent that the trafficked child engage in forced labor or services. Tex. Penal Code § 20A.02(a)(5). In addition, knowingly receiving a benefit from participating in a venture that involves an activity described by Tex. Penal Code § 20A.02(a)(5), including by receiving labor or services the person knows are forced labor or services, constitutes labor trafficking. Tex. Penal Code § 20A.02(a)(6).

“Forced labor or services” is defined as labor or services, other than labor or services that constitute sexual conduct, that are performed or provided by another person and obtained through an actor's use of force, fraud, or coercion. Tex. Penal Code § 20A.01(2).

5. Continuous Trafficking of Persons

A person commits the offense of continuous trafficking of persons if, during a period that is 30 or more days in duration, the person engages two or more times in conduct that constitutes an offense under Tex. Penal Code § 20A.02 against one or more victims. Tex. Penal Code § 20A.03(a).

B. Trafficking and Child Welfare

1. CPS Investigations Involving Trafficking

The definition of child abuse includes compelling or encouraging a child to engage in sexual conduct as defined by Tex. Penal Code § 43.01 including compelling or encouraging a child in a manner that constitutes an offense of trafficking of persons under Tex. Penal Code § 20A.02(a)(7) or (8), solicitation of prostitution under Tex. Penal Code § 43.021, or compelling prostitution under Tex. Penal Code § 43.05(a)(2). Tex. Fam. Code § 261.001(1)(G).

Knowingly causing, permitting, encouraging, engaging in, or allowing a child to be trafficked in a manner punishable as an offense under Tex. Penal Code § 20A.02(a)(5), (a)(6), (a)(7), or (a)(8), or the failure to make a reasonable effort to prevent a child from being trafficked in a manner punishable as an offense under any of those sections also constitutes child abuse. Tex. Fam. Code § 261.001(1)(L).

2. Trafficking May be Considered as Basis for Removal of Child

If there is no time to obtain a temporary order, temporary restraining order, or attachment under Tex. Fam. Code § 262.102(a) before taking possession of a child consistent with the health and safety of that child, an authorized DFPS representative, a law enforcement officer, or a juvenile probation officer may take possession of a child without a court order under the following conditions related to trafficking:

•   On personal knowledge of facts that would lead a person of ordinary prudence and caution to believe that the child has been the victim of sexual abuse or of trafficking under Tex. Penal Code § 20A.02 or Tex. Penal Code § 20A.03; or

•   On information furnished by another that has been corroborated by personal knowledge of facts and all of which taken together would lead a person of ordinary prudence and caution to believe that the child has been the victim of sexual abuse or of trafficking under Tex. Penal Code § 20A.02 or Tex. Penal Code § 20A.03. Tex. Fam. Code § 262.104(a)(3)-(4).

3. Standard for Decision at Initial Hearing After Taking Possession Includes Consideration of Trafficking

The court shall order the return of the child at the initial hearing regarding a child taken in possession without a court order by a governmental entity, unless the court is satisfied that:

•   The evidence, in relevant part, shows that the child has been the victim of sexual abuse or of trafficking under Tex. Penal Code § 20A.02 or Tex. Penal Code § 20A.03 on one or more occasions and that there is a substantial risk that the child will be the victim of sexual abuse or of trafficking in the future;

•   Continuation of the child in the home would be contrary to the child's welfare;

•   The child would not be adequately protected in the child's home with an order for the removal of the alleged perpetrator under Tex. Fam. Code § 262.1015 or Tex. Fam. Code § 262.1016 or a protective order issued under Tex. Fam. Code Title 4;

•   Placing the child with a relative or designated caregiver or with a caregiver under a paternal child safety placement agreement authorized by Tex. Fam. Code Chapter 264 was offered but refused; was not possible because there was no time, consistent with the physical health or safety of the child and the nature of the emergency, to conduct the caregiver evaluation; or would pose an immediate danger to the physical health or safety of the child; and

•   Reasonable efforts, consistent with the circumstances and providing for the safety of the child, were made to prevent or eliminate the need for removal of the child. Tex. Fam. Code § 262.107(a).

In determining whether there is a continuing danger to the physical health or safety of a child, the court may consider whether the household to which the child would be returned includes a person who has:

•   Abused or neglected another child in a manner that caused serious injury to or the death of the other child; or

•   Sexually abused another child. Tex. Fam. Code § 262.107(b).

4. Required Findings at Adversary Hearing if Child Victim of Trafficking to Remain in Care

In a suit filed under Tex. Fam. Code § 262.101 or Tex. Fam. Code § 262.105, at the conclusion of the full adversary hearing, the court shall order the return of the child to the parent, managing conservator, possessory conservator, guardian, caretaker, or custodian entitled to possession unless the court finds sufficient evidence to satisfy a person of ordinary prudence and caution that:

•   There was a danger to the physical health or safety of the child, including a danger that the child would be a victim of trafficking under Tex. Penal Code § 20A.02 or Tex. Penal Code § 20A.03, which was caused by an act or failure to act of the person entitled to possession and for the child to remain in the home is contrary to the welfare of the child;

•   The urgent need for protection required the immediate removal of the child and reasonable efforts, consistent with the circumstances and providing for the safety of the child, were made to eliminate or prevent the child's removal; and

•   Reasonable efforts have been made to enable the child to return home, but there is a substantial risk of a continuing danger if the child is returned home. Tex. Fam. Code § 262.201(g).

If, at the conclusion of a full adversary hearing, the court renders an order under Tex. Fam. Code § 262.201(g) or (g-1), the court must describe in writing and in a separate section the reasonable efforts that were made to enable the child to return home and the substantial risk of a continuing danger if the child is returned home, as required by Tex. Fam. Code § 262.201(g)(3); or the reasonable efforts that were made to enable a person's possession of the child and the continuing danger to the physical health or safety of the child as required by Tex. Fam. Code § 262.201(g-1)(2). Tex. Fam. Code § 262.201(g-2).

5. Aggravated Circumstances

The court may find under Tex. Fam. Code § 262.2015(a) that a parent has subjected the child to aggravated circumstances if the parent has engaged in conduct against the child or another child of the parent that would constitute an offense of trafficking of persons under Tex. Penal Code § 20A.02(a)(7) or (a)(8). Tex. Fam. Code § 262.2015(b)(3)(O).

C. Risk Factors and Indicators

Children and youth who run away or experience foster care are at a higher risk of commercial sexual exploitation.[234] According to the Office of the Texas Attorney General, potential indicators (or “red flags”) that a child may be a trafficking victim include:

•   Changes in school attendance, habits, friend groups, vocabulary, demeanor, and attitude;

•   Sudden appearance of luxury items — e.g., manicures, designer clothes, purses;

•   Truancy (absence) from school;

•   Sexually provocative clothing;

•   Tattoos or branding;

•   Refillable gift cards;

•   Multiple phones or social media accounts;

•   Lying about the existence of social media accounts;

•   Provocative pictures posted online or stored on the phone;

•   Unexplained injuries;

•   Social interaction and schedule being strictly controlled by someone else; and/or

•   Isolation from family, friends, and community.[235]

D. CPS Reporting Requirements Regarding Child Sex Trafficking

1. Preventing Sex Trafficking and Strengthening Families Act

Under the Preventing Sex Trafficking and Strengthening Families Act (SFA), DFPS must report immediately, and in no case later than 24 hours after receiving information on children or youth who have been identified as being a sex trafficking victim, to the law enforcement authorities.[236] 42 U.S.C. § 671(a)(34)(A).

Under SFA, DFPS is also required to develop and implement specific protocols for:

•   Expeditiously locating any child missing from foster care;

•   Determining the primary factors that contributed to the child's running away or otherwise being absent from care, and to the extent possible and appropriate, responding to those factors in current and subsequent placements;

•   Determining the child's experiences while absent from care, including screening the child to determine if the child is a possible sex trafficking victim (as defined in 42 U.S.C. § 675(9)(A));

•   Reporting such related information as required by the Secretary of the Department of Health and Human Services; and

•   DFPS must report immediately, and in no case later than 24 hours after receiving, information on missing or abducted children or youth to the law enforcement authorities for entry into the National Crime Information Center (NCIC) database of the Federal Bureau of Investigation and to the National Center for Missing and Exploited Children. 42 U.S.C. § 671(a)(35).

E. Children Who are Missing or Who are Victims of Sex Trafficking

If a child in DFPS managing conservatorship is missing from the child's substitute care provider, including a child who is abducted or is a runaway, according to CPS Policy Handbook § 6460 DFPS shall notify the following persons that the child is missing:

•   The appropriate law enforcement agencies;

•   The court with jurisdiction over the department's managing conservatorship of the child;

•   The child's attorney ad litem;

•   The child's guardian ad litem; and

•   The child's parent unless the parent:

◦   cannot be located or contacted;

◦   has had the parent's parental rights terminated; or

◦   has executed an affidavit of relinquishment of parental rights. Tex. Fam. Code § 264.123(a).

DFPS must provide the notice required by Tex. Fam. Code § 264.123(a) not later than 24 hours after the time DFPS learns that the child is missing or as soon as possible if a person entitled to notice under Tex. Fam. Code § 264.123(a) cannot be notified within 24 hours. Tex. Fam. Code § 264.123(b).

If a child has been reported as a missing child under Tex. Fam. Code § 264.123(a), DFPS must notify the persons described by Tex. Fam. Code § 264.123(a) when the child returns to the child's substitute care provider not later than 24 hours after the time the department learns that the child has returned or as soon as possible if a person entitled to notice cannot be notified within 24 hours. Tex. Fam. Code § 264.123(c).

DFPS must make continuing efforts to determine the location of a missing child until the child returns to substitute care, including:

•   Contacting the appropriate law enforcement agencies, the child's relatives, the child's former caregivers; and any state or local social service agency that may be providing services to the child on a monthly basis; and

•   Conducting a supervisory-level review of the case on a quarterly basis if the child is 15 years of age or younger to determine whether sufficient efforts have been made to locate the child and whether other action is needed. Tex. Fam. Code § 264.123(d).

DFPS must document in the missing child's case record:

•   The actions taken by the department to determine the location of the child; and persuade the child to return to substitute care;

•   Any discussion during, and determination resulting from, the supervisory-level review under Tex. Fam. Code § 264.123(d)(2);

•   Any discussion with law enforcement officials following the return of the child regarding the child's absence; and

•   Any discussion with the child described by Tex. Fam. Code § 264.123(f). Tex. Fam. Code § 264.123(e).

After a missing child returns to the child's substitute care provider, DFPS must interview the child to determine the reasons why the child was missing, where the child stayed during the time the child was missing, and whether, while missing, the child was a victim of conduct that constitutes an offense under Tex. Penal Code § 20A.02(a)(7). DFPS must report to an appropriate law enforcement agency any disclosure made by a child that indicates that the child was the victim of a crime during the time the child was missing. DFPS shall make a report not later than 24 hours after the time the disclosure is made. DFPS is not required to interview a missing child if, at the time the child returns, DFPS knows that the child was abducted and another agency is investigating the abduction. Tex. Fam. Code § 264.123(f).

F. Secure Agency Foster Home

A court in an emergency, initial, or full adversary hearing conducted under Tex. Fam. Code Chapter 262 may order that the child who is the subject of the hearing be placed in a secure agency foster home verified in accordance with Tex. Hum. Res. Code § 42.0531, if the court finds that:

•   The placement is in the best interest of the child; and

•   The child's physical health or safety is in danger because the child has been recruited, harbored, transported, provided, or obtained for forced labor or commercial sexual activity, including any child subjected to an act specified in Tex. Penal Code § 20A.02 or Tex. Penal Code § 20A.03. Tex. Fam. Code § 262.011.

A secure agency foster home which is verified under Tex. Hum. Res. Code § 42.0531 is one that provides:

•   Mental health and other services specifically designed to assist children who are victims of trafficking under Tex. Penal Code § 20A.02 or Tex. Penal Code § 20A.03, including:

◦   victim and family counseling;

◦   behavioral health care;

◦   treatment and intervention for sexual assault;

◦   education tailored to the child's needs;

◦   life skills training;

◦   mentoring; and

◦   substance abuse screening and treatment as needed;

•   Individualized services based on the trauma endured by a child, as determined through comprehensive assessments of the service needs of the child;

•   24-hour services; and

•   Appropriate security through facility design, hardware, technology, and staffing. Tex. Hum. Res. Code § 42.0531(c).

G. Resources

Department of Family and Protective Services

•   Human Trafficking[237]

National Center for Juvenile and Family Court Judges

•   Domestic Child Sex Trafficking Series[238]

•   National Judicial Institute on Domestic Child Sex Trafficking Online Resources[239]

•   Voices from the Bench: Judicial Perspectives on Handling Child Sex Trafficking Cases[240]

National Center for Missing and Exploited Children - Child Sex Trafficking[241]

National Human Trafficking Hotline (888) 373-7888[242]

Office of the Texas Attorney General Human Trafficking webpage[243]

Office of the Texas Governor Child Sex Trafficking Team[244]

Polaris Project - Human Trafficking[245]

Relevant DFPS Policy:

•   Investigations: CPS Policy Handbook § 2380 Child Trafficking (Sex and Labor Trafficking)

•   Conservatorship: CPS Policy Handbook § 6460 When a Child or Youth is Missing from CPS

•   Family-Based Safety Services: CPS Policy Handbook § 12911 Child Trafficking (Sex and Labor Trafficking)

•   Older Youth:

◦   CPS Policy Handbook § 10150 Victims of Trafficking Services to Older Youth

◦   CPS Policy Handbook § 10224.1 Trafficking Awareness PAL Case Management Services

◦   CPS Policy Handbook § 10441 Casework Activity Young Adults in Extended Foster Care