## Facts

- B.W. was a 13-year-old girl with a history of sexual and physical abuse and significant behavioral problems, including trouble at school and running away from placements.
- By age 13, B.W. had been living with a 32-year-old man for about a year and a half and was engaging in sexual activity with him.
- B.W. was arrested after she solicited an undercover police officer by offering sexual contact for a fee.
- The State initially filed a prostitution charge in criminal court, but refiled the matter in juvenile court after discovering B.W.’s age.
- In juvenile court, B.W. entered a plea of “true” to the allegation that she knowingly offered or agreed to engage in sexual conduct for a fee (prostitution under Tex. Penal Code § 43.02).
- The juvenile court adjudicated B.W. as having engaged in delinquent conduct and imposed probation with rehabilitation-related conditions, including counseling and treatment.
- The court of appeals affirmed the adjudication and disposition.
- B.W. sought review in the Supreme Court of Texas, arguing she could not be adjudicated for prostitution because Texas law deems children under 14 legally incapable of consenting to sexual conduct.

## Issues

1. Whether a child younger than 14 may be adjudicated as having engaged in delinquent conduct for committing prostitution under Tex. Penal Code § 43.02.
2. Whether the prostitution statute’s requirement that the actor “knowingly offers or agrees to engage in sexual conduct for a fee” can be satisfied by a child under 14, given Texas statutes treating such children as incapable of consenting to sex.

## Decision

- The Supreme Court of Texas reversed the court of appeals.
- The Court held that a child under 14 cannot, as a matter of law, be adjudicated delinquent for prostitution under Tex. Penal Code § 43.02.
- The Court reasoned that Texas sexual-assault statutes treat children under 14 as legally incapable of consenting to sexual intercourse or deviate sexual intercourse, and the prostitution statute’s “knowingly offers or agrees” language presupposes legal capacity to consent to the sexual conduct offered.
- The Court rejected the State’s argument that juvenile-court intervention and treatment goals justify using the prostitution offense when the penal offense cannot be established as a matter of law.
- Disposition: reversed and rendered judgment dismissing the delinquency adjudication.

## Legal Principles

- Delinquent-conduct adjudication under the Texas Juvenile Justice Code requires proof that the child committed a qualifying penal offense; rehabilitative aims cannot substitute for the elements of the offense.
- Texas law treats children younger than 14 as legally incapable of consenting to sexual conduct, as reflected in sexual-assault provisions that impose liability on adults regardless of any purported consent by the child.
- Statutes addressing related subjects should be read together to avoid conflict; interpreting the prostitution statute to allow adjudication of a 13-year-old would clash with the Legislature’s treatment of children under 14 as victims in sexual-conduct offenses.
- When a penal statute’s element requires a “knowing” agreement to engage in sexual conduct, that element cannot be met where the actor lacks legal capacity to consent to the sexual conduct at issue.

## Conclusion

In re B.W. holds that Texas may not adjudicate a child under 14 delinquent for prostitution because the prostitution statute’s “knowingly offers or agrees to engage in sexual conduct for a fee” element cannot be satisfied when Texas law deems such children incapable of consenting to sexual conduct; the Supreme Court therefore reversed and rendered dismissal of the delinquency case.


In re B.W., 313 S.W.3d 818 (2010)