Greg Abbott in tussle over ‘sexting’ ruling

Texas Attorney General Greg Abbott has asked the state’s highest criminal court to reconsider an October ruling that tossed out a law banning sexually explicit cyberchats between adults and minors — a move that ignited a legal turf war over one of Abbott’s signature issues in office.

Abbott argued that his office hadn’t been notified, as required by state law, that a state law had been challenged as unconstitutional. The oversight deprived Abbott of the opportunity to defend the law, a key responsibility of the office, he said.

But Lisa McMinn, the state prosecuting attorney, asked the Court of Criminal Appeals to disregard Abbott’s request, arguing that there was no obligation to notify Abbott about a case he was powerless to join.

McMinn told the court that only local prosecutors and her office, created in 1923 to handle criminal appellate matters for Texas, may represent the state in appeals involving criminal cases. Abbott, who represents Texas in civil court matters, cannot intervene in an ongoing criminal case unless invited by a local prosecutor — and Abbott received no such offer in the case, she said.

Beyond objecting to Abbott’s intervention, however, McMinn didn’t comment on the merits of the attorney general’s request.

Abbott, who has made protecting children from cyberexploitation a focus of his time in office and a key issue in his campaign for Texas governor, told the court that its ruling endangered 20 cases his office had prosecuted or is prosecuting under the voided 2005 law. Spokesman Jerry Strickland said two of those cases, in which North Texas men solicited minors online, had to be dropped recently because of the decision.

“These are troubling cases with suspects that pose a danger to children and communities, however, due to the Court of Criminal Appeals ruling, these two cases could not be prosecuted,” he said.

The cases make up a fraction of the 340 arrests for child sex crimes — predominantly child pornography or solicitation of a minor — that Abbott’s office said it has taken part in since 2003.

The law prohibited adults from engaging minors in sexually explicit online communication with the intent of sexual gratification, often called “sexting.” The third-degree felony was punishable by up to 10 years in prison until the Court of Criminal Appeals declared, in a 9-0 decision on Oct. 30, that the law violated free-speech protections because it wasn’t narrowly written to meet its goals.

Texas children are protected from online predators by other laws, including statutes banning solicitation, obscenity, harassment and the distribution of harmful materials to minors, the court ruled. What’s more, the law went too far by encompassing “a whole cornucopia” of titillating talk — including sexually explicit literature such as “Lolita,” “50 Shades of Grey” and Shakespeare’s “Troilus and Cressida,” the court said.

The ruling dismissed an indictment against John Christopher Lo, who was arrested in January 2010 and accused of sending sexually explicit text messages to a student he met while serving as choir director in the Clear Creek school district in suburban Houston.

Lo, 49 when he was arrested, had exchanged texts eliciting details of the 15-year-old boy’s sexual exploits, prosecutors allege.

Abbott responded with a motion for rehearing — a formal request for the court’s nine judges to reconsider their decision.

Such requests are routinely denied and, when granted, tend to result in the court clarifying — but not changing — its original ruling.

Still, the Harris County district attorney’s office also requested a rehearing, arguing that the court was mistaken when it said adults could be prosecuted under similar laws. No criminal law covers sexting, titillating electronic messages that don’t include photos, Harris County District Attorney Devon Anderson told the court.

“This court’s opinion will be construed to hold that (sexting) is now constitutionally protected speech. Is that what this court intended?” Anderson said.

Mark Bennett, Lo’s lawyer, opposed reopening the appeal.

In a brief to the court, Bennett said Lo’s challenge to the law was no secret. The 1st Court of Appeals in Houston issued a public opinion denying Lo’s challenge in 2011, and the Court of Criminal Appeals announced in early 2013 that it would review Lo’s case, he said.

A new hearing should be denied, Bennett argued, because Abbott was either aware of the case but declined to act, or he displayed a “lack of diligence” in keeping abreast of important court matters.

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