As a criminal defense attorney in the Dallas, Texas area: I don’t normally represent people on tickets. It wouldn’t be difficult, I’m just used to defending more serious crimes, and most people don’t seem to appreciate how even a Class C ticket can come back to haunt them in the context of immigration issues, job opportunities, and general reputational damage.
Recently, somebody had approached me about defending them on one of these “Manifesting the purpose of” ordinance tickets in the City of Dallas. Apparently because a police officer thought the young man looked like he was up to something so he wrote him a Class C Misdemeanor citation for what would be a felony.
Turns out, “You look like a prostitute” or “You look like a drug dealer” is a crime in Dallas. Here are the below ordinances from Dallas City Code [ found here: https://codelibrary.amlegal.com/codes/dallas/latest/dallas_tx ] Section 31-27 and 31-30. I dare you to tell me that I’m missing something. They are below:
SEC. 31-27. MANIFESTING THE PURPOSE OF ENGAGING IN PROSTITUTION.
(a) A person commits an offense if he loiters in a public place in a manner and under circumstances manifesting the purpose of inducing, enticing, soliciting, or procuring another to commit an act of prostitution. Among the circumstances which may be considered in determining whether such purpose is manifested: that such person is a known prostitute or panderer, repeatedly beckons to, stops or attempts to stop, or engages passers-by in conversation, or repeatedly stops or attempts to stop motor vehicle operators by hailing, waving of arms, or any other bodily gesture. No arrest shall be made for a violation of this subsection unless the arresting officer first affords such person an opportunity to explain such conduct, and no one shall be convicted of violating this subsection if it appears at trial that the explanation given was true and disclosed a lawful purpose.
(b) For the purpose of this section, a “known prostitute or panderer” is a person who, within one year previous to the date of arrest for violation of this section, has within the knowledge of the arresting officer been convicted of prostitution, promotion of prostitution, aggravated promotion of prostitution, or compelling prostitution.
(c) The definition of prostitution in the Texas Penal Code shall apply to this section. (Ord. 15247)
SEC. 31-30. MANIFESTING THE PURPOSE OF SELLING ILLEGAL DRUGS AND CHEMICALS.
(a) A person commits an offense if he loiters in a public place in a manner and under circumstances manifesting the purpose of selling any illegal controlled substance, dangerous drug, simulated controlled substance, or volatile chemical. Among the circumstances that may be considered in determining whether such a purpose is manifested are:
(1) the person is a known drug dealer;
(2) the person is at a location frequented by persons who use, possess, or sell drugs;
(3) the person repeatedly engages in conversation with passers-by, whether on foot or in a vehicle; or
(4) the person repeatedly passes to or receives from passers-by, whether on foot or in a vehicle, money, objects, or written material.
(b) No arrest shall be made for a violation of Subsection (a) unless the arresting officer first affords the person an opportunity to explain his conduct, and no one shall be convicted of violating Subsection (a) if it appears at trial that the explanation given was true and disclosed a lawful purpose.
(c) For the purpose of this section, a “known drug dealer” is a person who, within one year previous to the date of arrest for violation of this section, has within the knowledge of the arresting officer been convicted of the manufacture, sale, or delivery of any illegal controlled substance, dangerous drug, simulated controlled substance, or volatile chemical. (Ord. Nos. 20052; 20076)
Here are the glaring constitutional problems with both of these, but I’ll focus on the Manifesting the Purpose of Engaging in Prostitution ordinance for this:
It’s overbroad and places too great a burden on activity that is protected by your Freedom of Speech.
In my opinion, these ordinances place too great a burden on expression that is protected by the first amendment. It criminalizes behaviors like engaging passers-by in conversation?!
I’ve put together some cases to fight this.
It unconstitutionally shifts the burden to the accused and chills your Fifth Amendment Right to Remain Silent.
I imagine that the drafters of this ordinance, who are likely aware that these sorts of ordinances have been successfully challenged on the basis that it unconstitutionally chills Free Speech elsewhere tried to save the ordinance from being unconstitutional on first amendment grounds by including the language of: “No arrest shall be made for a violation of this subsection unless the arresting officer first affords such person an opportunity to explain such conduct, and no one shall be convicted of violating this subsection if it appears at trial that the explanation given was true and disclosed a lawful purpose.”
In my opinion, it makes the ordinance even more unconstitutional. For the obvious reason that it chills your right to remain silent. E.g.: “Explain yourself or be arrested.” Secondly, it unconstitutionally shifts the burden of proof on the Defendant by stating, or at least strongly suggesting that the Defendant has any burden of proof, except in the case of an affirmative defense, at their own criminal trial.
Want to Fight This City of Dallas Ticket?
In my opinion, the best defense to something like this is to aggressively challenge the charges and the evidence and by filing all viable motions to dismiss based on constitutional challenges.
Your odds will always be improved by hiring a professional.
If you, or someone you know has been charged with an unconstitutional ticket like this, contact me to set-up a strategy session.