concurring.
I write separately, because although I concur with the judgment of the majority, I believe neither the majority nor the dissent fully address the issues this case presents, in terms of statutory interpretation and constitutionality.
The question presented today is what, if any, culpable mental state is required under Tex. Pen.Code § 21.11. The issue of whether or not a culpable mental state is required for the offense of “statutory rape” has been much debated throughout the country for several decades now. As has been noted, “[pjrior to 1964, it was the universally accepted rule in the United States that a defendant’s mistaken belief as to the age of the victim was not a defense to a charge of statutory rape.” Colin Campbell, Annotation, Mistake or Lack of Information as to Victim’s Age as Defense to Statutory Rape, 46 A.L.R.5& 499, 499 (1997). This court’s own case law has long held that such a mistaken belief was not a defense. In what appears to be the first reported case in Texas, we relied primarily on the decisions of other states, as well as on treatises on criminal law and British decisions, for the proposition that mistake of fact as to the victim’s age is no defense. Edens v. State 43 S.W. 89, 89 (Tex.Crim.App.1897). Although this “universal rule” was first “broken” by the California Supreme Court more than thirty years ago, see People v. Hernandez, 61 Cal.2d 529, 89 Cal.Rptr. 361, 393 P.2d 673 (1964), such breakage has hardly been universally accepted. Instead, courts around the country have been split, not only as to the results reached, but also as to the reasons relied upon in reaching those results.1
*851The first consideration in today’s case is one of statutory interpretation. An initial reading of § 21.11 might suggest that, in fact, a required element of the offense is knowledge of the victim’s age. That is, § 21.11(a)(2) requires that the defendant know that "... the child is present.” Whether such knowledge goes only to the victim’s presence or to the fact that the victim is a child, i.e., under the age of 17 years, is not clear. This court has held that when the language of a statute is ambiguous, we may consider extratextual factors such as legislative history to determine legislative intent. Boykin v. State, 818 S.W.2d 782, 785-786 (Tex.Crim.App.1991). Using such legislative history, we have previously determined that the intent of the legislature was that the knowledge element of § 21.11(a)(2) applies only to the presence of the victim, rather than the victim’s age. Roof v. State, 665 S.W.2d 490, 491-492 (Tex.Crim.App.1984).
The next consideration is the interaction of Tex. Pen.Code §§ 6.02 and 21.11. Tex. Penal Code § 6.02, titled “Requirement of Culpability,” states in relevant part:
(a) Except as provided in Subsection (b), a person does not commit an offense unless he intentionally, knowingly, recklessly or with criminal negligence engages in conduct as the definition of the offense requires.
(b) If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element, (emphasis added)
The issue of when an offense “plainly dispenses” with a mental element is not itself plainly evident. That is, does mere silence as to a mental element mean that the legislature intended to “plainly dispense” with any mental element, or must the text of the statute explicitly state the legislature’s intent to do away with any mental element? If mere silence is not, in and of itself, sufficient to “plainly dispense” with a mental element, then under Boykin, supra, courts may be required to go outside of the text of the statute and consider legislative history, public policy, etc., to determine legislative intent.
Judicial interpretation of § 6.02 has varied, depending on the specific statute at issue.2 *852However, with regard to Tex. Penal Code § 21.11, several factors lead to the conclusion that the legislature intended that no mental element be required as to the age of the victim.
Recently in Long v. State, 931 S.W.2d 285 (Tex.Crim.App.1996), we declared the stalking provision of a harassment statute unconstitutional. In doing so, we noted that particular subdivisions of that statute prescribed a culpable mental state. From this, we reasoned that the legislature intended only those subdivisions of the statute, and no others, to require a culpable mental state. Id. at 291. In the present case, the relevant portion of § 21.11 reads as follows:
(a) A person commits an offense if, with a child younger than 17 years and not his spouse, whether the child is of the same or opposite sex, he:
(1) engages in sexual contact with the child; or
(2) exposes his anus or any part of his genitals, knowing the child is present, with intent to arouse or gratify the sexual desire of any person, (emphasis added)
Thus, it can be implied, similar to the reasoning in Long, that since § 21.11(a)(2) contains the mental elements “knowing” and “intent,” and since those same mental elements are apart from the provision of § 21.11(a), which specifies the age of the victim, the intent of the legislature was to dispense with a culpable mental state as to the victim’s age. The dissent states that I am “... unable to point to any language in the statute which ‘plainly dispenses’ with a culpable mental state.” Post, at 855. But, it is precisely the absence of a culpable mental state as to the victim’s age, when the legislature has prescribed mental elements as to other portions of the offense, that makes the legislative intent clear.
This conclusion is further bolstered by comparing the previous versions of § 21.11 with its current enactment. Prior to the enactment of the current penal code, the offense at issue here was codified, in part, by the following provisions:
It shall be unlawful for any person with lascivious intent to knowingly and intentionally expose his or her private parts or genital organs to any other person, male or female, under the age of sixteen (16) years, (emphasis added) ■
Acts 1950, 51st Leg., 1st C.S., p. 50, ch. 9, repealed by Acts 1973, 63rd Leg., p. 991, ch. 399, § 3(a), effective January 1,1974.
It shall be unlawful for any person with lascivious intent to intentionally place or attempt to place his or her hand or hands, or any portion of his or her hands upon or against a sexual part of a male or female under the age of fourteen (14) years, or to in any way or manner fondle or attempt to fondle a sexual part of a male or female under the age of fourteen (14) years, or to intentionally place or attempt to place his or her hands or any part of his or her hands upon the breast of a female under the age of fourteen (14) years, or to in any *853way or manner fondle or attempt to fondle the breast of a female under the age of fourteen (14) years, (emphasis added)
Acts 1950, 51st Leg., 1st C.S., p. 52, ch. 12, repealed by Acts 1973, 68rd Leg., p. 991, ch. 899, § 3(a), effective January 1,1974.
In these previous versions of § 21.11, it is not clear exactly “how far down” the italicized mental states are meant to “travel,” i.e., whether or not they are meant to modify the age of the victim. However, it is notable that when redrafting these provisions for the current penal code, the legislature chose to break the offense down into several separate parts and to clearly remove the mental elements from the portion of the statute having to do with the victim’s age. This further suggests that there was no intent on the part of the legislature for there to be any mental element as to the victim’s age.
Finally, it is notable that since it was first passed by the legislature as part of the penal code in 1973, § 21.11 has been amended several times.3 In two of these amendments, the legislature made substantial changes as to the affirmative defenses available within the statute itself.4 The fact that neither of these changes relates to the issue of culpable mental state and the defense of mistake of fact (Tex. Pen.Code § 8.02), coupled with the context in which these issues have been hotly debated around the country by both legislatures and courts, reinforces the conclusion that, with regard to § 21.11, the legislative intent is to “plainly dispense” with any mental element as to the victim’s age.
Furthermore, although the United States Supreme Court has never specifically ruled on the constitutionality of prohibiting a defense of mistake of fact as to the victim’s age in cases of “statutory rape,” that court has repeatedly suggested over the years that such a prohibition is not constitutionally infirm. This can be inferred from the following: (1) in a 1994 decision construing a federal child pornography statute, in which the court held that the term “knowingly” applied to the minority of the performers and noted that if it were not to construe the statute that way, the statute might be unconstitutional, it noted in passing that “... we do not think the common law treatment of sex offenses militates against our construction of the present statute.” United States v. X-Citement Video, Inc., 513 U.S. 64, 78 & 72 n. 2, 115 S.Ct. 464, 472 & 469 n. 2, 130 L.Ed.2d 372 (1994)5; (2) in 1982, the Supreme Court declined to hear an appeal of a decision by the Supreme Court of Pennsylvania holding that a denial of the defense of mistake of fact as to the victim’s age did not violate the U.S. Constitution, on the grounds of lack of a “substantial federal question.” Robinson v. Pennsylvania, 457 U.S. 1101, 102 S.Ct. 2898, 73 L.Ed.2d 1310 (1982), dismissing appeal Commonwealth v. Robinson, 497 Pa. 49, 438 A.2d 964 (1981).6 Given these facts, as well as Texas’ long tradition of refusing to recognize the defense of mistake of fact as to the victim’s age,7 I believe that neither the *854United States Constitution nor the Texas Constitution mandate that such a defense be allowed.8 Therefore, I concur with the judgment of the majority.9
MEYERS, MANSFIELD and WOMACK, JJ., join
. For the various results reached among the various state and federal courts, see generally, Colin Campbell, Annotation, Mistake or Lack of Information as to Victim's Age as Defense to Statutory Rape, 46 A.L.R.5th 499 (1997). Among the decisions revealing the contentiousness of this issue are Perez v. State, 111 N.M. 160, 803 P.2d 249 (1990), in which the court allowed a defense of mistake of fact, reasoning that because the statute at issue distinguished between victims under thirteen and those between thirteen and sixteen and also focused on whether the defendant was at least eighteen or at least four years older than the victim, such statute was a “numbers game ... When the law requires a mathematical formula for its application, we cannot say that being provided the wrong numbers is immaterial.” Id. 803 P.2d at 251; State v. Elton, 680 P.2d 727 (Utah 1984), vacating upon reconsideration 657 P.2d 1261 (Utah 1982), in which the Utah Supreme Court reversed itself two years later on the issue, and declared that mistake of fact with regard to the age of the victim was a defense, while noting (680 P.2d at 732 n. 8) that the decision was itself limited by legislation which had subsequently been passed by the legislature; State v. Guest, 583 P.2d 836, 839 (Alaska 1978), in which the Alaska Supreme Court construed that state’s statutory rape law to allow for a mistake of fact defense, noting that except for "public welfare” types of offenses, that state's constitution requires criminal intent as a part of its criminal laws (this decision was subsequently superseded by statute, see infra n. 8); and Garnett v. State, 332 Md. 571, 632 A.2d 797 (1993), perhaps the "inevitable epic” of this long debate, with a majority opinion detailing the legislative *851intent and constitutional status of the statute at issue (Id. 632 A.2d at 797-805), as well as two dissents (Id. at 805-807 (Eldridge, J„ dissenting) & 807-824 (Bell, J., dissenting)) challenging those assertions.
. In a large number of cases, this court and several lower courts have asserted that when the statute is merely silent as to a mental element, it has not plainly dispensed with one, and so one is nevertheless required. See, e.g., Crawford v. State, 646 S.W.2d 936, 937 (Tex.Crim.App.1983) ("endless chain’Vpyramid promotional scheme); Goss v. State, 582 S.W.2d 782 (Tex.Crim.App.1979) (failure to stop and render aid); West v. State, 567 S.W.2d 515, 516 (Tex.Crim.App. [Panel Op.] 1978) (criminal trespass); Zachery v. State, 552 S.W.2d 136, 137 (Tex.Crim.App.1977) (attempted rape); Tew v. State, 551 S.W.2d 375, 376 (Tex.Crim.App.1977) (unlawful possession of firearm by felon); Ex Parte Winton, 549 S.W.2d 751, 752 (Tex.Crim.App.1977) (burglary); Rodriquez v. State, 548 S.W.2d 26, 28-29 (Tex.Crim.App.1977) (felony murder); Baldwin v. State, 538 S.W.2d 109 (Tex.Crim.App.1976) (credit card abuse); Hazel v. State, 534 S.W.2d 698, 700 (Tex.Crim.App.1976) (unlawful possession of firearm by felon); Braxton v. State, 528 S.W.2d 844, 846 (Tex.Crim.App.1975) (rape); Aguirre v. State, No. 08-97-00408-CR, 1998 WL 32434, at *1-*2, -S.W.2d-,-(Tex.App. — El Paso Jan.29, 1998, no pet. h.) (municipal ordinance prohibiting conducting business in a nude live entertainment club located within 1,000 feet of a school); Pollard v. State, 687 S.W.2d 373, 374 (Tex.App. — Dallas 1985, pet. ref'd) (city ordinance prohibiting sleeping and dozing in public place); Franklin v. State, 682 S.W.2d 426, 427 (Tex.App. — Houston [1st Dist.] 1984, no pet.) (illegal use of shrimping equipment); Clayton v. State, 652 S.W.2d 810, 811-812 (Tex.App.— Amarillo 1983, no pet.) (driving with suspended license); Diggles v. State, 641 S.W.2d 667, 668 (Tex.App. — Dallas 1982, pet.ref’d)(illegal voter assistance); Hang On, Inc. v. City of Arlington, 65 F.3d 1248, 1254-1255 (5th Cir.1995) (city ordinance prohibiting touching between customers and nude employees at adult cabarets); Howard Gault Co. v. Texas Rural Legal Aid, Inc., 848 F.2d 544, 563 (5th Cir.1988) (statute prohibiting picketing accompanied by slander, libel or public misrepresentation). But see Zulauf v. State, 591 S.W.2d 869, 872-873 (Tex.Crim.App. [Panel Op.] 1979) (holding that phrase "[n]o person shall drive a vehicle on the highway at a speed greater than is reasonable and prudent under the circumstances then existing ..." is clear command that legislature intended to make speeding a strict liability offense).
In other circumstances, courts have found that when the terms of the statute require a mental element that is not prescribed within the penal code, a mental state is not plainly dispensed *852with, so that a mental state specifically prescribed within the penal code (i.e., intentional, knowing, reckless, or criminally negligent) is required. See, e.g., Honeycutt v. State, 627 S.W.2d 417, 424 (Tex.Crim.App. [Panel Op.] 1981) (municipal offense of prohibiting negligent collision); Bocanegra v. State, 552 S.W.2d 130, 132 (Tex.Crim.App.1977) (welfare fraud).
Sometimes, courts have gone outside of the text of the statute and examined legislative history to determine whether a culpable mental state is required. See, e.g., American Plant Food Corp. v. State, 587 S.W.2d 679, 684-686 (Tex.Crim.App.1979) (en banc) (water pollution — no culpable mental state required); Ex Parte Ross, 522 S.W.2d 214 (Tex.Crim.App.1975), cert. denied, 423 U.S. 1018, 96 S.Ct. 454, 46 L.Ed.2d 390 (1975) (driving while intoxicated — no culpable mental state required); Exxon Co., U.S.A. v. State, 646 S.W.2d 536, 537-538 (Tex.App.— Houston [1st Dist.] 1982, pet. ref'd)(air pollution — no culpable mental state required). Finally, public policy has been occasionally considered in determining if a culpable mental state is required. See, e.g., Aguirre v. State, No. 08-97-00408-CR, 1998 WL 32434, at *2, - S.W.2d -, -- (Tex.App. — El Paso Jan.29, 1998, no pet. h.) (municipal ordinance prohibiting conducting business in a nude live entertainment club located within 1,000 feet of a school); Baggett v. State, 691 S.W.2d 779, 782 (Tex.App.Beaumont 1985), rev'd on other grounds, 722 S.W.2d 700 (Tex.Crim.App.1987) (refusal to allow inspection by proper official of certain aquatic products in possession of licensed wholesale fish dealer — no culpable mental state required); Exxon Co., U.S.A. v. State, 646 S.W.2d 536, 538 (Tex.App. — Houston [1st Dist.] 1982, pet. ref’d) (air pollution-no culpable mental state required).
. See Tex. Pen.Code Ann. § 21.11 credits & historical notes (Vernon 1994) [Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1981, 67th Leg., p. 472, ch. 202, § 3, eff. Sept. 1, 1981; Acts 1987, 70th Leg., ch. 1028, § 1, eff. Sept. 1, 1987; Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept 1, 1994].
. See Acts 1981, 67th Leg., p. 472, ch. 202, § 3, eff. Sept. 1, 1981; Acts 1987, 70th Leg., ch. 1028, § 1, eff. Sept. 1, 1987.
. The dissent cites X-Citement Video as authority in support of its position that § 21.11 requires a mens rea as to the age of the victim. Post, at 856-859. However, as noted above, and as one of our intermediate appellate courts has previously stated, that decision specifically distinguished common law sex offenses from the reasoning used by the Supreme Court in that decision. Duron v. State, 915 S.W.2d 920, 922 (Tex.App. — Houston [1st Dist.] 1996) (citing X-Citement Video, 513 U.S. at 72 n. 2, 115 S.Ct. at 469 n. 2), aff'd on other grounds, 956 S.W.2d 547 (Tex.Crim.App.1997).
. Unlike denials of certiorari, dismissals for want of a substantial federal question do carry some, albeit limited, precedential weight. See Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 180-183, 99 S.Ct. 983, 988-989, 59 L.Ed.2d 230 (1979); Mandel v. Bradley, 432 U.S. 173, 176-177, 97 S.Ct. 2238, 2240-2241, 53 L.Ed.2d 199 (1977).
. The dissent cites to McQueen v. State, 781 S.W.2d 600 (Tex.Crim.App.1989) in support of its position that § 21.11 requires a culpable mental state as to the age of the victim. Post, at 857-859. McQueen, however, dealt with a statute prohibiting unauthorized use of a vehicle. § 21.11 is distinguishable from that statute for the simple reason that it codifies a common law *854sex offense which has traditionally been excepted from the mens rea requirement of most criminal offenses. See Morissette v. United States, 342 U.S. 246, 251 n. 8, 72 S.Ct. 240, 244 n. 8, 96 L.Ed. 288 (1952).
. The drafters of the Model Penal Code advocate that mistake of fact as to the victim's age be allowed as a defense, at least "[w]hen criminality depends on the child’s being below a critical age other than 10." Model Penal Code § 213.6(1) & cmt. 2 (Official Draft). As well, a few state legislatures have made decisions allowing for the defense of mistake of fact, to varying degrees. See Alaska Stat. § 11.41.445(b) (1997); Or.Rev. Stat. § 163.325(1) & (2) (1996); Wash. Rev.Code § 9A.44.030(2) & (3) (1997). These facts suggest that refusing to allow such a defense may be an unwise policy; nevertheless, it is a policy decision, and thus one for the legislature, rather than the courts, to make.
. The dissent dramatically characterizes the majority of members of this court as "... believfing] the legislature intends to punish as a registered sex offender an individual who engages in consensual sexual intercourse with a child even if the child appears to be 17, acts 17, has a fake identification card that represents her age to be 17, has support from friends that she is 17, and convincingly acts 17. Clearly, the law was not designed to punish such an individual.” Post, at 858 n. 4. What is clear is that the legislature intended to punish those who engage in conduct proscribed by § 21.11, and to have registered as sex offenders those who violate certain provisions of the penal code, including § 21.11. As the appellant violated the terms of § 21.11 and was found guilty of doing so, he is subject to its punishment, as well as to the mandates of Chapter 62 of the Texas Code of Criminal Procedure.