Supreme Court of Texas
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No. 22-0388
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In the Matter of T.V.T.
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On Petition for Review from the
Court of Appeals for the Fourteenth District of Texas
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PER CURIAM
This case concerns whether the State must prove that the victim
did not consent in order to show that a child under the age of fourteen
had the requisite intent to commit aggravated sexual assault of another
child under fourteen. See TEX. PENAL CODE § 22.021(a)(1)(B), (2)(B).
The court of appeals answered that question yes, but the statutory text
forecloses that result. We therefore reverse the court of appeals’
judgment and remand to that court for further proceedings.
The State alleged that T.V.T. committed aggravated sexual
assault under Section 22.021(a)(1)(B)(ii), (2)(B) of the Texas Penal Code
by “intentionally and knowingly caus[ing] the penetration of the mouth
of [the complainant,] a person younger than fourteen years of age, with
the sexual organ of [T.V.T.].” At the time of the offense, T.V.T. was
thirteen years old and the complainant was twelve. After the State filed
its petition, T.V.T. filed an application for a writ of habeas corpus, a
motion for summary judgment, a motion to quash the State’s petition,
and a motion to dismiss the petition. In each motion, T.V.T. argued that
he did not commit aggravated sexual assault because, as a child under
fourteen, he did not have the legal capacity to consent to sex. His
amended application for a writ of habeas corpus argued that Section
22.021 is unconstitutional as applied.
The trial court denied each motion and T.V.T.’s habeas corpus
application. T.V.T. then stipulated to the evidence,1 agreed to the
prosecutor’s recommended disposition, and pleaded “true” to the charge.
The trial court found that T.V.T. had engaged in delinquent conduct and
entered the agreed-upon disposition, which, among other terms, placed
T.V.T. on probation until he turned eighteen and required that he receive
sex-offender treatment. The trial court deferred sex-offender registration
on the condition that T.V.T. successfully complete that treatment.
T.V.T. appealed his adjudication.2 The court of appeals reversed
the trial court’s adjudication order and rendered judgment dismissing
the case with prejudice, holding that the trial court erred in denying
T.V.T.’s motion to quash the petition. 651 S.W.3d 1, 6–7 (Tex. App.—
Houston [14th Dist.] 2019). The court of appeals relied on this Court’s
opinion in In re B.W., 313 S.W.3d 818, 826 (Tex. 2010), which held that
children under fourteen may not be prosecuted for prostitution because
1 T.V.T.’s stipulation restated the language from the statute and the
State’s petition. It did not include any evidence related to the complainant’s
consent.
2 Although T.V.T. pleaded “true” and stipulated to the evidence, he had
the right to appeal the issues raised in the written motions he filed before
entering his plea and making his stipulation. See TEX. FAM. CODE § 56.01(n)(2).
We need not address T.V.T.’s constitutional arguments today and therefore
express no view regarding T.V.T.’s application for a writ of habeas corpus.
2
they lack the legal capacity to consent to sex. The court of appeals held
that this same rationale applied to aggravated sexual assault and that
T.V.T. therefore could not have committed aggravated sexual assault as
a matter of law. 651 S.W.3d at 5–7. A concurring opinion argued that
it would create an absurd result to hold that children under fourteen can
be prosecuted for consensually engaging in the statutorily prohibited
conduct when consent is an available defense for certain cases involving
older children. See id. at 7 (Spain, J., concurring).
The State filed a motion for en banc reconsideration. Shortly
thereafter, this Court decided State v. R.R.S., in which we held that
juveniles under fourteen are legally capable of committing aggravated
sexual assault. 597 S.W.3d 835, 842–43 (Tex. 2020). As we noted in
that opinion, aggravated sexual assault, unlike prostitution, does not
require the accused to have reached any agreement with the other
person. See id. at 842. All that is required is that the accused either
intentionally or knowingly engaged in the prohibited conduct; or, as the
Penal Code defines “intentionally” and “knowingly,” that the accused
had a “conscious objective or desire to engage in the conduct or cause the
result” or was “aware of the nature of his conduct or . . . that his conduct
is reasonably certain to cause the result.” Id. at 841 (quoting TEX. PENAL
CODE § 6.03(a), (b)).
In February 2022, T.V.T. turned eighteen, thus ending his
probation. The next month, the court of appeals issued a supplemental
opinion.3 ___ S.W.3d ___, 2022 WL 906143 (Tex. App.—Houston [14th
3 In the supplemental opinion, the court of appeals denied rehearing
and, because it supplemented its original opinion to address R.R.S., denied the
State’s motion for en banc reconsideration of its original opinion as moot. As
3
Dist.] Mar. 29, 2022). The court of appeals again ruled in favor of T.V.T.,
finding two grounds for distinguishing this case from R.R.S. First, the
court reasoned that consent, while not a defense, can inform whether
T.V.T. had the requisite intent to commit aggravated sexual assault.4
The court therefore concluded that T.V.T. did not have the opportunity
to present “contrary record evidence” regarding consent in this case.
Second, the court stated that, when both the accused and the complainant
are under fourteen years old and close in age, it is not always clear which
person is the offender and which is the victim. According to the court of
appeals, the record indicated that T.V.T. was both an offender and a
victim and that this case was therefore unlike R.R.S.
The question before us is whether the victim’s consent may inform
the determination of the accused’s mens rea under Section
22.021(a)(1)(B), (2)(B) when both the accused and the complainant are
under fourteen and close in age. T.V.T.’s probation has ended, however,
so we must first determine whether this case presents a justiciable
controversy. “[A] court cannot decide a case that has become moot during
the pendency of the litigation,” Heckman v. Williamson County, 369
S.W.3d 137, 162 (Tex. 2012), because “[a]ny ruling on the merits of a moot
issue constitutes an advisory opinion, which we lack jurisdiction to issue.”
In re J.J.R.S., 627 S.W.3d 211, 225 (Tex. 2021). The State argues that
the end of T.V.T.’s probation does not make this case moot. T.V.T. does
noted below, the court of appeals did not address whether the case itself was
moot as a result of the end of T.V.T.’s probation.
4 It is unclear whether the court of appeals was referring to the victim’s
consent or an accused child’s legal inability to consent. The context suggests
that the court of appeals was referring to the victim’s consent, but, as discussed
below, the outcome is the same either way.
4
not argue to the contrary. The court of appeals did not address mootness.
We agree with the State that this case continues to present a live
controversy. A juvenile’s appeal of his adjudication is not moot simply
because his disposition has ended when, as in this case, potential
collateral consequences remain. See Carrillo v. State, 480 S.W.2d 612,
617 (Tex. 1972). For example, as the State notes, T.V.T. is not eligible
for automatic sealing of his juvenile records. See TEX. FAM. CODE
§ 58.253(b)(2). The State also points to the juvenile court’s discretion to
require sex-offender registration regardless of whether T.V.T.
successfully completed sex-offender treatment. See TEX. CODE CRIM.
PRO. art. 62.352(c). These potential collateral consequences suffice to
sustain a live controversy.
The fact that the State is the party seeking review does not
change the analysis. The State may seek this Court’s review of the court
of appeals’ decision, see TEX. FAM. CODE § 56.01(a), and the potential
collateral consequences mean that a live controversy exists regardless
of which party seeks review. See, e.g., Pennsylvania v. Mimms, 434 U.S.
106, 108 n.3 (1977) (“If the prospect of the State’s visiting such collateral
consequences on a criminal defendant who has served his sentence is a
sufficient burden as to enable him to seek reversal of a decision
affirming his conviction, the prospect of the State’s inability to impose
such a burden following a reversal of the conviction of a criminal
defendant in its own courts must likewise be sufficient to enable the
State to obtain review of its claims on the merits here.”).5
5 Merely labeling something as a “collateral consequence,” of course,
does not make it so. In General Land Office v. OXY U.S.A., Inc., for example,
the asserted “collateral consequences” were simply “the public interest in
5
We therefore proceed to the merits. Under the version of the
statute in effect at the relevant time, “[a] person commits an offense” if
that person “intentionally or knowingly . . . causes the penetration of the
mouth of a child by the sexual organ of the actor” and “the victim is
younger than 14 years of age[.]” TEX. PENAL CODE § 22.021(a)(1)(B)(ii),
(2)(B).6 As R.R.S. and B.W. both recognized, the victim’s consent is not a
defense under this provision. See R.R.S., 597 S.W.3d at 842 (noting that,
“if the other person is younger than fourteen, the accused cannot assert
any consent-based defenses, and the offense is elevated to an aggravated
sexual assault”); B.W., 313 S.W.3d at 821 (noting that the Legislature
“unequivocally remov[ed] the defense of consent to sexual assault” for
children under fourteen).7 Nor does a child’s inability to legally consent
to sex prevent that child from developing the mens rea necessary for
aggravated sexual assault of another child. See R.R.S., 597 S.W.3d at 842.
resolving [the case’s] important question of administrative law, and the
ruling’s effect upon the numerous administrative hearings which are pending.”
789 S.W.2d 569, 572 (Tex. 1990). Public interest in resolving an important
legal question is not a “collateral consequence” at all; it is a request for an
advisory opinion. And the relevant “collateral consequences” do not include
ordinary consequences of the legal system, such as whether a decision might
have precedential effects in unrelated cases. The collateral consequences here,
though, are central to this very case—not to other cases involving other parties
alleged to have committed similar conduct.
6 The current version of the statute adds the phrase “regardless of
whether the person knows the age of the victim at the time of the offense,” see
TEX. PENAL CODE § 22.021(a)(2)(B) (2023), but that change does not affect the
analysis in this case. Unless otherwise noted, citations to Section 22.021 refer
to the version in effect at the time the relevant conduct was undertaken.
7 Aggravated sexual assault constitutes delinquent conduct under the
Family Code. See TEX. FAM. CODE § 51.03(a)(1) (“Delinquent conduct
is . . . conduct, other than a traffic offense, that violates a penal law of this state
or of the United States punishable by imprisonment or by confinement in jail[.]”).
6
The court of appeals nonetheless suggested that, while not a
permissible defense, the victim’s consent is still relevant because “it can
be considered informative” of Section 22.021(a)(1)(B)’s mens rea
requirement: that the accused must have engaged in the prohibited
conduct “intentionally” or “knowingly.”8 The Legislature’s choice to
prohibit the use of the victim’s consent as a defense, however, does not
permit us to import the victim’s consent into the mens rea analysis.9 Such
a rule would circumvent the Legislature’s exclusion of a consent defense
for engaging in the prohibited conduct with children under fourteen.10
8 The court of appeals appears to rest this conclusion on one sentence in
R.R.S. stating that, “[i]n the absence of any contrary record evidence, a
juvenile’s stipulation to the charges and admission to the allegations is
sufficient on its own to support the trial court’s adjudication of delinquency.”
597 S.W.3d at 844. But such “contrary record evidence” is only relevant if
consent is either an element of or a defense to the offense in the first place. As
we later note, see note 9, infra, other statutory provisions do make consent
either an element or a defense for certain sexual offenses. The provision at
issue here, however, does not. In any event, in this case, T.V.T. stipulated to
“intentionally or knowingly” engaging in the prohibited conduct. Nothing in
the record suggests that T.V.T.’s conduct was not intentional or knowing; the
contrary is true. Nor did T.V.T. attempt to withdraw his plea or stipulation.
9 T.V.T. points to two cases that he asserts stand for the proposition
that the victim’s consent informs the accused’s intent under Section
22.021(a)(1)(B). See Casey v. State, 215 S.W.3d 870, 880 (Tex. Crim. App. 2007)
(“We have held that when the defensive theory of consent is raised in a
prosecution for sexual assault, the defendant necessarily disputes his intent to
engage in the alleged conduct without the complainant’s consent and places
his intent to commit sexual assault at issue.”); Rubio v. State, 607 S.W.2d 498,
501 (Tex. Crim. App. 1980) (substantially the same). However, both Casey and
Rubio involved crimes in which the victim’s consent was an available defense—
so consent was obviously relevant. The issue in both cases was whether the
court was permitted to admit information regarding similar acts as evidence of
the defendant’s intent. See Casey, 215 S.W.3d at 880–82; Rubio, 607 S.W.2d
at 500–01. These cases are therefore inapposite here.
10 We assume that the court of appeals was referencing the victim’s
7
Nor does Section 22.021(a)(1)(B), (2)(B) leave any room for the
judicial creation of a proximity-in-age exception. The plain text covers
conduct between children who both are under fourteen, and the statutory
context confirms that the Legislature intended to prohibit the specified
conduct and to deem it delinquent even between children close in age.
After all, the Legislature has expressly created age-similarity defenses
for other sexual offenses, but not for aggravated sexual assault. See, e.g.,
TEX. PENAL CODE § 22.011(e)(2) (establishing an affirmative defense for
sexual assault in cases in which the victim was fourteen or older, the actor
was not prohibited under certain statutory provisions from marrying or
engaging in sexual intercourse with the victim, “the actor was not more
than three years older than the victim,” and, at the time of the offense,
the actor was neither required to register for life as a sex offender nor had
a previous reportable conviction or adjudication for an offense under the
sexual-assault statute); id. § 21.11(b) (establishing a similar defense
under the indecency-with-a-child statute).
Equally important, the Legislature also has addressed situations
in which Section 22.021(a)(1)(B), (2)(B) applies to children close in age.
In such cases, the Legislature chose not to exempt children, but rather
to reduce the severity of the disposition: if a child accused under Section
22.021(a)(1)(B), (2)(B) is no more than three years older than the victim,
the accused child cannot receive a determinate sentence. See TEX. FAM.
consent, but, as noted above, that court’s opinion is not entirely clear. Even if
the court of appeals meant to refer to the accused’s legal inability to consent,
however, we already held in R.R.S. that the proper inquiry is not whether the
accused child was legally capable of consenting to the conduct, but whether the
accused child intentionally or knowingly engaged in the prohibited conduct.
See 597 S.W.3d at 842.
8
CODE § 53.045(e) (“The prosecuting attorney may not refer a petition [to
the grand jury] that alleges the child engaged in conduct that
violated . . . Sections 22.021(a)(1)(B) and (2)(B), Penal Code, unless the
child is more than three years older than the victim of the conduct.”).
Creating a judicial proximity-in-age exception would undermine the
legislative choice about how to address such cases.
The court of appeals, however, deemed proximity in age significant
because, it reasoned, it can be difficult to determine which child is the
offender and which is the victim when children of similar age engage in
the prohibited conduct.11 Similarly, T.V.T. argues that the statute blurs
the line between offender and victim, leaving prosecutors without
guidance regarding their charging decisions. Tying these points together,
T.V.T. invokes the absurdity doctrine, arguing that it would create an
absurd result to apply the aggravated-sexual-assault statute when both
children were under fourteen and the conduct was consensual.
The absurdity doctrine is not remotely applicable. To be absurd
in the legal sense, a result must be more than merely odd, “unintended,”
“improvident,” or even “inequitable” (and we do not suggest that the
statute here would qualify under any of those terms)—it must be
11 The court of appeals stated that the record reflects that T.V.T. was
“simultaneously both a victim and an offender,” citing a probation report used
at the disposition stage of this case. This report does not support the court of
appeals’ depiction, however. It describes T.V.T. as “the neighborhood bully”
and states that T.V.T. threatened the complainant and forced him to engage in
the prohibited conduct. The record also reflects that T.V.T. was a recidivist;
he had been adjudicated in a different county for the same prohibited conduct
before the incident in this case took place. Regardless, the possibility that a
child could be “both a victim and an offender” does not authorize us to read an
exception into the statute that does not exist.
9
“unthinkable or unfathomable.” Combs v. Health Care Servs. Corp., 401
S.W.3d 623, 630 (Tex. 2013); see also Antonin Scalia & Bryan A. Garner,
READING LAW: THE INTERPRETATION OF LEGAL TEXTS 238 (2012) (noting
that the absurdity doctrine applies to obvious technical or ministerial
errors, not to what a court might view as a “substantive error[] arising
from a drafter’s failure to appreciate the effect of certain provisions”).
The statute here clearly and specifically defines the prohibited conduct,
stating that a person “commits an offense” if that person “intentionally
or knowingly” “causes” the delineated conduct. TEX. PENAL CODE
§ 22.021(a)(1)(B)(i)–(v), (2)(B). No absurdity arises. The Legislature
could have concluded—and by all indications did conclude—that
engaging in the prohibited conduct with a child under fourteen is
sufficiently serious that the victim’s consent is irrelevant regardless of
the accused’s age.
Nor is the statute absurd simply because, in some cases, it may
not be obvious at first glance whether one child, both children, or neither
should be prosecuted for conduct that meets the statutory definition.
This is hardly the only context in which determining which party should
be charged as a perpetrator is left to the prosecutor’s discretion. There
is no need for judicial revisions to the statute to avoid absurdity. If the
evidence cannot support the charges—if, for example, the prosecutor
charges someone who clearly was a victim rather than a perpetrator or
willing participant—the accused should prevail in court. For one thing,
such an accused cannot have “cause[d]” the unlawful conduct. T.V.T.
does not argue that he was the one forced into delinquent conduct
without his consent, of course. The decision whether to charge T.V.T. in
10
light of the evidence showing that he forced his victim, especially in light
of his prior offense demonstrating that he was in particular need of
correction, is a classic example not of absurdity but of proper
prosecutorial discretion.
Finally, T.V.T. asserts that Section 22.021 is unconstitutional for
various reasons. The court of appeals did not reach T.V.T.’s constitutional
arguments and, following our normal practice, we decline to do so today.
To the extent that these issues have been properly preserved and are
otherwise properly presented, we leave the arguments about them for
the court of appeals to address in the first instance. See In re Troy S.
Poe Tr., 646 S.W.3d 771, 780–81 (Tex. 2022).
Therefore, without hearing oral argument, we reverse the
judgment below and remand to the court of appeals for further
proceedings consistent with this opinion. See TEX. R. APP. P. 59.1.
OPINION DELIVERED: September 8, 2023
11