In Texas, whether or not the owner or employees of an agency knew a provider was a minor is irrelevant in determining whether they are guilty of the offense of compelling prostitution. Moreover, whether or not a client knew a provider was underage is irrelevant in deciding whether the client is guilty of sexual performance by a child.
The following is the key Texas statute dealing with underage providers:
Sec. 43.05. COMPELLING PROSTITUTION.
(a) A person commits an offense if the person knowingly:
(1) causes another by force, threat, or fraud to commit prostitution; or
(2) causes by any means a child younger than 18 years to commit prostitution, regardless of whether the actor knows the age of the child at the time the actor commits the offense.
(b) An offense under this section is a felony of the second degree.
See Texas Penal Code § 43.05
(emphasis added). A second-degree felony is punishable by 2 to 20 years in prison and/or a $10,000 fine.
A person may be found guilty of "compelling" prostitution whether or not force was used, as long as the person "caused" a child 17 years of age or younger to commit prostitution. The person may think the provider was 18 years of age or older. The person may have been presented with an official copy of a birth certificate or an authentic identification card (such as a driver's license) showing the provider was 18 years of age or older. The provider's mother may have sworn on a stack of Bibles that the provider was 18 years of age or older. NONE OF THIS WOULD MATTER. If the State proves the provider was 17 years of age or younger and that the defendant "caused" her to commit prostitution, the defendant is guilty of the offense.
The courts interpret section 43.05 broadly, and a person may "cause" a child to commit prostitution not only by forcing her to, but also by merely driving her to outcalls or finding her customers. In addition, the actual commission of the offense of prostitution is not a prerequisite to the commission of the offense of compelling prostitution.
It should also be noted that section 43.05 was recently amended. Prior to September 1, 2009, a person would commit the offense by causing a person younger than 17 years of age
-- that is, a provider 16 years of age or younger -- to commit prostitution.
Moreover, a hobbyist cannot defend against a charge of sexual performance by a child (also a second-degree felony) by proving he thought the provider was 18 years of age or older. If the provider was 17 years of age or younger, and the hobbyist employs or induces the provider to engage in sexual conduct, he is guilty of the offense. See Texas Penal Code § 43.25(b)
"Sexual conduct" includes: (1) deviate sexual intercourse (any contact between the genitals of one person and the mouth or anus of another person; (2) sexual contact (any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person); and (3) sexual intercourse (any penetration of the female sex organ by the male sex organ). Obviously, "sexual conduct" includes virtually everything we think of when people interact sexually (excluding fetishes, perhaps), including touching a breast. If you think that no one has ever been prosecuted for merely touching the breast of an underage girl, you are wrong. I recently handled an appeal in a local county where the defendant was charged with touching his step-daughter's breast and served two years in the penitentiary.
So what should agencies and hobbyists do to avoid criminal liability for dealings with underage providers? I always suggest the "Klong Rule." (A "klong" is a Yiddish word for the sick feeling a person gets in the pit of their stomach when they realize something is wrong, like when you pull your wallet from your pocket to pay a provider for the great time you've had and you realize you forgot to go to the ATM). The Klong Rule, applied here is:
If she looks as if she COULD BE 17 years of age or younger, then assume she IS 17 years of age or younger, no matter what she says or what's shown on a document she produces.