In THE MATTER OF T.V.T. v. the State of Texas

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.

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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

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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.

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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[.]”).

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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

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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.

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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.

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“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

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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

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