The case against a junior high school teacher accused of sexting a 13-year-old girl has been dropped, but not for lack of evidence.
It was dropped because courts and prosecutors say the Texas law banning adults from sex chat with minors violates the right to free speech.
An appeals court ruled that a teacher can participate in a certain level of sexting with a student, and it's not against the law.
"They dropped the ball," said defense attorney Jim Shaw. "They dropped the ball."
Shaw says although Texas legislators tried to write a law that would stop sexually explicit texts messages from an adult to a child, they didn't get it right.
"It doesn't sufficiently define the law," said Shaw.
But it worked in favor of his client, 31-year-old Sean Williams, an Everman ISD middle school teacher arrested in 2012 after admitting to sending sexually-related texts to one of his 13-year-old students.
In October 2013, the Tarrant County District Attorney's office dropped the charge of improper relationship between an educator and student.
The reason is because that same month, a Texas appeals court ruled in a similar case that texts between a teacher and a student are protected under the First Amendment.
The texts were considered free speech.
"It's morally wrong," said Shaw. "It's improper; it's gonna be subject to someone being terminated. I guess they could be sued conceivably in a civil action, but as far as it being against the law, at that time, it was not."
According to the arrest warrant affidavit, the texts discussed "if either of them walked around naked in their homes... descriptions of their sexual preferences and fantasies."
The affidavit mentioned pictures that the two sent each other, saying, "The victim wearing a bra and no shirt," and one the suspect sent her "of his chest with no shirt…"
However, Williams claimed the photo was a picture from a fitness magazine.
With the precedent set by the appeals court opinion, and because Williams was never accused of asking to meet the girl somewhere, or asking her to have sex with him, he didn't technically break the law.
"You can talk trash, you can talk disgusting things, but if you're not soliciting someone to meet you or engage in an act, then it's protected by the First Amendment," said Shaw.
The D.A.'s office says now it has to go back and reexamine a handful of cases and, if possible, re-indict them under a different penal code that deals with online solicitation of a minor.
In Williams' case, that wasn't an option.
If the law is changed in the future, the district attorney said that due to too many variables, he couldn't answer whether or not the case, and others like it, could be prosecuted.
There are provisions in the law that say if you pass a new law, you can't go back and prosecute someone for something they did if it wasn't a crime at the time.
Since the case was dismissed, Williams can teach again if someone hired him.
The Texas Education Agency shows Williams' teaching certificate to be valid through 2017.
However, it also shows that it is under review by the TEA.
KDFW FOX 4
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