Sexting between students and their teachers gets the legal green light as protected by free speech in North Texas.
Prosecutors there, this month, dismissed a case against a 30-year-old junior high school teacher, who exchanged more than 700 texts with a 13-year-old over the course of 6 days, some of the messages were reported to be sexual in nature.
When dismissing the case, prosecutors cited a similar case in Harris County, where a court determined the First Amendment protects texts which are indecent but not obscene.
When the Criminal Court of Appeals took up the North Texas case, it determined that current state law about sexting is overly broad making it illegal to send adults to jail who didn't really harm a child.
Cases of online solicitation of a minor may be re-examined in the wake this decision by prosecutors in North Texas, who cited an October decision from the Texas Court of Criminal Appeals.
The court ruled that a 2005 statute, which made sexually explicit online communication between an adult and minor illegal, violates an adults right to free speech.
"The idea of the First Amendment wasn't to protect speech we like," said criminal defense attorney Gerald Golstein. "It was to protect speech we find offensive," he added.
He said the 2005 statute turned out to be vague and didn't go far enough, for example, to define sexting between a teacher and a student.
"The court says you can't have some big broad ambiguous definition and create a crime out of speech," said Goldstein.
Locally a coach at South San High School resigned in early February after being placed on leave when accusations surfaced he allegedly sent a student inappropriate text messages. No criminal charges were filed.
"It's a sacred oath," said former teacher Rachel Hernandez. "You're a teacher, the children are going to be looking up to you," she added.
Supporters of the statue question whether the court has now given adults a free legal pass to send perverted texts and emails to children.
"If it's not obscene and its not harmful to a child then quite frankly the first amendment protects speech," said Goldstein.
Goldstein adds that other penal statutes already address crimes involving adults causing harm to minors.