Entrapment is raised most often in Harris County in undercover operations — solicitation of prostitution stings, narcotics buys, and online sex-crime investigations. It is a real defense, but it is narrower than most people assume.
What the Statute Says
(a) It is a defense to prosecution that the actor engaged in the conduct charged because he was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.
(b) In this section "law enforcement agent" includes personnel of the state and local law enforcement agencies as well as of the United States and any person acting in accordance with instructions from such agents.
Opportunity Is Not Inducement
That second sentence of subsection (a) decides the overwhelming majority of entrapment claims. Police may:
- post an advertisement and wait for responses;
- pose as a buyer, a seller, or a decoy;
- lie about being law enforcement — there is no requirement that an officer identify himself;
- allow a person to complete a crime they had already begun.
What they may not do is apply pressure of a kind likely to cause an ordinarily law-abiding person to commit the offense: repeated and persistent solicitation after refusal, appeals to sympathy or friendship, threats, or extraordinary inducements.
Note the Breadth of "Law Enforcement Agent"
Subsection (b) expressly includes confidential informants and private citizens acting on instructions from officers. In drug cases this matters enormously — conduct by a cooperating informant working off their own charges is attributable to the State, and informants are far less disciplined than officers about where opportunity ends and pressure begins.
The Two-Part Test
Texas applies a hybrid standard:
- Subjective — the defendant must have actually been induced by the agent's conduct; and
- Objective — the persuasion must have been such that it was likely to cause persons (an ordinarily law-abiding person of average resistance) to commit the offense.
A defendant who was ready and willing, and who simply took the opportunity presented, fails the test regardless of how the operation was run.
Where It Works
The defense tends to succeed where the record shows repeated refusals followed by continued solicitation, where the agent supplied the means as well as the opportunity, or where the operation targeted a person with no predisposition and pushed until they relented. Building that record means obtaining every message, every recorded call, and the full operational plan — not just the portion the State intends to offer.
Related
- Solicitation of prostitution — the most common Harris County entrapment context
- Mistake of fact (8.02) · Duress (8.05)
- Houston drug charges
Charged in Harris County?
Brian Foley is Board Certified in Criminal Law by the Texas Board of Legal Specialization and a former Harris County Felony Chief Prosecutor; Luis Baez is a former Trial Bureau Chief. Call or text (713) 703-1718 for a free, confidential consultation.