According to an admittedly unscientific survey by Houston PR firm Drive West Communications, Texas has the most incidents of illegal teacher-student sex of any state in the nation. (Alabama is head of the class for this dishonor on a per capita basis.) Drive West, helmed by Terry Abbott, a former Houston Independent School District press secretary and later U.S. Department of Education chief of staff, found that were 179 such Texas incidents last year, up 27 percent from three years before.

Abbott admitted that his survey is based on published media reports rather than official crime data, hence the unscientific nature of the survey. He also admitted that his survey makes no distinction between two different Texas crimes: various degrees of statutory rape and improper relationship between an educator and a student.

In Texas, the age of consent is seventeen. That means that any person more than three years older than a sixteen-year-old cannot legally have sex with that person (unless they are married.) Such laws are on the books in every state in the nation and just about every country on the planet, and with good reason.

However, Texas also has an improper relationship law on the books. Since that statute was enacted in 2003, it has been a second-degree felony for any employee of any given school district to have sex with any student in that district, regardless of that student’s age. The exceptions are if the student and district employee are married before the sex begins, or if the couple has a pre-existing sexual relationship when the employee was hired by the school district and the younger of the two is seventeen or older. 

When Democratic state representative Helen Giddings of Dallas initially authored the law in 2003, it was meant only to apply to students seventeen years old and younger. She said at the time that she was uncomfortable with the idea of criminalizing sexual acts between two consenting adults. “I feel differently about seventeen-year-olds than I do about eighteen-year-olds,” Giddings said at the time. “I don’t necessarily believe the penalty for the two should necessarily be the same.” Her fellow legislators disagreed. Pampa arch-conservative Warren Chisum removed the age stiuplation. (A student conceivably could be of legal drinking age and still be “protected” by this law.) Then, in 2011, the law was amended to include students who attended any school in an employee’s district rather than just the schools where the employees worked.

On conviction for this second-degree felony, the school district employees—cafeteria workers, janitors, and office support staff, as well as teachersface up to two to twenty years in prison. According to inmate data assembled by the Texas Tribune, there are 78 people locked up in Texas prisons on this charge, more than there are behind bars for criminally negligent homicide, disarming a police officer, or injury to the elderly.

The law’s intent was to insure that students were not coerced into sex-for-grades (or other incentives) by teachers or other district employees. And a good case can be made for certain aspects of the law’s existence via a scandal that broke last month in the Rio Grande Valley town of Donnaa district truant officer stands accused of exchanging absence slips for sex.

However, despite the good intentions of the bill’s authors, some lawyers say it is now one the toughest improper relationship laws in the nation.

“Unless there’s real strong evidence of a teacher trading sex for grades or using improper influence, then it’s a statute that is really open to abuse,” says Houston defense attorney Dick DeGuerin.

To better understand this potential for overreach, it’s good to consider a couple of hypotheticals. Say an eighteen-year-old senior at Alamo Heights goes to South Padre for spring break and hooks up with a 23-year-old first grade teacher from another school in San Antonio’s huge school district. That’s a felony and a career-ender for the teacher. A 21-year-old janitor at Furr High School would likewise face a felony charge if he dated a nineteen-year-old senior at Lamar High School miles across town because those schools were in the same district, but not if he took up with a student at nearby North Shore High School, which is in another district.   

You might think those cases are unbelievable, but here are a few that actually occurred.

A 34-year-old pre-k teacher from the Panhandle town of Ropes was forced to resign after news broke of her affair with a 17-year-old high school student from the same district. A 25-year-old assistant softball coach and P.E. teacher at Odessa’s Bonham junior high was forced to resign after it came to light that she had an affair with an 18-year-old senior at Permian High School. A 39-year-old East Texas high school English teacher was exposed in an affair with an 18-year-old senior in April of 2011. That was it for her career. Had the couple waited a month or so for the student to graduate, it would have been okay in the eyes of the law, as it would have been in any event if the student was enrolled in a neighboring town’s school, or had the 18-year-old been a drop-out.

All of these teachers were charged with felonies, and faced a possible 20 years in prison. All resigned when the allegations came to light, before their trials.

And there’s this doozy in Montgomery County. Christopher Sutton, a 37-year-old Conroe ISD cop, started a sexual relationship an 18-year-old student at the district’s Caney Creek High School. That student was also seeing a 25-year-old man named Brian Joseph Ortiz at the same time. Ortiz threatened to expose Sutton to the media for violating the improper relationship law, whereupon Sutton resigned from the police force. And that was when it came to light that Ortiz, as a Conroe high school football referee, was subject to the same law. Both Ortiz and Sutton were charged with felonies. Sutton got 10 years probation, and Ortiz, whose trial is ongoing, is represented by attorney Billy Skinner.

“In my opinion, my client’s case is no different than if HISD hired you to come to one of their campuses and plant a pecan tree,” he says. “And you planted that tree, it took you about four hours, and then you went home. And then you go on Tinder, or Facebook, where you find an 18-year-old, and you guys decide you like each other, and you have sex, and she tells your mom, and you get charged with a crime.”

The boy at the center of the case was not a football player, Skinner says. “So it’s not like my client was gonna hand him a touchdown or look the other way on a holding penalty. There was no influence there. It’s supposed to be an abuse of power law or an abuse of influence law, but what you have is too many prosecutors who don’t want to interpret it, or only want to interpret it in a way that only benefits themselves.”

Houston defense attorney Nicole DeBorde agrees: “[The law is] way overbroad and it may be ripe for constitutional challenge in that regard.” DeBorde is currently representing Ashley Zehnder, a Pasadena teacher and cheerleading coach facing felony charges for an alleged affair with a 17-year-old student.

Texas grand juries occasionally no-bill these school district employees, and at other times they are found innocent, but in either case, the damage to their careers is done, says DeGuerin, who recently helped a Texas teacher/counselor get no-billed on this charge. Now that district employee is trying to get her name cleared, which is not as easy as it was even 15 years ago. In fact, it’s well-nigh impossible.

“Expungement or sealing is really not a very good remedy,” DeGuerin says. “It’s a fiction. What it can do is order the police department, the sheriff’s office, the FBI, the DPS, the county clerk or DA’s office—whoever has the records—to expunge their files. But it can’t order Google to expunge its search engine. And it’s not just Google. There are search engines out there that make it a practice to check official filings on a daily or even hourly basis and then put them out there. You can’t unring the bell once it’s done.”

“Technology has changed the world so dramatically,” says Skinner. “When I graduated high school in 1991, we didn’t have a way to interface with our teachers the way kids today do. My best friend is a professor, and he says with modern social media, he has had to take special care to insulate himself from these kinds of accusations. I think the law might have made sense a long, long, long time ago, but not as much today.”  

Terry Abbott believes that the rise of social media has enabled these illicit relationships to flourish as never before:

In the late 1990s, I was press secretary for the Houston Independent School District, one of the largest districts in the country. In 2001, I served as chief of staff at the U.S. Department of Education. In those roles, I would hear about teachers who became sexually involved with students – but at that time, those cases seemed rare.

Since then, two things have become popular and had a massive effect on the prevalence of sexual misconduct in schools: social media and text messaging. Facebook, Instagram and Snapchat didn’t exist 15 years ago, and the number of teenagers with their own cell phones has ballooned. Nearly 80 percent of youth ages 12 to 17 own a cellphone, and 94 percent now have a Facebook account. Classroom sexual predators have been exploiting these new, unsupervised modes of communication to develop improper relationships with students out of sight of parents and principals.

These instantaneous, omnipresent and discreet connections have created an open gateway for inappropriate behavior. Last year, at least 281 school employees — 36 percent of those accused or convicted of an inappropriate relationship with a student – were reported to have used social media to start or continue those relationships. I suspect the percentage actually is significantly higher, since news accounts don’t always reveal when social media was a factor in these interactions.

Skinner agrees with Abbott’s thesis. “I think these cases are happening more often because now teachers and students have this forum where they can meet,” he says. “My client met his complaining witness on Grindr, a place gay men go to hook up. These things didn’t exist in 1991 or 1994.”

DeBorde is not sure if Abbott’s contention is true. What is true, and what no lawyer will contest, is that the Internet leaves an indelible trail of digital evidence in the form of texts, emails, photos, and sex tapes.

“I don’t think this is happening any more than it was before,” she says. “I think each of us can remember examples of girls they knew dating coaches, or whatever. There were a number of those girls in my high school and one of them got married to one of the coaches. And when relationships go bad, whether or not there was a crime involved, people will put things on the Internet. There’s all this digital evidence of dissatisfaction with how it ended, and people put it out there, and unfortunately when these things end, or it doesn’t go the way one party ones it to go, then they put it out there.”

DeGuerin says that his client fell prey to teenage male braggadocio, that his client’s alleged romantic partner took advantage of her professional interest in him to weave a tale of his conquest of the “hot teacher.” “He liked being seen in the hallways with her, the rumors started, the kid started to brag. This law is rife with the potential for abuse, and there’s a tendency for investigators to believe the allegations of the student over the innocence of the teacher and this gal had her career ruined. I’ve seen several cases where in my opinion it was a made up story, but once the story is made up and the authorities act on it, the damage is done.”

What’s more, in our increasingly “tl:dr” society, headline-skimming news consumers frequently conflate these educators and school employees with the lowest of the low. “People hear about these stories and the read the headlines and they think ‘Oh my God. A child predator,’” says DeBorde. “They think it’s happening at the pre-school or whatever. They are not thinking in terms of an adult person making a conscious choice. You might not agree with whatever that adult chose to do, but it was an adult that chose to do it. The ‘kid’ in my case was an adult. School was not even in session, during the time that they are claiming that this thing went on. And if you are looking at this in a broader context, is it that anyone who is a teacher at any school can’t have a relationship with anyone who is a student anywhere?”  (And what’s more, 18-year-olds can fight wars, vote and get the death penalty, but not choose their sexual partner. As DeBorde paraphrases former Harris County district attorney Johnny Holmes: “You can kill them dead, dead, dead by law but you cannot let them have sex with whoever they choose.”)

If there is a silver lining for those convicted of this crime, it’s this: Because it cannot be construed as a sex crime per se, they do not have to register as sex offenders. Even if vindicated, though, these school district employes must wear the scarlet letter “P.”  

“The sad thing is that these people’s lives are ruined in the exact same way that a child predator’s life would be destroyed,” says DeBorde. Take Sutton’s case: in order to stay out of prison, the former Conroe cop agreed to a set of conditions not unlike those meted out to child molesters, such as staying away from children under 18 (other than his own son) and avoiding school campuses and day care centers. (Again, this is for a man convicted of having sex with an 18-year-old.) Skinner says his referee client was fired from his day job at Bank of America and is now struggling to find a job. “They don’t tell him it’s because of this, but it’s because of this,” Skinner maintains.

“I have a real problem with the concept of criminalizing so many acts which then hinder people economically for the rest of their lives,” he continues. “Felony is an f-word. You can’t borrow money, you can’t do so many different things if you are a felon.”

In her case, DeBorde says that the student was the active aggressor, but declined to discuss it much further than that, other than to express her belief in her client’s innocence. DeGuerin says that the students, whether male or female, are quite often the aggressors.

“That can happen if it is a male or female student coming on to the teacher. Teenagers are flush with hormones and just coming to terms with the power of their bodies and I suppose there needs to be some rules and regulations, but when it comes to adults, merely using position as the determinant of a crime is something that I am not in favor of. There are too many laws anyway. I think the legislature should only meet every ten years. As Molly used to say, ‘The legislature is back in town, leaving many a village without its idiot.’”

Skinner calls the law an attempt to criminalize an ethical matter. “Back when I was in high school, our baseball coach got caught having an affair with a student. He got fired and run out of town on a rail. And that seems enough to me. But I just don’t understand how the legislature believes it can pick and choose when an 18-year-old is or is not accountable for their actions. This law is just so broad and over-reaching and applied in ways that I just don’t think it was ever intended to be applied.”

Lawyers should not have sex with their clients, Skinner says. Nor should therapists, nor college professors with their students, no high school teachers with the students directly under their control .

“But the remedy for those cases should come from within their professions, not through criminalizing the acts,” Skinner says.