April Collins v. State, 2015 Tex. App. LEXIS 11476

Background

Appellant April Collins, a certified educator, was indicted on four counts under Tex. Penal Code § 21.12(a)(3) for electronic sexual communications/solicitation with a person (CD) enrolled at a public secondary school in the same district where Collins worked.
Counts I–III alleged distribution/communication of sexually explicit material and sexual messages via text (lewd photos; descriptions of sex). Count IV alleged solicitation via text to meet for sexual contact/intercourse.
Collins moved to quash and sought habeas relief arguing the indictment omitted an element (that CD was a "minor") and that § 21.12(a)(3) (which incorporates § 33.021) is unconstitutional on multiple grounds (overbreadth/First Amendment, vagueness, Dormant Commerce Clause, due process/privacy, equal protection).
Trial court denied relief; Collins appealed presenting six points of error.
The Court of Appeals held § 21.12(a)(3) does not require that the student be a "minor" (the statute criminalizes conduct described in § 33.021 "regardless of the age" of the student) and therefore overruled the indictment-element challenge, but found portions of the indictment unconstitutional as detailed below.

Issues

Issue	Collins's Argument	State's Argument	Held
Whether indictment omitted element that victim was a "minor"	Counts fail because § 33.021 requires a "minor" and that element was not alleged	§ 21.12(a)(3) incorporates only the conduct of § 33.021 and says "regardless of the age"; age need not be alleged	Overruled — age/minor need not be alleged under § 21.12(a)(3) (legislature included "regardless of the age")
Whether § 21.12(a)(3) (via § 33.021(b)) is unconstitutionally overbroad / violates First Amendment	Incorporation of § 33.021(b) makes § 21.12 constitutionally overbroad because (b) bans a wide array of protected sexually explicit speech	State argued incorporation is valid despite Lo invalidating § 33.021(b)	Sustained in part — § 21.12(a)(3) unconstitutional to the extent it incorporates § 33.021(b); Counts I–III dismissed
Whether § 21.12(a)(3) (via § 33.021(c)) is overbroad / First Amendment violation as to solicitation to meet	§ 33.021(c) is content-based and could reach protected speech/consenting adults	§ 33.021(c) targets conduct (solicitation to meet for illegal sexual acts) and is narrowly tailored to protect children/students	Overruled — § 21.12(a)(3) as it incorporates § 33.021(c) is not substantially overbroad; Count IV may proceed
Whether incorporation of § 33.021(c) renders statute vague, burdens interstate commerce, violates due process/privacy, or equal protection (as applied to Count IV)	Vagueness: "solicit" could be read to cover asks not intended to result in meeting; Commerce/Due process/EP: statute unduly burdens internet, infringes private liberty, and irrationally singles out school employees	Statute clearly requires knowingly soliciting a student to meet with intent that they engage in sexual acts; legitimate state interests (protecting students, school environment); statute is even‑handed and rationally related to objectives	Overruled — statute as to § 33.021(c) is not unconstitutionally vague, does not violate Dormant Commerce Clause, does not offend due process/privacy or equal protection; Count IV stands

Key Cases Cited

Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013) (held Tex. Penal Code § 33.021(b) overbroad and unconstitutional as to protected sexually explicit speech)
Ex parte Thompson, 442 S.W.3d 325 (Tex. Crim. App. 2014) (facial constitutional challenges may be raised pretrial via habeas)
Maloney v. State, 294 S.W.3d 613 (Tex. App.—Houston [1st Dist.] 2009) (upheld constitutionality of § 33.021(c) as regulation of solicitous conduct)
In re Shaw, 204 S.W.3d 9 (Tex. App.—Texarkana 2006) (upheld § 21.12 against overbreadth when applied to physical contact between educators and students)
Morales v. State, 212 S.W.3d 483 (Tex. App.—Austin 2006) (held § 21.12 did not implicate fundamental rights and was constitutional)
Rodriguez v. State, 93 S.W.3d 60 (Tex. Crim. App. 2002) (presumption of statute validity and burden on challenger)
Broadrick v. Oklahoma, 413 U.S. 601 (1973) (overbreadth doctrine — substantiality requirement)
New York v. Ferber, 458 U.S. 747 (1982) (government has compelling interest in preventing sexual exploitation of children)
Lawrence v. Texas, 539 U.S. 558 (2003) (limits on recognizing sexual conduct as a fundamental right)
Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) (less restrictive alternatives required where speech restrictions are content based)