Ex Parte Billy MacK Maddison, 2017 Tex. App. LEXIS 3708

Billy Mack Maddison was indicted under Tex. Penal Code § 33.07(a)(1) for using another person’s name/persona to create a webpage on a commercial social-networking site (Facebook) without consent and with intent to harm, defraud, intimidate, or threaten.
Maddison filed a pretrial habeas application seeking a facial invalidation of § 33.07 as overbroad, vague, and violative of the Dormant Commerce Clause; the trial court declared the entire § 33.07 unconstitutional as overbroad and vague and granted relief.
The State appealed, arguing the trial court lacked jurisdiction to strike the entire statute because Maddison was charged only under subsection (a)(1) and that § 33.07(a)(1) is neither overbroad nor unconstitutionally vague.
The court of appeals analyzed whether § 33.07(a)(1) regulates protected speech, whether it is content‑based or content‑neutral, and which level of scrutiny applies.
The majority held the trial court exceeded its authority by invalidating the whole statute, concluded § 33.07(a)(1) is content‑neutral, survives intermediate scrutiny, and is not unconstitutionally vague; it reversed and remanded.
Chief Justice Gray dissented, arguing the statute is content‑based (requiring inquiry into message/intent), should be subject to strict scrutiny, and that the trial court’s invalidation should be affirmed.

Issue	Maddison (plaintiff)	State (defendant)	Held
Scope of remedy/jurisdiction	Trial court could invalidate § 33.07 in full	Trial court exceeded jurisdiction because defendant was charged only under § 33.07(a)(1)	Trial court lacked jurisdiction to strike entire statute; only (a)(1) is properly before the court
Overbreadth / First Amendment	§ 33.07 criminalizes substantial protected speech (content‑based); strict scrutiny required	Statute targets impersonation conduct, not content; most applications cover unprotected speech	§ 33.07(a)(1) is not substantially overbroad; survives review
Content‑based vs. content‑neutral (level of scrutiny)	Because enforcement requires examining content/intent, law is content‑based → strict scrutiny	Law regulates impersonation conduct and purpose, not viewpoint/topics → content‑neutral → intermediate scrutiny	Court: § 33.07(a)(1) is content‑neutral; intermediate scrutiny applies
Vagueness / Due Process	Term “harm” is too broad/vague and chills protected expression	Penal code definitions and context give fair notice; statute is sufficiently definite	§ 33.07(a)(1) is not unconstitutionally vague

Ex parte Thompson, 442 S.W.3d 325 (Tex. Crim. App. 2014) (discusses when expressive conduct implicates First Amendment and intermediate scrutiny)
Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013) (presumption of statute validity; framework for facial First Amendment challenges)
Ex parte Bradshaw, 501 S.W.3d 665 (Tex. App.—Dallas 2016) (construing § 33.07(a) as content‑neutral and not vague)
State v. Stubbs, 502 S.W.3d 218 (Tex. App.—Houston [14th Dist.] 2016) (same conclusion on content neutrality and intermediate scrutiny)
United States v. Stevens, 559 U.S. 460 (2010) (limits on overbreadth doctrine; categories of unprotected speech)
Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (defining content‑based regulations and strict scrutiny)
McCullen v. Coakley, 134 S. Ct. 2518 (2014) (intermediate scrutiny standard for content‑neutral restrictions)
Texas v. Johnson, 491 U.S. 397 (1989) (content‑based regulation and protection for expressive conduct)
Broadrick v. Oklahoma, 413 U.S. 601 (1973) (overbreadth doctrine standards)