Ex parte Flores, 483 S.W.3d 632

Background

Marcos Flores was charged by information with unlawfully carrying a handgun in a vehicle as a member of a criminal street gang under Tex. Penal Code §§ 46.02(a-1)(2)(C), 71.01(d).
Flores filed pretrial applications for writ of habeas corpus arguing the statute is facially unconstitutional; the trial court denied relief after a hearing.
The statute makes it an offense for a person to carry a handgun in a vehicle they own or control while the person is a member of a “criminal street gang” (defined as three or more persons having a common identifying sign or symbol or an identifiable leadership who continuously or regularly associate in the commission of criminal activities).
Flores’ constitutional challenges: (1) First Amendment (content-based speech restriction and infringement on freedom of association); (2) overbreadth of the terms “criminal street gang” and “member”; (3) vagueness and unfettered law‑enforcement discretion.
The court considered whether Flores’ facial challenges were cognizable via pretrial habeas and whether the statute, properly construed, survives constitutional scrutiny.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1) May Flores raise facial constitutional challenges in pretrial habeas?	Flores contends the statute is facially invalid and thus proper for pretrial habeas.	State argued Flores’ claims were as-applied and not cognizable pretrial.	Held: Facial First Amendment and vagueness/overbreadth claims are cognizable in pretrial habeas; Flores properly raised them.
2) Does §46.02(a-1)(2)(C) impose a content-based speech restriction requiring strict scrutiny?	Flores: statute criminalizes conduct tied to identifying signs/symbols (expressive conduct), so it is content-based and must meet strict scrutiny.	State: the provision targets the secondary effects (gang-related gun violence) and is justified without reference to expression content.	Held: The statute is not subject to strict scrutiny; it is analyzed under intermediate scrutiny as regulation justified without reference to content and not suppressing expressive association.
3) Does the statute unconstitutionally overbreadth the terms “criminal street gang” and “member”?	Flores: definitions are broad — could capture benign groups (e.g., Scouts) or members unaware of criminal activities; thus reach substantial protected conduct.	State: statute should be read as requiring that the group both have identifying features/leadership AND continuously or regularly associate in committing criminal activities; that reading avoids overbreadth.	Held: The court adopts the narrower grammatical construction: the participial phrase modifies the persons, so the statute is not facially overbroad.
4) Is the statute unconstitutionally vague or delegatory, giving police unfettered discretion?	Flores: “member” and “criminal street gang” are vague; enforcement would be arbitrary and chill speech/association.	State: correct construction supplies definite standards (identifying sign/symbol/leadership plus continuous/regular association in criminal activity); law enforcement can apply it non‑arbitrarily.	Held: The statute is not unconstitutionally vague on its face and does not permit arbitrary enforcement when properly construed.

Key Cases Cited

Greenwell v. Court of Appeals for the Thirteenth Judicial Dist., 159 S.W.3d 645 (Tex. Crim. App. 2005) (pretrial habeas and right to interlocutory appeal)
Ex parte Ellis, 309 S.W.3d 71 (Tex. Crim. App. 2010) (limits on pretrial habeas and facial vagueness doctrine when First Amendment implicated)
Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013) (facial First Amendment overbreadth/content‑based analysis)
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) (strict scrutiny for content‑based speech regulations)
Ward v. Rock Against Racism, 491 U.S. 781 (1989) (intermediate scrutiny for content‑neutral time/place/manner and regulations justified without reference to content)
Martinez v. State, 323 S.W.3d 493 (Tex. Crim. App. 2010) (discussion of gang sign/symbol restrictions and content‑based analysis)
City of Chicago v. Morales, 527 U.S. 41 (1999) (vagueness and policing discretion in loitering ordinance)
Texas v. Johnson, 491 U.S. 397 (1989) (when conduct is communicative and implicates First Amendment)
Lanzetta v. State of New Jersey, 306 U.S. 451 (1939) (vagueness of statutes criminalizing gang membership)