Ex Parte Oscar Calvin Fisher, 07-15-00098-CR

Background

Oscar Calvin Fisher challenged Texas Penal Code §33.021 (online solicitation of a minor) via a habeas application after indictment on two counts under subsections (b) and (c).
Ex Parte Lo (Tex. Crim. App.) previously held §33.021(b) unconstitutional; Fisher argues the remainder of §33.021 is also facially unconstitutional as overbroad, vague, and violative of the Dormant Commerce Clause.
Core statutory features in dispute: definition of “minor” (includes a person who represents themselves as under 17 even if the actor does not believe so) and subsection (d), which eliminates certain defenses (no defense that defendant lacked intent to meet or was engaged in fantasy).
Fisher contends the statute criminalizes protected speech (e.g., consensual adult “ageplay” and fantasy role-play) and speech lacking intent to produce imminent illegal conduct, thus reaching far beyond unprotected categories like incitement or child exploitation.
Relief sought: reversal of the trial court’s denial of habeas relief and dismissal of the indictment; counsel notes the Texas Legislature later amended §33.021 effective Sept. 1, 2015 to address some defects.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether §33.021(b) is unconstitutional	Fisher: §33.021(b) was held void in Ex Parte Lo and trial court erred denying relief	State: statute regulates conduct (solicitation), not protected speech	Court of Criminal Appeals has held §33.021(b) unconstitutional in Lo (Fisher relies on that ruling)
Whether remaining §33.021 is overbroad under First Amendment	Fisher: statute reaches protected speech (ageplay, fantasy, solicitations lacking intent to meet or to produce illegal act) and is content‑based, so presumptively invalid	State: statute targets criminal conduct (solicitation of minors) and is narrowly tailored to protect children	Fisher argues the remainder is facially overbroad; the brief contends §33.021 forbids a substantial amount of protected speech and fails either categorical or strict‑scrutiny review
Whether §33.021 is unconstitutionally vague under Due Process	Fisher: subsection (d) removes intent defenses and definitions force reasonable people to guess at prohibited conduct	State: statute supplies requisite intent and elements for criminal liability	Fisher asserts vagueness independent of overbreadth; brief argues reasonable people and courts have disagreed about the statute’s meaning, so it fails for vagueness
Whether §33.021 violates the Dormant Commerce Clause	Fisher: statute regulates internet communication extraterritorially and burdens interstate commerce (cannot be confined to Texas)	State: statute protects local children and is a valid exercise of police power	Fisher argues the statute unduly burdens interstate commerce and cites out‑of‑state precedent striking similar laws

Key Cases Cited

Ex Parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013) (held §33.021(b) unconstitutional and discussed overbreadth/ First Amendment issues)
Maloney v. State, 294 S.W.3d 613 (Tex. App. — Houston [1st Dist.] 2009) (upheld §33.021(c); court treated statute as regulating conduct)
United States v. Stevens, 559 U.S. 460 (2010) (adopts categorical approach to penal statutes that regulate speech and invalidates overbroad content‑based bans)
United States v. Williams, 553 U.S. 285 (2008) (recognizes that some longstanding crimes criminalize speech integral to illicit conduct)
Brandenburg v. Ohio, 395 U.S. 444 (1969) (incitement is unprotected only when directed to and likely to produce imminent lawless action)
Ashcroft v. ACLU, 542 U.S. 656 (2004) (government bears burden when restricting speech; content‑based regulations are presumptively invalid)
Broadrick v. Oklahoma, 413 U.S. 601 (1973) (overbreadth measured by substantiality of protected speech relative to statute’s legitimate sweep)