Ex Parte Rebekah Sedigas, 10-16-00157-CR

Rebekah Sedigas and Erika Hollaway were charged with Class A misdemeanors under City of Waco Ordinance § 20-17(c) for allegedly touching or being touched while an employee "appears nude or semi-nude" at a sexually-oriented business.
Both appellants filed pretrial habeas applications arguing the ordinance is facially overbroad under the First Amendment and that classifying violations as Class A misdemeanors violates the Eighth Amendment (disproportionate punishment).
The trial court denied the habeas applications; appellants appealed. The appellate panel reviews facial challenges de novo and habeas denials for abuse of discretion on mixed questions.
The Waco ordinance prohibits touching by an employee who "appears" nude or semi-nude (key word construed by the court as meaning "comes into public view"); it does not use the term "regularly" nor expressly tie touching to a time other than when the employee appears nude or semi-nude.
The court distinguished the Kentucky decision in Blue Movies (which invalidated a broader ordinance containing "regularly appears") and relied on Texas and federal precedent regarding overbreadth, time/place/manner restrictions, and proportionality.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 20-17(c) is facially overbroad under the First Amendment	Ordinance bans any knowing touching by dancers, even when clothed or not performing, thus chilling protected expressive conduct	Ordinance applies only when employee "appears" nude or semi-nude on the premises, so it targets conduct tied to the erotic display and avoids the overbreadth problem	Overruled challenge; ordinance facially constitutional given reasonable construction limiting scope to times employee appears nude or semi-nude
Whether classifying violations as a Class A misdemeanor is Eighth Amendment disproportional punishment	Punishment (Class A) is greater than or disproportionate to related offenses the ordinance aims to prevent	Class A penalty is not grossly disproportionate; comparable or greater penalties exist for related crimes (e.g., prostitution, promotion of prostitution); serves penological goals (deterrence, public welfare)	Overruled challenge; appellants did not meet burden to show gross disproportionality

Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App.) (facial constitutionality review and overbreadth framework)
State v. Johnson, 475 S.W.3d 860 (Tex. Crim. App.) (limits on overbreadth doctrine; "strong medicine")
Santikos v. State, 836 S.W.2d 631 (Tex. Crim. App.) (difficulty of succeeding on facial challenges)
Haddad v. State, 9 S.W.3d 454 (Tex. App.—Houston) (topless dancing as protected expression; permissible time/place/manner restrictions)
Blue Movies, Inc. v. Louisville/Jefferson County Metro Gov’t, 317 S.W.3d 23 (Ky.) (invalidated broader no-touch ordinance using "regularly appears")
Rivera v. State, 363 S.W.3d 660 (Tex. App.) (rejecting disproportionality challenge to a similar no-touch ordinance)
Meadoux v. State, 325 S.W.3d 189 (Tex. Crim. App.) (burden on challenger in Eighth Amendment proportionality challenge)
Ewing v. California, 538 U.S. 11 (U.S. Sup. Ct.) (Eighth Amendment proportionality principles)
Harmelin v. Michigan, 501 U.S. 957 (U.S. Sup. Ct.) (Eighth Amendment analysis)
N.W. Enterprises, Inc. v. City of Houston, 352 F.3d 162 (5th Cir.) (legislative purpose of regulating sexually oriented businesses and preventing secondary crimes)