Ex Parte Morales

underlying ap- dispute calls designed protect of Texas law plication

Texas residents. con- process the due

We conclude that and that the in this case cerns are satisfied jurisdiction over Navasota exercise traditional Texas court does offend justice. play notions of fair substantial CONCLUSION Considering all of Navasota’s contacts Texas, including relationship be- defendant, forum, tween litigation, I would hold that the trial court concluding

did err that Navasota’s purposeful contacts with Texas were suffi- general as support

cient the assertion Moreover, jurisdiction. specific well negate juris- Navasota failed to all bases of diction did not show that the assertion jurisdiction a Texas court would oth-

erwise unreasonable. I concur in the majority affirming trial opinion, court’s denying special appear-

order Navasota’s ance. MORALES, parte Santiago

Ex Jr. No. 03-05-00489-CR. Texas, of Appeals Court Austin. July 2006. Discretionary Refused Review

Feb. Rehearing Overruled Oct.

Wesley Mau, H. Assistant Criminal Dis- Marcos, TX, Atty., trict San for State. Klamert, Buda, TX, Abigail Connor respondent. LAW,

Before Chief Justice Justices PATTERSON and PEMBERTON. OPINION

PEMBERTON, BOB Justice. consider constitutionality of sec- code,

tion 21.12 of the penal prohib- which its primary secondary school employees engaging sexual con- duct at a with students enrolled school they where work. Tex. Pen.Cоde Ann. (West § Supp.2005). being 21.12 After in- 21.12, appellee under section dicted Santia- Morales, go Jr. an application filed writ corpus challenging habeas statute’s constitutionality. The court district found unconstitutional, granted corpus, writ of habeas and dismissed the appeals indictment. The State dis- Concluding missal. that section 21.12 muster, withstands constitutional we will reverse.

BACKGROUND parties agree Morales was em- The as a ployed “Student Activities/Recreation Baptist at San Acade- Assistant” Marcos Hays school in my, secondary counsel, County. According to advisor to as a counselor or served and as a Dormi- program R.O.T.C. school’s in- tory Residential Advisor. Morales was penal dicted under section 21.12 code, provides: which or employee private pri- An of a public mary secondary commits an school engages if in sexu- employee offense contact, intercourse, or al deviate person who sexual intercourse with is private primary in a enrolled employees secondary school at which the em- conduct between consent age over the ployee employ- works and who is not the those studеnts to his it unconstitutional. Central spouse. ee’s renders premise that the fed- contentions was 21.12(a). pro- An § Id. offense under recognize a eral state constitutions felony. degree vision is second Id. “private liberty interest fundamental 21.12(b). legislature contemplated § The consenting adults” sexual conduct between constituting that conduct offense under freedom of rights privacy, rooted in the might penal section 21.12 also violate other association, process, and due and that provisions,1 provided code such infringement on this fundamental may prosecuted conduct under either or subject analy- scrutiny” to a “strict 21.12(c). applicable both sections. Id. only narrowly tailored to permitted alleged, part, indictment relevant sis— See, state interest. compelling serve a Morales, an employee the San Mar- Glucksberg, e.g., Washington v. Academy, Baptist private secondary cos 702, 721, 138 L.Ed.2d S.Ct. school, intentionally knowingly en- (1997) (due Redhail, process); Zablocki gaged in deviate sexual intercourse with a 374, 388, 98 L.Ed.2d Academy student who was his (1978) (freedom association); of Roe v. spouse.2 Wade, 113, 155, sought pretrial corpus Morales habeаs (1973) (privacy). Based on L.Ed.2d relief, asserting that 21.12 is facial- section that section premise, urged Morales First, ly unconstitutional under the 21.12 is overbroad and impermissibly Fourth, Fifth, and Fourteenth Amend- vague proscribing beyond in conduct Constitution, to ments the United States compelling a might which the state provisions as as counterpart well the the in and also his regulating, interest violated emphasized Texas Constitution. Morales equal rights process protection. to due to any that because section 21.12 extends agreed, granted habeas district court in “person who is enrolled a or relief, discharged. and ordered Morales private primary secondary or This appeal followed. works,” the employee which section 21.12 criminalizes sexual conduct not with DISCUSSION students, minor but also with students who issue, single In a the contends State age age legal are above the the holding section the district court erred currently consent defined Texas law.3 responds 21.12 unconstitutional. Morales a contending that there is con- While constitutional the merits State’s light stitutional sexual con- schoolchildren, challenges jurisdic- our argument, but first duct with minor Morales appeal. the State’s urged impact 21.12’s on sexual tion to entertain (West 21.11(a) (indecency with a §§ §§ id. Tex. 21.11 3.See Pen.Code Ann. child), (West 2003) (indecency younger applicable with a 22.011 than children “child” child). (sexual Supp.2005) (sexual assault of a years age), assault of younger applicable person than "child” arguments In connection his concern- spouse of years age who is not the the Equal ing Lawrence v. Texas and the Protec- actor); 21.11(b)(affirmative §§ de- see also id. Clause, below, empha- tion discussed was may available where actor fense ‍​‌‌‌​​‌​‌​‌‌‌‌‌‌​​‌​‌‌​‌‌​​‌‌‌​‌​‌​​‌‌‌​‌‌‌‌‌‌​​‍were male. sizes that both he the student years than older than victim more three issues, possible exception of these With (same). offense), 22.011(3) time of genders has of Morales and student no bearing legal analysis. on our briefly emphasize Fowler, appeal. the context of our State legal -within inquiry larger our constitu- 721 (Tex.App.-Waco pet.). no court, system. tional As a we take no appeal The State is entitled to any policy “side” in regarding debate court’s in a if order criminal case the order wisdom section underlying pur- 21.12’s indictment, information, “dismisses an or poses the efficacy of that statute complaint any portion indictment, of an advancing goals. those role is Our to de- information, complaint.” Tex.Code first, termine, whether appeal the State’s 44.01(a)(1) (West Crim. Ann. Proc. art. jurisdiction adjudicate, within our Supp.2005). When a trial court dismisses so, whether the court district erred in prosecution on a writ of habeas corpus holding legislature’s policy that the judg- granting “effectively and the of relief ter ments manifested section 21.12 are for- proceedings, minates” may the State bidden the constitutional limitations appeal article under 44.01. State v. that Morales has As long they raised. as (Tex.Crim. Young, 810 223-24 do not exceed these constitutional limita- App.1991); see also Alvarez v. tions, any past policy or future decisions (Tex.Crim.App.1998). regarding section 21.12 remain with the legislature Moreover, people. case, In this the district court’s order court, an intermediate appellate we granting relief also dismissed the habeas similarly must defer to the authoritative Morales, effectively indictment ter- pronouncements of higher courts that cur- Thus, minating proceedings. article rently scope define the constitution- appeаl 44.01 authorizes the State to al principles apply here.4 dismissal. Subject jurisdiction matter Timely appeal notice Morales asserts that this Court is with- next asserts that we lack subject jurisdiction out matter to hear the subject jurisdiction matter the because (1) appeal State’s for two reasons: the State timely failed to file its notice of not appeal State does have a from appeal. arti In under appeals authorized (2) corpus ruling; habeas the State 44.01, cle appeal the is State’s deadline timely did not file its notice of appeal. not “later the the date day than 15th after Appeal granting order habeas cor- order, on ruling, which the or sentence to pus relief be appealed by is entered the court.” Tex. Morales first contends that the 44.01(d). Code Ann. art. Crim. Proc. This appeal State authorized to from requirement Texas is consistent with Rule granting corpus orders habeas relief. It is 26.2, Appellate pro which Procedure rule, that, general true as a the State that, cases, vides in criminal the State ruling cannot an appeal adverse a habe- “within 15 appeal must file its notice of proceeding. rel. State ex Holmes v. days day after the trial court enters the (Tex. 539, 819 Klevenhagen, S.W.2d order, ruling, appeal the or sentence to be Crim.App.1991) (orig. proceeding); State 26.2(b). ed.” P. Tex.R.App. Reyes, 229, v. 231 (Tex.App.- S.W.3d orally ref'd). granted court 2003, The district However, Fort pet. Worth may the Morales’s of habeas and dis appeal corpus State an adverse writ habeas ruling provides if a statute for such on July an missed the him indictment Schuster, court, Supplies, precedents Animal Inc. v. follow the Petco we ... Cf. 554, (Tex.App.-Austin Supreme until the S.W.3d 564-65 Texas Court unless and 2004, ("As them.”). high pet.) appellate an no intermediate court overrules otherwise, Morales Contending However, sign tional.5 7, the court did not 2, protections August until 2005. The federal constitutional written order relies on third appeal notice of on the counterparts. State filed its Because their thereafter, day August 2005. Morales constitu- that the Texas Morales assumes fifteen-day appel that the State’s contends with the are coextensive protections tional began running July late on deadline only consid- counterparts, we need federal orally its deci thе court announced date protections.6 scope of the federal er the sion, appel argues State that the while the Standard of review August until begin late timetable did are confronted Whenever we order. signed its written date court constitutionality of upon an attack dispute already has been resolved This statute, that the statute is presume has appeals, the court criminal which legislature has not acted valid that the for the appellate held that “the timetable v. unreasonably arbitrarily. Rodriguez 44.01(d) begins running under Art. State State, (Tex.Crim.App. S.W.3d judge his or signs from the date the trial 2002). Rosenbaum, upon The burden rests the individ her order.” State v. establish challenges ual statute to (Tex.Crim.App.1991). who S.W.2d Rosenbaum, Following unconstitutionality. this Court has held Id. the absence its appealable evidence, is “en contrary presume the date order we will tered the court” is the date the order is constitutionally legislature acted in a Rollins, signed by court. v. State uphold a stat sound fashion. Id. will 453, 454 no (Tex.App.-Austin con can a reasonable ute if we determine pet.). the State filed notice of Because its it struction will render constitutional appeal only days three after the court intent. Shel carry legislative out signed order, timely perfect its written (Tex. State, don appeal. jurisdiction ed its We have over 'd) 2003, pet. (citing Ely v. App.-Austin ref appeal, State’s and now turn (Tex.Crim.App. merits. 1979)). Constitutionality of section 21.12 A to a statute— challenge facial that here —is the type Morales asserts only appeal, its issue on the State challenge to mount success most difficult contends that the trial court erred hold- ing facially fully challenger to must establish section 21.12 unconstitu- because 549, Thompson, purports parte 179 S.W.3d district court's to hold 6. See Ex order Rayford (Tex.Crim.App.2005); 20 v. 557 n. 21.12 is unconstitutional both that section 521, State, (Tex.Crim.App. 125 S.W.3d 534 Morales, facially applied there as to but is 2003). Recently, ap the court of criminal support ground. for the latter Morales no party peals that a waives has seemed hold acknowledges only constitutionality that facial briefing grounds by only state constitutional hearing properly is us. on before At his State, equivalents. v. their federal Shuffield making petition, habeas Morales disclaimed 782, (Tex.Crim.App.2006) 189 S.W.3d 788 challenge light proce- as-applied ("Becausе argument appellant provides nothing posture: the indict- dural because authority only under the United States and Constitution, proven, counsel ad- ment had been Morales’s he has forfeited consideration that, facially— argue mitted “I have ... points error under the Texas Consti these facially we it’s unconstitutional because tution.”). as a matter of Whether treated are know what—what the facts as cannot equivalence, disposition our of Mor waiver applied to Consistent with his Mr. Morales.” arguments constitu under the federal ales’s court, argues position dispositive grounds in the district are his tion unconstitutionality appeal. on well. only facial

490

that no set of circumstances exists under of conduct protected under the First Estates, which statute be valid. will Santikos Amendment. 455 U.S. Hoffman State, (Tex.Crim. 631, 494, 1186; State, v. 836 S.W.2d 633 at Bynum v. State, App.1992); 769, v. S.W.3d S.W.2d (Tex.Crim.App.1989) Shaffer 353, (attack 2006, 364 (Tex.App.-Fort being Worth no on statute as overbroad is h.); State, pet. Frieling 462, normally traditionally v. reserved for 2002, 'd). (Tex.App.-Austin pet. complaints concerning alleged ref First violations). not, Amendment If it does Whether fundamental constitutional then the challenge overbreadth fail. must right implicated is Estаtes, 455 U.S. at Hoffman 1186; S.Ct. v. Cain whether, analysis Central to our is 717 (Tex.Crim.App.1993). We should then contends, as Morales there is a constitu examine vagueness challenge the facial tionally cognizable right fundamental and, assuming implicates the enactment no engage in “adult consensual sexual activi constitutionally conduct, protected uphold ty.” is, If apply there we must a “strict only the challenge if the im- enactment is scrutiny” analysis evaluating when Mor permissibly in all vague applications. of its process challenge, due upholding ales’s Estates, infringement statute if its on adult Hoffman Fisher, 1186; S.Ct. In re activity narrowly is tailored to serve compelling state interest. See Glucks berg, 117 S.Ct. 2258. Sim Morales that a urges right fundamental ilarly, if engaging in “adult consensual sex to engage in adult consensual sexual activi- activity” ual right, fundamental ty may be derived from the inti- right to must, evaluating when Morales’s equal mate right association to privacy, protection apply strict challenge, scrutiny both of which rooted at partly least evaluating when differences treatment the First Amendment.7 He also contends implicating that right. See v. Kadrmas right aspect is an of the substan- Sch., 450, 458, Dickinson Pub. 487 U.S. prоtections tive the Due Process Clause (1988). S.Ct. 101 L.Ed.2d 399 Amendment, heavily the Fifth relying decision, on the Lawrence which Furthermore, if Morales is correct “upholding he de- broadly construes as right that he has a fundamental consensual, private, fined intimate activity in adult consensual sexual that is to, adult contact” is “close Amendment, on founded the First it im as, same a fundamental First Amendment pacts vagueness our overbreadth and anal- liberty interest.” See 539 U.S. yses. See Village Estates v. Hoffman (2003). L.Ed.2d 508 Estates, Flipside, Hoffman Morales right, adds that this de- however 494, 1186, (1982); 102 S.Ct. 71 L.Ed.2d 362 rived, is to of applicable made the State Fisher, 637, (Tex. re 164 655 through the Due of Process Clause 2005). Specifically, challenge in a facial to the Fourteenth Amendment. vagueness law, the overbreadth and of a first task our is to determine whether At oral argument, the Morales acknowl- enactment edged yet reaches a “substantial amount” that rec- explicitly no court has 557, 3244, 564, 609, 617-18, Stanley Georgia, See 394 v. U.S. U.S. 104 S.Ct. 82 L.Ed.2d 89 1243, (1969) (First (1984) (First 22 542 S.Ct. L.Ed.2d free- Amendment includes Amendment includes freedom “from unwant- expressive doms and intimate of both associa- governmental priva- ed into one's intrusions tion). cy”); Jaycees, Roberts v. United States 17, Id. at 691 n. 97 S.Ct. in conduct itself. right еngage a fundamental to ognized (“We that the Court has not it is observe activity, urges but that adult sexual question difficult definitively answered the prior of logical implication extension and to what extent the Constitu- Supreme whether decisions of the United States regulating tion state statutes regarding rights privacy prohibits the to Court association, behavior] sexual [private consensual intimate and Lawrence. Frank, adults.”); see v. disagree. among Muth Cir.2005) (7th (citing Carey F.3d that a fundamental suggests Supreme Court has not agreeing that right engage in “adult consensual sexual to right, protected “a announced fundamental activity” implicit right-to-privacy Constitution, for adults to Supreme concepts recognized Court conduct”); sexual all manner consensual Connecticut, v. Griswold U.S. Lawrence, 539 U.S. at see also 481-86, 1678, 14 85 S.Ct. L.Ed.2d privacy” protects per- to (“right S.Ct. 2472 Baird, (1965), and Eisenstadt v. 405 U.S. marriage, pro- sonal related to decisions 438, 446-55, 31 L.Ed.2d 349 S.Ct. creation, contraception, family relation- (1972). right concepts These concern “the education.). ships, rearing, child individual, single, married or right true for the of inti- free in The same is governmental from unwarranted fundamentally so af mate The First Amendment trusiоn into matters association. protect “expressive person as the to has been held to both fecting decision whether assembly, petition beget speech, a child.” Id. at bear or association” — grievances, and the exer- equates privacy S.Ct. 1029. Morales this the redress associa- right religion cise of “intimate regarding contraception procrea —and v. pro Jay- tion.” Roberts States privacy right tion to a fundamental United cees, 609, 617-18, 104 adult The Su tecting sexual conduct. Caillier, Court, however, (1984); Kipps v. has 82 L.Ed.2d 462 preme heretofore Cir.2000). (5th The privacy man 205 F.3d 204-05 right extended this to the contrary, right to intimate association refers distinguished ner. To the it has and maintain cer- “constitutionally freedom “enter into protected between Rob- right childbearing relationships.” decision in tain intimate human matters erts, But underlying that 104 S.Ct. 3244. is the foundation Griswold, Baird, has heretofore been construed holdings Eisenstadt v. Wade,” categories of marital embrace certain Carey Population and Roe v. Int’l, 678, 688-89, family con- relationships, Servs. (1977), relationships generally.8 duct or intimate 52 L.Ed.2d 675 and sexual scope shares not Supreme individuals with whom one Court has describеd the other The community thoughts, expe- right: only special intimate association riences, distinctively but also and beliefs exemplify personal affiliations Among personal aspects of one’s life. other considerations, and that therefore these therefore, ‍​‌‌‌​​‌​‌​‌‌‌‌‌‌​​‌​‌‌​‌‌​​‌‌‌​‌​‌​​‌‌‌​‌‌‌‌‌‌​​‍distinguished by things, they are suggest on some relevant limitations smallness, high attributes relative such relationships might be to this entitled selectivity begin degree of in decisions protection, are those sort of constitutional affiliation, and seclusion and maintain of a attend the creation and sustenance aspects of the rela- childbirth, others in critical raising family marriage, — matter, only general rela- tionship. a children, As and cohabitation and education tionships qualities are with these sorts Family relationships, one’s relatives. nature, likely that have to reflect the considerations by deep attachments their involve understanding necessarily of freedom asso- to few led to commitments 492

The the Supreme closest Court has statute no legitimate furthers state addressing question” come to “the difficult justify which interest can its intrusion into recognized it Carey regarding the con- personal or private fife of the individu conduct, stitutional status sexual see 431 578, 123 al.” Id. at S.Ct. 2472. 17, U.S. at 691 n. 97 2010 was S.Ct. portrays recogniz- Lawrence as Lawrence, Lawrence v. Texas. ing “the First fundamental Amendment a Court invalidated Texas criminal- statute (which right” to engage sexual conduct izing “deviate sexual intercourse” between he would derive from privacy and intimate gender. individuals of the same 539 U.S. rights) association expanding and further 574, at upon 123 2472. It S.Ct. relied a protect right “the of homosexual per- liberty interest it identified the Due within engage sons to in consensual adult sexual Process Clause: activity.” He adds that this right is “so The petitioners respect entitled to, as, close not the a same fundamental their fives. The State cannot interest, liberty First Amendment any law demean their existence or their control enacted a legislature infringing state destiny by making their private sexual upon liberty interest identified Law- conduct right liberty a crime. Their narrowly rence should be tailored to serve gives under the Due Process Clause interest, compelling and should right them the full their scrutiny under strict come when the enact- gov- conduct without intervention of infringes upon ed law this fundamental promise ernment. It is a of the Consti- liberty interest.” Morales’s view of Law- personal tution that there is a realm of is rence flawed. liberty which the government may not enter. liberty Lawrence’s interest is Clause, within the Due Process not the Lawrence, 578, 2472 First Amendment. Id. We conclude that (internal omitted). quotations citations implicate does not a substan recognition liberty Court’s of this in- tial amount of protected conduct under the terest was informed combination Amendment, reject Morales’s First liberty concepts associated with the Due challenge. overbreadth Es Clause, 562, id. at Process 123 S.Ct. Hoffman tates, 494-95, 1186; 102 S.Ct. discussed, privacy concepts, previously Bynum, 767 S.W.2d at Lawrence relating marriage, procreation, contra- ception, liberty held that interest is family relationships, child-rearing, also and education. Id. at strict right scrutiny fundamental to which The Lawrence concluded that apply. “[t]he Court would affairs); personal ciation as an intrinsic element of extramarital Johnson San Jacinto liberty. Coll., (S.D.Tex. F.Supp. Junior

Roberts, 104 S.Ct. 3244 ("the 1980) intimacy to ... sexual (citations omitted); see also Beecham v. marriage grounded on the relation ... but (6th County, 422 Henderson F.3d currently рrotect the does not sexual relations Cir.2005) (right protect does not adulterous themselves”). McWhorter, relationship); Marcum v. below, weAs further section 21.12's discuss (6th Cir.2002) (same); F.3d Wallace exemption for between sexual conduct Univ., (5th v. Texas Tech 80 F.3d employees spouses and their serves to avoid Clark, Cir.1996); IDK, County Inc. v. infringing right pro- to intimate association Cir.1988) (9th (right F.2d does tecting relationships between married protect relationship between escort 21.12(a) persons. See Tex. Ann. Pen.Code client); Bigger, F.Supp.2d Bates v. ("... employee's spouse”). and who is not the (S.D.N.Y.2002) (right protect does not Muth, 412 at 817- apply. F.3d did the Lawrence would See opinion Nowhere its (Lawrence funda recognize not “a liberty on 18 did Court characterize the interest right, protected mental the Constitu which it relied as “fundamental.” Nor did tion, of engage for all manner Supreme employ typical Court its fun- adults conduct.”); v. damental-rights analysis and nomencla- consensual sexual Lofton Family Sec’y Dep’t Children & explained ture. The Court has elsewhere: of (11th Servs., 804, 815-16 Cir. 358 F.3d method of substantive- Our established 2004) (“Lawrence’s holding that sub was due-process analysis primary has two permit does not process stantive due Fust, regularly features: we have ob- on prohibition a criminal impose state to spe- served the Due Process Clause homosexual conduct. private consensual cially protects rights those fundamental holding was to establish The effect of this are, objectively, and liberties which previously than existed greater respect history deeply rooted in this Nation’s consenting right in the for the law tradition, concept and implicit and private adults to sexual conduct. liberty, of ordered such that neither lib- Nowhere, however, did the charac Court erty justice nor if they would exist were ”); right terize as ‘fundamental.’ State Second, required sacrificed. we Clinkenbeard, 552, 123 Wash.App. substantive-due-process cases careful rev.) (Wash.App.2005, no P.3d description of asserted fundamental (“Because es Lawrence v. Texas does not liberty history, interest. Our Nation’s right tablish a fundamental to all consen traditions, legal practices and pro- thus conduct, a ra apply sual adult sexual guideposts responsi- vide critical review....”). tional basis decisionmaking ble that direct and re- strain our of the Due exposition Process im- nоt We hold that section does Clause. plicate rights Supreme that the Court Glucksberg, 521 classified as fundamental. 117 S.Ct. has heretofore (internal anal- quotations proceed apply appropriate and citations omitted). yses process, court did at- vagueness, Lawrence his due tempt equate protection arguments. equal sexual conduct with “those rights fundamental and liberties which are process Due ... deeply history rooted in this Nation’s Morales asserts that tradition, implicit concept in the Due 21.12 violates the Process Clauses liberty,” ordered and it did not describe Fourteenth Amendments. the Fifth and specificity. this interest with V, Amends. The Su U.S. Const. XIV. Furthermore, the Lawrence Court did held that has preme process Court has due apply scrutiny, strict as it would have See, component. e.g., Law a substantive implicated. right if a fundamental had been rence, 539 U.S. Instead, considered whether (2003). This due aspect L.Ed.2d in- legitimate “furthered state [a] statute heightened protection process “provides “justify its terest” could intrusions government with cer interference personal life of the into inter rights liberty tain fundamental Lawrence, individual.” 539 U.S. at 719, 117 Glucksberg, ests.” Howеver, affecting S.Ct. 2258. statute right similarly that is not a fundamental courts have concluded interest Other relationship a rational liberty interest not a is valid it bears that the Lawrence City interest. liberty legitimate in a fundamental interest Ctr., Living scrutiny conduct strict Cleburne v. Cleburne to which Lawrence, 432, 440, employee L.Ed.2d See S.Ct. works. 578, 123 (1985); Comp. at S.Ct. 2472. Texas Workers’ Comm’n v. Garcia, (Tex.1995); important also observe some limita- We State, (Tex. Scott v. tions on holding. the Lawrence While 'd); App.-Houston pet. [1st Dist.] ref finding liberty protected interest that

Sullivan v. there, private adult sexual conduct at issue (Tex.App.-Dallas pet.). no That is Supreme emphasized: Court Lawrence, applied standard and we present The case does not involve mi- conclude that it is our guide best here. persons nors. It does not involve who Lawrence, might injured or coerced or who are in relationships situated where consent might easily not be refused. It does not urges

The State that section 21.12 is prostitution. public involve conduct rationally advancing at related least two legiti- state interests that it are contends 578, 123 Id. at S.Ct. (1)

mate, compelling: preventing if not these features of section 21.12 and With schoolchildren; exploitation sexual of Texas mind, Lawrence in we evaluate the inter- (2) preserving and an educational environ- by ests asserted the State. learning. ment conducive to Preventing exploitation sexual begin analysis by briefly our empha- schoolchildren sizing some basic features of the chal- The State contends that section 21.12 is lenged narrowly statute. Section 21.12 is rationally protecting primary aimed at and specific addressed to sexual conduct secondary school students from adults who persons employees pub- class of of Texas — advantage would seek to take sexual secondary lic private primary and them, particularly those who would abuse specific per- schools—with another class of imprimatur employment of their school sons—students—which is further limited to induce stu and their access to students to those enrolled at the same school where activity.9 dents to sexual employee an works. See Tex. Penal Code “prevention exploitation of sexual 21.12(a). Section 21.12 is thus not a government abuse of children constitutes a general proscription agаinst regulation objective surpassing importance.” New private sexual conduct of Texas Ferber, 747, 757, 102 York v. employees, categorically school nor does it (1982). And the 73 L.Ed.2d proscribe employees having Court, stressed that again, Lawrence (as long even relations with students mi present case does not involve “[t]he not enrolled at a school student persons nors” and “does not involve who works). employee where the Section injured might be or coerced who 21.12, words, in other leaves undisturbed consent relationships situated where employee’s private choices sex- might easily not be refused.” 539 U.S. po- 578, ual conduct the vast language sug universe 123 S.Ct. 2472. This mi partners gests exploitation tential who are enrolled as the sexual coercion, nors, those persons prone students the same school where interest, interest, posits rationally 9. Related to the State also advances such rationally as the statute extends both to that section 21.12 advances the le- inasmuch ‍​‌‌‌​​‌​‌​‌‌‌‌‌‌​​‌​‌‌​‌‌​​‌‌‌​‌​‌​​‌‌‌​‌‌‌‌‌‌​​‍gitimate avoiding liability Because we conclude state interest of ex- schools. rationally advances other posure for schoоl districts for the sexual that section 21.12 interests, legitimate address their em- we need not harassment or abuse of students ployees. questions contentions. whether section these See Tex. Educ.Code easily might teaching consent not certificate. unable to refuse 5.001(5) 2006).10 (West Finally, § rise Ann. only give legitimate to state interests argues is not that section 21.12 justifying prohibitions such Morales state or conduct, rationally preventing to coercive lies related but that this sort of conduct because, contends, he it im- sex liberty predatory scope outside of Lawrence liability employees on school poses strict entirely. interest See United States a per- awareness that Cir.2005) regardless their (8th Bach, 628-29 F.3d is at they have sex enrolled son with whom (Lawrence provided for de support” “[n]o their school. for prevent prosecution to fendant’s efforts child pornography). merit. are without Morales’s contentions that section 21.12 The State concedes whether 21.12 disputes

Morales section it to that require prove the indictment rational school preventing is a means B.H. or Morales had sex with with intent employees abusing power from or authori- knowledge regarding the enroll- student’s ty to coerce or induce to have sex. students Baptist Academy. ment at San Marcos coercion, points He out that involuntari- (West § Tex. Ann. Pen.Code 6.02 ness, or influence is an element undue court relied on Supp.2005). The district 21.12, it explicitly of section nor is limited 21.12 de- this construction of section when “special relationships” a entailing power unconstitutional, will as- claring disparity making the refusal of consent purposes opin- the same of this sume difficult. See Tex. Ann. Pen.Code ion. 22.011(b)(9)-(10)(sexual § assault is with-

out consent if is perpetrator mental health emphasize brings that again Morales provider clergyman services who ex- 21.12, challenge section and thus a facial person’s ploits dependency other emotional demonstrate that the statute is un- must actor). questions on Morales whether applications. constitutional in all of its which, “employee” of a he Estates, school at district — Hoffman emphasizes, Fisher, perform- 1186; could include those re ing jobs what he terms “menial” dispute such 655. Morales does not that workers, cafeteria custo- groundskeepers, majority of students to whom section vast dians, part-time employees— student applies compara- 21.12 minors: a possess power would sufficient and author- tively segment narrow Texas stu- ity enabling them to obtain from stu- dent-age population age sex is or above. rationally dents coercion or undue influence. calculated to is Section suggests legislature Morales minor students sexual abuse protect predatory meant to criminalize coercive exploitation by employees schools, school, it should category persons sex have addressed their 21.12 not to mere but access to chil- “employees” unique proximity section those “educators,” persons required to hold dren.11 any- suggest 10. Morales further observes Morales does not that there is providing specific "Improper Relationship thing per improper title Be- se about 21.12's is (emphasis protections tween & Student” add- students in section 21.12 Educator ed), general- suggesting legislature may supplement available to that the those minors J.M.R., penal prohibition. ly But see under the code. In re intended more limited Cf. 2001) (West (Tex.App.-Austin Tex. Gov’t Code Ann. 311.024 292-95 code, title, (section 37.107, subtitlе, (“The chapter, pet.) heading no. education para general subchapter, or ex- materia with criminal or section does not limit statute). statute.”). trespass pand meaning of a As for section relationship pre- Preserving 21.12’s an educational environment venting exploitation learning coercion and sexual conducive to age majority, students over argues The State also that section 21.12 acknowledges position that his at San Mar- rationally legitimate advances the in Baptist cos Academy fell within the edu- ensuring a quality terest education of all “educator,” cation code’s definition of his by preserving Texas schoolchildren an ed exemplar own a position of that would ucational environment conducive to learn n wieldcoercive power over students. The ing. in Texans have enshrined our state legislature rationally could also have re- general constitution the view that “[a] dif jected Morales’s view of non-educator knowledge fusion of essential [is] to the employees school and concluded that even preservation rights and liberties of those employees laсking teaching certifi- people,” charged legislature and cate will imprimatur be clothed with the “duty with the ... to establish and make employment, school serving as lead- provision support suitable for the and models, and role possess ers and will system maintenance of an efficient of pub power disparities sort of enabling them to VII, lic free schools.” Tex. Const. art. unduly coerce or influence students to en- 1;§ Neeley see also Orange-Cove West gage in sexual conduct.12 Dist., Indep. Consol. Sch. 176 S.W.Bd (Tex.2005) (construing provi 799-800 The legislature could also have rational- noting “especially sion and in this ly considered employees, school Age, Information education as a funda possessing teaching whether certificate grown mental basis for our future has not, given students, or are unique access to magnitude.”). orders of To effectuate its and thereby great vested with trust mandate, legislature constitutional has school, and confidence parents, and public declared that mission of the “[t]he public, sought preserve and to strength- system education to this state is ensure by unequivocally prohibiting en that trust that all Texas children have аccess to a school employees misusing from their ac- quality education that them to enables cess to students as a conduit for sex. We potential fully achieve their participate and again emphasize that section 21.12 is limit- social, in future in now and eco specifically ed employee to sexual conduct nomic, opportunities and educational of our with students enrolled at the same school ground state and nation. That mission is works, where the employee per- a class of general ed on the conviction that a diffu sons uniquely proximity within the sion knowledge is essential for the wel employee. influence of the preservation fare this state and for the ” rationally We hold that section 21.12 is rights of the liberties and of citizens.... legitimate related to the 4.001(a) (West state interest § Tex. Educ.Code Ann. protecting 2006). minor students from sexual ends, legislature To these has exploitation preventing abuse and among “objectives public its declared employees abusing posi- school their campuses education” that will “[s]chool authority tions of trust to coerce or disciplined maintain a safe and environ unduly to learning.” influence students have sex with Id. ment conducive student 4.001(b). § them. teaching permits persons

12. See also Tex. Educ.Code Ann. 21.055 issue who do not (West 2005) certificate). (authorizing teaching school districts to hold inevitably learn their con- points legiti- out that similar students who The State duct; encouragement to students in an atmo- mate state interests extend secondary primary and schools. It private para- employees, sphere which school compulsory emphasizes Texas has sex in classrooms phrase the seek re- generally attendance law that lines. and cafeteria school-aged persons all attend quires the State’s asserted discounts public school. See id. private either detrimental effects preventing interest (West 2006). 25.085, has §§ .086 environment, contending learning on the legislation ensuring enacted aimed at also full yield must to “the safety standards of and order in both basic without intervention.” adult sexual conduct §§ schools. Id. his contention is Central to Morales’s 2006) (West (providing that certain “dis- premise relationships that sexual between ruptive campus prop- activities] on the entirely school and students аre employees erty private public or school” are “private” “personal” a or matter. (West 2006) misdemeanors), class B .125 Lawrence, 123 S.Ct. (third degree felony to interfere with nor- legislature rationally could have re- The private public mal use of or school build- jected premise. building, ing, portion campus, school being used to children transport bus previously suggested, teachers As activities), school-sponsored from .15 -.153 are not the sort employees other school 2006) (West (prohibitions against hazing of Lawrence, private at issue but actors made applicable public students to both re- occupy positions public trust with students); high private school see also their spect students enrolled at the (West Tex. Aleo. Bev. Ann. 101.75 Code targets school. conduct Section Supp.2005) (prohibiting consumption of al- trust, employees’ core school the of this streets, beverages public alleys coholic on at a school conduct with students enrolled 1,000 and sidewalks within feet of certain The also they legislature where work. schools). rationally could made the common- have maintains The State that section 21.12 is employ- policy judgment sense ensuring a rational means of a school envi- the relationships, ee-student sexual within ronment safe conducive confined typical environment Pointing learning. to recent highly-publi- popula- high typical school-aged school and episodes cized teacher-student sexual tion, hardly entirely “private” would be nation, relationships schools around matter. urges legislature the State that the could considerations, leg- In light of these rationally anticipated that such con- rationally islature could have determined learning undermine the duct would envi- relationships students that sexual between in Texas even ronment schools and cause undermine employees and school would or emotional harm to students. physical learning Even the school’s environment. to the harmful effects of addition sexual his student or some of participating discussed, the predation previously State detriment, to suffer peers assumed no advantage points perceived to the actual or rationally con- legislature could have of students who have sex with school em- be cluded that there would othеr students ployees; conflicts of interest of school em- including ones— younger at the currently having who either are ployees school— may learning development whose students or have relationships by disrupted or disturbed revelation up”; the distractions learn- “broken employee-student sexual activities. participants for both student and other ing students, many legislature reaction of determining officials from that to prevent foreseen, could have likely would be akin vulgar speech and lewd such as respon- to that described the United States dent’s would undermine the school’s basic Supreme Court in a First Amendment educational mission.” Id. at challenging case disciplinary action Likewise, the Texas Legislature did high giving speech school student for not violate the by seeking Constitution body employing to his student “an elabo- prevent disruptions similar of its schools’ rate, graphic, explicit sexual meta- basic educational ensuring mission and phor”: physical well-being and emotional of its yelled; Some students hooted and some students, thereby advancing Texas’s fun- by gestures graphically simulated the ensuring quality damental value of edu- pointedly sexual activities alluded to all cation for Texas schoolchildren. respondent’s speech. Other students regarding process Conclusion due appeared to be and embar- bewildered speech.

rassed teacher re- One hold rationally that section 21.12 is ported day following that on the and, legitimate related to state interests speech, necessary forego she found it accordingly, does violate Morales’s due a portion of the scheduled class lesson in process rights. order to discuss speech with the Vagueness class. Fraser, Bethel Dist. Sch. No. v. 478 103 Having concluded that section 675, 677, 3159, U.S. 106 92 S.Ct. L.Ed.2d 21.12 does not reach a substantial amount (1986). atmosphere 549 Such an would protected by of conduct the First Amend present challenge an unenviable for ment, uphold vague we should Morales’s attempting Texas teacher stu- refocus if challenge only imper ness the statute is English dents on calculus and literature— missibly vague applications. in all of its if especially the teacher was heralded Estates, 494-95, 102 Hoffman among students for his or her sexual activ- Fisher, 1186; S.Ct. In re 164 at S.W.3d ity with a student. a challenged 655. When statute is as un Fraser, Supreme rejected Court constitutionally vague, our concern is challenge

the student’s First Amendment premised on notions of notice and due disciplinary following to the actions his State, 714, v. process. Cain 855 S.W.2d speech. The court reasoned even the (Tex.Crim.App.1993); Bynum, 717 767 fundamental First Amendment values of at A criminal S.W.2d 773. statute is not “tolerance of divergent political and reli- vague ordinary if it a intel gives person views, gious even when the views ex- ligence a opportunity reasonable know pressed may ... unpopular must also prohibited provides what conduct is and it take into account consideration of the sen- pre sufficient notice law enforcement others, in a sibilities the case of arbitrary discriminatory vent or enforce school, the sensibilities of fellow students.” Grayned Rockford, ment. 408 City v. 681, Id. at 106 S.Ct. 8159. The Court 104, 108-09, 2294, 92 33 L.Ed.2d suggested that speech could well be “[t]he Edmond, (1972); 222 v. 933 State S.W.2d seriously damaging to its less mature audi- 120, (Tex.Crim.App.1996); Long v. ence, many years of whom were State, (Tex.Crim.App. S.W.2d old and on the threshold of awareness of 1996). statutory provision A need not be sexuality.” human Id. at 106 S.Ct. mathematically precise; only give it need It concluded that First “[t]he light common under- рrevent warning Amendment does not the school fair section 21.12 is to demonstrate that standing practices. Grayned, fails vagueness. U.S. at void prohibitions The relevant of section merely vague A is not statute 21.12, again, state: spe are not phrases its words or because employee pri- An or public private State, Morgan v. cifically defined. See an mary secondary or school commits (Tex.Crim.App.1997); In employee offense if in sexu- engages (Tex. Browning, re 118 S.W.3d contact, intercourse, al or deviate ‍​‌‌‌​​‌​‌​‌‌‌‌‌‌​​‌​‌‌​‌‌​​‌‌‌​‌​‌​​‌‌‌​‌‌‌‌‌‌​​‍denied). Statutory App.-Austin pet. person sexual intercourse with who con are to be “read context and words public primary enrolled according grammar to the rules strued at em- secondary school which the Tex. Code usage.” and common Gov’t employ- and who is ployee works not the (West 1998). 311.011(a) § When Ann. spouse. ee’s statute, they are not in a words defined 21.12(a). § pro- Ann. Tex. Pen.Code ordinarily plain meaning given are their hibitions of 21.12 are clear clearly they shows that unless the statute of a unequivocal: you employee other sense. Daniels v. were used some private primary or second- State, (Tex.Crim.Apр. 754 S.W.2d school, you ary must not in sexual 1988); Ely, 582 419. Words who conduct students are enrolled so meanings in dictionaries with defined work, you you are a school where unless per understood well known to be married to them. ordinary held intelligence been son contact,” intercourse,” vague Floyd and indefinite. v.

“Sexual “sexual not to be State, (Tex.Crim.App. “deviate are all 575 S.W.2d sexual intercourse” 1978); Coggin code. 21.01. penal defined See id. ref'd).

Morales, 2003, however, As (Tex.App.-Austin pet. contends section that 21.12, vague “employee” “en 21.12 is because it not define used in section does “employee,” suggests hypo- various roll” are such terms. Webster’s defines job he that as “to with a that “employ” provide thetical situations where contends wages salary.” im- or Merriam-Web application pays of this term would be a (www.m-w.com/ Dictionary For permissibly example, unclear. Mor- ster Online (last 16, suggests dictionary/employ) visited June high ales the case a school 2006). insert, lawn-mowing It “enroll” as “to part-time student who has a defines school, list, in a or roll dish-washing job register, catalog, at his or her or enter about 800 pupils>.” and has sex with another student. Mor- <the school enrolls (last (www.m-w.com/dictionary/enroll) рosits application ales also of “en- Id. 2006). 16, These definitions private primary rolled in a visited June ordinary, common-sense secondary square with the employee school at which the A understanding terms. might person if a impermissibly works” be unclear ordinary intelligence a be able to de employee met and sex with should school had if a whether or not he or she has been holiday a recess or termine during student job pays a at a school that suspended provided or had student had been and whether someone wages salary, out contends or a dropped of school. Morales reasons, preparing he or is gives section 21.12 with whom she these on the roll pick registered is or entered “unbridled discretion” sex prosecutors attending a school which employee-student and choose students which employee Morales works. relationships prosecute. sexual event, In sug pies Morales’s to the Colorado anti-homosexual ini- gestions hypothetical situations in which tiative invalidated on equal protection he vague contends section 21.12 would be Evans, grounds 620, in Romer v. 517 U.S. do not support vagueness his facial chal (1996).13 1620, L.Ed.2d 855 A lenge. person who engages some Equal Protection Clause of clearly conduct that is proscribed cannot the Fourteenth requires Amendment complain of vagueness of the law as persons “all similarly situated shall be applied Bynum, to the conduct of others. Plyler treated alike” under the law. v. at 774. challenging S.W.2d When a Doe, 202, 2382, 457 U.S. 102 S.Ct. vagueness, statute for even in a facial chal (1982); State, L.Ed.2d 786 v. Wood lenge, a defendant must show that 651 (Tex.Crim.App.2000). it applies statute as to him in his situation Broadly speaking, this means that “States case, unconstitutional. See id. must treat may like cases alike but treat Morales, employee an adult of San Marcos accordingly.” Quill, unlike cases Vacco v. Baptist Academy, secondary 117 S.Ct. Hays County, school in alleged was to have (1997). engaged in L.Ed.2d 834 deviate sexual intercourse with B.H., 17-year-old a student at the same first step making Our school. B.H. spouse. was not Morales’s equal protection identify determination is dispute There is no that the conduct Mor ing appropriate A standard review. ales is alleged prohib to have committed is scrutiny statute is evaluated under strict Therefore, ited seсtion 21.12. it implicates a fundamental or dis “impermissibly vague is not in all of against suspect criminates class. Estates, applications,” its see Hoffman State, Henderson U.S. at and Mor (Tex.Crim.App.1997); Smith v. vagueness challenge ales’s fails. (Tex.App.-Austin 670-71 ref'd). However, pet. statutory Equal protection classifi cation that does not discriminate Finally, argues that sec suspect rationally class need relat tion 21.12 equal protection violates his legitimate governmental ed to a purpose to guarantee proscribes because it survive an equal protection challenge. employees conduct between school Henderson, 962 at 560. The claim students, exempts employees but and stu clearly ant must establish that the statute dents who are married. Because Texas arbitrary equal is and irrational an before recognizes marriage only persons between protection violation will lie. See Black v. opposite gender, see Tex. Const. State, 895, (Tex.Crim.App. I, 32; § Art Tex. Fam.Code Ann. 2000). rationality 2.001(b) (West attacking Those the of a 1998), Morales contends legislative the burden to classification have impermissibly that section 21.12 disсrimi negate every might basis that against equates nates homosexuals. He conceivable 21.12’s exemption support section for married cou- it. Anderer v. law, specifically purpose purpose The enactment in Romer tar- the whose sole for geted prohibited legisla- politi- homosexuals and all to seemed to be "a bare desire harm tive, executive, 634, judicial cally group.” unpopular action at level Id. at 116 S.Ct. government protecting of state or local from 1620. The law was held unconstitutional be- Evans, ability homosexuals. Romer v. cause it denied the to homosexuals (1996). participate political process. 116 S.Ct. Id. at L.Ed.2d 855 in the 634-35, Supreme legitimate The Court could find no 116 S.Ct. 1620. fact, whether, the amend- considering (Tex.App.-Houston Dist.] [14th 'd). homosexuals, against

pet. ref ment discriminated that not. and concluded it did previously explained, As we have implicate Romer, 21.12 does a fundamental not noted the that Distinguishing we against right. Nor does discriminate of “facially excludes class amendment Court has heretofore Supreme what partners, heterosexual all domestic suspect Supreme considered a The сlass. homosexual, a de- definition of equal has chal protection Court evaluated eligible employee benefits. pendant anti-homosexual discrimi lenges claiming facially not dis- itself does proposition standard, rational nation under a basis as a class.” against homosexuals criminate scrutiny. See Rom strict intermediate original). at also (emphasis Id. We 1620; er, 681-85, 116 S.Ct. see of there was evidence considered whether Lawrence, 579-80, at also U.S. intent discriminate underlying to (ex (O’Connor, J., concurring) homosexuals, and found none. Id. at 186- law plaining that where evinces desire clas- “Accordingly,” we held “the “we politically unpopular group, harm of all unmarried at issue consists sification searching a more form of rational applied light Id. at 187. partners.” domestic laws un basis to strike down such review conclusion, went on hold Clause”); Protection Cle Equal der by the drawn amend- classifications burne, U.S. S.Ct. 3249 rationally government’s ment advanced (limiting class” to “suspect definition and fa- legitimate “recognizing interest race, origin). alienage, national Sec voring cognizable relationships such legally vastly tion different from the en also as Id. аt 187-90. marriage.” actment It is the issue Romer. sort limited, emphasized deferential role our facially provision that this neutral Court inquiries: such previously against equal pro has sustained properly This Court exercises challenges. tection power public over limited review Austin, City In Bailey v. we consid- pro- democratic engages when it in the protection challenge14 ered an equal among makes choices alterna- cess and City of Austin charter amendment tive solutions social economic the provision city employee limited ben- Wilson, 450 problems. [v. In Schweiker solely employees’ spouses efits parents, 67 L.Ed.2d (defined wives), children, husbands or (1981)], Blackmun reiterated the Justice siblings, grandparents, parents importance allowing the democratic spouse. grandparents of employee’s policy: process to establish (Tex.App.-Austin 972 S.W.2d 180 pet. area of and social In the economics denied). plaintiffs city group A em- — welfare, a State does violate ployees part- and their same-sex domestic ... Equal merely Protection be- Clause amendment, claiming challenged ners — made are by the classifiсations law “against it cause discriminated homosexuals began imperfect. If the has some a Id. at 186. classification as class.” any unique provi- Bailey plaintiffs equal on the authorities Texas 14. The relied Moreover, Morales, protection guarantees of previously the Texas Constitu not- sions. tion, Bailey, (Tex.App.- ed, 186 that the federal constitution- has assumed denied), pet. a Austin but this not protections al he has briefed are coextensive distinguishing Bailey pres basis for from counteiparts. We no have their Bailey, we ent case. relied on authorities think reason here to otherwise. clause, construing equal protection not basis,” “reasonable 1, 12, does offend the Virginia, 87 S.Ct. simply (1967). Constitution because the classifi- L.Ed.2d 1010 Morales does not cation “is not made with mathematical suggest that section 21.12 was driven nicety or practice because in it results in legislative intent against to discriminate some inequity.” homosexuals. The classification relevant inquiry equal protection therefore,

This to our employs relatively analysis, re- laxed standard is section reflecting the Court’s 21.12’s differential treatment of awareness that drawing emрloyees of school lines that who have sex with stu- create peculiarly legisla- distinctions is dents enrolled at their school to whom tive task and an they unavoidable one. As are married versus those having sex long as classificatory ... scheme with students enrolled at their school to rationally advances a reasonable and they whom are not married. Alternative- governmental objective, identifiable we ly, the relevant classification is school em- must disregard the existence of other ployees general public, versus the which is we, methods of allocation that as individ- prohibited having from sex with stu- uals, perhaps preferred. would have dents over age regardless of consent Schweiker, at where the U.S. students are enrolled. S.Ct. 1074.... Thus, ... may not overturn previously demonstrated, For reasons a law unless its classification is so irrele the legislature rationally could have im- vant to a purpose stated that the distinc posed different standards of conduct on tions drawn clearly arbitrary. Un general public versus school employees review, der such a limited we hold that regarding sex with students enrolled at the Proposition 22 is constitutional. employee’s school. The differential treat- Bailey, 972 at 189-90. ment of employees school who are married to students versus those who are not also

As was the case in Bailey, section 21.12 has a rational basis. As earlier suggested, does not facially discriminate likely it is necessary to avoid an target unconsti- prohibits homosexuals as a class: it infringement upon tutional primary the marital re- secondary employees school Roberts, lationship. engaging in sexual conduct with 3244; 383-86, female, S.Ct. student —male or U.S. heterosexual or Zablocki 673; Loving, they homosexual—to whom are not mar- ried. S.Ct. 1817. Additionally, legislature Similar per- exclusions married could appear rationally sons in other penal statutes re- determined that conduct,15 garding employees and serve to and students are married other, avoid infringement legal unconstitutional to each upon safeguards incident to Roberts, the marital relationship. marriage precluded would have sex based 3244; U.S. at 104 S.Ct. on coercion or lack of consent.16 These Zablocki 673; U.S. at Loving rationally related to le- classifications are 21.11(a) (inde- minors), (West 1998) §§ 15. See Tex. Pen.Code Ann. ("Except 2.101 as other- cency applicable with a child to conduct provided by subchapter wise or on a younger years age "with a child than 17 showing prior marriage that a has been dis- (sex- person’s who spouse"), solved, is not the county may clerk not issue a mar- ual assault person “child” defined as a riage applicant license if either is under 18 younger years age than 17 2.102(a) (West who is not the years age.”), Supp.2005) actor). spouse of the (parental required applicant consent over years age years age), but under 18 (West (West (annulment §§ 16. See Tex. Supp.2005) Fam.Code Ann. 6.102 of mar- 1998) (license 18). application ‍​‌‌‌​​‌​‌​‌‌‌‌‌‌​​‌​‌‌​‌‌​​‌‌‌​‌​‌​​‌‌‌​‌‌‌‌‌‌​​‍requirements riage person age for under and section government purposes, gitimate equal protection.

21.12 does not violate Cleburne,

CONCLUSION reasons, hold foregoing For challenges to constitutional Morales’s facial sustain 21.12 are without merit and the district the State’s issue. reverse dismissing the indictment court’s order case and remand the for against with this proceedings further consistent opinion.

Concurring opinion Justice PATTERSON. PATTERSON, Justice, P.

JAN concurring. join

Because I cannot in the breadth of I in the majority opinion, judg- concur only. ment Ryan GARZA, Appellant, Andrew Texas, Appellee. STATE 03-05-00794-CR-03-05-00796-CR, Nos. 03-05-00798-CR, 03-05-00799-CR. Texas, Appeals

Court of Austin. July Pierce-Jones, ap- Angelo, for

Evan San pellant. Palmer, Atty., District Assistant

Allison appellee. Angelo, San LAW, Justices Before Chief Justice PATTERSON PURYEAR.

Case Details

Case Name: Ex Parte Morales

Court Name: Court of Appeals of Texas

Date Published: Feb 7, 2007

Citation: 212 S.W.3d 483

Docket Number: 03-05-00489-CR

Court Abbreviation: Tex. App.