Lo, Ex Parte John Christopher

161.001(l)(O). In In re Tex. Fam.Code

E.C.R., held: we requires removal subsection

[W]hile neglect, 262 for or abuse chapter

under broadly. are used Consis- words

those chapter 262’s removal stan-

tent with neglect or child”

dards, “abuse threats

necessarily includes risks or in which the child is

of the environment parent neglected, If has

placed.... abused, or otherwise endan- sexually

' physical child’s health or safe- gered her initial and re-

ty, continued such appropriate, the child has

moval parent under “remov[ed]

been neglect for the abuse

Chapter

the child.” We 248. further held that a S.W.3d may examine a

reviewing parent’s court children

history with other as a factor environment, threats of the risks or calculus “Part of includes the

saying, [the] danger

harm faced oth- suffered parent’s

er children under care.” Id. E.C.R.,

In In re light of we hold that removed for or neglect

K.N.D. was abuse 262 of the chapter Family Texas

under to Texas Rule Appellate

Code. Pursuant 59.1, we reverse judgment

Procedure appeals the court of remand proceedings.

further Christopher

Ex Parte John LO.

No. PD-1560-12. Appeals

Court of Criminal of Texas.

Oct.

Opinion on Denial of Rehearing

March Bennett, Bennett,

Mark Bennett & Houston, TX, Appellant. for Akins, Jessica Assistant District Attor- Houston, TX, McMinn, ney, Lisa State’s C. Austin, Attorney, The State. OPINION COCHRAN, J., opinion of delivered the unanimous Court.

Appellant charged was with the third felony degree communicating of in a sexu- ally explicit a person manner whom he believed to be a minor with an intent to his He gratify arouse or sexual desire.1 read, pertinent part, 33.021(b)(1). The indict- ment in this case that 1. Tex. Penal Code penal to a challenges writ constitutional for a of application pretrial filed a content, based on its specific speech that restricts alleging corpus habeas felony wrong Applying offense of online conclusion. it reached subsection facially constitutionally required presumption unconsti- minor is solicitation (1) it reasons: regulations speech] distinct [of “content-based for three tutional range a wide criminalizes invalid”6 and presumptively subject and is overbroad by the First Amend- protected we conclude that Section scrutiny,7 strict the term vague because 33.021(b) ment; it over- Penal Code is of the Texas communications “sexually explicit” array prohibits wide broad because the exer- conduct chills to” sexual “relate and is constitutionally protected speech by causing citizens to free-speech cise of only the narrowly drawn to achieve be- uncertain boundaries wide steer children objective protecting legitimate speech; prohibited permitted tween not, there- abuse. We need from sexual the Dormant Commerce it violates fore, is also address whether relief, denied judge trial Clause. unconstitutionally vague or violates grant- We affirmed.3 appeals the court Clause. Dormant Commerce determine, a discretionary review ed whether Sec- impression,4 first matter of I. 33.021(b) “sexually explicit com- tion —the of Review A. Standard facially uncon- munications” —is stitutional.5 facially con Whether statute is question of law that we stitutional is used the appeals the court of

Because review de novo.8 When the constitutionali addressing review for wrong standard 31st, 2009, of the Texas Penal did held that section 33.021 the defendant "on October Code, a Minor stat- unlawfully the intent to the Online Solicitation of then and there ute, is constitutional.” gratify the sexual desire of the and arouse defendant, intentionally communicate in a 377, 382, Paul, City v. St. 6. R.A.V. complain- sexually explicit [the manner with 2538, (1992). 120 L.Ed.2d 305 ant], be- whom the defendant an individual years age, by younger 17 lieved to be than Inc., Grp.,, Playboy 7. United States v. Entm't message that the defendant was at text 803, 813, 1878, 120 U.S. 146 529 years age.” that more than 17 time (2000) ("a speech content-based L.Ed.2d 865 "only may if it stand satisfies restriction” challenge makes a facial appellant 2. Because scrutiny"). 33.021(b), strict specific facts of his to Section only person It is when a irrelevant. case are State, 912, Lawrence v. 240 S.W.3d 915 8. See challenge” "applied that the facts of makes an ruling (Tex.Crim.App.2007) novo review of {de the case matter. quash indictment based on on motion facially unconstitution State, claim that statute was (Tex.App.-Hous- 3. S.W.3d 290 Lo v. 393 State, 745, (Tex. al); Byrne v. 358 S.W.3d 748 2011). ton [1st Dist.] 2011, ("Questions pet.) App.-San Antonio no Tex.R.App. (one constitutionality 66.3(b) concerning the of a criminal reason for 4. See P-. novo.”); reviewed de statute are likewise granting "whether a court review is decide State, 438, (Tex. 440 283 S.W.3d important question Lawson appeals has decided an 2009, ref’d); been, pet. App.-Fort Worth State v. has not but of state or federal law that Salinas, 9, (Tex.App.-Hous be, 982 S.W.2d by the Court of Criminal should settled ref’d); pet. see also Unit Dist.] ton Appeals”). [1st Snarr, (5th F.3d ed States v. reads, Cir.2013) ("Constitutional challenges to feder ground Appellant’s for review 5. sole novo.”). are reviewed de Appeals erred when it al statutes "The First Court of attacked, usually applies ion.13 The is we ty of a statute exacting scrutiny regulations that the stat “most that presumption with the begin legislature that the has suppress, disadvantage, impose is valid and differ ute unreasonably arbitrarily.9 The upon speech acted ential burdens because of its upon person normally rests burden content.”14 unc to establish its

challenging the statute scrutiny, a law satisfy To strict However, when the onstitutionality.10 (1) regulates speech that must be neces punish to restrict and seeks government state inter sary compelling to serve content, pre on its the usual speech based A narrowly est and drawn.15 law is reversed.11 constitutionality sumption if it narrowly employs drawn the least (those regulations laws Content-based if goal’ restrictive means to achieve its speech distinguish favored from disfavored govern there a close nexus between the pre expressed)12 based on the ideas invalid, compelling ment’s interest and the restrict sumptively government presumpt to rebut ion.16 If a less restrictive means of meet- bears the burden (Tex. Rodriguez restrictions on be 93 S.W.3d content-based invalid, presumed Crim.App.2002). and that the Government showing bear the burden of their constitution- 10. Id. (citation omitted). ality.”) Playboy, U.S. at 120 S.Ct. 1878 Broadcasting, 14. Turner 512 U.S. at (“When speech, the the Government restricts S.Ct. 2445. proving the bears the burden of Government actions.”); parte constitutionality of its see Ex California, 15. Sable Communications Inc. of 719, (Tex.App.- Nyabwa, 366 S.W.3d 724 FCC, 115, 126, 2829, v. 492 U.S. 109 S.Ct. 2011, ref’d) pet. (citing [14th Dist.] Houston Sable, (1989). In the 106 L.Ed.2d 93 Su- stating, government Playboy "when the in preme explained, content, speech to restrict based on its seeks may regulate The Government ... the con- constitutionality presumption of af- usual ’ constitutionally protected speech tent of in reversed.”). legislative forded enactments is promote compelling a if it order to interest FCC, Sys., means to fur- Broadcasting Inc. v. 512 chooses least restrictive 12. Turner 2445, ther the articulated interest. We have rec- 129 L.Ed.2d U.S. (1994). ognized compelling necessary at the that there is a interest If to look speech protecting physical psychological question of the in to decide if in content law, regula- well-being speaker of This interest extends violated the then the minors. Peterson, shielding tion Gresham v. minors from the influence of is content-based. (7th Cir.2000). by 225 F.3d For exam- literature that is not obscene adult stan- may ple, a it a crime for an adult dards. The Government serve this le- if statute makes internet, interest, gitimate constitu- to communicate with minor via the but withstand scrutiny, by narrowly that is a content-neutral law. But if the stat- tional "it must do so communicating regulations designed prohibits ute an adult from drawn to serve those manner, sexually unnecessarily interfering explicit with a in a interests without minor that is a content-based law because one has to with First Amendment freedoms.” It is not enough content of the to show that the Government’s ends look at the communication to speaker compelling; the must be careful- decide if the violated the law. are means ly tailored to achieve those ends. ACLU, 656, 660, omitted). (citations Id. Ashcroft (2004) (Ashcroft 159 L.Ed.2d 690 II) ("Content-based prohibitions, by 16. See Area Educational enforced Denver Telecommuni- F.C.C., Consortium, penalties, criminal have the constant cations Inc. U.S. severe 727, 755-56, 116 S.Ct. 135 L.Ed.2d 888 potential repressive be a force in the lives (1996). guard According to the Court in thoughts people. To free threat, II, against that demands Constitution Ashcroft the Texas Penal B. 33.021 of Section could be at interest compelling ing the legiti- achieving effective Code least was enacted that the statute purpose mate 33.021(c): Solicitation serve, question law in does then Minor. Furthermore, scrutiny.17 satisfy strict crime, speech is the content when the of the Texas Penal Code Section 33.021 because, general “as a scrutiny is strict “Online Solicitation of a Minor.” is titled matter, Amendment means the First (c) provision that It includes subsection —a ex- power no to restrict has government an actor who uses prohibits punishes ideas, message, its its because of pression mi- to “solicit” a electronic communications matter, or its content.” subject its nor, including the person, another “to meet case, mistak- appeals the court of In this actor, minor will the intent review, usual standard enly applied the in” certain sexual behavior.20 Such engage of the statute’s presumption including virtually all statutes exist solicitation presumption-of- instead validity,19 routinely upheld as states and have been review for First invalidity standard Amendment, statutes. engage content-based constitutional because “offers illegal transactions as sexual assault [such

First, pro- what the statute we examine categorically excluded from of a minor] expressed legislative what is its hibits and Thus, it protection.”21 First Amendment purpose. person person, A an if purpose of the restrictive commits offense [least means] Internet, speech restricted no to ensure that electronic mail or text test is over the goal, necessary to achieve the message message than further or other electronic ser- legitimate important to assure that for it is system, through vice or a commercial punished. chilled or For that service, is not knowingly a minor to online solicits reason, begin the test does not with the actor, including person, meet another existing regulations, quo then ask status engage with the intent that the minor will challenged restriction has whether contact, intercourse, in sexual or de- ability Congress' to achieve some additional with the actor or viate sexual intercourse legitimate Any interest. restriction on person. another justified analy- speech could be under that Instead, ask whether sis. the court should Williams, 285, 21.United States v. 553 U.S. regulation challenged is the least re- 297, 1830, (2008); 128 S.Ct. 170 L.Ed.2d 650 available, among strictive means effective see, Hornaday, e.g., v. United States 392 F.3d alternatives. 1306, (11th Cir.2004) ("Speech 1311 at II, 666, 542 U.S. at 124 S.Ct. 2783. Ashcroft tempting arrange the sexual abuse of chil constitutionally protected dren is no more A.C.L.U., 844, 874, 17. See Reno v. 521 U.S. speech attempting arrange any than other 2329, (1997). 138 L.Ed.2d 874 crime.”); type Dhingra, v. of United States A.C.L.U., 564, 573, 122 Cir.2004) (9th (federal Ashcroft 371 F.3d 559 (2002) (Ashcroft L.Ed.2d 771 152 prohibiting online solicitation of a mi statute I) omitted). (quotation marks facially vague; nor is not overbroad or stat conduct, regulates oth ute 'no—" Lo, ("When present- 393 S.W.3d at 292-93 legitimate speech jeopardized by erwise is challenge constitutionality ed with a to the only statute] federal because [the statute, presume we that the statute is valid conduct, i.e., targeted in criminalizes legislature unreason- and the has not acted illegal activi ducement of minors for sexual ably challenging arbitrarily. party or ty' merely 'speech that is the vehicle —and statute carries the to establish its un- burden through pedophile which a vic ensnares the omitted). (citation constitutionality.”) ”); Bailey, tim.' United States v. 228 F.3d (6th Cir.2000) (statute proscribing 33.021(c). 20. Tex. Penal Code provi- § That reads, knowing persuade en efforts to minors to sion image, eluding photographic or video requesting a minor the conduct of is relates to or describes sexual con- acts that is illegal sexual engage explicit descrip- duct.” The statute bars The First Court of the offense. gravamen acts, any of sexual but it also bars upheld the constitu- tions previously Appeals electronic communication or distribution of online-solicitation-of- tionality of the Texas is material that “relates to” sexual conduct. specific provision That minors statute.22 case, many modern encompass an That bar would provides in this but it not at issue movies, shows, “young television provision to the excellent contrast books, obscenity, outright adult” as well as at issue. minor, to a and child material harmful 33.021(b): Sexually Explicit 2. Section pornography.

Communications. Legislative Purpose 3. The separate, contains a Article 33.021 33.021. different, (b), prohib very subsection based on its cont The online-solicitation statute punishes speech its and notes,25 person was enacted in 2005. As the State prohibits That ent.23 subsection “sexually legislative purpose in a of that communicating online filing charges if was to “allow for the per with a minor explicit” manner gratify against engage individuals who in conver the intent to arouse son has to the sations over the Internet with the intent anyone’s According sexual desire. “ statute, any meeting activity means the child for sexual ‘[s]exually explicit’ material, communication, any physical place.”26 or in- before contact takes language, service, activity through gage illegal did not violate a commercial online inten- sexual Amendment); Snyder, tionally: 155 Ohio First State (2003) App.3d sexually explicit N.E.2d communicates in a (statute minor; using prohibiting adults from tele manner with a device to solicit minor for communications sexually explicit material to distributes expres activity not "aimed at the sexual a minor. beliefs, sion of ideas or rather is aimed 33.021(b). § Penal Tex. Code advantage prohibiting taking adults from " anonymity 33.021(a)(3). minors and the and ease of com § 24. Tex. Penal Code 'Sexual municating through contact, telecommunications de actual or sim- conduct’ means sexual vices, especially intercourse, the Internet and instant mes ulated deviate sexual in- sexual devices, soliciting engage saging masturbation, minors to tercourse, bestiality, activity”); generally in sexual see 15B Am. abuse, or lewd exhibition of sado-masochistic Computers Jur.2d and the Internet anus, genitals, any portion (“Solicitation (2013) of Children for Sex top of the female breast below the areola.” Acts”). 43.25(a)(2). §Id. 613, Maloney 22. v. 294 S.W.3d (noting 25. Post-Submission Brief at 4 State's 2009, ref'd) pet. (Tex.App.-Houston [1st Dist.] enacted to allow law was ”[t]his (rejecting vague- defendant’s overbreadth and stop predator before [he enforcement challenges ness to online-solicitation-of-minor opportunity injure the to meet or the has] 33.021(c)). statute set out in section child.”). 33.021(b) 23. Section states: Comm, Jurisprudence, 26. House Criminal person years age on A who is 17 or older if, Analysis, Leg., Bill Tex. H.B. 79th R.S. commits an offense with the intent to (2005). During Jurispru- gratify any the House Criminal arouse or the sexual desire of Internet, Hearing on March person, person, the dence Committee the over Phelps, the Assistant Dis- message Shane First electronic or text or other mail Attorney County, story message system, trict in Brazos told service or electronic plainly legiti- “engage in relation to the statute’s those who against It is directed with may justify the Internet The State not sweep.”29 over mate in conversations meeting a minor for sexual constitutionally protected on the intent restrictions (c), read in But subsection activities.”27 that such restrictions speech on basis (d),28 covers subsection conjunction effectively con- necessary suppress (b) Subsection “luring” scenario. speech, such as stitutionally unprotected felony, sala- third-degree as a punishes, or the solici- obscenity, pornography, child (but not internet over speech cious may “The Government tation of minors.30 face-to-face) spoken talk” “dirty speech lawful as the means to suppress not sexually explicit- materials distribution Protected speech. unlawful suppress (but not the distribution internet over the mere- speech unprotected does not become hand-to-hand) to a materials of those same the latter. The ly because it resembles the intent the actor has long as minor as the reverse.”31 This requires Constitution anyone’s sexual de- gratify to arouse or judgment pos- that “[t]he rule reflects require that the actor It does sires. society permitting harm to some sible meet the minor for any intent to have ever speech go unpunished unprotected turn now to the First any We reason. outweighed by possibility protect- Amendment. may be muted[.]”32 ed of others II. Thus, Speech v. Free Ashcroft Amendment Overbreadth A. The First Coalition, rejected the Doctrine argument that a statute government’s criminalizing the distribution of constitu

According to the First Amend “virtual” doctrine, tionally protected pornograp child a statute is ment overbreadth hy33 necessary was to further the state’s a “substan facially prohibits invalid if it “judged prosecuting interest the dissemination protected speech tial” amount of occur; (1) meeting did not "perpetrator” who entered a chat about a meeting began relationship with a the actor did not intend for the an online room sessions, occur; girl. year-old After several chat fantasy engaged town "perpetrator” drove to the victim's the actor was in a up meeting. attempted set Mr. time of commission offense. that, perpetrator Phelps supra unless the ac- stated Refer to note 20 for the text of Subsec- child, charge (c). tually he could not met with tion “perpetrator” with At solicitation. Hicks, 113, 118-19, Virginia 29. 539 U.S. Hearing Senate Justice Committee Criminal (2003). 19, 2005, L.Ed.2d 123 S.Ct. Seliger May on Senator introduced passage the bill and said that its was neces- Coalition, sary "perpetrators” charged Speech so that could be Free Ashcroft 234, 255, they actually with solicitation before met the 152 L.Ed.2d 403 thirty-four child. He also mentioned that oth- (2002). "luring” er criminalize child or solicita- states tion. Id. Center, Analysis, Tex. 27. Senate Research Bill Oklahoma, 601, 612, v. 413 U.S. 32. Broadrick 2228, (2005). Leg., H.B. 79th R.S. 2908, (1973). 37 L.Ed.2d 830 93 S.Ct. 33.021(d). provi- 28. Tex Penal That Code produced pornography is 33. "Virtual” sion reads as follows: through computer-imaging technology with- prosecution Speech real under out the use of Coalition, children. Free It is not a defense 241-42, (c) 535 U.S. at 122 S.Ct. 1389. Subsection that:

19 may regulate child The State the con constitutionally unprotected por- constitutionally protected speech tent of children. The that used “real” nography interest,” “compelling such promote as argued possibili- had that “the government physical psychological well-being computer images by using ty producing minors, if it chooses “the least restric very makes it difficult imaging [the tive means” to further that But interest.38 pro- those who government] prosecute enough governmental it is not using real children.”34 pornography duce compelling, ends are the means to achieve Thus, according government, to the narrowly must be drawn to those ends (virtual pornogra- protected speech child only achieve those ends.39 with the un- phy) along could be banned (real speech pornography). child protected 33.021(b) B. Is Section Unconstitution- rejected that notion ally Overbroad. pro- entirely: “The overbreadth doctrine banning from un- hibits the Government Although the has a com State if a substantial amount protected speech pelling protecting children interest or chilled speech prohibited protected “explicit- sexual com predators, Speech Free process.”35 Coalition is not narrowly munications” constitutionally upon tells us that a ban legitimate goal. drawn to achieve that In on speech may upheld deed, not be protected any this subsection does not serve hard,”36 theory that “law enforcement already interest is not compelling may punish speech and the State sim- separate, narrowly more served speech drawn, because that increases the ply statutory provision. This subsec material, might commit an pervert” chance that “a tion covers obscene but obscene illegal already act “at some indefinite future communications and materials are proscribed by time.”37 Sections 43.22 and 43.23.40 1389; violence; 254, Stanley it did not incite imminent Id. at 122 S.Ct. see also such 557, 567-68, constitutionally protected Georgia, 89 S.Ct. because v. 394 U.S. was 1243, (1968) (people illegal merely 22 542 have a advocated action at some L.Ed.2d future). right possess Amendment to' obscene undefined time in the First material, though even the existence of this right California, makes it more difficult for the states to 38. Sable Communications Inc. FCC, 115, 126, 2829, legitimate prosecuting further their interest in 109 S.Ct. (denial obscenity). the distribution of 93 of adult 106 L.Ed.2d access sexually explicit, non-obscene "Dial-a- Coalition, 255, Speech 35. Free 535 U.S. at 122 necessary far exceeded what Pom” was 1389; City see New S.Ct. also Lewis messages). limit minors' access to such Orleans, U.S. (1974) (holding pro- L.Ed.2d ("The may legit- Id. Government serve this cursing police using hibited “obscene or interest, imate but to withstand constitutional opprobrious” language toward them was scrutiny, by narrowly 'it must do so drawn unconstitutional). facially overbroad and regulations designed to serve those interests unnecessarily interfering without with First Coalition, Speech 36. Free 535 U.S. at ”). Amendment freedoms.’ S.Ct. 1389. 43.22, §§ 40. Tex. Penal Code 43.23. Under Indiana, 105, 108, 37. See Hess v. U.S. 43.21(a)(1), curiam) (per 38 L.Ed.2d 303 (defendant’s perform- material or a statement at an anti-war demon- "Obscene” means fucking that “we'll take the street ance that: stration (or (A) again)” punished average person, applying contempo- later could not be standards, community speech "fighting raiy would find obscene or words” because Women,” De of the Sabine “Venus Rape harmful to covers material This subsection already pro- Milo,” Maja,” Japanese or minor, material is “the Naked that but This subsec- materials 43.24.41 and Shunga. Section Communications by scribed but pornography, that, manner, chüd “relate to” sexual tion covers in some by Section already proscribed art, is material much of the litera- comprise conduct that this sub- only material 43.26.42 ture, the world from and entertainment of already covered that is section covers myths extolling the time of the Greek is otherwise con- penal another through the ribald prowess, Zeus’s sexual ex- speech. “Sexual stitutionally protected Renaissance, today’s Holly- plays of the but not obscene which is indecent pression wood movies and cable TV shows. Amendment.”43 by the First protected sum, everything In (b) cornucopia a whole covers Subsection 33.021(b) prohibits punishes and “dirty or talk.” But it “titillating talk” already by other prohibited and is either sexually literature explicit also includes (such obscenity, distributing as statutes “Lolita,”44 Grey,”45 “50 Shades of such as minors, solicitation of harmful material to Lover,”46 and Shake- Chatterley’s “Lady minor, pornography) child or is consti- or in- It “Troilus and Cressida.” speare’s tutionally protected. shows, television sexually explicit cludes movies, “The such as performances and Compelling 1. The State Has a Interest Shut,” Tudors,” “Rome,” “Eyes Wide “Ba- Abuse, Preventing Child but Sec- Instinct,” sic Janet Jackson’s “Wardrobe 33.021(b) Narrowly tion Is Not Bowl, during Super the 2004 Malfunction” Drawn. Miley Cyrus’s “twerking” during the prevention exploitation “The of sexual Music Awards. It in- 2013 MTV Video govern- constitutes a sexually explicit art such as “The and abuse of children cludes 43.24(a)(2)(B) (C). gen- § appeals pru- Id. & See a whole to the minors. that taken as Arcades, Inc., sex; Spokane erally rient interest in Brockett 491, 498-99, (B) depicts or describes: U.S. 105 S.Ct. (i) representations patently (noting descriptions offensive or L.Ed.2d 394 acts, descriptions of ultimate sexual nor- and discussions of normal sexual interests simulated, perverted, pro- actual or mal or Amendment prurient; are not First intercourse, that, whole, sodomy, including sexual tects "material taken as a does arouse, bestiality; fashioned, 'good, and sexual than old no more (ii) representations patently sex.”). offensive healthy' interest in masturbation, excretory descriptions of sadism, masochism, functions, lewd exhi- § 42. Id. 43.26. genitals, or female bition of male genitals in a state of sexual stimulation or Inc., California, 43. Sable Communications of arousal, genitals in a covered male dis- 2829; 492 U.S. at Roth cernibly turgid designed state or a device States, 476, 487, 77 United primarily and marketed as useful (1957) (“[S]ex and ob- L.Ed.2d 1498 genital organs; stimulation of the human synonymous.”). scenity are not whole, (C) literary, taken lacks serious (Weidenfeld & Ni- 44. Vladimir Nabokov, Lolita artistic, political, and scientific value. 1959). colson statute, § 43.24. Under this material 41.Id. Grey (Vintage 50 Shades E.L. ap- James, that is harmful or obscene as to minors sex, nudity, 2012). peals prurient their interest in 43.24(a)(2)(A). or excretion. Id. Such patently must also be 46. D.H. material offensive Lady Chatterley's Lawrence, Lover 1959). (Grove utterly redeeming without social value for Press

21 Many have surpassing impor- states enacted statutes objective ment preventing aimed at the dissemination of question There is no tance.”47 “harmful” materials minors and solicita duty a solemn right-indeed State has a —to tion of minors over internet. Courts children from the harm that young protect upheld all across the United States have by them sexual upon be inflicted would They these statutes. share either of two the constitution- upholding In predators. (1) characteristics: the definition of the 38.021(c) offense of ality —the usually banned communication tracks the Ap- First Court of online solicitation —the obscenity by definition of as defined prevention of sexu- peals “[t]he stated California,50 in Miller v. ad- and -abuse of children exploitation al (2) specific the statutes include a intent Texas online solicitation of by dressed act, i.e., illegal to commit an sexual a government minor statute constitutes actor intends to “solicit” or “lure” a minor importance.”48 In- objective surpassing to commit a sexual act. All of the cases inter- prohibits it does. The statute deed State in cited its brief deal with with a net communications minor soli- such solicitation or dissemination statu act.49 tes.51 None of them deal with non-ob illegal cit an sex Ferber, 747, 757, merely speech); 47. New Yorkv. 102 act—not United States v. Johnson, 689, 3348, (7th Cir.2004) (1982). 1113 376 F.3d 73 L.Ed.2d 694 — 95 (federal child-pornography statute not over- 613, Maloney 627 48. v. 294 S.W.3d punish broad because it does not constitution 2009, ref’d) pet. (Tex.App.-Houston [1st Dist.] ally protected speech); see also United States 33.021(c) (holding that Section was not un- 637, (6th Cir.2000) Bailey, v. 228 F.3d 639 constitutionally pun- overbroad because it (no ambiguity problems overbreadth or in ished that solicited commission federal child-solicitation law because statute minor). illegal act with a an sexual minors, applies only target who to those simply "the not have Defendant does a First subsection of The solicitation-of-a-minor right persuade attempt Amendment mi Section 33.021 reads as follows: acts"); engage illegal nors to sexual Po (c) per- person A commits offense if the an Commonwealth, 130, dracky Va.App. v. 52 662 son, Internet, by electronic mail or over 81, (2008) (upholding S.E.2d 84-85 solicita message message text or other electronic quoting tion-of-a-minor statute and the Su system, through service or a commercial preme engage illegal Court: "Offers to service, knowingly online solicits a minor to categorically transactions are excluded from actor, person, including meet another protection.”); People First Amendment engage with the intent that the minor will Smith, 446, 674, Ill.App.3d 347 282 Ill.Dec. contact, intercourse, or de- sexual 1262, (2004) (upholding 806 N.E.2d 1265 so viate sexual intercourse with the actor or statute); Hsu, People v. licitation-of-a-minor person. another 976, 184, Cal.App.4th Cal.Rptr.2d 99 194- 33.021(c). Tex. Penal Code (2000) (upholding internet solicitation of a required minor statute because it that defen 15, 2607, 50. 413 U.S. 37 L.Ed.2d 419 intent, purpose dant "with the act or for the (1973). minor”); seducing Foley, People 668, 467, See, N.Y.2d N.E.2d Tykarsky, N.Y.S.2d e.g., United. States v. Cir.2006) (2000) (3d (upholding prohib (upholding 128-31 F.3d 472-73 iting constitutionality of indecent material to prohibiting of federal statute dissemination attempted persuasion actual or a minor because the forbidden material of minor to obscene, engage activity traveling being in illicit sexual was defined as purpose engaging "importunes, for the in illicit sexual actor invites or induces a minor Thomas, acts); activity); engage United States v. 410 F.3d in” various listed sex State v. Green, (10th Cir.2005) (federal 'solici 397 S.C. 724 S.E.2d 667-69 (2012) (solicitation prohibits tation-of-a-minor statute conduct— of a minor statute that illegal required persuad request that a commit an actor to have the "intent of minor sex 22 issue, of non-solicitative, the the First Court porno ly addressed non-child

scene, constitutionality of Appeals upheld sexually non-harmful-to-minors graphic, ma the sale of prohibiting Texas’s statute minors. to explicit communications in State v. Stone.55 terial harmful to minors Texas, states, also enact like have Most the dissemination prohibiting hand, ed a statute in Reno v. On the other “harmful” to material is ACLU,56 of to children down Court struck statutes, following the Su minors. These portion of the federal Com as overbroad Ginsberg v. New in decision Decency Act that preme prohibited munications York,52 as “material de “harmful” define “knowing” of “indecent” dissemination of its on the basis obscene fined to be as well as “obscene” com communications it would whether or not to the internet.57 appeal [minors] to children over munications Such do statutes explained, evaluating be obscene to adults.”53 “In As court expres adults, of area of freedom have made rights not invade “the free of we minors,” ‘[sjexual to constitutionally expression secured clear that perfectly sion obscenity of pro the definition but not obscene is merely because which is indecent ”58 by permitting realities the First Amendment.’ “to social tected geared Therefore, descrip type of material to be the communication of this appeal depictions sexual interest” tions or other non-obscene term[s] assessed that do not involve live have not direct sexual conduct Although we of minors.54 enticing, coercing respect with to what is suitable for ing, inducing, [mi or whole minors; participate in a ac engage or nor] (C)is vague utterly redeeming because without social tivity” not overbroad or was only in which the actor for minors. applied to situations value illegal intentionally targets a minor for an 43.24(a)(2). Tex. Penal Code Hatton, (La. purpose); State v. 985 So.2d 709 637-38, Ginsberg, U.S. at 88 S.Ct. 2008) (solicitation-of-child 54. 390 required 1274. purpose or with communications "for the induce, entice, persuade, or coerce intent to participate 167, person engage or in sexual (Tex.App.-Hous- 55. 137 S.W.3d violence”); 2004, ref'd) Hatch v. conduct or a crime of pet. (relying on [1st Dist.] ton 663, Court, Superior Cal.App.4th 94 Cal. 79 Ginsberg holding prohibiting that law (2000) (upholding Rptr.2d dissemination exhibiting person to children material them, to a minor when that of harmful materials although deemed to be obscene as to pur person adults, acts "with the intent or for was neither overbroad nor minor”). pose seducing a vague). 1274, 629, 52. 88 S.Ct. 20 L.Ed.2d 56. 521 U.S. 138 L.Ed.2d (1968). (1997). Code 88 S.Ct. 1274. Penal Id. (striking down 43.24, Id. at prohibiting the Texas statute Decency provisions sale, Communications display of harmful distribution (CDA) minors, prohibiting Act internet transmission of already bans the dissemi- material to "indecent” communications to minors or nation of material that is deemed obscene sending “patently 43.24(a)(2) offensive” communications defines “harmful minors. Section through computer interactive use of service material.” minors; beyond provisions, which these went means material “Harmful material” whole; prohibiting of "obscene” mate- dissemination theme taken as a whose dominant rials, facially were overbroad violation of (A) appeals prurient interest of a to the Amendment). excretion; the First sex, nudity, minor in (B) prevailing patently offensive community 58. Id. at 117 S.Ct. 2329. in the adult as a standards develop relationship predators who reproductions or visual performances by befriending victim retain First their by children performances live intended online, trust, developing child their protections.59 Amendment eventually sexually in engaging then ex- cases: Reno are bookend Ginsberg and are unable find plicit We to conversations. pro- upholds statutes The legislative history in the 2005 to anything that of material hibiting the dissemination “groom- an intent to criminalize support children, but defined as “obscene” is The ing” by titillating speech. intent ex- n willstrike overbroad, down, as statutes analyses, in bill the committee pressed or dissem- the communication prohibit that that the hearings, and the floor debate was merely that is “inde- ination of material solicitation of a minor on the crime of Mexico “sexually explicit.” New cent” or complete internet at the time of the crimi- enacted statutes that Virginia and solicitation, rather than at some internet the dissemination of non-obscene nalized if actually later time and when the actor sexually material to minors explicit but Furthermore, meets the child. the Su- internet, but federal courts held over preme rejected Court has the notion that unconstitutionally overbroad those statutes allowing the dissemination of “virtual” they because unconstitutional- under Reno would “whet the pornography appe- child speech.60 ly protected burdened otherwise pedophiles,” tites of and therefore could be statute, Looking present at the the com- banned.61 We must do the same here. protecting children from pelling interest Legislature But even if the did have an by predators sexual well served prohibit “grooming” intent to in subsection in prohibition subsec- solicitation-of-a-child (b), culpable prescribed mental state (c). (b) not tion But subsection does serve gratify that to arouse or may It compelling purpose. that same —“intent any person” the sexual desire of suspected from sexual protect children —is A narrowly drawn to achieve that end. they express any before ever predators acts, narrowly culpable more drawn mental illegal to commit sexual but it intent be “with intent to array state would induce the dissemination of a vast prohibits engage to conduct with the actor constitutionally protected speech and child or another argues pro- The State that this individual would constitute materials. 21.11,22.011, §§ target “grooming” by to a violation of or 22.021.”62 vision is intended Coalition, Ferber, 764-65, Speech 61. Free 535 U.S. at S.Ct. 1389. Johnson, 60. ACLU v. 194 F.3d 1158-60 Cervi, (10th Cir.1999) (law criminalizing People Mich.App. internet 62. See non-obscene, 616-17, 620, 356, 364-65, sexually explic dissemination of N.W.2d 366- overbroad; (2006) (upholding constitutionality it materials to minors was distin 67 750.145d, of MCL Reno); Ginsberg following provided: person guishing and PSI- which "A shall Net, computer ... Chapman, 362 F.3d not use the internet or a to Inc. (4th Cir.2004) (although prior prohib any person purpose with for the communicate commit, [cjommitting, attempting ... to iting sale of material harmful to children had commit, conspiring -soliciting pro another upheld, been amended version person proscribed of material to commit conduct under scribed dissemination harmful ... ... in which the victim or children over the internet was overbroad as it section 520d chilling upon by victim is a minor or is believed would have a effect otherwise intended minor”; person protected speech; those who communicate in to be a 520d criminal- person engages post sexually explicit ized conduct in which "the chat rooms or materials prevent juveniles penetration person on the internet cannot another [tjhat material). accessing person years ... other is at least 13 that, under Section may prosecuted the cur- sender be without suggests State 42.07(a)(7).64 free to perverts will be provision, rent with salacious emails children our bombard sum, statutory In we conclude that law parents messages, narrowly and text us is not drawn provision before it. stop compelling be unable effectuate a state interest would enforcement there are narrower means of observed, because are there just have But as we advanced achieving the State interests drawing a statute means of more narrow here, already at least some which “grooming.” phenomenon targét solic- prohibiting covered other statutes Moreover, 42.07 of the Penal section harassment, itation, obscenity, or the dis- law, already prohib- Code, the harassment of harmful material to minors. tribution communica- an electronic punishes its and Arguments. The State’s comment, request, sug- “makes tion that that is obscene.”63 proposal or gestion, that the Texas “sexu- argues The State Or, messages emails or text repeated if the communications” ally explicit obscene, they “reasonably are are not but the statute reach- narrowly drawn because abuse, harass, alarm, annoy, tor- likely to only “sexually explicit materials” and es child, ment, embarrass, requires that the actor commu- or offend” the the the statute Constitution, age”; concluding they age years the framers of the had the and under 16 future, gift seeing the defendant "accounta- would have that the statute held into words, sexually explicit intended that e-mails sent to but for the act of ble not for his seducing purpose a minor the mi- communicating perceived for with a minor'with crime”); engage illegal protect- nor sexual acts be to her the victim of a intent to make Amendment, Keister, 442, 445, ed under the First notwithstand- People Cal.App.4th v. 566, 569, (3 ing an 449-50, that identical communications to adult Cal.Rptr.3d protected."). People Dist.2011) would be See also (upholding constitutionality of 288.3, Foley, 94 N.Y.2d 709 N.Y.S.2d provided: § which Code Cal.Penal Backlund, (Ct.App.2000); N.E.2d 123 State v. "Every person who contacts or communicates (N.D.2003). 672 N.W.2d 431 minor, attempts to contact or com- with a or minor, who knows or reason- municate with 42.07(a)(1) ("A minor, person § person 63. Tex. Penal Code ably know that the is a should if, harass, with commits an offense intent to specified an with intent to commit offense abuse, alarm, torment, 209, 261, 264.1, 273a, 286, 288, annoy, or embarrass another, 288.2, 311.1, 311.2, 288a, person: initiates communica- 311.4 or tion and in the course of communication involving an 311.11 the minor” commits of- comment, fense; request, suggestion, makes a or unconstitutionally statute does not re- obscenef.]”). proposal that is protected speech because the defendant strict "unlawful intent” that must have an sexual 42.07(a)(7) ("A specific person § involves "the intent to commit an 64. Tex. Penal Code offense”); State, if, harass, enumerated sex Cashatt commits an offense with intent to 430, 433-34, abuse, torment, (Fla. alarm, annoy, 435 n. 1 1st or embarrass 873 So.2d Dist.2004) another, (upholding constitutionality person: repeated sends elec 847.0135(3), provid- Florida Statutes which tronic communications a manner reason harass, alarm, abuse, "Any person knowingly ably likely annoy, ed: who utilizes a to service, service, torment, embarrass, another.”); computer on-line Internet or or offend see seduce, solicit, State, (Tex. local bulletin board service Scott v. 322 S.W.3d seduce, lure, entice, solicit, attempt Crim.App.2010) (upholding or or harassment stat entice, lure, person speech a child or another a content-neutral restriction on ute as child, depend by person to be a to com- because it does not on what the com believed is, any illegal only mit act described” in certain sec- that the re munication defendant’s proscribing peated recipi tions sex offenses an of- commits calls intended harass the fense; ent). stating: grave "We have that doubts distinguish) appear to contradict materials with an intent those nicate sexual desires. gratify position. arouse or someone’s State’s arguments saves the stat- Neither of those Second, the State claims that unconstitutionally over- being ute from “explicit sexual communications” law is broad. specifically not overbroad because it “is First, that argues appellant the State widespread tailored battle use how intentional “has failed to demonstrate technology a tool Internet nature, conversations, sexually explicit in children, who prey spe adults on protected constitute with minors gratify cific intent to arouse or is, course, exactly That speech.”65 It law is nar argues desire.”69 regulate backwards.66 Statutes rowly require tailored this scienter this statute most content of —as protects ment. But the First Amendment assuredly presumed to be inval- does—are thoughts just protects speech.70 as it As id, appellant, and it is the warned, has validity.67 establish its The State must The government constitutionally “cannot any jurisdic- from single not cited a case premise legislation desirability on the of sexually explicit held that tion that has controlling person’s private thoughts.” a or “harmful” to speech that is not obscene First Amendment freedoms are most in protection the minors is outside danger government when the to seeks long Amendment as as the actor has First thought justify control or to its laws for gratify an intent to arouse or sexual de- that impermissible right end. The And, above, we are unable sire.68 as noted freedom, beginning think is the of any case or other state stat- to find such speech must be from the protected gov- Supreme The decisions ute. Court II, ernment because Reno, speech begin- is the Speech and Free Coali- Ashcroft (none ning thought.71 of which did the State discuss tion Coalition, 252-53, Speech Brief 71.Free 535 U.S. at 65. State's at 8. (quoting Stanley Georgia, 122 S.Ct. 1389 Brief, 557, 566, argued 66. In its the State that it was 394 U.S. 89 22 L.Ed.2d S.Ct. appellant’s (1969)). this burden to demonstrate that Stanley, In regulation speech content-based was un- Georgia’s prohibiting struck down law constitutional, argument, pros- but oral possession obscenity privacy in the of one's agreed scrutiny applies home, ecutor that strict explaining, apply presumption that courts should a anything, If the First Amendment means invalidity to content-based limitations on telling means that a State has no business speech. man, house, sitting alone in his own what may may books he read or what films he Grp., Playboy 67. United States v. See Entm’t heritage watch. Our whole constitutional 803, 817, U.S. thought giving government rebels at the (2000); accompany- refer L.Ed.2d 865 to text power to control men’s minds. ing supra. notes 8-19 yet, And in the face of these traditional liberty, Georgia notions of individual as- upon 68. For cases relied see right protect serts individual’s supra. note 51 obscenity. mind from the effects of We are argument not certain that amounts to (citing Brief at 3 State's Post-Submission Lo, anything 294-95). more than the assertion that the 393 S.W.3d at right State has the to control the moral 705, 714, person’s thoughts. Wooley Maynard, content of a (1977) (First parte Id. at 89 S.Ct. 1243. See also Ex 51 L.Ed.2d (Tex.Crim. thought”). protects Nyabwa, 366 S.W.3d Amendment "freedom of child, or own; child, intending to meet a ing a may his he sit thoughts A man’s Indeed, it conduct. any predatory other salacious and think his armchair who has to a Texas defendant apply would thoughts, discrimina- murderous thoughts, Mon- talk” with a child Outer “titillating thoughts he whatever thoughts, tory Mongolian who has salacious golia or “thought police.”72 chooses, free from In- with a child in Dallas. communications gets man out of his only when It is stead, all internet com- prohibits this law thoughts his upon acts armchair describing ex- relating to or munications protect To may intervene.73 the law by an to a sexual material adult plicit freely think and to citizens right of with the intent speaks minor if that adult sake, own the Su- for its protect speech But, sexual desire. gratify to arouse or “draw vital distinc- cases preme Court’s Amendment, the First it is consistent with ideas and conduct.”74 ... between tions a minor to designed conduct to induce 38.021(b) constitutionally prohibits titillating illegal an sex act with commit speech is cou- when protected not the titil- may proscribed, talk that be constitutionally protected pled with lating talk itself.76 thought. pro- need to compelling pro- that the statute suggests State has The State predators, but only

tect children hibits one-on-one communications— ie., narrowly “grooming” drawn who is predator this statute is the sexual prose- only legitimate goal “titillating achieve a child with talk.” But attempt predators who com- cuting “sexual statute is not limited to one-on-one minor, police posing munications; a officer to apply solicit a or instead it would one minor, activity the unlawful when who communicates via the internet a for one, ten, minors, up perhaps not show for the meet- a hundred does or individual not them salacious selections from particular provision sending does ing.” This child, the intent to tickle their fan- a meet- “Lolita” with soliciting an actor speak to while, P.J., (Keller, years, dissenting fully a for but sooner or to refusal for even App.2012) PDR) (addressing get you.”). purport they the later were bound to of defendant's narrowing improper photography the ed intent to on the defendant’s Slaton, statute based I Paris Adult Theatre 73. See desires; gratify "It is not arouse or 49, 67-68, 93 37 L.Ed.2d 446 U.S. only enough say that the statute is directed (1973) ("The drug addict are his fantasies of intent, thought consists of if the intent beyond government, but the reach of own protected by First Amendment. There is regulation drug government sales is not thought protected freedom of are limits to the Constitution; stating prohibited by the Amendment_ by But in the stat the First only regulations which have aimed at conduct us, person photographed ute could before thought effect on do not violate an incidental walking public fully-clothed be a adult down a freedom of mind man- the First Amendment's of this statute is breath street. The breadth date.”). regulates taking, type of intent that it and the inherently exempt not from First Amend Coalition, Speech 535 U.S. at 74. Free protection.”). ment S.Ct. 1389. ("The George 1984 bk. ch. Orwell, Comm, Jurisprudence, 75. House on Criminal get just thought police would him same. Leg., Analysis, H.B. 79th R.S. Bill Tex. committed, He had committed —would have (2005). pen paper even if he had never set —the essential crime that contained all others in notes, can with- Thoughtcrime, they appellant "One titillate called it. 76. As itself. trying Appellant’s Brief Thoughtcrime thing out to consummate." was not a that could be might dodge at 10. concealed forever. You success- 402.010, Furthermore, pertains Section as it to this it would be anomalous cy. case, provides: who makes “titillat- person that a to think (a) In action in a party the internet an which one minor over ing talk” to motion, litigation petition, files a but subject felony prosecution, may be challenging the pleading other constitu- “titillating who makes person that same state, tionality of a statute minors in a chat room talk” to two or more shall, attorney general if the court subject email is not through a mass party to or counsel involved As the Tenth Cir- prosecution. criminal notice of the litigation, serve constitu- Johnson, an such cuit noted ACLU copy question peti- tional “would lead to the absurd interpretation tion, motion, pleading or other that rais- of the statute would result that no violation challenge attorney general es the on the to two message if sent a occur someone by either certified or mail or registered minors, minors, or a or a chat room full electronically desig- to an e-mail address minor and an adult.”77 by attorney general nated for the of this section. Notice under reasons, purposes we hold that the For the above identify this section must in- applying erred in an appeals court of question, state basis the chal- uphold- review and in correct standard of motion, lenge, specify petition, constitutionality ing pleading or other that raises the chal- 33.021(b). reverse the decision of that We lenge. remand the case to the trial court and (b) may A court not enter a final court to dismiss the indictment. judgment holding a statute of this state the 45th af- day unconstitutional before OPINION ON STATE’S MOTION notice required ter the date Subsec- FOR REHEARING (a) attorney gener- on the tion is served al. PER CURIAM. (c) to file or A court’s failure serve submission, (a) original this Court held required by On notice as Subsection 33.021(b) deprive jurisdiction Penal does not the court of Section of the Texas Code timely or forfeit an otherwise filed claim facially The State unconstitutional. has challenge on the or defense based to the rehearing raising a for three filed motion constitutionality of statute of a this deny grounds, all three but grounds. We state. solely write to address the State’s first (d) This section or the state’s inter- in it

ground alleges which litigation response in in to notice vention finding Penal Section erred Code under this section does not constitute a 33.021(b) unconstitutional without first sovereign immunity. waiver of attorney general to the providing notice (Vernon 2011).1 Tex. Gov’t Code 402.010 to Section 402.010 of the Texas pursuant (a) triggered by filing Subsection of Government Code. Johnson, 1149, 194 F.3d 1. This version of Section 402.010 was enact- 77. ACLU ed, wholly provision, (10th Cir.1999) a new effective June as (rejecting government’s argu- 17, savings provision 2011. The contained in that court could narrow statute crimi- ment provided the house bill that the new section nalizing internet distribution of material filings apply made on or after its would by reading apply only harmful to minors it to date. was amended effective Section 402.010 communications). to one-on-one 2013, 1, September require that a effective ‘any attempt by one motion, requires fore pleading.” or other “petition, a discretionary government re- of to interfere department petition Appellant’s November null and powers in this Court on with the of another is view filed was ” Giles, the effective date of the 2012, parte Ex 7, (quoting after void.’ Id. well (Tex.Crim.App.1974)). June S.W.2d provision, express provision “reflects Our state’s (b) of that subsection suggests The State part of those who drafted and belief on the this Court prevents 402.010 constitution that one of adopted our state in case be- judgment final entering a liberty threats to is the accu greatest complied with the notice we have cause power single mulation of excessive (a) of forth subsection set requirement government.” of Armadillo Bail branch that both subsections holdWe 402.010. (Tex. 802 S.W.2d Bonds v. doctrine separation-of-powers violate the Langever see also v. Mil Crim.App.1990); constitution. of our state ler, 1025, 1035 124 Tex. 76 S.W.2d I. (“So (1934) important is this division of in power provided The Texas Constitution that it was governmental separation-of-powers express an of the first article of cludes for in the first section Texas, provision: Republic Constitution article of each and alone constituted of the Government of powers Constitution.”). succeeding into Texas shall be divided State departments, each of three distinct have viewed the Texas We separate confided to a shall be which generally susceptible to violation one of to wit: Those which body magistracy, ways: two one; are those which Legislative government when one branch as- another, and those which Executive delegated power or is “more sumes another; person, and no are Judicial branch, attached” to another properly one of persons, being or collection of unduly when one branch interferes departments, any shall exercise these with another branch so that the other properly attached to either power effectively branch cannot exercise its others, in the herein except instances constitutionally powers. assigned permitted. expressly Gill, 413 S.W.3d parte Ex II, § “single, Art. 1. The Tex. Const. see also Armadillo (Tex.Crim.App.2013); provides that tersely phrased paragraph, Bonds, Bail 802 S.W.2d 239. Section govern of the the constitutional division the assumption does not concern 402.010 departments (Legislative, ment into three power, pres- of a but rather delegation Judicial) intact, Executive and remain shall interference. question ents a of undue expressly herein ‘except the instances ” legis the permitted.’ Meshell v. 739 S.W.2d We examined interference judicial branch in Armadil (Tex.Crim.App.1987). This divi lature the State, in power granted sion one lo Bail Bonds v. which we ad ensures a statute a trial may by only barring branch be exercised dressed whether branch, entering judg a bond-forfeiture to the exclusion of the others. court from months after the date separation powers eighteen “The of doctrine there ment until directing party making challenge general!,]” and the Office of Court a constitutional such adopt party "indicating to the form that a file a form with the court which Administration attorney purposes. pleading be on the should use for such should served There are felony “spheres activity in a case so so of the forfeiture court, necessary to a fundamental and so it judicial a function that violated usurped court, very in its nature a so inherent as began our anal powers. We separation that to divest it of its absolute command examining judicial the nature of ysis by spheres meaning within these is to make judicial pow that “core power, recognizing very judicial Ar phrase power.” less (1) power to hear evi er” embraces the Bonds, madillo Bail 802 S.W.2d at 241 (3) (2) issues; dence; to decide the to Omholt, (quoting Coate v. 203 Mont. law; questions the relevant decide (1983)). Requiring 662 P.2d 591 that the judgment enter a final on the facts and the entering court refrain from a final judg law; judgment the final to execute year felony ment for a and a half in a case Bonds, sentence. Armadillo Bail and for nine months a misdemeanor provision at 239-40. Because the S.W.2d case, Id.; Matyas was such a divestiture. required at issue the trial court to refrain tik, Granted, eighteen- at 104. S.W.2d exercising part powers a of its core month and nine-month restrictions are (the judgment) to enter a final for a power considerably longer 45-day than a restric half, year unduly of a and a it period potential length delay tion. But the judiciary’s with the effective ex interfered is not much the problem so fact of In powers. its constitutional ercise of attempted interference at all. Enter (Tex. 811 S.W.2d 102 Matyastik, State v. ing judgment judicial a final is a core dealt with a Crim.App.1991), Court power; judicial it falls within that realm of different subsection of the same statute at proceedings “so vital to the efficient func Bonds, specifical in Armadillo Bail issue tioning beyond legisla of a court as to be ly, barring judgment a final subsection Bonds, power.” tive Armadillo Bail in a forfeiture case until bail-bond Thus, 45-day at 240. S.W.2d time of nine months after the date of expiration (b) for in a provided frame subsection Ap the forfeiture in a misdemeanor case. constitutionally imposition intolerable on plying reasoning holding from Ar power judgment court’s to enter a final Bonds, Bail held that madillo separation powers. and a violation of separation powers violated provision legislative A of a enact portion as well. Id. at 104. ment, unconstitutional, if declared does necessarily mean that the entire act is II. invalid: Section 402.010also contains a Invalidity part legislative of a en- [of purporting suspend power court’s act, destroy does not the entire actment] (b) judgment. enter a final Subsection part intermingled unless the valid is so 402.010reads: with all the act parts of so as to make may judgment A court not enter a final them, impossible separate and so as holding a statute of this state unconsti- preclude presumption day tutional before the 45th after the legislature passed would have the act (a) required by Subsection is date notice anyhow. general. attorney served on the Meshell, (quoting 739 at 257 Tex. S.W.2d judg- a provision attempts suspend Jur.3d). This to provi is whether the test Court, court, any virtually ment of this or “essentially inseparably and con sions indefinitely, forty-five days or until after nected in substance.” Id. subsec While (b) attorney provided changing notice has been to the tion could be excised without (a). (a), in the substance of subsection its removal general accordance subsection III. provision unen the notice render would attorney forceable, given particularly stated, we hold that For the reasons in criminal cases.2 role limited general’s 402.010(a) (b) an and constitute Section result, 402.010 not would As a separation of unconstitutional violation of enforcement without make sense motion for deny the State’s powers.3 We (b). for in subsection provided mechanism grounds. on all rehearing as a whole See id. at 257-58 (“provision use” of reasonable incapable rendered passed not have would legislature

since KELLER, P.J., concurring filed a including enforce without provision entire opinion. mechanism). ment promulgate responsibilities to prosecutor powers and of a local the consent 2. Absent attorney county appellate proce evidence and rules of request of a district rules of State, assistance, very attorney general limit has dure for criminal cases. See Johnson represent (Tex.Crim. the state in criminal authority to ed & n. S.W.3d 668-69 courts, less in the and even cases in trial App.2002) (discussing history and recent See and this Court. Saldano appeals courts of scope authority promulgate to rules of Court’s (Tex.Crim. State, 70 S.W.3d procedure). Legal appellate evidence and of (attorney general has no criminal App.2002) present proceedings us involve claims before generally authority, limited prosecution but is and, upon by parties, depending the nature ed litigation); in civil representing the State to variously upon proceeding, call of (with see, 31.03(j) § con e.g., Tex Penal Code evidence, con to consider and review attorney general prosecutor, has of local sent laws, legal apply hear and decide strue and prosecute in jurisdiction to thefts concurrent enter, issues, judg adjudicate rights, and final volving program); Tex. Penal Medicaid state constitutionality of a state ments. While (with prosecu of local § 32.32 consent Code challenged by party frequently a statute is tor, jurisdic attorney general has concurrent facing among legal this therefore issues is Court, in prosecute made to false statements tion attorney general typically loans); volving mortgage Penal Code Tex. any pro represent the in authorized to State 35A.02(f)(with prosecutor, § consent of local 2, supra. ceeding fn. before this Court. See jurisdiction attorney general has concurrent attorney primary prosecuting has The state 35A, Chapter under prosecute to offenses authority represent pro the State in all to Fraud); § Medicaid 35.04 Penal Code Tex. See, Saldano, ceedings e.g., before this Court. pros (attorney general may offer assistance to 877; Taylor, parte Ex 36 S.W.3d 70 S.W.3d may pros ecutor in insurance fraud case (Tex.Crim.App.2001); Aguirre v. request on of ecute or assist such case (Tex.Crim.App. S.W.3d (with prosecutor); 39.015 Tex. Penal Code 1999). prosecutor, attorney general of local consent (a) notify the The subsection directive to jurisdiction prosecute of has concurrent every attorney general constitutional chal- Office). Chapter fenses under Abuse party im- lenge a state statute made is, Thus, attorney general with a few ex duty wholly unrelated to the poses a that is courts, ceptions not authorized in Texas trial judicial powers and functions. Pursu- Court’s represent in criminal cases. the State provision, legislature this unusual ant to (a), standing would this Court exercise function that subsection have

3. We also note alone, non-judicial operate powers only but would separation violates because is not duty attorney attempts impose solely apparent that falls outside benefit of the for the any judicial attorney general. functions what extent the and is unrelated to And to powers receiving Court. general of this such a would benefit from elusive, .given attorney gen- that the notice is jurisdiction ap This Court has over direct authority appear cases, in criminal has no eral peals capital petitions for discretion Indeed, and, review, legisla- this Court. ary corpus cases before of habeas writs matters, mandamus, history strongly suggests that the drafters tive criminal law writs either were unaware of the procedendo, prohibition, and certiorari. Tex. V, authority attorney general certain limited of the in Art. 5. We also have Const. KELLER, P.J., suggestion no in concurring language There is this filed length delay that the of the had any bear- opinion. ing unconstitutionality on the statute’s State, Bonds v. In Armadillo Bail delay that a shorter would have satisfied delayed legislation down struck Court the Texas Constitution. I do not think judgments by eighteen certain entry the constitutionality of the statute in case, the of the length In that months.1 upon the depends length this case particu- to have been delay does not seem delay. mandated This larly relevant to the decision. Condran, In State v. I dissented to the said: petition Court’s refusal of a that claimed a is, as Armadillo ar- requirement If this separation powers.3 violation of I con- Legisla- gues, a valid exercise of the cluded: administra- power judicial

ture’s over Meshell,4 Jones The lesson drawn from tion, noted, then, appeals as the court of State],5 [State [v. Williams6 is v.] “nothing prevents legislature legislatively imposed that a deadline for imposing an interminable delay in ob- prosecutorial Separa action violates the add- taining judgment.” (emphasis (1) final remedy tion of Powers Clause if ed). words, if Article In other failing seriously for to meet the deadline 22.16(c)(2) valid, Legislature then prosecutor’s disrupts ability per Judiciary duties,7 power has the render form his the deadline cannot entry impotent respect justified necessary with be to effectuate a interest,8 superior constitutional judgments.2 final cases, (Tex. apply it to 111 Tex.Crim. 38 S.W.2d 592 criminal or never intended (statute Compare Crim.App.1931) depriving to criminal cases at all. officers of House authority speeding to arrest for un violations Judiciary Jurisprudence, Civil Bill Comm. On & Leg., wearing specific "legiti Analysis, Tex. 82nd R.S. less uniform did not H.B. (2011) (drafters sought attorney gen- mately legality to afford affect or fairness” of the and was unwarranted opportunity eral to "intervene and defend” arrest interference involving challenges separation powers). cases constitutional violation of "goal” that the state statutes and also stated (Tex.Crim.App.1990). 1. 802 S.W.2d 237 attorney gen- improve of the bill was "to ability to defend and to eral’s the state save (emphasis 2. Id. at Armadillo Bail the state the cost of an appeal”); State Af- Bonds). Leg., Tex. H.B. 82nd Analysis, fairs, Bill (2011) ("notice attorney would allow the R.S. (Tex.Crim.App.1998) 3. 977 S.W.2d general opportuni- to be able to have the best J., (Keller, dissenting), analysis adopted by Ex state, saving ty while to defend also (Tex.Crim. parte Young, 213 S.W.3d money by avoiding unnecessary ap- state an App.2006). 2, supra. peal process") with fn. 402.010(a) purports Because Section (Tex.Crim.App.1987). 4. 739 S.W.2d 246 undertaking with burden this Court useless non-judicial by providing act notice (Tex.Crim.App.1991). 5. 803 S.W.2d any which would not further or relate to judicial powers, this Court’s functions or (Tex.Crim.App.1997). S.W.2d 456 unduly infringes upon interferes with and our constitutionally assigned powers. See Arma Bonds, prejudice required by (separa Dismissal dillo Bail 802 S.W.2d at 239 Speedy Trial Act. powers provision effect tion of has "incidental government by assign promoting effective prosecutor ready if ing that are best 8. Release on bond functions to branches them”); discharge Scoggin within certain time. trial suited to cf. contractually sub did not prosecutor deadline.9 mit to the Texas The STATE of legisla- lesson to the same apply I would the en- regarding deadlines tively imposed case, the In this judgment. final try of Larry Ray SWEARINGEN, Appellee. to meet the deadline failing

remedy for ability per- a court’s seriously disrupts No. AP-77020. a court from prevents it form its duties: I function. see judicial a core performing of Texas. Appeals Court of Criminal interest, let constitutional conflicting no interest. constitutional superior alone a Feb. that courts suggestion is no And there to the dead- contractually submitted have case,

line, example, for when as is the Inter- pursuant to is obtained

prisoner on Detainers. Agreement

state

Furthermore, ap- the notification statute Court, but to all just to this

plies not know what burden I do not

courts. on trial place would courts but, during the last fiscal of appeals,

courts of well over nine

year, disposed this Court Many pleadings matters.

thousand that a statute vio- our claim

before Court agree I with the

lates the constitution. (a), requires which

Court that subsection Attorney General with

courts to serve pleadings the relevant copy

notice and a cases, also violates the Texas all of these imposes duty

Constitution because judicial function of this any

falls outside of

Court.

Finally, point I out

makes available on its website list of upon discretionary

issues which review has Any challenge to the con- granted.

been is before us

stitutionality of a statute that granted petition means of a discre- is, therefore,

tionary already easily review

ascertainable. join judgment

I of the Court. Regarding speedy to a contract when he obtained trial of Inter- submitted Detainers, pursuant Agreement prosecutor prisoner to the act. state on

Case Details

Case Name: Lo, Ex Parte John Christopher

Court Name: Court of Criminal Appeals of Texas

Date Published: Oct 30, 2013

Citation: 424 S.W.3d 10

Docket Number: PD-1560-12

Court Abbreviation: Tex. Crim. App.