Texas Criminal First Amendment Action


Here’s a survey of what’s going on in Texas with regard to the First Amendment in criminal cases:

Texas Penal Code Section 33.021(b) (online solicitation by explicit communication) was held unconstitutional by the Texas Court of Criminal Appeals in Ex Parte Lo. In Ex Parte Chance the Court of Criminal Appeals granted relief on habeas to someone who hadn’t raised the unconstitutionality of the statute either in the trial court or on direct appeal. Concurring, Judge Cochran stated that the petitioner was actually innocent (not argued by the petitioner). Dissenting, Judge Keller suggested that the issues presented should have been briefed and more carefully considered.
Pending issues include whether a person convicted only of violating a void statute is actually innocent, so that he is (if he went to prison) entitled to compensation for his wrongful conviction; and whether a 33.021(b) conviction should be reversed on direct appeal where the unconstitutionality of the statute was not raised in the trial court.I have the former issue (innocence) in two article 11.07 postconviction writs, out of Montgomery County and Harris County. The State has agreed to relief, and agreed to innocence. We’ll see what the Court of Criminal Appeals does.Nic Hughes of the Harris County PD’s Office and I have won the latter issue (unconstitutionality raised for the first time on direct appeal after the statute has been invalidated in another case) in intermediate courts of appeals (Schuster in the First, and Sanders in the Sixth, respectively). Gerald Bourque of the Woodlands has it before the Court of Criminal Appeals in Smith v. State. Argument will probably be this fall; I’ll watch and report back.

Texas Penal Code Section 33.021(c) (online solicitation, but not really) has been upheld by various intermediate courts of appeals, but the challenge has not yet reached the Court of Criminal Appeals. Various cases are pending in trial courts, and Butch Bradt of Houston has petitioned the Court of Criminal Appeals for discretionary review in Ex Parte Victorick out of the Beaumont Court of Appeals. If that is denied, I have several pretrial writs pending on the issue in Montgomery County and Austin County; I expect that we’ll have to take them up to the CCA.

Section 36.03 of the Texas Penal Code (Coercion of a Public Servant) has been challenged by habeas (PDF) in Rick Perry’s case. The statute is as stinky as can be—”coercion” includes a threat “to expose a person to hatred, contempt, or ridicule,” so if you threaten to make fun of your congresswoman if she doesn’t vote the way you want you are committing a crime—and I don’t think it’s going to stand up to David Botsford’s attack in the Perry case. Whether it dies as written (because of stinkiness) or as applied is, I think, the open question. ((As an aside, while everyone else seems to agree that Perry is charged with two felonies, Count II looks like a misdemeanor accusation to me—coercion of a public servant is a felony only if the coercion is a threat to commit a felony, and the State has neither alleged that the coercion was a threat to commit a felony, nor alleged the coercion in terms that would put a defendant on notice that the State believes it to be a felony…

threatening to veto legislation that had been approved and authorized by the Legislature of the State of Texas to provide funding for the continued operation of the Public Integrity Unit of the Travis County District Attorney’s Office unless Travis County District Attorney Rosemary Lehmberg resigned from her official position as elected District Attorney.))

Texas Penal Code Section 21.15 (Improper Photography (taking pictures)) is under challenge in the Court of Criminal Appeals in Ex Parte Thompson. I watched the arguments in May. We should see an opinion this fall. If the statute is held unconstitutional, then all of Section 21.15 (including the publishing pictures portion) goes down. If the statute is upheld (for example, because of the State’s silly argument that everyone appearing in public “consents” to being photographed), then…

Texas Penal Code Section 21.15 (Improper Photography (publishing pictures)) is still vulnerable to First Amendment attack. I have a pretrial habeas on hold in the 208th District Court; if the petitioner wins Ex Parte Thompson, we win. If the petitioner loses Ex Parte Thompson, Judge Collins gets to rule on my writ and the loser gets to appeal.

Texas Penal Code Section 33.07(a) (Online Impersonation (using the name of another person online to harm him)) is not being defended by the Harris County DA’s Office. I’ve filed two pretrial writs attacking that statute, and the State has dismissed the prosecutions in both cases, to refile under two other statutes. I’m hoping someone will bring me in on a case in a county where the DA is interested in defending the constitutionality of penal statutes.

In one case the State went from Online Impersonation to Fraudulent Use or Possession of Identifying Information under Texas Penal Code Section 32.51. That statute forbids “using” someone’s name with the intent to “harm” him; the terms in quotes are not narrowly defined, so if I call you by name and insult or embarrass you (“harming” you) I am committing a felony. I filed a writ in the 177th District Court attacking this statute; Judge Patrick foolishly denied relief, ((Oops! Felony!)) and I filed notice of appeal. I’ve also filed writs in other courts challenging the constitutionality of the Fraudulent Use or Possession of Identifying Information statute. I’ll keep you posted.

In another case the State went from Texas Penal Code Section 33.07(a) (a felony) to Section 33.07(b) (Online Impersonation (sending an email or similar communication using someone else’s name to trick someone and harm someone else), a misdemeanor). They have some pleading problems, but if they are able to sort those out we’ll file a writ and it’ll go up on appeal.

In Ector County (Odessa, Texas) I have filed a pretrial writ challenging the constitutionality of Texas Penal Code Section 21.12(a)(3) (Improper Relationship Between Educator and Student), which incorporates Section 33.021. Among other arguments, the incorporation of an unconstitutional statute invalidates Section 21.12(a)(3).


4 responses to “Texas Criminal First Amendment Action”

  1. Dear Mr. Bennett I appreciate your noble efforts to challenge Texas Statue 33.07 (A) I just recently had a loved one who was indicted under the Statue. He accepted a 10 yr. deferred adjudication probation plea deal to avoid the risk of being sent to prison for up to 10 yrs. My hope is that the Statue will eventually be overturned by an Appeals Court in the not too distant future. if and when it is, I wonder what the likelihood is that it would be retroactively applied and how that would effect my loved ones deferred adjudication probation status.

    • Doyle, it will almost certainly be overturned, unless every Texas county dismisses every case in which a pretrial challenge to the constitutionality of the statute is filed (what your loved one’s lawyer should have done). Once it’s overturned, that should (following the example of 33.021(b)) provide relief to people who were convicted or took deferred adjudication because their lawyers didn’t challenge the statute.

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