JIM R. WRIGHT, CHIEF JUSTICE.
April Collins stands charged by indictment with four counts of improper relationship between educator and student. See Tex. Penal Code Ann. § 21.12 (West Supp.2014). Collins filed in the trial court a pleading in which she sought to quash the indictment and to obtain habeas corpus relief based upon her contentions that the indictment was faulty and that the statute under which she was indicted is unconstitutional. The trial court held a hearing and denied the relief requested by Collins. We affirm in part and reverse in part.
Collins presents six points of error in this appeal. In the first point, she contends that each count in the indictment omits an essential element of the crime. In her remaining five points, Collins challenges the constitutionality of the statute under which she was charged. In each
Collins specifically complains in her first point of error that the indictment should have been quashed because an element of the offense was missing from each count in the indictment. Collins asserts that each count failed to allege that CD was "a minor," and she argues that CD's being "a minor" as defined by Section 33.021 was an essential element of the crimes charged because Section 33.021 is subsumed within Section 21.12(a)(3). See Penal §§ 21.12(a)(3), 33.021 (West 2011). We disagree.
Collins was charged with committing four offenses under Section 21.12(a)(3). That statute provides in relevant part as follows:
PENAL § 21.12(a)(3) (emphasis added). Section 33.021 criminalizes the online solicitation of "a minor."
Based upon the plain language used by the legislature, we interpret Section 21.12(a)(3) to reference only the "conduct" that is criminalized by Section 33.021. The legislature's inclusion of the language "regardless of the age" of the student in Section 21.12(a)(3) indicates that the legislature did not intend to include Section 33.021's requirement that the student be "a minor" as defined by Section 33.021. By doing so, the legislature made it an
In her remaining points of error, Collins challenges the constitutionality of Section 21.12(a)(3) based upon its incorporation of Section 33.021 — a statute that has been held to be unconstitutionally overbroad in part. See Ex parte Lo, 424 S.W.3d 10, 14 (Tex.Crim.App.2013) (holding that Section 33.021(b) was overbroad because it prohibited a wide array of constitutionally protected speech and was not drawn narrowly enough to achieve only the legitimate objective of protecting children from sexual abuse). The constitutional complaints raised by Collins in the trial court and in her second through sixth points of error on appeal are that Section 21.12(a)(3) is overbroad and violates the First Amendment, is vague and violates her due process rights, offends the Dormant Commerce Clause, offends notions of privacy and liberty that are tied to her due process rights, and does not comport with constitutional equal-protection standards. See U.S. Const. amends. I, XIV; art. I, § 8.
A defendant may file a pretrial application for writ of habeas corpus in order to raise a facial challenge to the constitutionality of the statute under which the defendant is charged. Ex parte Thompson, 442 S.W.3d 325, 333 (Tex.Crim. App.2014). Whether a statute is facially unconstitutional is a question of law subject to de novo review. Lo, 424 S.W.3d at 14. When the constitutionality of a statute is attacked, a court usually must presume that the statute is valid and that the legislature has not acted unreasonably or arbitrarily. Id. at 15. With respect to constitutional provisions other than the First Amendment, a facial challenge to the constitutionality of a statute will succeed only if it is shown that the statute is unconstitutional in all of its applications. State v. Johnson, No. PD-0228-14, 2015 WL 5853115, at *2 (Tex.Crim.App. Oct. 7, 2015).
However, when the statute restricts and punishes speech based on its content, the usual presumption of constitutionality does not apply. Lo, 424 S.W.3d at 15. Instead, content-based regulations are presumptively invalid, and the State bears the burden to rebut that presumption. Id. A court must use strict scrutiny in its review of a content-based regulation. Thompson, 442 S.W.3d at 344-45; Lo, 424 S.W.3d at 15-16. "To satisfy strict scrutiny, a law that regulates speech must be (1) necessary to serve a (2) compelling state interest and (3) narrowly drawn." Lo, 424 S.W.3d at 15 (citing Sable Commc'ns of Cal., Inc. v. FCC, 492 U.S. 115, 126, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989)). To be narrowly drawn, the statute must use the least restrictive means to achieve its goal, and there must be a close nexus between the State's compelling interest and the restriction. Id. A statute does not satisfy strict scrutiny if a less restrictive alternative would be at least as effective in achieving the State's legitimate goal. Reno v. Am. Civil Liberties Union, 521 U.S. 844, 846, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997); Lo, 424 S.W.3d at 15-16. The court in Lo noted that, "when the content of speech is the crime, scrutiny is strict because ... the First Amendment means that government has no power to restrict
In her second point of error, Collins urges that, because of its incorporation of Section 33.021, Section 21.12(a)(3) is overbroad and violates the First Amendment of the United States Constitution. We address this point of error in two parts. We first address it with respect to Section 33.021(b), which regulates speech based upon its content and is, thus, presumed to be invalid. We next address the second point of error with respect to Section 33.021(c).
As Collins points out, the Court of Criminal Appeals has already determined that Section 33.021(b),
In Lo, the Court of Criminal Appeals acknowledged that the State has a compelling interest in protecting children from sexual predators. Lo, 424 S.W.3d at 19. And we would posit that the State also has a compelling interest in protecting students enrolled in primary and secondary schools in this state and in providing a safe educational environment conducive to learning. Section 33.021(b), however, is not narrowly tailored to achieve these legitimate goals. As pointed out by the court in Lo:
Id. at 20 (footnotes omitted). Thus, Section 21.12(a)(3), through its incorporation of Section 33.021(b), would prohibit educators from electronically communicating with their students about valid, non-obscene topics. Following the rationale of the Court of Criminal Appeals in Lo, we
Count IV of the indictment implicates Section 33.021(c), not (b). With respect to Count IV of the indictment, Collins argues that Section 21.12(a)(3) insofar as it incorporates Section 33.021(c) regulates speech based upon its content, is unconstitutionally broad, and violates the First Amendment. Section 33.021(c) provides:
PENAL § 33.021(c). In simplified terms, we understand the combination of Sections 21.12(a)(3) and 33.021(c) to criminalize a primary or secondary school employee's solicitation, via electronic means, of a student with whom the employee has a school connection when the employee solicits the student to meet with the employee or someone else and intends for the student to engage in certain sexual behavior. As noted by the Court of Criminal Appeals in Lo, "it is the conduct of requesting a minor to engage in illegal sexual acts that is the gravamen of the offense" in Section 33.021(c). Lo, 424 S.W.3d at 16-17; see Ex parte Wheeler, No. 01-14-00868-CR, 2015 WL 5770850, at *3 (Tex.App.-Houston [1st Dist.] Sept. 29, 2015, no. pet. h.) (not yet released for publication) (concluding that Section 33.021(c) "regulates conduct and unprotected speech"); Ex parte Victorick, No. 09-13-00551-CR, 2014 WL 2152129, at *2-3 (Tex.App.-Beaumont May 21, 2014, pet. ref'd) (mem. op., not designated for publication) (concluding that Section 33.021(c) regulates conduct, not the content of speech alone), cert. denied, ___ U.S. ___, 135 S.Ct. 1557, 191 L.Ed.2d 638 (2015). Likewise, it is the school employee's conduct of requesting the student to engage in illegal
Because Section 21.12(a)(3) through its incorporation of Section 33.021(c) regulates the conduct of requesting a student to engage in illegal sexual acts — rather than speech based upon the content of the speech, as in Section 33.021(b) — we must presume that the statute is valid and that the legislature has not acted unreasonably or arbitrarily. See Rodriguez v. State, 93 S.W.3d 60, 69 (Tex.Crim.App.2002); see also Lo, 424 S.W.3d at 15. Collins has the burden to establish the unconstitutionality of Section 21.12(a)(3) through its incorporation of Section 33.021(c). See Rodriguez, 93 S.W.3d at 69.
A statute is impermissibly overbroad if, in addition to proscribing activities that may be constitutionally prohibited, its sweeping coverage also proscribes speech or conduct that is protected by the First Amendment. Bynum v. State, 767 S.W.2d 769, 772 (Tex.Crim.App.1989). Particularly where conduct and not merely speech is involved, the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep. Broadrick
The First Court of Appeals addressed and rejected an overbreadth challenge to Section 33.021(c). Maloney v. State, 294 S.W.3d 613, 626-28 (Tex.App.-Houston [1st Dist.] 2009, pet. ref'd). Furthermore, we observe that the Court of Criminal Appeals intimated in Lo that Section 33.021(c), in "contrast" to Section 33.021(b), was constitutional. Lo, 424 S.W.3d at 17. The Lo court also pointed out that the First Court of Appeals had upheld the constitutionality of Section 33.021(c). Id. (citing Maloney, 294 S.W.3d at 625-29). The overbreadth of Section 33.021(c) is not substantial when judged in relation to the statute's plainly legitimate sweep, which is the legitimate goal of the "prevention of sexual exploitation and abuse of children ... a government objective of surpassing importance." Maloney, 294 S.W.3d at 628 (citing New York v. Ferber, 458 U.S. 747, 773, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982); Broadrick, 413 U.S. at 615, 93 S.Ct. 2908).
Likewise, at least two of our sister courts have rejected an overbreadth challenge to the face of Section 21.12, which at that time criminalized physical sexual contact between school employees and students, not electronic communications as described by Section 33.021. In re Shaw, 204 S.W.3d 9, 14-15 (Tex.App.-Texarkana 2006, pet. ref'd); see Morales, 212 S.W.3d at 492. We note that the legislature did not incorporate Section 33.021 into Section 21.12 until 2007; thus, the courts in Shaw and Morales were not faced with the same issue that is before us. See Act of May 21, 2007, 80th Leg., R.S., ch. 610, § 1, 2007 Tex. Gen. Laws 1167.
Although Section 21.12(a)(3), via its incorporation of Section 33.021(c), could apply to situations in which the student is a consenting adult, we cannot say the statute is impermissibly broad when judged in relation to its "plainly legitimate sweep, i.e., employees and students in primary and secondary schools, when the vast majority of such students are undoubtedly not adults." Shaw, 204 S.W.3d at 15. The present case is similar to Shaw in that the record before us contains no data about what percentage of secondary school students affected by the statute are adults. Thus, even if the statute "could be said to infringe on fundamental First Amendment rights of those students and employees who are of age," there is nothing in the record before us to indicate that Section 21.12(a)(3), via its incorporation of Section 33.021(c), reaches a substantial amount of constitutionally protected conduct. Id. The Morales court similarly concluded that Section 21.12 did not implicate a substantial amount of conduct protected under the First Amendment. 212 S.W.3d at 492. Following the rationale of the courts in Lo, Maloney, Shaw, and Morales and the authorities cited therein, we hold that Section 21.12(a)(3) insofar as it incorporates Section 33.021(c) is not unconstitutionally overbroad. Accordingly, the trial court did not err in failing to dismiss Count IV of the indictment on overbreadth grounds.
We sustain Collins's second point of error in part and overrule it in part. Because we sustain that portion of the second point of error that relates to Counts I, II, and III of the indictment, we need only address
In her third point of error, Collins contends that the statute under which she is charged is unconstitutionally vague. Collins asserts that "Section 21.12, by its incorporation of Section 33.021(c), forbids `solicitation' that is not intended to result in a meeting." We disagree. A statute will be invalidated on vagueness grounds if it fails to give a person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited. State v. Holcombe, 187 S.W.3d 496, 499 (Tex.Crim. App.2006). The combination of Sections 21.12(a)(3) and 33.021(c) provides that a primary or secondary school employee commits an offense if, via electronic means, the employee knowingly "solicits" a student — with whom the employee has a school connection as specified in the statute — "to meet" with the employee or someone else and if the employee has "the intent that the [student] will engage in sexual contact, sexual intercourse, or deviate sexual intercourse" with the employee or another person. PENAL §§ 21.12(a)(3), 33.021(c). These sections, as combined, are not unconstitutionally vague and do not forbid solicitations made with no intent to result in a meeting. See Wheeler, 2015 WL 5770850, at *4-5 (rejecting similar argument, determining that Section 33.021 is not unconstitutionally vague, and holding that Section 33.021(d) refers only to the solicitor's intent post-solicitation); Ex parte Zavala, 421 S.W.3d 227, 231-32 (Tex. App.-San Antonio 2013, pet. ref'd) (same). We overrule Collins's third point of error.
In her fourth point, Collins argues that Section 21.12, by its incorporation of Section 33.021(c), violates the Dormant Commerce Clause because "it unduly burdens interstate commerce by attempting to place regulations on the entirety of the Internet." Collins asserts that the "negative aspect" of the Commerce Clause prohibits state legislation that unduly restricts interstate commerce. The arguments asserted by Collins were specifically rejected by our sister court in Wheeler. There, the court of appeals held that Section 33.021(c) is an "even-handed" statute designed for the legitimate purpose of protecting children from sexual predators and that "the effect of the statute on interstate commerce is only incidental in relation to the local benefit of the statute." Wheeler, 2015 WL 5770850, at *5. We agree and, likewise, reject the challenge to Section 21.12(a)(3), by its incorporation of Section 33.021(c), made by Collins under the Dormant Commerce Clause. Collins's fourth point of error is overruled.
In her fifth point, Collins argues that Section 21.12(a)(3) deprives consenting adults of their fundamental rights to liberty and privacy to which they are entitled under the Due Process Clause of the Fourteenth Amendment. Collins asserts that Section 21.12(a)(3), by its incorporation of Section 33.021(c), reaches far beyond a legitimate state interest and "punishes school employees who choose to exercise their right to solicit sex with any other consenting adult who is currently enrolled as a student" if certain criteria are met. Collins acknowledges that "the morality and ethics of some may abhor the idea of sexual solicitation between educator and student, even as between consenting adults," and points out that the obligation of this court is to define the liberty of all, not to mandate our own moral code. See Lawrence v. Texas, 539 U.S. 558, 571, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003).
Contrary to Collins's assertion, we do not believe that the statutes at issue here implicate a fundamental right. The Court in Lawrence did not hold that the
In her final point, Collins argues that Section 21.12(a)(3) violates the equal protection guarantee of the Fourteenth Amendment because it treats relationships between consenting adults differently based upon the adults being in a particular group: school employees and students. Collins specifically asserts that there is "no rational basis for restricting public-school employees' sexual communications with other adults who happen to attend school in the same district." We disagree.
Under the Equal Protection Clause of the Fourteenth Amendment, all persons similarly situated shall be treated alike under the law. Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982); Wood v. State, 18 S.W.3d 642, 651 n. 9 (Tex.Crim.App.2000). Because Sections 21.12(a)(3) and 33.021(c) do not implicate a fundamental right or discriminate against a suspect class, a rational basis test is appropriate. See Shaw, 204 S.W.3d at 17-18; Morales, 212 S.W.3d at 501; see also Wood, 18 S.W.3d at 650. Collins thus has the burden to show that the statutory classification is not rationally related to a legitimate state interest. See Wood, 18 S.W.3d at 650-51. As we stated above, the State has a legitimate interest in preventing the sexual exploitation of students by educators and in preserving an educational environment conducive to learning. See Shaw, 204 S.W.3d at 18. The statutory classification set out in Section 21.12(a)(3) is rationally related to those legitimate interests. Collins has not met her burden of showing otherwise. We overrule Collins's sixth point of error.
We affirm the order of the trial court in part, and we reverse it in part. We remand the cause to the trial court with instructions to dismiss Counts I, II, and III of the indictment. The trial court may proceed under Count IV of the indictment against Collins.