2015.89: “Oops,” he explained.

Originally published by Mark Bennett.

(I’m pretty sure my title is a JDogism.)

In my recent Texas First Amendment Update I omitted one of the statutes I’m challenging: Texas Penal Code Section 21.12(a)(3), the Improper Relationship Between Educator and Student statute.

You’ll realize by now that the titles of Texas penal statutes often inaccurately describe the forbidden conduct. For example, the Online Solicitation of a Minor statute forbade non-soliciting communications to adults; the Fraudulent Use of Identifying Information statute and the Online Impersonation statute both forbid the nonconsensual “use” of someone’s name with intent to harm (so basically criticism). The Improper Relationship statute forbids employees of a public school, from the principal to the janitor, doing certain things with students in the same school district, regardless of the students’ age.¹

Among those things that are forbidden: “engag[ing] in conduct described by Section 33.021.”

But the Court of Criminal Appeals in Ex Parte Lo held unconstitutional Section 33.021(b). So in a case in Odessa, Texas I used a pretrial application for writ of habeas corpus to attack Section 21.12(a)(3). The trial court denied relief² and we appealed to the 11th Court of Appeals in Eastland, Texas.

Why I failed to mention this in my recent update, I couldn’t say.

Last week the Eastland court, not known for being a warm and fuzzy place for criminal defendants, agreed with me that Section 21.12(a)(3), in combination with Section 33.021(b), is unconstitutional. They didn’t go along with me on Section 21.12(a)(3) in combination with Section 33.021(c), which I haven’t yet killed, but the State will probably file a petition for discretionary review with the Court of Criminal Appeals, the Court of Criminal Appeals will probably grant it (since the court of appeals held a statute unconstitutional), and we will probably file our own petition.

So. Statutes I’ve killed or seriously wounded:

• Tex. Penal Code Section 33.021(b)
• Tex. Govt. Code Section 402.010
• Tex. Penal Code Section 21.12(a)(3) (struck by the Eleventh Court of Appeals, so not binding precedent statewide).
• Tex. Penal Code Section 21.15(b)(2) (struck by the trial court, so no precedential value, but the State is appealing).
• Tex. Penal Code Section 33.021(c) (struck by the trial court, so no precedential value, but the State is appealing).
• Tex. Penal Code Section 32.51 (struck  by the trial court, so no precedential value, and the State did not appeal).

Remember the old days, when a Texas court holding a statute unconstitutional was big news? Way back in 2014?

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1. This is a gloss on the statute, which you can read here. ↩
2. I’ve had three trial judges in 20 years grant relief on constitutional challenges. ↩

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