EX PARTE BUTSCHEK v. << (2025)

OPINION

This case concerns a facial challenge to Section 33.021(b) of the Texas Penal Code, which proscribes certain sexually explicit communications that occur online or by text message between an adult and a minor.

Under a former version of the statute, such communications were proscribed only if they were made “with the intent to arouse or gratify the sexual desire of any person.” See Act eff. Sept. 1, 2007, 80th Leg., R.S., ch. 610, § 2, 2007 Tex. Gen. Laws 1167, 1167–68. The Court of Criminal Appeals concluded that this proscription was facially unconstitutional because it was content-based, it was overbroad, and it did not withstand strict scrutiny. See Ex parte Lo, 424 S.W.3d 10, 17, 19–27 (Tex. Crim. App. 2013).

Following that court decision, the legislature amended the statute to change the culpable mental state, such that any communications are now proscribed only if they are made “with the intent to commit an offense listed in Article 62.001(5)(A), (B), or (K), Code of Criminal Procedure.” See Act eff. Sept. 1, 2015, 84th Leg., R.S., ch. 61, § 2, 2015 Tex. Gen. Laws 1036, 1036. Those offenses include continuous sexual abuse of a child, indecency with a child, aggravated sexual assault, compelling prostitution, sexual performance by a child, possession or promotion of child pornography, and trafficking of persons, among others.

Appellant was charged with two separate counts under the amended statute. He applied for a pretrial writ of habeas corpus, arguing that the amended statute was still unconstitutional on its face, just as under its former version. The habeas court denied relief, and appellant now asks us to reverse that decision.

Whether a statute is unconstitutional on its face is a question of law that we review de novo. See Lo, 424 S.W.3d at 14. We normally begin with the presumption that a statute is valid, which means that the challenger has the burden of showing that the statute is unconstitutional. Id. at 15. But if the First Amendment is applicable and the statute restricts speech based on its content, then the presumption of constitutionality is reversed. Id. In such cases, we presume that the statute is invalid, and the government has the burden of rebutting that presumption. Id.

Appellant argues that Section 33.021(b) restricts speech based on its content, and that the government cannot rebut the presumption of invalidity because the statute is overbroad and fails strict scrutiny. We agree with appellant's premise that the statute restricts speech based on its content. Id. at 15 n.12 (“If it is necessary to look at the content of the speech in question to decide if the speaker violated the law, then the regulation is content-based. For example, if a statute makes it a crime for an adult to communicate with a minor via the internet, that is a content-neutral law. But if the statute prohibits an adult from communicating with a minor in a sexually explicit manner, that is a content-based law because one has to look at the content of the communication to decide if the speaker violated the law.”). However, we do not agree with the remainder of appellant's argument, which incorrectly assumes that the speech proscribed by the statute is entitled to constitutional protection.

The protections afforded by the First Amendment are not absolute. See Virginia v. Black, 538 U.S. 343, 358, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003). And the government may validly proscribe speech based on its content in a few limited areas, including obscenity, defamation, fraud, incitement, and speech integral to criminal conduct. See United States v. Stevens, 559 U.S. 460, 468, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010). Such speech is “categorically excluded from First Amendment protection.” See United States v. Williams, 553 U.S. 285, 297–98, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008).

Unlike the former version of Section 33.021(b), which merely proscribed speech made with the intent to arouse or gratify a person's sexual desires, the current version proscribes speech made with the specific intent to commit a sexual offense. Because this speech is integral to criminal conduct, and because the government may validly prohibit such conduct, we conclude that the speech is excepted from any sort of constitutional protection.

Appellant counters that the proscribed speech should not be excepted as speech integral to criminal conduct because it is unlike the speech involved in three other cases in which the crime exception was applied. He refers us to Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834 (1949), which addressed the coercion of a third party to commit a crime; New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982), which addressed the economic motive for the commission of a crime; and United States v. Williams, 553 U.S. 285, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008), which addressed an offer to engage in a crime. We need not decide whether these cases are distinguishable because the Court of Criminal Appeals has already held, in Ex parte Ingram, 533 S.W.3d 887 (Tex. Crim. App. 2017), that the crime exception is applicable to Section 33.021. Id. at 897 (“One of the few recognized categories of speech that is fully outside the protection of the First Amendment is speech or writing used as an integral part of conduct in violation of a valid criminal statute.”). And even though Ingram involved Section 33.021(c), which proscribes the online solicitation of a minor, its reasoning is equally applicable to Section 33.021(b), which similarly proscribes sexually explicit communications intended to result in the sexual exploitation of a minor. Id. at 897–98 (“Speech used to further the sexual exploitation of children does not enjoy constitutional protection.”).

We therefore conclude that, even though Section 33.021(b) proscribes speech on the basis of its content, that speech is unprotected by the First Amendment because the speech is integral to the commission of a criminal sexual offense.

By concluding that the speech is “unprotected,” we mean that this speech can, consistent with the First Amendment, be regulated because of its “constitutionally proscribable content.” See R.A.V. v. City of St. Paul, 505 U.S. 377, 383, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). But we do not mean that the speech, though unprotected, is entirely invisible to the Constitution, such that it may be made a vehicle for content discrimination unrelated to its distinctively proscribable content. Id. at 383–84, 112 S.Ct. 2538.

Two rules emerge from these distinctions. First, the government may not proscribe certain kinds of unprotected speech based on a criterion that involves protected speech. Id. at 388, 112 S.Ct. 2538 (“A State might choose to prohibit only that obscenity which is the most patently offensive in its prurience—i.e., that which involves the most lascivious displays of sexual activity. But it may not prohibit, for example, only that obscenity which includes offensive political messages.”). And second, the government may not proscribe unprotected speech through an overbroad regulation that simultaneously encompasses a substantial amount of protected speech as judged in relation to the unprotected speech. See Stevens, 559 U.S. at 472–73, 130 S.Ct. 1577.

Appellant has made no argument regarding the first of these rules, nor can we determine for ourselves that Section 33.021(b) regulates unprotected speech based on a criterion involving protected speech. We accordingly conclude that the statute is not subject to strict scrutiny. See Seals v. McBee, 898 F.3d 587, 596 (5th Cir. 2018) (observing that a statute would be subject to strict scrutiny if it proscribed unprotected speech based on a criterion involving protected speech).

Appellant has made an argument regarding the second rule, however. He contends that the statute has a legitimate sweep, insofar as it proscribes speech that actually solicits a sex crime, but he suggests that the statute is overbroad because it does not require a connection between the recipient of the speech and the intended crime. He gives the following example as his sole hypothetical: “A person might communicate in an otherwise-lawful way with Shawn, but be breaking the law because he intends (incidentally) to break the law with Susy.”

Appellant does not elaborate on this hypothetical, nor does he explain how a defendant may lawfully communicate with one person in a sexually explicit manner, but still face criminal punishment because the defendant intended to commit a sex crime against a completely different person who was not a recipient of his speech. Absent further explanation, appellant did not satisfy his burden of demonstrating from the text of the statute and from actual fact that a substantial number of instances exist in which the statute cannot be applied constitutionally. See Ex parte Nuncio, 662 S.W.3d 903, 920 (Tex. Crim. App. 2022) (“To succeed in an overbreadth challenge, the person challenging the statute must demonstrate from the text of the law and from actual fact that a substantial number of instances exist in which the Law cannot be applied constitutionally.”). We overrule this argument as inadequately briefed. Id.

The habeas court's judgments are affirmed.

Tracy Christopher, Chief Justice