EX PARTE WILLIAMS v. << (2025)

OPINION

Applicant was convicted of online solicitation of a minor and sentenced to three years’ imprisonment in count one of this cause. He filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See Tex. Code Crim. Proc. art. 11.07.

Applicant contends that the statute under which he was convicted was found to be unconstitutional. Applicant is entitled to relief. This Court, in Ex parte Lo, held unconstitutional the online solicitation of a minor statute for which Applicant was convicted. Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013). Applicant filed this habeas application based on the Lo decision and asks that his conviction be set aside. The State recommends that relief be granted in this cause. We agree.

Relief is granted. The judgment in count one of Cause No. 2012CR10649 in the 379th District Court of Dallas County is set aside, and Applicant is remanded to the custody of the Sheriff of Dallas County to answer the charges as set out in the indictment so that the indictment may be dismissed in accordance with this Court's opinions in Ex parte Lo, and Ex parte Fournier, 473 S.W.3d 789 (Tex. Crim. App. 2015). The trial court shall issue any necessary bench warrant within 10 days after the mandate of this Court issues.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional Institutions Division and Pardons and Paroles Division.

An opinion granting relief in this case should have been handed down months ago. In this case, Applicant Eric Todd Williams pleaded no contest to online solicitation of a minor under TPC § 33.021(b) and received a three-year sentence on March 6, 2013.¹ On October 30, 2013, this Court, in Ex parte Lo, held unconstitutional the online solicitation of a minor statute ² for which Applicant was convicted.³ He has now filed a writ of habeas corpus based on the Lo decision, alleging that his conviction is void in light of this Court's decision.⁴ Both the State and the defense agree relief is warranted. So does the habeas court. So do I. But the continued refusal to follow this Court's precedent by some members of this Court has led to the unnecessary delay in resolving what should have been an easy case.

We have granted habeas corpus relief many times in cases just like this.⁵ And we have done so despite repeated dissents. Indeed, no parties have argued that we should revisit Ex parte Lo or Ex parte Fournier since the objections to this Court's decision in Lo and its applicability to habeas corpus relief have been lodged. Even the Texas Supreme Court recognizes that someone who has been prosecuted under a statute that has been declared unconstitutionally overbroad is entitled to relief because the statute is void ab initio.⁶ There's no controversy here.

There is nothing to suggest that this Court's reasoning in Lo was lacking or that this Court's decision in Lo was unworkable. To the contrary, our Legislature has amended the former online solicitation of a minor statute to account for this Court's decision.⁷ And the United States Supreme Court has not retreated from or altered its overbreadth jurisprudence. Neither have we retreated from or been asked to re-examine our position in Fournier that habeas corpus relief is warranted when someone has been prosecuted under the version of the online solicitation of a minor statute that we held unconstitutional in Lo. This is certainly not the case, after countless others have been granted relief based upon this Court's precedent, to re-examine that precedent on our own initiative. The law has not changed on this issue; the Court does the right thing by following binding precedent. Anything else would be an invitation to turn criminal law into a game of Calvinball.⁸

With these thoughts I join the Court's order granting relief.

CONCURRING AND DISSENTING OPINION

Ex parte Lo held that the statute Applicant was convicted under was facially unconstitutional because it was overbroad in violation of the First Amendment.¹ And this Court has long held that a statute that has been held facially unconstitutional is “void from its inception ․ as if it had never been.”² It follows from these two holdings that any person convicted under the statute at issue here is entitled to relief on postconviction habeas. Not surprisingly, this Court has held exactly that.³

No one disputes that the statute Applicant was convicted under was held facially unconstitutional in Lo. We cannot and should not deny relief without overruling or modifying one of the two propositions that, when combined, requires that relief be granted.

My current thinking leads me to want to overrule Lo, but a majority of the Court declines to file and set this case to reconsider that decision. I dissent from that declination, because I would file and set the case to reconsider Lo. But longstanding precedent holds that a statute that has been held facially unconstitutional is void, and I agree with that precedent. Consequently, in my view, so long as Lo remains binding precedent, its effect of rendering the statute void remains, and Applicant is entitled to relief. Moreover, if I voted to deny relief and that vote resulted in this Court denying relief with a plurality decision, such action would create a walking contradiction—denying relief when majorities of the Court (albeit shifting ones) continue to adhere to legal propositions that, when combined, require that relief be granted. Aside from being illogical, denying relief in this manner, when such relief has been routinely granted in the past, would undermine confidence in this Court and the rule of law. Consequently, though I dissent from the Court's refusal to file and set, having lost that battle, I concur in its decision to grant relief.

I.

Although I disagree with Judge Yeary on the effect of an overbreadth holding,⁴ I agree with him that Lo was wrongly decided. To the arguments he makes, I would add that our decision in State v. Johnson ⁵ further undermines Lo’s holding. Decided almost two years after Lo, Johnson presciently anticipated United States v. Hansen ⁶ by explicitly saying that “the danger that the statute will be unconstitutionally applied must be realistic and not based on ‘fanciful hypotheticals.’ ”⁷ And while Johnson did not explicitly say that a “lopsided ratio” is required to find a statute unconstitutional for overbreadth, the decision actually found such a lopsided ratio with respect to the flag-desecration statute it invalidated.⁸ Johnson explained how, in the abstract, most conduct that fell within the Texas flag-desecration statute that would be prosecuted would constitute protected expression.⁹ And surveying practically every published decision in the nation on flag-desecration offenses, Johnson showed that the overwhelming majority of them involved protected expression.¹⁰

By contrast, Lo did not conduct this sort of analysis. As Judge Yeary points out, Lo focused on fanciful hypotheticals and did not offer any examples of actual prosecutions of protected conduct under the Texas statute or even any similar statute.¹¹ In fact, compared to this Court's other cases—Johnson, Thompson, and Perry—Lo’s failure to offer even a single example of an actual problematic prosecution makes it an outlier.¹²

Lo perhaps thought it obviated any need to point to actual prosecutions when it concluded that “everything that Section 33.021(b) prohibits and punishes is speech and is either already prohibited by other statutes ․ or is constitutionally protected.”¹³ Even assuming we can consider the existence of other statutes in an overbreadth analysis,¹⁴ Lo’s conclusion seems to be obviously wrong, especially in light of current Supreme Court precedent regarding the First Amendment and the protection of minors.¹⁵ And the various hypotheticals Lo gave did not account for the statute's culpable mental state of “intent to arouse or gratify sexual desire.”¹⁶ Such an intent will be absent if, for example, a teacher directs a student to a work of literature or art for legitimate educational purposes. It is at least presumptively improper for an adult to communicate with a child with the intent to arouse or gratify sexual desire.¹⁷

II.

This Court extensively addressed the nature of the overbreadth doctrine in State v. Johnson.¹⁸ Pointedly, if a statute violates the overbreadth doctrine, it is unconstitutional on its face.¹⁹ And the overbreadth doctrine is part of substantive First Amendment law.²⁰ For these propositions, Johnson accurately cited Supreme Court precedent.²¹ A state court is not free to ignore the overbreadth doctrine, nor can it say that it is not always a federal constitutional doctrine.²² Even though overbreadth is sometimes characterized as a “standing” doctrine, it is as much a part of First Amendment law as the concept of “reasonable expectation of privacy”—another “standing” type concept—is a part of Fourth Amendment law.²³

The Presiding Judge recognizes that current Supreme Court authority is contrary to his position that the overbreadth doctrine should not apply to the States, but he argues that the Supreme Court should rethink its precedent. But the Supreme Court has recognized that the Fourteenth Amendment applies the First Amendment to the States in its entirety.²⁴ This flat out incorporation of the First Amendment by the Fourteenth Amendment affords no room to pick and choose what First Amendment doctrine to apply. And because overbreadth is a substantive part of the First Amendment and the First Amendment applies to the States, then overbreadth necessarily applies to the States. But even in United States v. Hansen, upon which the Presiding Judge and Judge Yeary rely, the Supreme Court said that the overbreadth doctrine was designed to safeguard the “marketplace of ideas.”²⁵ I fail to see why a state should have more power to infringe on the marketplace of ideas than the federal government.

Judge Yeary claims that a statute found facially unconstitutional for overbreadth does not have the same status as a statute found facially unconstitutional for other reasons. But, as I explained earlier, once a statute has been found facially unconstitutional—regardless of the reason—it is treated as “void from its inception,” also known as being void ab initio.²⁶ In a portion of his side opinion that commanded a majority of the Supreme Court in Massachusetts v. Oakes, Justice Scalia pushed back against the notion that an “overbroad” statute was not void ab initio, saying, “I have heard of a voidable contract, but never of a voidable law. The notion is bizarre.”²⁷ In concluding that a court could not decide to decline to grant relief to a person prosecuted under an overbroad law because the law had been amended and would no longer be applied in the future, Justice Scalia said that “[t]he overbreadth doctrine serves to protect constitutionally legitimate speech not merely ex post, that is, after the offending statute is enacted, but also ex ante, that is, when the legislature is contemplating what sort of statute to enact.”²⁸ Moreover, Justice Scalia concluded that courts cannot use policy concerns to calibrate the effect of finding a law facially unconstitutional—the law is either facially invalid or it is not:

In my view we have the power to adopt a rule of law which says that the defendant's acts were lawful because the statute that sought to prohibit them was overbroad and therefore invalid. I do not think we have the power to pursue the policy underlying that rule of law more directly and precisely, saying that we will hold the defendant criminally liable or not, depending upon whether, by the time his last appeal is exhausted, letting him off would serve to eliminate any First Amendment “chill.” Even if one were of the view that some of the uses of the overbreadth doctrine have been excessive, this would not be a legitimate manner in which to rein it in.29

As Judge Cochran eloquently said in her concurring opinion in Chance: “[A] person may always obtain relief from an indictment or a conviction based on a penal statute that has been previously declared unconstitutional․ The unconstitutional statute has disappeared in a puff of smoke. No one can be convicted for a non-existent crime and no prior conviction based upon that unconstitutional statute is valid.”³⁰ Or, as Justice Scalia has said, “What a court does with regard to an unconstitutional law is simply to ignore it. It decides the case disregarding the unconstitutional law, because a law repugnant to the Constitution is void, and is as no law.”³¹

III.

When this Court declares a statute facially unconstitutional, that declaration has a specific legal consequence. And that legal consequence is to nullify the statute as if it had never existed. And there is no “overbreadth” exception to that principle—a statute is either facially constitutional or it is not. Consequently, even though I may want to overrule Lo, so long as Lo is binding precedent, the statute it invalidated is a dead letter. And if the statute is a dead letter, Applicant's conviction is supported by nothing. A habeas applicant can always attack his restraint by a conviction that is supported by nothing at all.

Under our precedent as it currently exists, we must grant relief. The only way we can deny relief is to overrule some aspect of our precedent that currently supports a grant. There is no majority to overrule Lo, nor is there a majority for either of the alternative legal theories for denying relief advocated by the Presiding Judge and Judge Yeary. In fact, the opposite is true: majorities on this Court oppose all three articulated rationales for denying relief in this case.

I would file and set this case on whether Lo should be overruled, but a majority has declined to do so. Under precedent as it now stands, Applicant is entitled to relief. Consequently, though I dissent from the Court's refusal to file and set, I concur in its decision to grant relief.

OPINION

Our habeas Applicant, Eric Todd Williams, took and sent a photograph of his genitals to someone known to him as a fourteen-year-old girl with the intent of sexually gratifying himself or her in violation of Texas Penal Code § 33.021(b). He is right in noting that this Court held the statute to be facially unconstitutional in Ex parte Lo—despite its proper application to him—under the U.S. Supreme Court's substantial overbreadth doctrine. 424 S.W.3d 10, 19 (Tex. Crim. App. 2013). Barring reconsideration, the majority is right in treating Lo as binding on the constitutional question, if not its availability in this setting. I further assume that Lo was right in treating the doctrine of substantial overbreadth as available under existing U.S. Supreme Court precedent interpreting the U.S. Constitution's First and Fourteenth Amendments. Beyond that, I disagree with everything that is transpiring here.

No one seems to doubt that Messrs. Lo and Williams have no First Amendment right to sexualize children or use them for their sexual gratification. Even as among adults, the “speech” activity involved here would lie at “the outer perimeters of the First Amendment,” if at all. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991); Doran v. Salem Inn, Inc., 422 U.S. 922, 932, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975). The question is whether, as Lo held, the proscription of it in Texas Penal Code § 33.021(b) was so substantially overbroad as to compel its invalidation under the First Amendment. I believe Lo was wrong to answer “yes” to that question at the time it was decided, and that further development of federal First Amendment jurisprudence only reinforces that conclusion. Indeed, I believe Lo’s holding has been fatally undermined by the U.S. Supreme Court's recent overbreadth decision in United States v. Hansen, 599 U.S. 762, 143 S.Ct. 1932, 216 L.Ed.2d 692 (2023), and other like holdings re-affirming the states’ rights to regulate speech, such as that reached by former Penal Code § 33.021(b)’s proscription on communications aimed at children for the purpose of sexual gratification. E.g., Free Speech Coal., Inc. v. Paxton, 606 U.S. 461, 468 n.2, 145 S.Ct. 2291, 222 L.Ed.2d 643 (2025) (gathering authorities confirming states’ heightened authority to proscribe speech directed at minors).

I further question whether the substantial overbreadth doctrine would apply in this setting and join Judge Yeary in his doubting the continuing availability of Lo on collateral review in the absence of presentation and preservation of the issue at trial and direct appeal.

Therefore, I dissent.

BACKGROUND

On July 10, 2012, Applicant engaged in a chat with an undercover investigator posing as a fourteen-year-old girl in a Yahoo Messenger public chat room designated for romance and narrowed by its location in Texas. After being advised of her age, Applicant initiated sexually explicit language and sent her nude photos of himself. On March 6, 2013, Applicant was convicted of online solicitation of a minor under Section 33.021(b) of the Texas Penal Code and sentenced to three years’ imprisonment. Approximately eight months after his conviction, on October 30, 2013, this Court issued its opinion in Ex parte Lo. Applicant filed an application for a writ of habeas corpus on April 4, 2025, nearly ten years after his sentence discharged, arguing he suffered collateral consequences as a result of his conviction.

I. WILLIAMS HAS NO VIABLE FIRST AMENDMENT COMPLAINT

A. Ex parte Lo Relied on Federal First Amendment Caselaw and Erred in its Application of It

To reach its determination in Lo, the Court relied exclusively on federal First Amendment overbreadth caselaw. Ex parte Lo, 424 S.W.3d at 18–19. Under a typical facial attack, an applicant must show “that no set of circumstances exists under which [the challenged law] would be valid, ․ or that the statute lacks any ‘plainly legitimate sweep.’ ” United States v. Stevens, 559 U.S. 460, 472, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (emphasis added). However, to succeed on a facial overbreadth challenge, the applicant need only show “a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep.” Id. at 473, 130 S.Ct. 1577 (emphasis added) (quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 n. 6, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008)). Thus, the overbreadth doctrine operates more so as an exception to standing rules than as a substantive prohibition on state authority to regulate conduct or speech. See Bd. of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 484, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989). For that reason, overbreadth attacks are subject to a series of restrictions and limitations on their application that appear to have gone unmentioned in our Lo opinion.

First, skipping over the question of Mr. Lo's ability to raise the overbreadth challenge,¹ the Court held that Section 32.021(b) was content-based, not entitled to a presumption of validity and, though supported by a compelling interest in protecting children from targeting by adults seeking sexual gratification, not narrowly drawn to achieve that goal. Ex parte Lo, 424 S.W.3d at 19. It cited several reasons for that determination, though none would seem sufficient to have warranted imposing the “strong medicine” of substantial overbreadth that is to be used “sparingly and only as a last resort” to permit those like Mr. Lo to pursue that argument as to a penal statute that properly applied to him. N.Y. State Club Ass'n, Inc. v. City of New York, 487 U.S. 1, 14, 108 S.Ct. 2225, 101 L.Ed.2d 1 (1988).

While this aspect of Lo’s holding is perhaps its least problematic, narrow tailoring does not demand perfect tailoring. Williams-Yulee v. Fla. Bar, 575 U.S. 433, 454, 135 S.Ct. 1656, 191 L.Ed.2d 570 (2015) (citing Burson v. Freeman, 504 U.S. 191, 209, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992)). One would assume that, having limited the statute's reach to (1) adults, (2) who are deliberately targeting recipients known or believed to be children, (3) for the express purpose of sexual gratification, the statute would have been sufficiently narrow given the compelling interest involved, particularly where the claims of overbreadth in its potential application to third parties not before the court are the only grounds of attack.

Indeed, many airplane passengers might be prone to pranks and jokes about explosive devices in their carry-on luggage. Still, a statute prohibiting that speech on the basis of such content cannot be seriously questioned by a speaker deliberately invoking a panic on account of the right of other passengers to tell jokes or repeat the story lines of great works of fiction involving the same theme.² That the defendant-passenger intended to communicate a message of panic is enough to answer both the content and the overbreadth attack. The same is true of adults targeting children for sexualization.

Moving forward with its mixed content-overbreadth analysis, the Lo Court reasoned that the statute was not narrowly tailored (and apparently was overly broad) because the State's interest was already served in other sections of the Penal Code that required additional contact or actions toward the corruption or sexual assault of a child. Ex parte Lo, 424 S.W.3d at 19–20. At best, this observation would relate to a possible Fifth Amendment double jeopardy concern on account of multiple punishments for the same conduct.

Next, the Court pointed to what it strangely saw as a weakness in the statutory scheme; its limited application to one-on-one communications, which it declared as “lead[ing] to [an] absurd result” because no violation would occur if a person communicated with multiple minors. Id. at 26–27. This supposed drafting weakness would not be relevant to the First Amendment overbreadth inquiry ³ and suggests a lack of appropriate deference to the role of the Legislature in drafting laws for, among other reasons, avoiding or mitigating possible constitutional concerns. Having initially imagined a reading of the statute that created the constitutional concern, the Court then pivoted, urging that the statute did not clearly limit its reach to one-on-one communications, thereby ignoring the Court's obligation to embrace a limiting construction of a law when doing so would save it from possible constitutional invalidation. Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); see Hansen, 599 U.S. at 781, 143 S.Ct. 1932. Regardless of the Court's treatment of the statute's reach, this observation is ultimately irrelevant to the core question of whether the law is within the government's constitutional power or its right to target and eliminate the source of the “evil” it seeks to remedy. See Barnes, 501 U.S. at 567, 111 S.Ct. 2456; Frisby v. Schultz, 487 U.S. 474, 485, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988).

The State's target here—adults using children for sexual purposes—would be adequate to defend its reach, regardless of whether the perpetrator is engaged with a child in-person or in Barnes “speech-activity” over the internet. The State is well within its power to proscribe the sexualizing activity regardless of whether the perpetrator is using a singular “child” or multiple “children.” Likewise, the fact that the sexual abuse of the child or children happens over the internet is irrelevant. If the man in a trench coat has no right to flash the whole school bus, why would Mr. Williams have the right to bombard a whole chat room with his amateur photography?

And, most critically to Lo’s core overbreadth holding, what other adult would be restrained in their speech by a law prohibiting this targeting for this purpose? The Lo opinion surmises possible applications of the statute to a variety of popular film and literary subjects, implying it could operate as a book ban or proscribe an adult sending an electronic copy of a then-popularized Miley Cyrus music video. Ex parte Lo, 424 S.W.3d at 17. But the textual elements foreclose those applications and nothing in the opinion even attempts to explain how the application to anyone but those targeting children for sexual arousal would be possible, much less likely, so as to support its substantial overbreadth conclusion. Broadrick, 413 U.S. at 615, 93 S.Ct. 2908. To support invalidation on this basis, “overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep.”

This critical aspect of Lo was firmly rejected in Hansen. There, the Supreme Court confronted a federal law making a crime of the act of “encourag[ing] or induc[ing] an alien to come to, enter, or reside in the United States.” Hansen, 599 U.S. at 767, 143 S.Ct. 1932. Had the law been enacted by the Texas Legislature, our decision in Lo would have doomed it in view of its potential application to all manner of innocent speech. Instead, the Supreme Court rejected the notion that the words “encourage or induce” should be read to have the ordinary meaning; rather, the phrase was to be read as a criminal law term of art, so as to limit its reach into more potentially problematic settings. Id. at 774, 143 S.Ct. 1932.

B. Regardless of the Standard it Applied, Lo Misapplied the Substantial Overbreadth Rules of its Day and Clearly Fails Under Current Law

The critical point here is that facial overbreadth challenges are “an exception to the general rule that a person to whom a statute may be constitutionally applied cannot challenge the statute on the ground that it may be unconstitutionally applied to others.” Massachusetts v. Oakes, 491 U.S. 576, 581, 109 S.Ct. 2633, 105 L.Ed.2d 493 (1989). The doctrine allows a litigant “to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Virginia v. Am. Booksellers Ass'n, Inc., 484 U.S. 383, 392–93, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988) (cleaned up). As noted, the doctrine should not be employed in advance of an as-applied challenge to Section 32.021(b). E.g., Stevens, 559 U.S. at 484, 130 S.Ct. 1577 (Alito, J., dissenting) (“The ‘strong medicine’ of overbreadth invalidation need not and generally should not be administered when the statute under attack is unconstitutional as applied to the challenger before the court.”).

But whatever Lo’s weaknesses may have been at the time of its decision, they have only grown in the passing years. Under modern federal substantial overbreadth jurisprudence, “[i]nvalidation for overbreadth is strong medicine that is not to be casually employed.” Hansen, 599 U.S. at 770, 143 S.Ct. 1932 (cleaned up). Hansen makes that point most clearly—and most fatally—with respect to our concerns in Lo about the prospect of inane prosecution. The Court in Hansen tackled the same sort of imaginings of the statute to activities said to support the notion that its legitimate reach (here to Mr. William's conduct in sharing his image of his genitalia with a person known to him as a child) to the myriad of protected activities that might be within its scope. While it is easy to imagine all sorts of speech “encouraging” illegal immigration activities to give rise to potential prosecution, Hansen, like Mr. Lo or Mr. Williams, “fail[ed] to identify a single prosecution for ostensibly protected expression in the seventy years since Congress enacted clause (iv)’s immediate predecessor. Instead, he offers a string of hypotheticals, all premised on the expansive ordinary meanings of ‘encourage’ and ‘induce.’ ” Id. at 782, 143 S.Ct. 1932.

Our Lo opinion erred in resorting to the same sort of hypotheticals of the possibility of prosecutions unconnected to evidence—required by the statutory text we invalidated—of the intent to use the child for sexual gratification. Today, as before, there is no evidence that any Texan has been prosecuted for sharing a book or a Miley Cyrus video or otherwise communicating with a child other than as part of an effort to sexualize him or her. The case before us serves as exhibit A. Meanwhile, the government's interest in protecting minors from adult sexual entreaties has been recognized as sufficient to warrant incidental limitations on adult speech activities to a degree far beyond the understanding of Lo. Paxton, 606 U.S. at 492–93, 145 S.Ct. 2291. Because the statute at issue in Lo was targeted only at communications directed at minors and for sexual purposes, that speech would be unprotected and subject to near plenary restraint. Id. at 471–72, 145 S. Ct. 2291, 2203-04.⁴ I therefore believe that Lo’s holding should be reconsidered regardless of its fidelity to the jurisprudence of its time.

For all these reasons, I would find Lo wrongly decided and unavailable to Applicant in this proceeding.

II. FIRST AMENDMENT OVERBREADTH AS IT APPLIES TO THE STATES SHOULD NOT EXTEND TO AN APPLICANT WHO HAS NO VIABLE FIRST AMENDMENT COMPLAINT

I agree that the “First Amendment, of course, is applicable to the States through the Fourteenth Amendment.” Bigelow v. Virginia, 421 U.S. 809, 811, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975). Indeed, “all fundamental rights comprised within the term liberty are protected by the federal Constitution from invasion by the states.” Whitney v. California, 274 U.S. 357, 373, 47 S.Ct. 641, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring). And, the “right of free speech, the right to teach and the right of assembly are, of course, fundamental rights.” Id. Its fundamental nature is supported by various historic rationales and is beyond doubt.

Still, I see none of this as supporting the modern sexual predator's claimed right to litigate on behalf of others, whether he seeks to gratify himself (or children) via the internet or by a live performance. That exception to standing rules may not be a “right” at all and may not be tethered to the First Amendment to a degree to compel its application to the states.

The U.S. Supreme Court has “repeatedly recognized the governmental interest in protecting children from harmful materials.” Reno v. Am. Civ. Liberties Union, 521 U.S. 844, 875, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997). Texas, along with many other states in this nation, have enacted various statutes and ordinances intended to protect the health and morals of children and they are well within the federal constitutional limits on state power. See Paxton, 606 U.S. at 492–93, 145 S.Ct. 2291; 113 Am. Jur. 3d Proof of Facts § 111 (2010).

As our opinion in Lo noted, the U.S. Supreme Court decisions in Ashcroft v. A.C.L.U.,⁵ Ashcroft v. Free Speech Coalition,⁶ and Reno v. A.C.L.U.⁷ appeared more favorable to Mr. Lo's position than holdings in other cases like Ginsberg v. New York ⁸ and—I would now add—Paxton.⁹ The reason for this may be that the statutes involved in these cases were drafted by different sovereigns with different roles with respect to criminal law and the responsibility of protecting youth from corruption at the hands of adults. Nothing in Article I of the U.S. Constitution reaches into this realm, at least not directly. Meanwhile, the First Amendment literally begins with three words—“Congress shall make no law”—that presents a fairly negative pall over that body's efforts to regulate in this arena. U.S. Const. amend I (emphasis added). In contrast, the First Amendment's application to the states comes by way of the Fourteenth Amendment's Due Process Clause and the holding in Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925), and has a natural tension with the last two amendments in the same Bill of Rights that collectively assign all other powers to the states and the people, respectively. While I have no doubt that the right to speak freely, to criticize the government and officials, to read and observe what one chooses is so fundamental and “implicit in the concept of ordered liberty” as to be fairly expected by those ratifying the Fourteenth Amendment to fall within the reach of their understanding of “due process,” I question whether a criminal defendant's right to litigate on behalf of others under the overbreadth doctrine when he has no valid First Amendment complaint of his own necessarily comes along for the ride. Indeed, I doubt that anyone associated with the drafting or ratification of the Fourteenth Amendment would have expected a state criminal defendant to whom a penal statute could constitutionally apply would be empowered to mount a defense on account of the law's potential application to others.

I recognize that U.S. Supreme Court decisions have regularly applied overbreadth in the context of criminal statutes, albeit rarely if ever explicitly addressing the incorporation question I raise to the point where I feel compelled to accept its application here. See State Oil Co. v. Khan, 522 U.S. 3, 20, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997). I also recognize that others, including Justices Jackson, Harlan, and Chief Justice Rehnquist, have all raised similar questions in the past, and recognize that “this view has never been accepted by any majority of [the] Court.” First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 780 n.16, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978); see Beauharnais v. Illinois, 343 U.S. 250, 287–95, 72 S.Ct. 725, 96 L.Ed. 919 (1952) (Jackson, J., dissenting). Still, I believe in this setting the issue is worthy of further consideration by the Supreme Court and have the comfort of good company in all events.

CONCLUSION

Accordingly, I disagree with the Court's decision to grant Applicant relief in this case and would have denied the application for a writ of habeas corpus.

Applicant in this case, Eric Todd Williams, was convicted, in March of 2013, of online solicitation of a minor, pursuant to former Section 33.021(b) of the Texas Penal Code. Acts 2007, 80th Leg., ch. 610, § 2, p. 1167−68, eff. Sept. 1, 2007. He was thereafter sentenced to imprisonment for three years. He now seeks state post-conviction habeas corpus relief, arguing that the Court, in Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013), declared the statute under which he was convicted to be unconstitutional in violation of the First Amendment to the United States Constitution.¹ U.S. Const. amend. I. Although his sentence has since discharged, he contends that he is suffering collateral consequences stemming from his conviction.

I have long believed that this Court was clearly wrong when—nearly 12 years ago, in Lo—it declared that the former Texas online solicitation of a minor statute was facially unconstitutional in violation of the United States Supreme Court's Overbreadth Doctrine. The Court has not so far shared my view on that question.² But more recently, the Supreme Court issued an opinion that has clarified and limited the Overbreadth Doctrine, explaining that it should only apply in certain very limited circumstances. So, before granting relief to Applicant, we should at least pause briefly to reconsider whether this Court's decision in Lo was correct under the Supreme Court's more recent guidance.

I. The Court's Majority Decision Here

A.

Today, the Court grants Applicant relief based on Lo, which was not decided on original submission until approximately six months after Applicant's 2013 conviction became final. In Lo, this Court decided that Subsection (b) of the former online solicitation of a minor statute was unconstitutionally overbroad. 424 S.W.3d at 24. But more recently, the Supreme Court, in United States v. Hansen, 599 U.S. 762, 769, 143 S.Ct. 1932, 216 L.Ed.2d 692−70 (2023), has clarified the Overbreadth Doctrine in a way that arguably further undermines the Court's decision in Lo. The Court should, therefore, not grant relief in this case without first addressing the continuing validity of the overbreadth analysis employed in Lo, in light of Hansen. Because the Court does not, I must respectfully dissent to its failure.

B.

And, in any event, the Court ought to deny Applicant post-conviction relief because: (1) his conviction was already final when Lo was decided, and (2) Applicant cannot demonstrate that his conduct constituted protected speech, or that the statute he was prosecuted for violating operated unconstitutionally as applied to him, in his own case. See Ex parte Fournier, 473 S.W.3d 789, 800–805 (Tex. Crim. App. 2015) (Yeary, J., dissenting) (arguing that the Court should not grant retroactive post-conviction habeas corpus relief without first deciding whether such applicants—who were convicted under a statute that this Court had held to be unconstitutionally overbroad—should have to show that the statute was unconstitutional as applied to them); Ex parte Mitcham, 542 S.W.3d 561, 562 n.1 (Tex. Crim. App. 2018) (Yeary, J., dissenting) (citations omitted) (answering that question “in the affirmative”). For this reason, also, I dissent to the Court's granting relief in this case.

II. Clarifications to Overbreadth Compel Our Reconsideration of Ex parte Lo Before Granting Relief in This Case

The Supreme Court of the United States recently explained: “An overbreadth challenge is unusual.” Hansen, 599 U.S. at 769, 143 S.Ct. 1932. According to that Court, not only does it permit litigants who typically lack standing to bring a claim asserting only the rights of others, but it also permits declaring a statute facially unconstitutional “even though it [manifestly] has lawful applications[.]” Id. (citations omitted). Under this “unusual” doctrine, “a law may be invalidated as overbroad if [only] ‘a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep.’ ” United States v. Stevens, 559 U.S. 460, 473, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (quoting Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449, n. 6, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008)). Perhaps given its peculiarity, the doctrine has always been described as “strong medicine” that is employed “only as a last resort.” Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973).

Recently, the Supreme Court reiterated that the doctrine should not be “ ‘casually employed’ ” and clarified how to employ it appropriately. Hansen, 599 U.S. at 770, 143 S.Ct. 1932 (quoting United States v. Williams, 553 U.S. 285, 293, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008)). In Hansen, the Supreme Court explained that, to strike down a statute for overbreadth, “a law's unconstitutional applications must be realistic, not fanciful, and their number must be substantially disproportionate to the statute's lawful sweep.” Id. (emphasis added) (citing New York State Club Assn., Inc. v. City of New York, 487 U.S. 1, 14, 108 S.Ct. 2225, 101 L.Ed.2d 1 (1988); Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 800–801, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984)). With respect to that disproportionate number, the Supreme Court further clarified—for the first time—that, “[i]n the absence of a lopsided ratio, courts must handle unconstitutional applications as they usually do—case-by-case.” Id. (emphasis added).

Considering these further clarifications about the Overbreadth Doctrine, I am convinced that Lo was clearly wrongly decided. There, this Court dreamed up fanciful, non-realistic applications of then-Section 33.021(b) of the Texas Penal Code—asserting that it covered “a whole cornucopia of ‘titillating’ or ‘dirty talk.’ ” Lo, 424 S.W.3d at 20. I suppose that the Lo Court might have argued that the balance of potential unconstitutional applications of the law outweighed the potential constitutional applications of the law in a “lopsided” way, had it ever been asked to consider that question. But it would have been wrong on that account. Moreover, the Court never even wrestled with that question, at least not in a meaningful way, because the Supreme Court at that time had yet to explain that such a showing of lopsidedness should be considered before granting overbreadth relief.

III. Fanciful, Unrealistic Applications and Failure to Properly Consider Whether the Validity Balance Was “Lopsided” Led the Court to Err in Lo

As is evidenced by the language of the statute itself, and as we later learned from the many 11.07 writ applications forwarded to this Court after Lo was decided, the fanciful applications proposed by the Lo Court were clearly unrealistic. Mitcham, 542 S.W.3d at 564 (Yeary, J., dissenting) (explaining that all the previous real-world applications of then-Penal Code Section 33.021(b) were constitutional). It is also not at all clear that any “lopsided ratio” exists between the supposed potential “realistic” unconstitutional applications of the law and the numerous realistic and actual potential constitutional applications (including the numerous actual as-applied-constitutional-convictions that were secured by Texas prosecutors) in accordance with the statute's plainly legitimate sweep.³

“To judge whether a statute is overbroad,” the Supreme Court has explained, “we must first determine what it covers.” Hansen, 599 U.S. at 770, 143 S.Ct. 1932. But the Lo Court erroneously identified what then-Section 33.021(b) actually covered. To illustrate, the Court asserted that the statute covered a variety of sexually explicit literature like “Lolita” and Shakespeare's “Troilus and Cressida[,]” television shows and movies like “Rome,” “Eyes Wide Shut,” and “Basic Instinct,” and artwork like “The Rape of the Sabine Women,” and “Venus De Milo[.]” Lo, 424 S.W.3d at 20. The Court also suggested it might cover a wardrobe malfunction during a sporting event or a “twerking” video during an awards show. Id. And it chided that “[c]ommunications and materials that, in some manner, ‘relate to’ sexual conduct comprise much of the art, literature, and entertainment of the world[.]” Id. But the Court seemed to simply wave off the State's powerful argument that then-Section 33.021(b) only penalized those who engaged in prohibited conduct with or to a minor and “with the intent to arouse or gratify the sexual desire of any person[.]” Id.

The Court instead addressed a different argument of its own making, that “thoughts” are protected by the First Amendment. See id. at 25 (“the First Amendment protects thoughts just as it protects speech”); id. at 26 & n.72 (“A man's thoughts are his own: he may sit in his armchair and think salacious thoughts, murderous thoughts, discriminatory thoughts, whatever thoughts he chooses, free from the ‘thought police.’ ”) (paraphrasing and quoting from GEORGE ORWELL, 1984 bk. 1, ch. 1). But this was a complete red herring argument by the Court. The Court acknowledged, but failed to address, the State's real argument that the mens rea requirement built into the law limited its application substantially so that it did not apply in cases where children were exposed to sexually explicit material but without the intent to arouse or gratify sexual desire. Id. at 25−26.

It should be further emphasized that the statute did not, as the Court seemed to suggest, simply criminalize thoughts. It instead prohibited actions (communicating “in a sexually explicit manner with a minor” or distributing “sexually explicit material to a minor”) taken together with a scienter, or mens rea, limited to the specific intent “to arouse or gratify ․ sexual desire[.]” Acts 2007, 80th Leg., ch. 610, § 2, p. 1167, eff. Sept. 1, 2007. The statute clearly made no attempt to criminalize pure thoughts.

The former statute also did not prohibit the distribution or communication of just anything that even “relates to” sexual conduct. See Lo, 424 S.W.3d at 17 (“The statute bars ․ any electronic communication or distribution of material that ‘relates to’ sexual conduct.”). It only prohibited such acts when they were targeted at minors and were done with the required mental state. For example, any good English teachers who might decide to assign to their students real literature that might just happen to be partly sexually explicit would only do so for educational purposes, not to scratch some sort of prurient itch. As with virtually all crimes, mens rea matters. It explicitly and powerfully restricts potential applications of laws from contexts where no evidence of the required mental state exists.

The Court's reading of the former online solicitation of a minor statute in Lo also suggested it was convinced that the former statute largely prohibited the widely-distributed and publicly-disseminated materials it described—in books, television shows, movies, public performances, and art. But the statutory language itself, instead explicitly focused on cases in which individuals would “communicate[ ] ․ with a minor[,]” or “distribute[ ] ․ material to a minor.” Acts 2007, 80th Leg., ch. 610, § 2, p. 1167−68, eff. Sept. 1, 2007 (emphasis added). This language suggested, in contrast to the Court's fanciful musings, that a more reasonable reading of the statute focused on, and applied more explicitly to, person-to-person communications with minors. It could even be powerfully argued that that statute never had any proper application at all to broad public distributions and disseminations of materials such as those described by the Lo Court. Given the explicit limitations in the statutory language to cases involving communications “with a minor” and distributions “to a minor[,]” it would likely instead have been more appropriate to restrict its application to more predatory-like, one-on-one communications between an adult—with the requisite mental state—and a minor.⁴

Moreover, as I have previously emphasized in my dissenting opinion in Mitcham, exactly none of the many independently elected prosecutors across Texas who actually had opportunities to apply the law in its history ever seem to have brought a prosecution for the kind of broad dissemination of materials suggested by the Court to have been available for prosecution under its terms. Mitcham, 542 S.W.3d at 564 (Yeary, J., dissenting). This point is proven, re-proven, and driven home every time another applicant comes to this Court seeking relief from a conviction based on the former statute. No one else, other than this Court, seems to have ever read the law the way the Court did in Lo to cover widely disseminated television shows, movies, books, and even art.

Accordingly, the Lo Court's assessment of the breadth of the former statute was both unrealistic and exceedingly fanciful. Only by disingenuousness may one draw the conclusion that the potential unconstitutional applications of the law so far exceed its potential constitutional applications that it would be proper to describe the balance as “lopsided.” See Hansen, 599 U.S. at 770, 143 S.Ct. 1932. Considering the recent clarifications to the Overbreadth Doctrine made by the Supreme Court, therefore, our reconsideration of Lo is compellingly called for in this case. We should not simply grant relief to Applicant without first at least considering whether Lo was correctly decided.

IV. Overbreadth and Retroactivity

In any event, even when a statute is truly overbroad in the sense described by the Supreme Court's Overbreadth Doctrine, and therefore properly declared facially unconstitutional, our decision declaring that to be the case should not automatically carry retroactive application in post-conviction 11.07 collateral attacks. Ex parte Gonzalez, 664 S.W.3d 838, 843 (Tex. Crim. App. 2022) (Yeary, J., dissenting) (“[W]e should require post-conviction applicants to show that their convictions did not fall within the plainly legitimate sweep of the overbroad statute.”).

Typically, to establish that a statute is facially unconstitutional, a litigant “must establish that no set of circumstances exists under which the [challenged statute] would be valid.” United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). In that unique circumstance, “Texas has long recognized ‘the general rule’ that an unconstitutional statute ‘is void from its inception[.]’ ” Fournier, 473 S.W.3d at 800 (Yeary, J., dissenting) (quoting Reyes v. State, 753 S.W.2d 382, 383 (Tex. Crim. App. 1988)). It reasonably follows in such cases that any time a penal statute is declared facially unconstitutional—in the sense that it has been found necessarily to be unconstitutional in all its applications—the appellate decision declaring that fact ought to have retroactive effect. Id. at 801 (“[I]t was not the judicial decision that nullified the statute; the statute was stillborn.”). After all, if a law is unconstitutional in all its applications, then it certainly was unconstitutional as applied “to any and every individual ever convicted under that provision, in the future and in the past.” Id. (emphasis added).

But an overbreadth challenge is different from the typical facial challenge. Unlike an ordinary facial challenge—requiring that a law be shown to be unconstitutional in all its applications—the Overbreadth Doctrine provides that “a law may be invalidated as overbroad if [only] ‘a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep.’ ” Stevens, 559 U.S. at 473, 130 S.Ct. 1577 (quoting Washington State Grange, 552 U.S. at 449, n. 6, 128 S.Ct. 1184). By implication, then, when a statute runs afoul of the Overbreadth Doctrine, there might indeed be any number of instances in which the law's applications have been plainly constitutional.

A declaration of unconstitutionality in all possible applications is just an observation by a court that a statute cannot be applied consistent with the Constitution. In contrast, a declaration of unconstitutionality for overbreadth is an exercise of brute judicial power enjoining the future enforcement of a statute with some presumptive constitutional breadth. These are very different things.

All of this makes clear to me that the reasoning that undergirds the rationale for declaring laws to be void-from-inception, when they are found to be unconstitutional in all applications (i.e., in the ordinary sense), does not follow in cases where laws are found unconstitutional only for their arguable overbreadth. This is because the Overbreadth Doctrine itself admits that a statute declared unconstitutional on that basis alone may still have been applied, in at least some instances in the past, in a perfectly constitutional manner. And “a court cannot, consistent with separation of powers, enjoin enforcement of a statute where enforcement would be lawful.” Borden v. United States, 593 U. S. 420, 448, 141 S.Ct. 1817, 210 L.Ed.2d 63 (2021) (Thomas, J., concurring); see also Americans for Prosperity Found. v. Bonta, 594 U.S. 595, 620, 141 S.Ct. 2373, 210 L.Ed.2d 716 (2021) (Thomas, J., concurring) (citations omitted) (“[T]he Court has no power to enjoin the lawful application of a statute just because that statute might be unlawful as-applied in other circumstances.”).

Moreover, one of the primary purposes of allowing litigants to claim a statute is overbroad without having to show that their own First Amendment rights had been violated is to prevent the public from having their speech or expression be chilled by the very existence of an overbroad statute. See Broadrick, 413 U.S. at 612, 93 S.Ct. 2908 (“Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression.”). But in the case of individuals who come along after a statute has already been declared unconstitutionally overbroad, such as claims like Applicant's that are brought only in post-conviction habeas corpus proceedings, there is no longer the same concern that the allegedly overbroad law might chill the speech or expression of others going forward. There is no longer any need to allow people, who have been previously finally convicted of an offense under the statute, to challenge the law without having to first show that their own rights have been violated.

The benefits of a conclusion that a criminal statute is overbroad should not automatically be applied retroactively to every applicant convicted under that statute who only later seeks relief in post-conviction proceedings. Instead, Texas state post-conviction habeas applicants should be required to show that the law they were convicted for violating operated unconstitutionally as applied to them, in their own cases, before relief should be granted. See Fournier, 473 S.W.3d at 803 (Yeary, J., dissenting) (“The windfall that inevitably flows from judicially declaring an overbroad penal provision to be facially unconstitutional need not extend so far as to apply retroactively to grant habeas corpus relief to applicants who have suffered no First Amendment infraction themselves.”). Failing to require such a showing violates the constitutionally required separation of powers, see Tex. Const. art. II, and it also affords an unearned and undeserved windfall to applicants who only subsequently seek relief by resort to state post-conviction habeas corpus proceedings.

V. Applicant's Case

Applicant in this case entered a negotiated plea of “no-contest” for a sentence of three years. Consequently, we cannot now look to the record of a trial to determine what evidence would have been presented in satisfaction of the allegations against him. But Applicant's indictment—to which he pled no contest—alleged in pertinent part the following:

on or about the 10th day of July 2012, [Applicant] ․, with the intent to arouse or gratify the sexual desire of the defendant or of any person, did intentionally distribute ․ sexually explicit material, to-wit a picture of a lewd exhibition of the genitals, to a minor[.]

As I have said about similar cases, I fail to see how this kind of conduct—sending “a picture of a lewd exhibition of the genitals, to a minor”—even remotely constitutes protected speech.⁵ Ex parte Chavez, 542 S.W.3d 583, 584 (Tex. Crim. App. 2018) (Yeary, J., dissenting). So, “retroactively declaring [Applicant's] conviction void ab initio would seem arguably to be neither necessary nor just.” Fournier, 473 S.W.3d at 803 (Yeary, J., dissenting). Instead, it plainly constitutes an unnecessary injustice, both to the victim in this case and to the people of our State and our Legislature—which passed, at least in-part, a valid and constitutional law. It is also an abuse of the judicial power.

VI. Conclusion

Before granting relief in this case, the Court should at the very least consider again whether, especially in light of recent Supreme Court precedents, its decision in Lo may have been incorrect. Applicant has also failed to demonstrate that the statute he was convicted of violating operated unconstitutionally as applied to him. For the reasons discussed above, then, as well as for reasons more fully articulated in my side opinions in cases like Fournier, Chavez, and Gonzalez, relief should be denied.⁶ I respectfully dissent.

FOOTNOTES

1.   Applicant has discharged his sentence but alleges that he is suffering collateral consequences. No one contests this.

2.   The statute stated: A person who is 17 years of age or older commits an offense if, with the intent to arouse or gratify the sexual desire of any person, the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, intentionally: (1) communicates in a sexually explicit manner with a minor; or (2) distributes sexually explicit material to a minor.

3.   Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013).

4.   Ex parte Fournier, 473 S.W.3d 789, 800 (Tex. Crim. App. 2015) (holding that a statute declared unconstitutional for overbreadth is void ab initio, meaning it is treated as if it never existed).

5.   See, e.g., Ex parte Chance, 439 S.W.3d 918 (Tex. Crim. App. 2014) (remanding case so that the indictment could be disposed of after granting relief where the defendant had been convicted under an unconstitutional statute); Ex parte Fournier, 473 S.W.3d at 790 (granting habeas relief to the two applicants under the unconstitutional-statute theory established in Lo); Ex parte Lea, 505 S.W.3d 913 (Tex. Crim. App. 2016) (per curiam) (granting habeas corpus relief and vacating a conviction under the improper photography statute, which had been previously declared facially unconstitutional as overbroad in Ex parte Thompson, 442 S.W.3d 325 (Tex. Crim. App. 2014)); Ex parte Mitcham, 542 S.W.3d 561 (Tex. Crim. App. 2018) (granting habeas corpus relief where the applicant was convicted under a statute declared unconstitutionally overbroad prior to the applicant's conduct); Ex parte Chavez, 542 S.W.3d 583 (Tex. Crim. App. 2018) (granting habeas corpus relief where the applicant's conviction was based on a statute previously declared unconstitutional); Ex parte Lester, No. WR-88,227-01, 2018 WL 1736686 (Crim. App. Apr. 11, 2018) (this Court granted habeas relief to defendant “in light of Ex parte Lo”); Ex parte Benedict, 570 S.W.3d 277 (Tex. Crim. App. 2019) (granting habeas corpus relief where the applicant's conviction was based on a statute previously declared unconstitutional); see also Smith v. State, 463 S.W.3d 890, 893 (Tex. Crim. App. 2015) (recognizing that a claim asserting a conviction is void due to an unconstitutional statute may be raised for the first time on direct appeal); see also State v. Doyal, 589 S.W.3d 136 (Tex. Crim. App. 2019) (reversed the court of appeals and affirmed the trial court's judgment dismissing the prosecution where the defendant was charged under an unconstitutional statute).

6.   See In re Lester, 602 S.W.3d 469, 475 (Tex. 2020) (emphasizing the longstanding rule that an unconstitutional statute is legally void from its inception, or in other words, void ab initio).

7.   The revised statute states: A person who is 17 years of age or older commits an offense if, with the intent to commit an offense listed in Article 62.001(5)(A), (B), or (K), Code of Criminal Procedure, the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, intentionally: (1) communicates in a sexually explicit manner with a minor; or (2) distributes sexually explicit material to a minor.

8.   See Oxford English Dictionary (2025), https://www.oed.com/dictionary/calvinball_n (The noun “Calvinball” refers to activity reminiscent of the imaginary game of Calvinball from the cartoon Calvin and Hobbs in that the activity does not follow any discernible rules, or in which individuals act in a self-servingly inconsistent manner).

1.   424 S.W.3d 10 (Tex. Crim. App. 2013).

2.   Ex parte Beck, 541 S.W.3d 846, 855 & n. 10 (Tex. Crim. App. 2017) (citing cases); Smith v. State, 463 S.W.3d 890, 895 (Tex. Crim. App. 2015); Ex parte Bockhorn, 62 Tex. Crim. 651, 652, 138 S.W. 706 (1911).

3.   Beck, supra at 855,; Ex parte Fournier, 473 S.W.3d 789, 796 (Tex. Crim. App. 2015); Ex parte Chance, 439 S.W.3d 918 (Tex. Crim. App. 2014); see also id. at 918-22 (Cochran, J., concurring).

4.   See infra at part II.

5.   475 S.W.3d 860 (Tex. Crim. App. 2015).

6.   599 U.S. 762, 143 S.Ct. 1932, 216 L.Ed.2d 692 (2023).

7.   Johnson, 475 S.W.3d at 865 & nn.18, 19 (quoting, among other opinions, Justice Alito's dissent in United States v. Stevens, 559 U.S. 460, 485, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (Alito, J., dissenting)). Compare Hansen, supra at 770, 143 S.Ct. 1932 (“To justify facial invalidation, a law's unconstitutional applications must be realistic, not fanciful, and their number must be substantially disproportionate to the statute's lawful sweep.”).

8.   See Johnson, supra at 875-76, 878-79,. Compare Hansen, supra (“In the absence of a lopsided ratio, courts must handle unconstitutional applications as they usually do—case-by-case.”).

9.   Johnson, supra at 875-76,.

10.   Id. at 878-79 & nn.108-10.

11.   See Lo, 424 S.W.3d at passim. In Ex parte Thompson, also decided after Lo, the Court questioned the need to conduct an overbreadth analysis but did so in an abundance of caution. 442 S.W.3d 325, 349 (Tex. Crim. App. 2014). The Court did not need to conduct an overbreadth analysis because the statute was in every case an impermissible content-based restriction. See id. at 349 & n. 143 (citing R.A.V. v. City of St. Paul, 505 U.S. 377, 381 n. 3, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992)). Even so, in its overbreadth analysis, the Court at least looked to the “alarming breadth” of the statute, and it pointed to the facts of the case before it and to four prior appellate decisions to show the “real” improper reach of the statute. Id. at 350-52.

12.   See supra at nn.10 (citing Johnson), 11 (discussing Thompson); infra at n.14 (discussing Perry).

13.   Lo, 424 S.W.3d at 20 (emphasis in Lo, ellipsis inserted).

14.   In Ex parte Perry, this Court responded to the State pushing back against this type of analysis from Lo by raising a concern that, if all the so-called legitimate applications of the challenged statute are covered by other statutes, the challenged statute arguably does “no work.” 483 S.W.3d 884, 913 (Tex. Crim. App. 2016). Nevertheless, the Court found that, “even if the State were correct as a general matter,” the legitimate sweep of the statute at issue in Perry was “vanishingly small.” Id. Perry also pointed to a number of common, concrete scenarios in which the statute would apply unconstitutionally, including to the action of the trial judge in threatening to quash the indictment in Perry's own case. See id. at 915-16. And Perry pointed to a prior prosecution in State v. Hanson, 793 S.W.2d 270 (Tex. App.—Waco 1990, no pet.), and explained the absence of more prosecutions by the fact that the Legislature had amended the statute to prevent a repetition of what happened in Hanson, with the ruling sought by the State in Perry threatening to “reintroduce the very chilling effect that Hanson and earlier legislative action eliminated.” Perry, 483 S.W.3d at 917.

15.   See Free Speech Coalition v. Paxton, 606 U.S. 461, 145 S. Ct. 2291, 2303-04, 222 L.Ed.2d 643 (2025) (discussing the State's interest in protecting children from sexually explicit content).

16.   See Lo, 424 S.W.3d at 20 (referring to the written works of “Lolita,” “50 Shades of Grey,” “Lady Chatterly's Lover,” and Shakespeare's “Troilus and Cressida”; to acted out performances (on television, in movies, and other performances) of “The Tudors,” “Rome,” “Eyes Wide Shut,” “Basic Instinct,” Janet Jackson's “Wardrobe Malfunction” during the 2004 Super Bowl, and Miley Cyrus's “twerking” during the 2013 MTV Video Music Awards; and to the art works of “The Rape of the Sabine Women,” “Venus De Milo,” and “the Naked Maja.”).

17.   The improper-photography statute in Thompson contained this culpable mental state, but the statute was not directed at children, nor did the statute require that anyone receive the communication. See 442 S.W.3d at 333, 350 (setting out the statute) (“This statute could easily be applied to an entertainment reporter who takes a photograph of an attractive celebrity on a public street.”).

18.   475 S.W.3d at 864-70.

19.   Id. at 864-65 (citing United States v. Stevens, 559 U.S. 460, 473, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010); Sabri v. United States, 541 U.S. 600, 609-10, 124 S.Ct. 1941, 158 L.Ed.2d 891 (2004)).

20.   Id. at 866 (citing and quoting Secretary of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 958-59, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984); also citing Sabri, 541 U.S. at 610, 124 S.Ct. 1941).

21.   See supra at nn.19, 20.

22.   Johnson, 475 S.W.3d at 866-68.

23.   Id. at 868.

24.   Free Speech Coalition, 145 S. Ct. at 2302 (“The First Amendment, which applies to the States through the Fourteenth Amendment, prohibits laws ‘abridging the freedom of speech.’ ”); Johnson, 475 S.W.3d at 864 & n.10 (“The First Amendment right to freedom of speech applies to the states by virtue of the Fourteenth Amendment.”) (citing West Virginia Board of Educ. v. Barnette, 319 U.S. 624, 638-39, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943)).

25.   599 U.S. at 770, 143 S.Ct. 1932.

26.   Smith, 463 S.W.3d at 896 (holding the statute invalidated by Lo to be void ab initio); Ex parte E.H., 602 S.W.3d 486, 494 (Tex. 2020) (“The statute under which E.H. was arrested has been declared unconstitutional, the indictment against him has been dismissed, and the court order placing him in community supervision has been vacated. As a matter of law, the statute was void from its inception as if it had never been, and is to be considered no statute at all.”) (ellipsis and internal quotation marks omitted).

27.   491 U.S. 576, 588, 109 S.Ct. 2633, 105 L.Ed.2d 493 (1989) (op. of Scalia, J., joined by Blackmun J., and joined as to part I by Brennan, Marshall, and Stevens, JJ.).

28.   Id. at 586.

29.   Id. at 587.

30.   Chance, 439 S.W.3d at 919 (Cochran, J., concurring).

31.   Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 760, 115 S.Ct. 1745, 131 L.Ed.2d 820 (1995) (Scalia, J., concurring) (capitalization added, internal quotation marks, brackets, and citation omitted).

1.   As the Supreme Court explained in Bd. of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 485–86, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989), courts should resolve the question whether the statute can be applied constitutionally to the litigant before moving on to the overbreadth question. N.Y. State Club Ass'n, Inc. v. City of New York, 487 U.S. 1, 11, 108 S.Ct. 2225, 101 L.Ed.2d 1 (1988); see generally Hill v. Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000). Because Lo was charged with conduct far less extreme and far closer to the imaginative musings more akin to the possible book bans cited in that opinion, he may have prevailed on that attack—as would any third party subject to these potential extreme applications. Separately, I question whether this standing exception is so integral to the substantive First Amendment free speech guarantee as to apply to the states through the Fourteenth.

2.   The Lo court observed that not only pornography, obscenity, and perverted self-photography, but also works of popular fiction with mature themes might be swept within the statute's reach. Ex parte Lo, 424 S.W.3d 10, 19–20 (Tex. Crim. App. 2013). As detailed below, invocation of the doctrine of substantial overbreadth requires proof that the statute is likely to substantially chill protected speech. United States v. Williams, 553 U.S. 285, 292–93, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008). Lo cites no evidence of adults sexually gratifying themselves by sending copies of Good Housekeeping to recipients they know or believe to be children. Neither did it attempt to explain how such a transmission for that purpose would amount to protected speech any more than a comment about an explosive would.

3.   While the notion of under-inclusiveness may weigh into the inquiry as to whether a content-based law is in fact aimed at redressing a compelling interest, that inquiry is distinct from the notion of overbreadth, which operates on the premise that the statute applies properly in some settings and not in others. And, even in that setting, the state is not required to target and punish all speech activity so long as its prohibition is targeted incrementally to conduct well within its stated interest. See generally Williams-Yulee v. Fla. Bar, 575 U.S. 433, 135 S.Ct. 1656, 191 L.Ed.2d 570 (2015). The answer in the overbreadth context would be clear under the presumption of constitutionality and, to the extent we question its scope of application, our obligation to read the statute to avoid constitutional infirmity. See United States v. Hansen, 599 U.S. 762, 770–71, 781, 143 S.Ct. 1932, 216 L.Ed.2d 692 (2023) (applying the rationale that any plausible reading of statute to avoid overbreadth must be favored).

4.   This is not my only concern with our disposition in Lo. We also, on denial of rehearing, declared that the Legislature violated the separation of powers provision in Article II, § 1 of the Texas Constitution by demanding that the State have an opportunity to be heard by counsel of its choice (the Texas Attorney General) prior to entering final judgment declaring a statute unconstitutional. See Ex parte Lo, 424 S.W.3d at 29. I do not believe it was necessary to make that decision in Lo and would have simply allowed the State to file an out of time brief. In all events, I would not see that legislation or like legislation impinging on our authority insofar as it requires notice to the state and some form of opportunity to be heard prior to issuance of a mandate declaring a state law to be unconstitutional.

5.   542 U.S. 656, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004).

6.   535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002).

7.   521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997).

8.   390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968).

9.   606 U.S. 461, 145 S.Ct. 2291, 222 L.Ed.2d 643 (2025).

1.   At the time Lo was decided, and when Applicant was convicted, both in 2013, Section 33.021(b) of the Penal Code read:(b) A person who is 17 years of age or older commits an offense if, with the intent to arouse or gratify the sexual desire of any person, the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, intentionally:(1) communicates in a sexually explicit manner with a minor; or(2) distributes sexually explicit material to a minor.Acts 2007, 80th Leg., ch. 610, § 2, p. 1167−68, eff. Sept. 1, 2007.

2.   At this point in time, none of the currently serving judges on this Court were part of the make-up of judges who participated in the decision in Lo.

3.   Although the Legislature has subsequently amended the online solicitation of a minor statute, Acts 2015, 84th Leg., ch. 61, § 2, p. 1036, eff. Sept. 1, 2015, it is important that we correct potentially errant decisions to ensure that we do not inadvertently do violence to the law and justice ourselves, and so that the lower courts will not be misled by our former precedents. Moreover, because Lo was wrongly decided, that is all the more reason (if more were necessary) not to give it retroactive application in post-conviction habeas corpus proceedings! See Part IV, post.

4.   The Lo Court summarily brushed off this argument when the State propounded it in that case. Lo, 424 S.W.3d at 26 (“The State suggests that the statute prohibits only one-on-one communications[.]”). In response, the Court offered the purely conclusory criticism that the statute “would apply to one who communicates via the internet with one, ten, or a hundred minors, perhaps sending them salacious selections from ‘Lolita’ with the intent to tickle their fancy[,]” seeming to suggest that such conduct would have been protected by the First Amendment. Id. at 26−27. Surely, however, it would not be protected speech for an adult to send salacious selections from “Lolita” directly to a child with the “intent to arouse or gratify” anyone's “sexual desire[.]” The statute was designed, after all, to protect children, and the Supreme Court has very recently reminded us that states act properly within their power and authority when they seek to prevent children from accessing sexually explicit content. See e.g., Free Speech Coalition v. Paxton, 606 U.S. 461, 466, 145 S.Ct. 2291, 222 L.Ed.2d 643 (2025) (“The power to require age verification is within a State's authority to prevent children from accessing sexually explicit content[,]” and “H. B. 1181 [which requires age verification for access to such materials] is a constitutionally permissible exercise of that authority”); New York v. Ferber, 458 U.S. 747, 757, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) (“The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance.”).That the Court in Lo would have thought such communications were protected speech demonstrates the Court's then-failure to perceive the true meaning and scope of our First Amendment Speech guarantees—and the appropriate limits of those guarantees. The statute's clear language suggests a more proper application in the context of person-to-person communications. It should also be determined only in a future as-applied claim whether the law could appropriately be applied where the communication had been sent directly to any number of children more than one at the same time.The Court suggested in Lo that it would be “anomalous to think that a person who makes ‘titillating talk’ to one minor over the internet may be subject to felony prosecutions, but that same person who makes ‘titillating talk’ to two or more minors in a chat room or through a mass email is not subject to criminal prosecution.” Lo, 424 S.W.3d at 27. But that musing by the Court was no more than the invocation of a pure policy consideration, and it had no proper place in its opinion. Simply put, it was not a valid legal argument supporting a determination of unconstitutionality.Contrary to the Lo Court's suggestion, there are extremely rational reasons why the Legislature might have wanted to impose penalties on individuals who would send salacious sexual materials directly “to” children with the intent to arouse or gratify sexual desire, even where it might not have wanted to criminalize public and universal disseminations of the same kinds of materials. Person-to-person communications with children, for example, are more potentially predatory than public, open, and universal publications of materials. Person-to-person communications may invite personal and private responses from children that might not be open to public view. Such communications might also set up further non-public communications between the sponsor of the salacious sexual materials and the children. Parents and guardians might not have access to those communications to check their content. Also, parents and guardians would have a better ability to control what their children see when materials are publicly and universally disseminated, and the public dissemination of materials might also provide them an opportunity to influence their children's proper understanding of such materials as well—but not so when the communications go directly to the children themselves, at least potentially outside the view or knowledge of parents or guardians.

5.   Mitcham, 542 S.W.3d at 564 nn.5–7 (Yeary, J., dissenting) (describing the clearly unprotected-by-the-First Amendment conduct that was charged in numerous other cases in which this Court previously granted state post-conviction habeas corpus relief).

6.   Fournier, 473 S.W.3d at 800–805 (Yeary, J., dissenting); Chavez, 542 S.W.3d at 584–85 (Yeary, J., dissenting); Gonzalez, 664 S.W.3d at 838–843 (Yeary, J., dissenting).

Per curiam.

Newell, J., filed a concurring opinion in which Richardson and Walker, JJ., joined. Parker, J., filed a concurring and dissenting opinion in which Finley, J., joined. Schenck, P.J., filed a dissenting opinion in which Yeary, J., joined. Yeary, J., filed a dissenting opinion in which Schenck, P.J., joined and Keel, J., joined Part IV only.