EX PARTE JOHN MORGAN STAFFORD v. << (2025)

I join Judge Yeary in his dissent to this Court's previous ruling in the case before us ¹ as well as his present preference for rehearing the matter, which the majority denies. I write separately to express my concern with what I see as the creeping enlargement of our pretrial habeas jurisdiction to include First Amendment challenges that may not properly fall within the reach of a true facial challenge.

DISCUSSION

The traditional understanding of a facial challenge is one brought by a litigant intending to establish that the statute he opposes is unconstitutional in all of its potential applications. United States v. Salerno, 481 U.S. 739, 745 (1987); Schall v. Martin, 467 U.S. 253, 264 (1984). This would obviously include the application to himself. Thus, a habeas applicant to whom a statute could be validly applied if it were read narrowly and with any potentially offensive provisions not applicable to the movant severed, does not state a valid pre-trial application.

In the federal system, the U.S. Supreme Court has recognized overbreadth as a facial challenge based on the idea that a statute that is “substantially overbroad” is thus unconstitutional in all respects. This I do not question.² It is the expansive use of the notion of facial invalidity in federal caselaw to include both a statute that could not apply validly in any circumstance with one that has been fully tested on its merits and found wanting, triggering the question of remedy. The distinction is less of an issue in the federal courts because those courts enjoy a general jurisdictional grant to litigate and resolve any and all constitutional challenges as a deprivation of civil rights under Title 42, Section 1983 of the U.S. Code. We have no such avenue for resolution.

The decision whether to strike down a statute as invalid in all applications, for example, based on its reach to content of speech without either a supporting, compelling governmental interest, or a lack of tailoring to that end arises as a remedial question at the time of final judgment. The remedial determination may include invalidating the statute in full, in which case the result will mirror a facial attack. But, even at that stage, the federal courts remain obliged to read the statute narrowly to avoid the First Amendment problem entirely, if possible, and to sever offensive provisions to save portions of the statute that are consistent with the First Amendment and its requirements, including narrow tailoring. See Arizona Free Enterprise Club's Freedom Club PAC v. Bennett, 564 U. S. 721, 734 (2011); Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973); Clark v. Martinez, 543 U.S. 371, 381 (2005).

I would prefer to grant the State's rehearing and consider the facts of this case under such a simple standard that would reduce the prospect of our potentially overstepping our bounds into matters assigned properly to the Legislature, which does not and should not defer to our Court to determine whether the bills it passes are constitutional prior to a trial court's application of that law to any actual set of facts or as to a litigant who suffers no cognizable harm of his own.

CONCLUSION

Our pretrial writ practice can and should reach to true facial challenges within the meaning of Salerno and overbreadth as in United States v. Stevens, 559 U.S. 460, 473 (2010). In my view, it is far less clear that we should be entertaining (much less invalidating) legislation on First Amendment grounds on behalf of a litigant to whom the statute could apply if it were read narrowly or its provisions severed.

We exceed our authority to the extent we treat ourselves as empowered by the pretrial writ to act as a general board of inquiry on all matters speech or speech-related.

Therefore, I dissent.

The Court rightly denies the State's motion for rehearing given the particular grounds the State has raised there. Nevertheless, I would grant rehearing based on the reasons expressed in my dissenting opinion on original submission. Ex parte Stafford, No. PD-0130-23, 2024 WL 4031614, at *6-13 (Tex. Crim. App. Sept. 4, 2024) (Yeary, J., dissenting) (arguing that the Court has misconstrued the statute and that “[i]t is at least arguable that misattributing a political message to a false source is just the sort of ‘fraud’ that the First Amendment simply does not insulate from governmental regulation”). The Court's decision on original submission in this case should be disavowed—the sooner the better.

FOOTNOTES

1.   [T]he Court's opinion seems to construe the statute in such a way as to ensure its unconstitutionality, concluding that it reaches conduct that it plainly does not, or which it could readily at least be read not to reach, and then finding the scope of the statute, as thus construed, to be too unfettered to satisfy strict scrutiny.Ex parte Stafford, No. PD-0310-23, 2024 WL 4031614, at *10 (Tex. Crim. App. Sept. 4, 2024) (Yeary, J., dissenting).

2.   Even in this setting, it would be “the duty of the court, if it can be done, to construe a statute so that it will remain valid.” Delorme v. State, 488 S.W.2d 808, 811 (Tex. Crim. App. 1973).

Schenck, P.J. filed a dissenting opinion.