Ex parte Donald Thomas Dehnert v. The State of Texas

A Harris County grand jury indicted appellant on 10 charges of possession

of child pornography in violation of section 43.26 of the Texas Penal Code.

Appellant then filed his “Second Amended Application for Writ of Habeas

Corpus,” asserting that section 43.26 is unconstitutional. The trial court denied the

habeas corpus relief appellant requested, i.e., dismissal of the indictments. In his

sole issue on appeal, appellant contends that the trial court erred in denying his

requested relief, arguing that section 42.26 of the Texas Penal Code “is a facially

overbroad restriction on speech in violation of the Free Speech Clause of the First

1 A party may file a pretrial application for writ of habeas corpus to assert a facial

challenge to the constitutionality of a statute. See Ex parte Ellis, 309 S.W.3d 71,

79 (Tex. Crim. App. 2010). Orders in such cases may be appealed. See TEX. R.

APP. P 31.

2 TEX. PENAL CODE § 43.26.

3 U.S. CONST. amend. I; TEX. CONST. art. I, § 8.

3

Amendment of the United States Constitution and article I, section 8 of the Texas

Constitution.”

Standard of Review

We review the constitutionality of a criminal statute de novo as a question of

law. Maloney v. State, 294 S.W.3d 613, 626 (Tex. App.—Houston [1st Dist.] 2009,

pet. ref’d). When presented with a challenge to the constitutionality of a statute, we

presume that the statute is valid, and the legislature has not acted unreasonably or

arbitrarily. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002). The party

challenging the statute carries the burden to establish its unconstitutionality. Id. We

must uphold the statute if we can apply a reasonable construction that will render it

constitutional. Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App. [Panel Op.]

1979); see also Maloney, 294 S.W.3d at 626 (stating that if statute can be

interpreted in two different ways, one of which sustains its validity, we apply

interpretation that sustains its validity).

Applicable Law Regarding Overbreadth

A facial challenge attacks the statute itself rather than the statute’s

application to the defendant. Peraza v. State, 467 S.W.3d 508, 514 (Tex. Crim.

App. 2015). Ordinarily, to mount a successful facial challenge, the challenger must

establish that no set of circumstances exists under which the statute would be valid

or that the statute lacks any plainly legitimate sweep. See id.; see also United

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States v. Stevens, 559 U.S. 460, 472 (2010). However, in the case of statutes that

encroach upon activity protected by the First Amendment, the challenger may also

bring a “substantial overbreadth” challenge. Under such a facial challenge, a

statute may be invalidated as overbroad if “a substantial number of its applications

are unconstitutional, judged in relation to the statute’s plainly legitimate

sweep.” Stevens, 559 U.S. at 473; see also Ashcroft v. Free Speech Coal., 535 U.S.

234, 255 (2002) (holding overbreadth doctrine prohibits government from banning

unprotected speech if substantial amount of protected speech prohibited or chilled

in process). This type of facial challenge may be made when a statute restricts or

punishes speech based upon its content. See Ex parte Lo, 424 S.W.3d 10, 15 (Tex.

Crim. App. 2014).

A law is “content-based” if it distinguishes between favored and disfavored

speech on the basis of the views expressed or if it is necessary to review the

content of the speech in order to determine whether the speaker violated the law.

Ex parte Thompson, 442 S.W.3d 325, 345 (Tex. Crim. App. 2014). A contentbased regulation that distinguishes favored from disfavored speech based on the

views expressed is presumptively invalid, and the government bears the burden to

rebut the presumption. Lo, 424 S.W.3d at 15. We apply the “most exacting scrutiny

to regulations that suppress, disadvantage, or impose different burdens on speech

because of its content.” Id. To satisfy a strict scrutiny review, a statute that

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regulates speech must be necessary to serve a compelling state interest and be

narrowly drawn. Id. To be considered narrowly drawn, a law must employ the least

restrictive means to achieve its goal and there must be a close nexus between the

state’s compelling interest and the restriction. Id. The statute does not survive strict

scrutiny review if there is a less restrictive means of meeting the state’s compelling

interest that would be at least as effective as the statute under review. Id. at 15–16.

However, a statute may not be held overbroad merely because it is possible to

conceive of some impermissible applications. United States v. Williams, 553 U.S.

285, 303 (2008).

The Applicable Penal Statutes

The first step in considering an overbreadth challenge “is to construe the

challenged statute; it is impossible to determine whether a statute reaches too far

without first knowing what the statute covers.” Williams, 553 U.S. at 293.

Section 43.26(a) of the Texas Penal Code provides that a person commits an

offense if:

(1) the person knowingly or intentionally possesses, or knowingly or

intentionally accesses with intent to view, visual material that visually

depicts a child younger than 18 years of age at the time the image of

the child was made who is engaging in sexual conduct, including a

child who engages in sexual conduct as a victim of an offense under

Section 20A.02(a)(5), (6), (7), or (8) and

(2) the person knows that the material depicts the child as described

by Subdivision (1).

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TEX. PENAL CODE § 43.26(a).

“Sexual conduct” is defined as:

[S]exual contact, actual or simulated sexual intercourse, deviate

sexual intercourse, sexual bestiality, masturbation, sado-masochistic

abuse, or lewd exhibition of the genitals, the anus, or any portion of

the female breast below the top of the areola.

TEX. PENAL CODE §§ 43.26(b)(2), 43.25(a)(2).

“Simulated” is defined as:

[T]he explicit depiction of sexual conduct that creates the appearance

of actual sexual conduct and during which a person engaging in the

conduct exhibits any uncovered portion of the breasts, genitals, or

buttocks.

TEX. PENAL CODE § 43.25(a)(6).

It is an affirmative defense to prosecution under Section 43.26(a) that:

(1) the defendant was the spouse of the child at the time of the

offense;

(2) the conduct was for bona fide educational, medical, psychological,

psychiatric, judicial, law enforcement, or legislative purpose; or

(3) the defendant is not more than two years older than the child.

TEX. PENAL CODE §§ 43.26(c), 43.25(f).4

4 Though not applicable here, the statute also provides a defense for law

enforcement officers and school administrators under certain circumstances. TEX.

PENAL CODE § 43.26(h).

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Analysis

Appellant contends that the child pornography statute under which he is

charged is overbroad for three reasons:

1. Because it punishes as “child pornography” the possession of

images of people who may effectively consent to sexual conduct;

2. Because it punishes as “child pornography” the possession of

images of “lewd exhibition of . . . the anus, or any portion of the

female breast below the top of the areola,” which is speech that the

United States has never recognized as child pornography; and

3. Because it punishes as “child pornography” the possession of

images of “simulated” sexual conduct, which does not implicate the

purposes of the child pornography exception to free speech.

Appellant also challenges the statute as being overbroad under the Texas

Constitution.

We address each argument, respectively.

1. Punishing the possession of pornography involving 17-year-old minors

First, appellant argues that the statute is overbroad because it punishes the

possession of pornography involving 17-year-old minors, while the age at which a

minor can consent to sex, thereby preventing prosecution of their partner, is 17.

See TEX. PENAL CODE § 22.011(c)(1) (defining “child” in sexual-assault statute as a

person younger than 17). Appellant argues that “Texas, having made the decision

that a seventeen-year-old can effectively consent to sex, cannot invoke as its

compelling interest for forbidding pornography of seventeen-year-olds protecting

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children under 18 from sexual seduction, nor protecting the children exploited by

the production process.”

Two Texas cases, both of which were refused discretionary review by the

Texas Court of Criminal Appeals, have considered and rejected this argument in

the context of section 43.25 of the Penal Code. See Ex parte Fujisaka, 472 S.W.3d

792, 800 (Tex. App.—Dallas 2015, pet. ref’d) and Dornbusch v. State, 156 S.W.3d

850, 867 (Tex. App.—Corpus Christi 2005, pet. ref’d) (addressing facial

overbreadth challenges to Texas Penal Code section 43.25).

Addressing the issue that section 43.25 of the Penal Code (“the sexualperformance-by-a-child statute”) was overbroad because it applied to all children

under the age of 18, while section 22.011 (“the sexual-assault statute”) applied to

children under the age of 17, the Fujisaka court noted:

Although there is some overlap between the offenses set forth in Title

Five of the penal code, addressing offenses against persons, and the

offenses set forth in Title Nine of the penal code, addressing offenses

against public order and decency, we see no necessary inconsistency

between the provisions of these titles and no reason why the age of

consent to sexual relations in the Title Five offenses need be the same

as the threshold age for prosecutions of conduct violative of public

order and decency in Title Nine. Compare §§ 21.11(a), 22.011(a)(2),

(c)(1), and 22.021(a)(1)(B), (b)(1) (criminalizing sexual conduct with

persons younger than seventeen years of age), with §§ 43.02(c)(3),

43.03(b)(2), 43.04(b), 43.251(a)(1), and 43.26(a)(1) (criminalizing or

enhancing punishment for offenses involving persons younger than

eighteen years of age). Appellant has not provided any authority

mandating an age limit on regulations aimed at protecting children

and society from adults exploiting children for sexual purposes. We

do not find the argument persuasive that the age restriction cannot be

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set by the legislature at seventeen years for some purposes and

eighteen years for others. See, e.g., 18 U.S.C.A. § 2256(1) (West

2015) (defining “minor” as “any person under the age of eighteen

years” for purposes of federal law prohibiting the sexual exploitation

and other abuse of children). Appellant’s suggestion that we interpret

the statute to encompass only sexual conduct or sexual performances

that are otherwise proscribed by Title Five offenses does not fully

grasp the significance of the government’s compelling interest in

protecting children from sexual exploitation. See New York v. Ferber,

458 U.S. 747, 757, 102 S. Ct. 3348, 73 L.Ed.2d 1113 (1982)

(recognizing “[t]he prevention of sexual exploitation and abuse of

children constitutes a government objective of surpassing

importance”).

Fujisaka, 472 S.W.3d at 800–01.

The Dornbusch court, also considering a challenge to section 43.25, noted as

follows:

Furthermore, section 21.11 [the indecency-with-a-child statute] is in

the part of the penal code that criminalizes offenses against persons,

whereas section 43.25 is in the part of the code that criminalizes

offenses against the public decency and order. See §§ 21.11, 43.25(b).

A helpful analogy can be drawn between inducement of sexual

conduct by a child and prostitution. Both are offenses against the

public decency and order. Prostitution is not a crime against the

prostitute; it is an offense against the “public decency and order”

because it violates the moral values of society. See TEX. PEN. CODE

ANN. § 43.02 (Vernon 2003). Consequently, a prostitute’s consent to

sex in exchange for money does not make the conduct legal. It still

amounts to prostitution. Similarly, although an adult’s consensual

sexual contact with a seventeen-year-old cannot be prosecuted as

indecency with a child, the teenager’s consent to sex does not decriminalize the adult’s conduct under section 43.25(b) because the

adult’s conduct is a crime against the public, not against the

teenager. See §§ 21.11, 43.25(b).

Dornbusch, 156 S.W.3d at 871.

10

Though Fujisaka and Dornbusch decide whether section 43.25 of the Penal

Code is overbroad, and this case involves section 43.26 of the Penal Code, we find

their reasoning persuasive. That the State does not permit sex with a child under

the age of 17 for purposes of the sexual-assault statute or the indecency-with-achild statute does not compel the conclusion that the age must be the same for the

child-pornography statute. Similarly, that a 17-year-old child can consent to sex

does not compel the conclusion that the same child can consent to participate in

pornography. As noted by the Dornbusch court, the child-indecency statute is in

the section of the Penal Code prohibiting offenses against persons, while the

sexual-performance-by-a-child statute is in the section of Penal Code prohibiting

offenses against public order and decency. Similarly, the Fujisaka court noted the

same difference between the sexual-assault statute and the sexual-performance-bya-child statute. The same difference exists between the sexual-assault statute and

the child-pornography statute in this case. Given the different purposes of the

statutes, the Legislature could have believed that public order and decency would

be best served by prohibiting pornography involving all minors, even those who

might be able to consent to sex. Indeed, given widespread distribution of child

pornography on the internet, and that “The Internet is Forever,”5

the long-term

consequences of child pornography might also compel the Legislature to conclude

5 See Paisley, Brad, “The Internet is Forever,” Love and War, Arista Records

(2017).

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that all children should be protected from participating in pornography, even those

who might otherwise be permitted to consent to sex. See New York v. Ferber, 458

U.S. 747, 759 (1982) (“[T]he materials produced are a permanent record of the

children’s participation and the harm to the child is exacerbated by their

circulation”).

We also find support for our conclusion in United States v. Bach, 400 F.3d

622, 628 (8th Cir.), cert. denied, 546 U.S. 901 (2005). In Bach, the defendant, who

was charged under the federal child pornography statute, argued that his

pornographic pictures of a 16-year-old male were not unconstitutional child

pornography “because [the child depicted] was sixteen and the age of consent

under Minnesota and federal law is sixteen.” Id. The Eighth Circuit Court of

Appeals noted that that Congress had changed the definition of a minor in the

federal child pornography statute from 16 years old to 18 years old, and the court

concluded that “the congressional choice to regulate child pornography by defining

minor as an individual under eighteen is rationally related to the government’s

legitimate interest in enforcing child pornography laws[.]” Id. at 629. In so

holding, the court rejected the defendant’s argument that depictions of consensual

sexual relations could not be prohibited by the child pornography statute because

they were entitled to privacy protections under the Fifth Amendment, noting that

the case relied upon by the defendant, Lawrence v. Texas, 539 U.S. 558 (2003),

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involved the privacy rights of two consenting adults, not an adult and a minor

“who might be injured or coerced.” Bach, 400 F.3d at 628–29 (quoting Lawrence,

539 U.S. at 578).

In light of these authorities, we reject appellant’s argument that the statute is

overbroad because it does not require the depiction of a crime, i.e., that the child be

below the age of consent. As noted by the Fujisaka court, appellant’s argument

that only crimes against persons, such as those proscribed in section 22.11, can

serve as the basis for the child pornography statue “does not fully grasp the

significance of the government’s compelling interest in protecting children from

sexual exploitation.” 472 S.W.3d at 801 (citing Ferber, 458 U.S. at 757

(recognizing “[t]he prevention of sexual exploitation and abuse of children

constitutes a government objective of surpassing importance”)).

2. Punishing the possession of pornography involving “exhibition of . . . the

anus, or any portion of the female breast below the top of the areola”

Appellant also contends that the statute is overbroad because its definition of

“sexual conduct” forbids the “lewd exhibition of . . . the anus, or any portion of the

female breast below the top of the areola.” See TEX. PENAL CODE § 43.25(a)(2).

Appellant, citing Miller v. California and New York v. Ferber, seems to argue that,

while there can be lewd exhibition of the genitals, there can be no lewd exhibition

of the anus or female breast below the top of the areola. See 413 U.S. 15, 25 (1973)

(interpreting statute prohibiting lewd exhibition of genitals); 458 U.S. at 751

13

(same). Because the statutes interpreted in Miller and Ferber both prohibited lewd

exhibition of the genitals, and did not include other body parts, appellant argues

that the Texas statute is unconstitutionally overbroad because “the Supreme Court

has never included in its definition of ‘child pornography’ anything resembling”

the Texas statute’s prohibition of the lewd exhibition of body parts other than

genitalia.

We do not believe that the Supreme Court’s prohibition against child

pornography can be read so narrowly. In Osborne v. Ohio, 495 U.S. 103, 106

(1990), the Supreme Court considered whether an Ohio statute was facially

unconstitutional since it proscribed possession of material depicting “nude”

children.6 Although the Osborne Court determined that “depictions of nudity,

without more, constitute protected expression,” id. at 112, it refused to hold the

Ohio statute facially unconstitutional. The Supreme Court noted that the Ohio

courts had narrowly interpreted the “nude” provision. Id. at 114. The Court also

noted that the statute’s exemptions and “proper purposes” provisions made it less

likely that the statute, as written, was substantially overbroad. Id. at 112. The

Supreme Court did not hold, as suggested by appellant, that only genitals can be

6 The Ohio statute interpreted in Osborne prohibited a person from “[p]ossess[ing]

or view[ing] any material or performance that shows a minor who is not the

person’s child or ward in a state of nudity,” and then provided several proper

purposes for which such material might be possessed. See Osborne, 495 U.S. at

106-07 (citing Ohio Rev. Code § 2907.323(A)(3) (Supp. 1989)).

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lewdly exhibited. Indeed, when rejecting an argument that the Ohio statute was

overbroad because it prohibited possession of lewd exhibitions of nudity, not

genitals, the Court stated:

The dissent distinguishes the Ohio statute, as construed, from the

statute upheld in Ferber on the ground that the Ohio statute proscribes

“‘lewd exhibitions of nudity’ rather than ‘lewd exhibitions of the

genitals.’” See post, at 1707 (emphasis in original). The dissent notes

that Ohio defines nudity to include depictions of pubic areas, buttocks,

the female breast, and covered male genitals “in a discernibly turgid

state.” Post, at 1707. We do not agree that this distinction between

body areas and specific body parts is constitutionally significant: The

crucial question is whether the depiction is lewd, not whether the

depiction happens to focus on the genitals or the buttocks.

Osborne, 495 U.S. at 114 n.11. Under the reasoning of Osborne, “the focus is on

whether the depiction is lewd, not whether the depiction happens to focus on the

genitals or the buttocks,” or indeed, as in the present case, the anus or female

breast below the top of the areola. Thus, section 43.26(a) is not unconstitutionally

overbroad because it includes more body parts than genitalia.

Dicta from the Texas Court of Criminal Appeals supports our conclusion.

See Savery v. State, 819 S.W.2d 837, 838 n.1 (Tex. Crim. App. 1991). In Savery,

the Texas Court of Criminal Appeals held that the defendant’s conviction for

violating section 43.26 was unaffected by Osborne. Savery did not make a facial

constitutional challenge to the Texas statute like the challenge at issue in Osborne,

but the Court nonetheless observed that section 43.26 did more than proscribe the

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possession of displays of child nudity—it “prohibit[ed] the display of children

‘engaging in sexual conduct.” Id.

Thus, we conclude that section 43.26 is not unconstitutionally overbroad

because it prohibits the lewd exhibition of the anus or female breast below the top

of the areola. We also note that, like the statute in Osborne, article 43.26 contains

exemptions and “proper purposes” provisions that limit the applicability of the

statute, so as not to “penal[ize] persons for viewing or possessing innocuous

photographs” of a child’s anus or female breast below the areola. Osborne, 495

U.S. at 114.

3. Punishing the possession of “simulated” sexual contact

Appellant next argues that section 43.26 is overbroad because it forbids the

possession of images involving children involved in “simulated” sexual contact.

Specifically, appellant argues that “[l]ike images of 17-year-olds, there is no nonspeech crime involved in the making of images of simulated sexual conduct” and

that “images involving simulated sexual conduct, which have no link to any valid

crime, do not fall into the narrow category of child pornography[.]”

Appellant again seems to argue, without any citation to authority, that there

can be no child pornography unless it depicts an underlying crime. For the same

reasons we discussed above, the Legislature could have chosen to define the child-

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pornography statute, a crime against public order and decency, differently from a

crime against persons.

And, to the extent that appellant is challenging the “simulated” nature of the

sexual conduct prohibited in 43.26(a), we note that the Fourteenth Court of

Appeals has considered and rejected this argument. See Porath v State, 148

S.W.3d 402, 414–15 (Tex. App.—Houston [14th Dist.] 2004, pet. denied). In

Porath, the defendant argued that section 43.26 was overbroad and violated the

First Amendment because “it draws no distinction between possession of actual

child pornography and child pornography created by digital or computer imaging,”

i.e., simulated sexual conduct. In rejecting this argument, the court stated as

follows:

[A]ppellant relies on Ashcroft v. Free Speech Coalition, 535 U.S. 234,

122 S. Ct. 1389, 152 L.Ed.2d 403 (2002). In Free Speech

Coalition, the United States Supreme Court considered a challenge to

the Child Pornography Prevention Act of 1996 (“CPPA”). Id. at 239,

122 S. Ct. 1389. The CPPA extended the federal prohibition of child

pornography to sexually explicit images that “appear to” depict

minors engaging in sexual conduct, but are produced without using

any real children. Id. Because the statute prohibited both protected and

unprotected speech, the Court held that the statute was

unconstitutional to the extent it regulated virtual images or images that

merely appeared to depict children engaged in sexual conduct. Id. at

256, 122 S.Ct. 1389. In so holding, however, the Court also observed,

“[t]he freedom of speech has its limits; it does not embrace certain

categories of speech, including defamation, incitement, obscenity, and

pornography produced with real children.” Id. at 246, 122 S. Ct. 1389.

In Texas, it is an offense to knowingly or intentionally possess “visual

material that visually depicts a child younger than 18 years of age at

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the time the image of the child was made who is engaging in sexual

conduct” if the person “knows that the material depicts the child”

engaging in sexual conduct. TEX. PEN. CODE ANN. § 43.26(a) (Vernon

2003). Unlike the federal statute [interpreted in Ashcroft], the plain

language of the Texas statute indicates that it prohibits only

possession of material that depicts an actual child, not material that

merely “appears” to depict a child. Id.

Because section 43.26(a) only prohibits pornography depicting actual

children, the statute is not vague or overbroad. Webb v. State, 109

S.W.3d 580, 583 (Tex. App.—Fort Worth 2003, no pet.). Further,

because pornography produced with actual children is not a category

of speech protected by the First Amendment, the statute’s prohibition

of these materials does not violate the First Amendment. Id.; see

also Free Speech Coalition, 535 U.S. at 246, 122 S. Ct. 1389.

Porath, 148 S.W.3d at 414–15.

Further, if appellant is arguing that there can be no child pornography unless

there is an actual child plus actual sexual intercourse7 by the child depicted in the

image, we disagree.

The United States Fifth Circuit Court of Appeals has recently considered a

similar claim. In United States v. Mecham, the defendant imposed the face of his

granddaughter on the body of an adult engaged in sexual acts to make it appear that

the child was engaged in sexual conduct. 950 F.3d 257, 263 (5th Cir. 2020). When

7 The statute prohibits “actual or simulated sexual intercourse,” and “simulated”

intercourse requires “[t]he explicit depiction of sexual conduct that creates the

appearance of actual sexual conduct and during which a person engaging in the

conduct exhibits any uncovered portion of the breasts, genitals, or buttocks.” TEX.

PENAL CODE §§ 43.26(b)(2), 43.25(a)(2), 43.25(a)(6).

18

prosecuted under the federal child pornography statute,8

the defendant claimed that

“the video is entitled to First Amendment protection because, even though it uses

an image of a real child, it does not depict the sexual abuse of that child” and that

“underlying criminal conduct is necessary . . . for an image to be excluded from the

First Amendment.” Id. The Fifth Circuit rejected this argument, holding that there

was no requirement that child pornography depict an underlying sexual abuse

claim, and that because the challenged “child pornography depicts an identifiable

child, it falls outside the First Amendment.” Id. at 267; see also United States v.

Lyckman, 235 F.3d 234, 240 (5th Cir. 2000) (recognizing that “child pornography

may involve merely ‘pictures of a [naked] child’ . . . without physical sexual

contact”).

Indeed, we note that two of the child-pornography-related statutes upheld by

the United States Supreme Court both proscribe the depiction of children in

simulated sexual intercourse although they do not specifically address the issue

raised here. See Ferber, 458 U.S. at 765; Williams, 553 U.S. at 296 (noting that

definition of simulated sexual intercourse proscribed by statute “is not sexual

intercourse that is merely suggested, but rather sexual intercourse that is explicitly

portrayed, even though (through camera trick or otherwise) it may not actually

have occurred”).

8 See 18 U.S.C. 2256.

19

In light of these authorities, we reject appellant’s claim that the statute is

overbroad because no actual child abuse crime is depicted.

4. Texas Constitutional Challenge

Finally, appellant also claims that the statute is unconstitutional under

Article I, section 8 of the Texas Constitution (“Every person shall be at liberty to

speak, write or publish his opinions on any subject, being responsible for the abuse

of that privilege; and no law shall ever be passed curtailing the liberty of speech or

of the press”). Specifically, appellant, citing Davenport v. Garcia, 834 S.W.2d 4, 8

(Tex. 1992), contends that “Article I, section 8 of the Texas Constitution provides

broader rights of free speech than does the First Amendment.”

In addressing a similar argument, the Texas Supreme Court has stated:

In Operation Rescue–National v. Planned Parenthood of Houston &

Southeast Texas, Inc., this Court held:

It is possible that Article I, Section 8 may be more

protective of speech in some instances than the First

Amendment, . . . but if it is, it must be because of the

text, history, and purpose of the provision, not just

simply because. Starting from the premise that the state

constitutional provision must be more protective than its

federal counterpart illegitimizes any effort to determine

state constitutional standards. To define the protections

of Article I, Section 8 simply as one notch above First

Amendment protections is to deny state constitutional

guarantees any principled moorings whatever. We reject

this approach.

And in Ex Parte Tucci, Chief Justice Phillips explored in his

concurring opinion the history and adoption of Article I, section 8. He

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concluded that when there is no prior restraint, “nothing in the

language or purpose of [section 8] authorizes us to abandon the

notion of accommodating competing interests . . . or even to afford

greater weight in the balancing of interests to free expression than we

would under the First Amendment. . . .”

Tex. Dept. of Transp. v. Barber, 111 S.W.3d 86, 106 (Tex. 2003) (internal citations

omitted) (emphasis added).

As noted in Barber, the Texas Supreme Court has not interpreted Article I,

section 8 more broadly than the First Amendment in any case that does not involve

an issue of a prior restraint on free speech. This case does not involve an issue of a

prior restraint on free speech, and appellant has shown no reason, based on “the

text, history, or purpose of Article 1, section 8,” for us to expand the protections

afforded in in this case beyond those provided by the First Amendment.

Having considered and rejected all reasons advanced by appellant for

holding section 43.26 unconstitutionally overbroad, we overrule appellant’s sole

issue on appeal.



We affirm the trial court’s judgment.