424 S.W.3d 10 (2013)

Court of Criminal Appeals of Texas, October 30, 2013.

Section 33.021(c) of the Texas Penal Code, “Online Solicitation of a Minor,” punished adults for talking dirty to people who represented themselves to be minors online even without an intent to meet, and even if they didn’t believe the representations.

That is, a Perverted Justice volunteer could initiate a sexual chat as an adult, in the course of that chat say “Let’s age play. I’m 15 now!” and her adult target could be prosecuted for continuing the sex chat. This had happened to one of my clients before Lo. He hired me only after a jury convicted him, and I tried to raise an as-written challenge to the statute (it restricts a real and substantial amount of protected speech based on its content) but it was too late. Texas law says that such a challenge has to be raised by the defendant before trial, or it is forfeited.

So when Grant Scheiner asked me to help with his client Mr. Lo’s 33.021(c) case, I had a roadmap in mind for preserving the as-written (or “facial”) challenge to the statute. We filed an application for writ of habeas corpus in the trial court; the judge denied relief; we appealed that to the First Court of Appeals in Houston, which upheld the statute (that case is here). We filed a petition for discretionary review with the Court of Criminal Appeals, and the court granted review and oral argument.

We don’t have a video, because this was before the court started videotaping arguments.

After hearing argument, the court unanimously held the statute facially unconstitutional. Mr. Lo was free.

This case resulted in dozens of people getting out of prison, getting off probation or parole, getting removed from the sex-offender registry, getting their records cleared and their lives back. (The Texas Legislature rewrote the statute after this, and so far that rewritten statute has been upheld.)

This case also resulted in an amendment to the Texas Constitution allowing the Legislature to require the parties to a case to notify the Attorney General about a constitutional challenge to a statute.

More personally, for us it showed us what could be done if you don’t know it can’t be. The unconstitutional section 33.021(c) had been the law for eight years before we killed it; nobody else had even tried the attack that ultimately prevailed. It hadn’t even occurred to them.

We think of arguments that nobody else has ever thought of, and we use them not only to win for our clients but also to change the world.

This is the difference between the ordinary criminal appellate lawyer, and the best.

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