Posted on
February 12, 2015 in
Texas Penal Code Section 36.06:
OBSTRUCTION OR RETALIATION. (a) A person commits an offense if he intentionally or knowingly harms or threatens to harm another by an unlawful act:
(1) in retaliation for or on account of the service or status of another as a:
(A) public servant, witness, prospective witness, or informant; or
(B) person who has reported or who the actor knows intends to report the occurrence of a crime; or
. . . .
(c) An offense under this section is a felony of the third degree unless the victim of the offense was harmed or threatened because of the victim’s service or status as a juror, in which event the offense is a felony of the second degree.
Texas Penal Code Section 1.07(25):
“Harm” means anything reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person affected is interested.
Harm may includes reputational harm or embarrassment. So it’s a felony to embarrass a public servant (including an elected official) on account of his service or status as a public servant.
I don’t know that anyone has ever been prosecuted (explicitly) for embarrassing an elected official in Texas, but the statute allows it, so the statute is unconstitutional.
Does it really allow it? It doesn’t forbid it, and I don’t see how you read harm to exclude embarrassment and reputational harm. But just in case you do, Democratic Texas House Member Chris Turner of Tarrant County has a solution: House Bill 1061, which would add a fourth subsection to Section 36.06:
(4) “Harm” includes:
(A) financial harm, including harm to a person’s financial status or a person’s credit report or score;
(B) harm to a person’s reputation;
(C) harm caused by intentionally disseminating or using a person’s personal, private, or confidential information;
and
(D) harm caused by invading the privacy of a person.
That is Chris Turner. Chris Turner is a mouthbreathing dimwit who wouldn’t know the First Amendment if his favorite hand puppet read it to him slowly in very small words.
Fortunately, Turner was Wendy Davis’s campaign manager, so his bill has zero chance of success. Unfortunately, his bill is superfluous anyway: the statute makes embarrassing him a felony. And, so that I am clear enough that even the slackjawed moron Mr. Turner gets it, that is exactly what I am doing.
I write this blog post with the intent to harm Chris Turner’s reputation on account of his status as a public servant.
[Update: I’m also violating Texas Penal Code Sections 33.07 (Online Impersonation) and 32.51 (Fraudulent Use of Identifying Information) either one of which could be a predicate unlawful act for a 36.06 prosecution.]Come and get me.
RT @MarkWBennett: New Defending People blog post: 2015.40: Texas House Member Chris Turner is an Ignorant Buffoon https://t.co/6KmPQeCks6
Does the “unlawful act” language apply only to “threaten to harm” or to “harm” as well? i.e. harming with an unlawful act or threatening to harm with an unlawful act. If an unlawful act is required for both then wouldn’t embarrassing a public official not be included because that’s not an unlawful act?
Embarrassing a public official is an unlawful act under PC 32.51, or under 33.07 if it is online. But John Anthony has a good point—36.06 just enhances the punishment.
So if we get 32.51 and 33.07 struck, maybe 36.06 is constitutional.
IANAL, but the way I parse the English, 36.06(a) seems to require that the action in question was itself unlawful, independent of this section. Is the statute truly being applied to create new offenses rather than being used to enhance the punishment for a predicate offence?
Good question.
I would have been a true habitual during the Lykos Administration.
If anyone in the DA’s Office read the law, you would have.
Somewhere Pat is throwing her Jack & Coke against a wall and screaming.
Can I be your co-defendant?
Sure. You might have to up your naming-and-shaming game a bit.
Way off base. This bill is aimed at protecting public servant’s private information from being used to harm them. This statute actually clarifies the duties of a citizen instead of subjecting them to an overly broad statute.
In my neck of the woods the open carry extremists have really gone out of their way to intimidate police officers by sharing their private information with the public, subjecting police officers families to retaliation and serious threats.
In this age of the Internet, any goofball can post private information of a police officer on a blog and subject that officers family to threats.
Have you shared with all your clients who are accused of crimes the location of where your children attended school? I’m sure you would like to keep that information private. So would cops families.
What is a better way to protect public servants privacy interests or credit scores?
The statute doesn’t narrow the statute. It specifies things that are considered harm without limiting what other things are considered harm.
Pubic servants don’t and shouldn’t have any more right to privacy than anyone else. Being our servants, they should probably have less. They’d like to be above criticism (“harm to … reputation”), but they aren’t.
Whatever the bill is “aimed at,” the Constitution doesn’t care about legislators’, cops’, and prosecutors’ good intentions. The Constitution cares only how the statute can be used, and assumes that if it can be misused it will.
Sure, I’d rather keep my children’s school information private, but I don’t have halfwitted legislators writing statutes to criminalize publishing it. and I wouldn’t want to—”posting private information” is often loathsome, but it’s still free speech.
“Aimed at,” the two most idiotic words in the advocacy of the enactment of criminal laws. And the ones most often repeated.
It may still be possible to embarrass a Texas legislator. It may even be possible to harm their reputation. A felony.
If Molly Ivins was still with us, she’d be on death row.
Good stuff Mark. I’d like to add that Chris Turner is an embarrassing asshat and I’m delighted his fuckwittery contributed to the equally-asshatted Wendy Davis’ stunning defeat.
By the way are you interested in taking on a defense case?