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Karenev Starts to Crumble

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Harris County Assistant PD Nick Hughes had a huge win in the First Court of Appeals on Schuster v. State.

Mr. Schuster had pled guilty to online solicitation of a minor by explicit communication, enhanced with prior felony convictions, and been sentenced to forty years in prison while Ex Parte Lo was pending. Hughes appealed, arguing that the online-solicitation-by-explicit-communication statute was unconstitutional (the issue in Lo).

The State argued (as in this hypothetical) that the Court of Criminal Appeals' decision in Karenev v. State barred relief. Karenev held that the right not to be convicted under an unconstitutional statute was a right that could be forfeited, and that Mr. Karenev had forfeited that right.

That Mr. Schuster not receive relief from his 40-year sentence for an unconstitutional conviction is the result dictated by Karenev-a forfeited right is forfeited. It is also an absurd result. The First Court of Appeals resolved the absurdity by carving out an exception to the forfeiture of rights in Karenev: "the rationale for the Karenev rule-the presumption that a statute is constitutional-does not apply to this case." Because Section 33.021(b) had been held unconstitutional before Mr. Schuster's appeal, Mr. Schuster could raise the unconstitutionality on appeal.

The Court of Criminal Appeals invented its fundamental holding in Karenev-that the right to challenge the constitutionality of a statute could be forfeited-from whole cloth. No American court outside Texas has ever held the same. Other courts have not adopted Karenevā€˜s fundamental holding because that fundamental holding is wrong. If a statute is void, a document purporting to charge a defendant with a violation of that statute does not charge a crime, is not an indictment, and does not vest the trial court with jurisdiction. Instead of burning Karenev to the ground, the Court of Appeals carved out a narrow exception-the best they could do with stare decisis.

But even the reasoning of the Court of Appeals can be taken much further in the First Amendment context: since a content-restricting statute is presumed to be unconstitutional under the First Amendment, the holding of Karenev, as interpreted by Schuster, does not apply to statutes that restrict speech based on its content-statutes like Texas's improper-photography statute, its online-impersonation statute, and the balance of Texas's online-solicitation statute.

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