vagueness challenge in Texas

2018Where a statute abuts upon sensitive areas of First Amendment freedoms, “the doctrine of vagueness ‘demands a greater degree of specificity than in other contexts.’” Long v. State, 931 S.W.2d 285, 287-88 (Tex. Crim.

2018Where a statute abuts upon sensitive areas of First Amendment freedoms, "the doctrine of vagueness 'demands a greater degree of specificity than in other contexts.' " Long v. State , 931 S.W.2d 285 , 287-88 (Tex. Crim.

2019“The degree of clarity that the vagueness standard . . . requires ‘varies according to the nature of the statute, and the need for fair notice or protection from unequal enforcement.’” Bradley, 990 S.W.2d at 252 (Abbott, J., concurring); see Vill. of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498 (1982) (in directing that vagueness standard not be mechanically applied, stating, “The degree of vagueness 18 that the Constitution tolerates—as well as the relative importance of fair notice and fair enforcement—depends in part on the nature of the enactment.”).

2019In all other instances, a court “should uphold a vagueness challenge only if the statute is impermissibly vague in all of its applications.” Hoffman, 455 U.S. at 499 .

2022The Move Over Act does not contain a quantifiable metric, but a statute can survive a vagueness challenge even if the statute lacks “mathematical certainty” and “meticulous specificity.” See Grayned v. City of Rockford, 408 U.S. 104, 110 (1972).

2018When a statute burdens First Amendment rights, the vagueness doctrine demands greater specificity than in other contexts to preserve the right of free expression because “[u]ncertain meanings inevitably lead citizens to steer far wider of the unlawful zone than if the boundaries of the forbidden areas were clearly marked.” Grayned, 408 U.S. at 109 .

2025And courts apply a heightened vagueness standard where, as here, a “statute’s language is capable of reaching protected speech.” Id. at 438 .

2025And courts must apply “a stricter vagueness standard” to laws like the SCOPE Act that are “capable of reaching protected speech.” Id. at 438 .

2020When a court analyzes a statute pursuant to a vagueness challenge and when, as here, no First Amendment rights are involved, the reviewing court “need only scrutinize the statute to determine whether it is impermissibly vague as applied to the 13 challenging party’s specific conduct.” Bynum v. State, 767 S.W.2d 769, 774 (Tex. Crim.

2017When a court analyzes a statute pursuant to a vagueness challenge and when, as here, no First Amendment rights *180 are involved, the reviewing court "need only scrutinize the statute to determine whether it is impermissibly vague as applied to the challenging party's specific conduct." Bynum v. State , 767 S.W.2d 769 , 774 (Tex. Crim.

1989In Clark v. State, 665 S.W.2d 476, 483 (Tex.Crim.App.1984), our Court of Criminal Appeals held that in a vagueness challenge, where no First Amendment rights are involved, the reviewing court need only scrutinize the statute to determine whether it is impermissibly vague as applied to the challenging party’s specific conduct.

1988In Clark v. State, the Court of Criminal Appeals held that in a vagueness challenge, where no First Amendment rights are involved, the reviewing court need only scrutinize the statute to determine whether it is impermissi-bly vague as applied to the challenging party’s specific conduct. 665 S.W.2d 476, 483 (Tex.Crim.App.1984), citing Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 , 102 S.Ct. 1186 , 71 L.Ed.2d 362 (1982).

1995Briggs v. State , 740 S.W.2d 803, 806 (Tex. Crim.

1994Id; Briggs v. State, 740 S.W.2d 803, 806 (Tex.Crim.App.1987).

2025See Williams, 553 U.S. at 306 (“The problem that poses is addressed, not by the doctrine of vagueness, but by the requirement of proof beyond a reasonable doubt.”). “[T]he law is full of instances where a man’s fate depends on his estimating rightly [to] some matter of degree.” Johnson v. United States, 576 U.S. 591, 604 (2015) (quoting Nash v. United States, 229 U.S. 373, 377 (1913)). “[C]ourts and juries every day pass upon knowledge, belief and intent—the state of men’s minds— having before them no more than evidence of their words and conduct, from which, in ordinary human experience, ment

2025See Williams, 553 U.S. at 306 (“The problem that poses is addressed, not by the doctrine of vagueness, but by the requirement of proof beyond a reasonable doubt.”). “[T]he law is full of instances where a man’s fate depends on his estimating rightly [to] some matter of degree.” Johnson v. United States, 576 U.S. 591, 604 (2015) (quoting Nash v. United States, 229 U.S. 373, 377 (1913)). “[C]ourts and juries every day pass upon knowledge, belief and intent—the state of men’s minds— having before them no more than evidence of their words and conduct, from which, in ordinary human experience, ment

2015“The vagueness doctrine is not designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited.” Webb v. State, 991 S.W.2d 408, 417 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d).

2015“The vagueness doctrine is not designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited.” Webb v. State, 991 S.W.2d 408, 417 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d).

2024See State v. Holcombe, 187 S.W.3d 496, 499 (Tex. Crim.

2016Kolender v. Lawson, 461 U.S. 352, 357 , 103 S.Ct. 1855, 1858 , 75 L.Ed.2d 903 (1983); State v. Holcombe, 187 S.W.3d 496, 499 (Tex.Crim.App.), ce rt. denied, 549 U.S. 824 , 127 S.Ct. 176 , 166 L.Ed.2d 41 (2006); see also State v. Edmond, 933 S.W.2d 120, 125 (Tex.Crim.App.1996) (“[T]he rationale for the vagueness doctrine extends beyond fair warning.

2007McDonald v. State , 693 S.W.2d 660, 661 (Tex. App.—Dallas 1985, no pet.) (citing Clark v. State , 665 S.W.2d 476, 482 (Tex. Crim.

1987In Clark v. State, 665 S.W.2d 476, 483 (Tex.Cr.App.1984), this Court held that in a vagueness challenge, where no First Amendment rights are involved, the reviewing court need only scrutinize the statute to determine whether it is impermissi-bly vague as applied to the challenging party’s specific conduct citing Hoffman Estates, supra, and United States v. Powell, 423 U.S. 87 , 96 S.Ct. 316 , 46 L.Ed.2d 228 (1975). 4 And in McDonald v. State, 693 S.W.2d 660, 661 (Tex.App.-Dallas 1985), the Court held that a vagueness challenge to an enactment will be upheld only if it is imper-missibly vague i

2020The vagueness doctrine, however, “is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited.” Colten v. Kentucky, 407 U.S. 104, 110 , 92 S. Ct. 1953, 1957 (1972).

2020The vagueness doctrine, however, “is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited.” Colten v. Kentucky, 407 U.S. 104, 110 , 92 S. Ct. 1953, 1957 (1972).

2010See, e.g., Pennington, 606 S.W.2d at 689-90 (holding that language in DTPA generally prohibiting “false, misleading, or deceptive acts or practices” and providing a non-exhaustive list of such acts provided adequate notice to survive vagueness challenge, explaining: “The boundaries of illegality under the DTPA must remain flexible because it is impossible to list all methods by which a consumer my be misled or deceived.”); TXU Generation Co., 165 S.W.3d at 841-43 (reading statute and rule as whole to find broad definition of “prohibited activities” and absence of definition for “market power”

2010See, e.g. , Pennington , 606 S.W.2d at 689-90 (holding that language in DTPA generally prohibiting "false, misleading, or deceptive acts or practices" and providing a non-exhaustive list of such acts provided adequate notice to survive vagueness challenge, explaining: "The boundaries of illegality under the DTPA must remain flexible because it is impossible to list all methods by which a consumer my be misled or deceived."); TXU Generation Co. , 165 S.W.3d at 841-43 (reading statute and rule as whole to find broad definition of "prohibited activities" and absence of definition for "market powe

2015Courts will invalidate an economic regulation “only if it commands compliance in terms so vague and indefinite as really to be no rule or standard at all ... or if it is substantially incomprehensible.” Ford Motor Co. v. Texas Dep’t of Transp., 264 F.3d 493, 507 (5th Cir.2001) (internal quotation omitted); see also Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498 , 102 S.Ct. 1186 , 71 L.Ed.2d 362 (1982) (“Economic regulation is subject to a less strict vagueness test.”).

2009Courts will invalidate an economic regulation “only if it commands compliance in terms so vague and indefinite as really to be no rule or standard at all ... or if it is substantially incomprehensible.” Ford Motor Co. v. Texas Dep’t of Transp., 264 F.3d 493, 507 (5th Cir.2001) (internal quotation omitted); see also Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498 , 102 S.Ct. 1186 , 71 L.Ed.2d 362 (1982) (“Economic regulation is subject to a less strict vagueness test.”).

2009Harris v. State , 608 S.W.2d 229, 230 (Tex.Crim.App. 1980).

2009In support of the vagueness challenge, appellant cites the court to Harris v. State. 3 Harris v. State, 608 S.W.2d 229, 230 (Tex.Crim.App. 1980).

2006See Grayned v. City of Rockford, 408 U.S. 104, 110 (1972) (Considering the interpretation of the statute as enforced in practice when evaluating a vagueness claim) Roth v. U.S., 354 U.S. 476, 491 (1957) (noting that the language of a statute should be measured by common understanding and practice); see also DFW Vending, 991 F. Supp. at 594B96 (rejecting the claim that a Jefferson County ordinance establishing a six-foot buffer zone and eighteen-inch stage requirement was unconstitutionally vague for failure to provide explicit standards to law enforcement officials.

2006See Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294 , 33 L.Ed.2d 222 (1972) (Considering the interpretation of the statute as enforced in practice when evaluating a vagueness claim); Roth v. U.S., 354 U.S. 476, 491 , 77 S.Ct. 1304 , 1 L.Ed.2d 1498 *601 (1957) (noting that the language of a statute should be measured by common understanding and practice); see also DFW Vending, 991 F.Supp. at 594-96 (rejecting the claim that a Jefferson County ordinance establishing a six-foot buffer zone and eighteen-inch stage requirement was unconstitutionally vague for failure to provide explic

2016Kolender v. Lawson, 461 U.S. 352, 357 , 103 S.Ct. 1855, 1858 , 75 L.Ed.2d 903 (1983); State v. Holcombe, 187 S.W.3d 496, 499 (Tex.Crim.App.), ce rt. denied, 549 U.S. 824 , 127 S.Ct. 176 , 166 L.Ed.2d 41 (2006); see also State v. Edmond, 933 S.W.2d 120, 125 (Tex.Crim.App.1996) (“[T]he rationale for the vagueness doctrine extends beyond fair warning.

2016Kolender v. Lawson, 461 U.S. 352, 357 , 103 S.Ct. 1855, 1858 , 75 L.Ed.2d 903 (1983); State v. Holcombe, 187 S.W.3d 496, 499 (Tex.Crim.App.), ce rt. denied, 549 U.S. 824 , 127 S.Ct. 176 , 166 L.Ed.2d 41 (2006); see also State v. Edmond, 933 S.W.2d 120, 125 (Tex.Crim.App.1996) (“[T]he rationale for the vagueness doctrine extends beyond fair warning.

2022Generally, “in addressing a vagueness challenge,” courts are to “consider whether the statute is vague as applied to a defendant’s conduct before considering whether the statute may be vague as applied to the conduct of others.” Wagner, 539 S.W.3d at 314 . “‘A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.

2022Nuncio, 579 S.W.3d at 454. –13– Generally, “in addressing a vagueness challenge,” courts are to “consider whether the statute is vague as applied to a defendant's conduct before considering whether the statute may be vague as applied to the conduct of others.” Barton, 2022 WL 1021061 , at *2 (quoting Wagner v. State, 539 S.W.3d 298, 314 (Tex. Crim.

2008“When a statute is capable of reaching First Amendment freedoms, the doctrine of vagueness ‘demands a greater degree of specificity than in other contexts.’” Greater specificity is required to preserve adequately the right of free expression because “[u]ncertain meanings inevitably lead citizens to steer far wider of the unlawful zone than if the boundaries of the forbidden areas were clearly marked.” Moreover, when a vagueness challenge involves First Amendment considerations, a criminal law may be held facially invalid even though it may not be unconstitutional as applied to the defendant's

2008“When a statute is capable of reaching First Amendment freedoms, the doctrine of vagueness ‘demands a greater degree of specificity than in other contexts.’” Greater specificity is required to preserve adequately the right of free expression because “[u]ncertain meanings inevitably lead citizens to steer far wider of the unlawful zone than if the boundaries of the forbidden areas were clearly marked.” Moreover, when a vagueness challenge involves First Amendment considerations, a criminal law may be held facially invalid even though it may not be unconstitutional as applied to the defendant's

2015See Manrique, 40 S.W.3d at 555 (holding in the context of a vagueness challenge, it is simple to conclude how a person holds himself out as a member of the legal profession).

2015See Manrique, 40 S.W.3d at 555 (holding in the context of a vagueness challenge, it is simple to conclude how a person holds himself out as a member of the legal profession).

2015Long, 931 S.W.2d at 288 (citing Gooding v. Wilson, 405 U.S. 518 (1972)).

2015Long, 931 S.W.2d at 288 (citing Gooding v. Wilson, 405 U.S. 518 (1972)).

2019Duncantell v. State, 230 S.W.3d 835, 844 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d) (citing Webb v. State, 991 S.W.2d 408, 416 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d)).

2015Bynum, 767 S.W.2d at 773 ; Duncantell, 230 S.W.3d at 844 ; Webb, 991 S.W.2d at 416 .

1987In Clark v. State, 665 S.W.2d 476, 483 (Tex.Cr.App.1984), this Court held that in a vagueness challenge, where no First Amendment rights are involved, the reviewing court need only scrutinize the statute to determine whether it is impermissi-bly vague as applied to the challenging party’s specific conduct citing Hoffman Estates, supra, and United States v. Powell, 423 U.S. 87 , 96 S.Ct. 316 , 46 L.Ed.2d 228 (1975). 4 And in McDonald v. State, 693 S.W.2d 660, 661 (Tex.App.-Dallas 1985), the Court held that a vagueness challenge to an enactment will be upheld only if it is imper-missibly vague i

1987In Clark v. State, 665 S.W.2d 476, 483 (Tex.Cr.App.1984), this Court held that in a vagueness challenge, where no First Amendment rights are involved, the reviewing court need only scrutinize the statute to determine whether it is impermissi-bly vague as applied to the challenging party’s specific conduct citing Hoffman Estates, supra, and United States v. Powell, 423 U.S. 87 , 96 S.Ct. 316 , 46 L.Ed.2d 228 (1975). 4 And in McDonald v. State, 693 S.W.2d 660, 661 (Tex.App.-Dallas 1985), the Court held that a vagueness challenge to an enactment will be upheld only if it is imper-missibly vague i

2025See Ex parte Barrett, 608 S.W.3d 80 , 96 (Tex. App.—Dallas 2020, pet. ref’d) (citing United States v. Thompson, 896 F.3d 155, 168 (2nd Cir. 2018)); see Broadrick v. Oklahoma, 413 U.S. 601 , 615–16 (1973) (“[W]hatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied.”). 11 We conclude that the improper use of a protected individual or the individual’s resources under Section 32.53, when read in proper context, is not “such a non- numeric,” “imprecise ‘qualitative standard’” that would lead to unpred

2025See Ex parte Barrett, 608 S.W.3d 80 , 96 (Tex. App.—Dallas 2020, pet. ref’d) (citing United States v. Thompson, 896 F.3d 155, 168 (2nd Cir. 2018)); see Broadrick v. Oklahoma, 413 U.S. 601 , 615–16 (1973) (“[W]hatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied.”). 13 We conclude that the improper use of a protected individual or the individual’s resources under Section 32.53, when read in proper context, is not “such a non- numeric,” “imprecise ‘qualitative standard’” that would lead to unpred

2021Thus, “the very vagueness of the requirement that the operator of a vehicle drive within a single lane ‘as nearly as practical’ indicates that the legislature did not intend for the initial clause of the statute to create a discrete offense apart from some element of unsafety.” Id. 6 Based on the above considerations, this Court concluded, We believe the statutory language shows a legislative intent that a violation of section 545.060 occurs only when a vehicle fails to stay within its lane and such movement is not safe or is not made safely.

2015Slip op. at 8-9. 19 Hernandez, 983 S.W.2d at 871 . 20 Id. at 871 (emphasis in original). 6 Its only support was Atkinson’s conclusory statement of the elements of art. 6701d § 60(a) combined with its view that “the very vagueness of the requirement that the operator of a vehicle drive within a single lane ‘as nearly as practical’ indicates that the legislature did not intend for the initial clause of the statute to create a discrete offense apart from some element of unsafety.”21 In other words, the court dispensed with the “as nearly as practical” language in order to avoid creating two separ

2025See Williams, 553 U.S. at 306 (“The problem that poses is addressed, not by the doctrine of vagueness, but by the requirement of proof beyond a reasonable doubt.”). “[T]he law is full of instances where a man’s fate depends on his estimating rightly [to] some matter of degree.” Johnson v. United States, 576 U.S. 591, 604 (2015) (quoting Nash v. United States, 229 U.S. 373, 377 (1913)). “[C]ourts and juries every day pass upon knowledge, belief and intent—the state of men’s minds— having before them no more than evidence of their words and conduct, from which, in ordinary human experience, ment

2025See Williams, 553 U.S. at 306 (“The problem that poses is addressed, not by the doctrine of vagueness, but by the requirement of proof beyond a reasonable doubt.”). “[T]he law is full of instances where a man’s fate depends on his estimating rightly [to] some matter of degree.” Johnson v. United States, 576 U.S. 591, 604 (2015) (quoting Nash v. United States, 229 U.S. 373, 377 (1913)). “[C]ourts and juries every day pass upon knowledge, belief and intent—the state of men’s minds— having before them no more than evidence of their words and conduct, from which, in ordinary human experience, ment

2024App. 2022) (“[B]ecause § 42.07(a)(7) does not regulate speech and therefore does not implicate the free-speech guarantee of the First Amendment, Appellant, in making his [facial] vagueness challenge to that statutory subsection, was required to show that it was unduly vague as applied to his own conduct.” (citation and quotation marks omitted)). 62 Holder, 561 U.S. at 20; Vill. of Hoffman Ests., 455 U.S. at 495. 63 Holder, 561 U.S. at 18. 64 Vill. of Hoffman Ests., 455 U.S. at 498. 65 Id. 22 legislation in advance of action.”66 Statutes authorizing criminal penalties, like this one,67 carry qu

2024App. 2022) (“[B]ecause § 42.07(a)(7) does not regulate speech and therefore does not implicate the free-speech guarantee of the First Amendment, Appellant, in making his [facial] vagueness challenge to that statutory subsection, was required to show that it was unduly vague as applied to his own conduct.” (citation and quotation marks omitted)). 62 Holder, 561 U.S. at 20; Vill. of Hoffman Ests., 455 U.S. at 495. 63 Holder, 561 U.S. at 18. 64 Vill. of Hoffman Ests., 455 U.S. at 498. 65 Id. 22 legislation in advance of action.”66 Statutes authorizing criminal penalties, like this one,67 carry qu

2018See Ex parte Ellis, 309 S.W.3d 71, 80 (Tex. Crim.

2015App. 2013) (concluding statute at issue was overbroad, content-based restriction on speech and remanding case for trial court to dismiss indictment); Ex parte Ellis, 309 S.W.3d at 86 (noting that “[w]hen a vagueness challenge involves First Amendment considerations, a criminal law may be held facially invalid even if the law has some valid application” and addressing appellant’s vagueness challenges); see also Long v. State, 931 S.W.2d 285, 297 (Tex. Crim.