facial vagueness challenge in Texas

2025“But unless First Amendment freedoms are implicated, a facial vagueness challenge can succeed only if it is shown that the law is unconstitutionally vague in all of its applications.” Id. at 80 (internal citations omitted). 8 Cracknell does not contend the statute implicates First Amendment freedoms.

2020When presented with a facial vagueness challenge, “perfect clarity and precise guidance have never been required.” Ex parte Ellis, 309 S.W.3d 71, 86 (Tex. Crim.

2020App. 1999); see also Rosseau, 396 S.W.3d at 557 (“The court of appeals properly observed that, to prevail on a facial challenge, a party must establish that the statute always operates unconstitutionally in all possible circumstances.”).

2015State v. Rosseau, 396 S.W.3d 550, 557-58 (Tex. Crim.

1999Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497 , 102 S.Ct. 1186 , 71 L.Ed.2d 362 ; Briggs v. State, 740 S.W.2d 803, 806 (Tex.Crim.App.1987).

1999It has repeatedly stated that in analyzing a facial vagueness challenge where no First Amendment rights are involved, “we need only scrutinize the Act to determine whether it is impermissibly vague as applied to appellant’s conduct.” Clark v. State, 665 S.W.2d 476, 483 (Tex.Crim.App.1984); see also Bynum, v. State, 767 S.W.2d 769, 774 (Tex.Crim.App.1989); Briggs v. State, 740 S.W.2d 803, 806 (Tex.Crim.App.1987).

2016In a facial vagueness challenge to a statute that does not implicate constitutionally protected conduct, the challenge will be upheld only when the statute “is impermissibly vague in all of its applications.” Village of Hoffman Estates, 455 U.S. at 494-95 , 102 S.Ct. 1186 ; see State ex rel.

2016In a facial vagueness challenge to a statute that does not implicate constitutionally protected conduct, the challenge will be upheld only when the statute “is impermissibly vague in all of its applications.” Village of Hoffman Estates, 455 U.S. at 494-95 , 102 S.Ct. 1186 ; see State ex rel.

2015If, as we have concluded in this case, a statute does not substantially implicate constitutionally protected speech or conduct, a facial vagueness challenge is sustained only if the challenging party shows the statute to be unconstitutionally vague in all of its applications.3 Ex parte Ellis, 309 S.W.3d at 80 ; Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim.

2015If, as we have concluded in this case, a statute does not substantially implicate constitutionally protected speech or conduct, a facial vagueness challenge is sustained only if the challenging party shows the statute to be unconstitutionally vague in all of its applications.3 Ex parte Ellis, 309 S.W.3d at 80 ; Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim.

2010PENAL CODE § 34.02(a)(2). 47 Id., § 34.01(4). 48 Id., § 34.01(2). 49 Long v. State, 931 S.W.2d 285, 287-88 (Tex. Crim.

2010PENAL CODE § 34.02(a)(2). 47 Id., § 34.01(4). 48 Id., § 34.01(2). 49 Long v. State, 931 S.W.2d 285, 287-88 (Tex. Crim.

2007See Byrum v. State, 762 S.W.2d 685, 688 (Tex.App.-Houston [14th Dist.] 1988, no pet.) (holding that since the statute at issue was not unconstitutionally vague as applied to the defendant’s conduct, the appellate court did not need to address the defendant’s facial vagueness challenge); see also Sullivan v. State, 986 S.W.2d 708, 713-14 (Tex.App.-Dallas 1999, no pet.) (holding that consideration of the vagueness of the statute as applied to the defendant’s conduct was only the first stage of a two-part facial vagueness challenge required by Village of Hoffman Estates v. Flipside, Hoffman Estat

2007See Byrum v. State , 762 S.W.2d 685, 688 (Tex. App. C Houston [14th Dist.] 1988, no pet.) (holding that since the statute at issue was not unconstitutionally vague as applied to the defendant = s conduct, the appellate court did not need to address the defendant = s facial vagueness challenge); see also Sullivan v. State , 986 S.W.2d 708 , 713 B 14 (Tex. App. C Dallas 1999, no pet.) (holding that consideration of the vagueness of the statute as applied to the defendant = s conduct was only the first stage of a two-part facial vagueness challenge required by Village of Hoffman Estates v. Flipsi

2020A facial vagueness challenge has been called “the most difficult challenge to mount successfully because the challenger must establish that no set of circumstances exists under which the statute will be valid.” Santikos v. State, 836 S.W.2d 631, 633 (Tex. Crim.

2016Lykos v. Fine, 330 S.W.3d 904, 908 (Tex.Crim.App.2011); Santikos v. State, 836 S.W.2d 631, 633 (Tex.Crim.App.1992).

2015App. 2007); Duncantell, 230 S.W.3d at 845 ; see Watson v. State, 369 S.W.3d 865, 870 (Tex. Crim.

2015App. 2007); Duncantell, 230 S.W.3d at 845 ; see Watson v. State, 369 S.W.3d 865, 870 (Tex. Crim.

2015Ex parte Ellis, 309 S.W.3d at 80 (citing Washington State 29 Grange v. Washington State Republican Party, 552 U.S. 442, 449 (2008); United States v. Salerno, 481 U.S. 739, 745 (1987); Sanchez v. State, 995 S.W.2d 677, 683 (Tex. Crim.

2001See Young, 427 U.S. at 59-60 , 96 S.Ct. at 2447 ; Long, 931 S.W.2d at 288 ; Smith, 772 S.W.2d at 950 ; Al-Omari, 673 S.W.2d at 896 ; see also Sanchez, 995 S.W.2d at 683 .

2007See Byrum v. State, 762 S.W.2d 685, 688 (Tex.App.-Houston [14th Dist.] 1988, no pet.) (holding that since the statute at issue was not unconstitutionally vague as applied to the defendant’s conduct, the appellate court did not need to address the defendant’s facial vagueness challenge); see also Sullivan v. State, 986 S.W.2d 708, 713-14 (Tex.App.-Dallas 1999, no pet.) (holding that consideration of the vagueness of the statute as applied to the defendant’s conduct was only the first stage of a two-part facial vagueness challenge required by Village of Hoffman Estates v. Flipside, Hoffman Estat

2007See Byrum v. State , 762 S.W.2d 685, 688 (Tex. App. C Houston [14th Dist.] 1988, no pet.) (holding that since the statute at issue was not unconstitutionally vague as applied to the defendant = s conduct, the appellate court did not need to address the defendant = s facial vagueness challenge); see also Sullivan v. State , 986 S.W.2d 708 , 713 B 14 (Tex. App. C Dallas 1999, no pet.) (holding that consideration of the vagueness of the statute as applied to the defendant = s conduct was only the first stage of a two-part facial vagueness challenge required by Village of Hoffman Estates v. Flipsi

2006Second, the Clements court also implicitly rejected appellant’s argument (1) because, in considering a facial vagueness challenge, the Court indicated that the statute “thoroughly specif[ies] what conduct is prohibited and subject to prosecution.” Id. at 450 ; see Lewis , 88 S.W.3d at 392 (“A person who knows or reasonably believes his conduct will be regarded as threatening bodily injury or death is necessarily on notice that his conduct is prohibited.”); see also State v. Seibert , 156 S.W.3d 32, 37 (Tex. App.—Dallas 2004, no pet.) (In reversing trial court’s order quashing indictment, stati

2006Second, the Clements court also implicitly rejected appellant’s argument (1) because, in considering a facial vagueness challenge, the Court indicated that the statute “thoroughly specifies] what conduct is prohibited and subject to prosecution.” Id. at 450 ; see Lewis, 88 S.W.3d at 392 (“A person who knows or reasonably believes his conduct will be regarded as threatening bodily injury or death is necessarily on notice that his conduct is prohibited.”); see also State v. Seibert, 156 S.W.3d 32, 37 (Tex.App.-Dallas 2004, no pet.) (In reversing trial court’s order quashing indictment, stating t

2006Second, the Clements court also implicitly rejected appellant’s argument (1) because, in considering a facial vagueness challenge, the Court indicated that the statute “thoroughly specifies] what conduct is prohibited and subject to prosecution.” Id. at 450 ; see Lewis, 88 S.W.3d at 392 (“A person who knows or reasonably believes his conduct will be regarded as threatening bodily injury or death is necessarily on notice that his conduct is prohibited.”); see also State v. Seibert, 156 S.W.3d 32, 37 (Tex.App.-Dallas 2004, no pet.) (In reversing trial court’s order quashing indictment, stating t

2006Second, the Clements court also implicitly rejected appellant’s argument (1) because, in considering a facial vagueness challenge, the Court indicated that the statute “thoroughly specifies] what conduct is prohibited and subject to prosecution.” Id. at 450 ; see Lewis, 88 S.W.3d at 392 (“A person who knows or reasonably believes his conduct will be regarded as threatening bodily injury or death is necessarily on notice that his conduct is prohibited.”); see also State v. Seibert, 156 S.W.3d 32, 37 (Tex.App.-Dallas 2004, no pet.) (In reversing trial court’s order quashing indictment, stating t

1999See id.

1999It has repeatedly stated that in analyzing a facial vagueness challenge where no First Amendment rights are involved, “we need only scrutinize the Act to determine whether it is impermissibly vague as applied to appellant’s conduct.” Clark v. State, 665 S.W.2d 476, 483 (Tex.Crim.App.1984); see also Bynum, v. State, 767 S.W.2d 769, 774 (Tex.Crim.App.1989); Briggs v. State, 740 S.W.2d 803, 806 (Tex.Crim.App.1987).

2015Ex parte Ellis, 309 S.W.3d at 80 (citing Washington State 29 Grange v. Washington State Republican Party, 552 U.S. 442, 449 (2008); United States v. Salerno, 481 U.S. 739, 745 (1987); Sanchez v. State, 995 S.W.2d 677, 683 (Tex. Crim.

2009Salerno, 481 U.S. at 745 , 107 S.Ct. 2095 ; Hoffman Estates, 455 U.S. at 494-95 , 102 S.Ct. 1186 .

2009Thus, “[w]hen speech is at stake,” allowing a defendant to raise a facial vagueness challenge without showing the statute is vague as applied to his conduct, is “justified since the otherwise continued existence of the statute in unnarrowed form would tend to suppress constitutionally protected rights.” Id. (quoting Gooding v. Wilson, 405 U.S. 518, 521 (1972)).

2009Thus, “[w]hen speech is at stake,” allowing a defendant to raise a facial vagueness challenge without showing the statute is vague as applied to his conduct, is “justified since the otherwise continued existence of the statute in unnarrowed form would tend to suppress constitutionally protected rights.” Id. (quoting Gooding v. Wilson, 405 U.S. 518, 521 , 92 S.Ct. 1103 , 31 L.Ed.2d 408 (1972)).

2001See Young, 427 U.S. at 59-60 , 96 S.Ct. at 2447 ; Long, 931 S.W.2d at 288 ; Smith, 772 S.W.2d at 950 ; Al-Omari, 673 S.W.2d at 896 ; see also Sanchez, 995 S.W.2d at 683 .

2001See Young, 427 U.S. at 59-60 , 96 S.Ct. at 2447 ; Long, 931 S.W.2d at 288 ; Smith, 772 S.W.2d at 950 ; Al-Omari, 673 S.W.2d at 896 ; see also Sanchez, 995 S.W.2d at 683 .

2023“Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.” Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973); Ex parte Barton, 662 S.W.3d 876 , 879 (Tex. Crim.

2022See Ex parte Gonzalez, 525 S.W.3d 342, 349 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (“Unless First Amendment freedoms are implicated, a facial vagueness challenge can succeed only if it is shown that the law is unconstitutionally vague in all of its applications.”); Ex parte Flores, 483 S.W.3d 632, 643 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d) (“When First Amendment freedoms are not implicated, a facial vagueness challenge can succeed only if it is shown that the law is unconstitutionally vague in all of its applications.”).

2022See Ex parte Gonzalez, 525 S.W.3d 342, 349 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (“Unless First Amendment freedoms are implicated, a facial vagueness challenge can succeed only if it is shown that the law is unconstitutionally vague in all of its applications.”); Ex parte Flores, 483 S.W.3d 632, 643 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d) (“When First Amendment freedoms are not implicated, a facial vagueness challenge can succeed only if it is shown that the law is unconstitutionally vague in all of its applications.”).

2020App. 2010); see Dimaya, 138 S. Ct. at 1214 (“Many perfectly constitutional statutes use imprecise terms….”); Kolender v. Lawson, 461 U.S. 352, 361 (1983) (“[D]ue process does not require ‘impossible standards’ of clarity….”); Grayned, 408 U.S. at 110 (“Condemned to the use of words, we can never expect mathematical certainty from our language.”).

2020In a guidelines challenge, the inquiry is whether the statute in question “establish[es] minimal guidelines to govern law enforcement.” See Kolender, 461 U.S. at 358 ; Howard v. State, 617 S.W.2d 191, 192 (Tex. Crim.

2020App. 2010); see Dimaya, 138 S. Ct. at 1214 (“Many perfectly constitutional statutes use imprecise terms….”); Kolender v. Lawson, 461 U.S. 352, 361 (1983) (“[D]ue process does not require ‘impossible standards’ of clarity….”); Grayned, 408 U.S. at 110 (“Condemned to the use of words, we can never expect mathematical certainty from our language.”).

2020App. 2010); see Dimaya, 138 S. Ct. at 1214 (“Many perfectly constitutional statutes use imprecise terms….”); Kolender v. Lawson, 461 U.S. 352, 361 (1983) (“[D]ue process does not require ‘impossible standards’ of clarity….”); Grayned, 408 U.S. at 110 (“Condemned to the use of words, we can never expect mathematical certainty from our language.”).

2020In a guidelines challenge, the inquiry is whether the statute in question “establish[es] minimal guidelines to govern law enforcement.” See Kolender, 461 U.S. at 358 ; Howard v. State, 617 S.W.2d 191, 192 (Tex. Crim.

2020In Johnson, the United States Supreme Court stated: “[A]lthough statements in some of our opinions could be read to suggest otherwise, our holdings squarely contradict the theory that a vague provision is constitutional merely because there is some conduct that clearly falls within the provision’s grasp.” 576 U.S. at 602 (emphasis in original); Doyal, 589 S.W.3d 144 -45 (holding a facial vagueness challenge to a penal statute implicating First Amendment freedoms did not require a showing that there were no possible instances of conduct falling within the statute’s prohibition, and recognizing