Ex Parte Morales

• Decision Date: 21 July 2006
• Docket Number: No. 03-05-00489-CR.,03-05-00489-CR.
• Citation: 212 S.W.3d 483
• Parties: Ex parte Santiago MORALES, Jr.
• Court: Texas Court of Appeals

212 S.W.3d 483

Ex parte Santiago MORALES, Jr.

No. 03-05-00489-CR.

Court of Appeals of Texas, Austin.

July 21, 2006.

Discretionary Review Refused February 7, 2007.

Rehearing Overruled October 5, 2006.

Wesley H. Mau, Assistant Criminal District Atty., San Marcos, TX, for State.

Abigail Connor Klamert, Buda, TX, for respondent.

Before Chief Justice LAW, Justices PATTERSON and PEMBERTON.

OPINION

BOB PEMBERTON, Justice.

We consider the constitutionality of section 21.12 of the penal code, which prohibits Texas primary and secondary school employees from engaging in sexual conduct with students enrolled at a school where they work. See Tex. Pen.Code Ann. § 21.12 (West Supp.2005). After being indicted under section 21.12, appellee Santiago Morales, Jr. filed an application for writ of habeas corpus challenging the statute's constitutionality. The district court found section 21.12 unconstitutional, granted the writ of habeas corpus, and dismissed the indictment. The State appeals the dismissal. Concluding that section 21.12 withstands constitutional muster, we will reverse.

BACKGROUND

The parties agree that Morales was employed as a "Student Activities/Recreation Assistant" at San Marcos Baptist Academy, a private secondary school in Hays County. According to counsel, Morales served as a counselor or advisor to the school's R.O.T.C. program and as a Dormitory Residential Advisor. Morales was indicted under section 21.12 of the penal code, which provides:

An employee of a public or private primary or secondary school commits an offense if the employee engages in sexual contact, sexual intercourse, or deviate sexual intercourse with a person who is enrolled in a public or private primary or secondary school at which the employee works and who is not the employee's spouse.

Id. § 21.12(a). An offense under this provision is a second degree felony. Id. § 21.12(b). The legislature contemplated that conduct constituting an offense under section 21.12 might also violate other penal code provisions,¹ and provided that such conduct may be prosecuted under either or both applicable sections. Id. § 21.12(c). The indictment alleged, in relevant part, that Morales, an employee of the San Marcos Baptist Academy, a private secondary school, intentionally and knowingly engaged in deviate sexual intercourse with a student of the Academy who was not his spouse.²

Morales sought pretrial habeas corpus relief, asserting that section 21.12 is facially unconstitutional under the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution, as well as the counterpart provisions of the Texas Constitution. Morales emphasized that because section 21.12 extends to any "person who is enrolled in a public or private primary or secondary school at which the employee works," section 21.12 criminalizes sexual conduct not only with minor students, but also with students who are above the age of 17, the age of legal consent currently defined in Texas law.³ While not contending that there is a constitutional right to engage in sexual conduct with minor schoolchildren, Morales urged that section 21.12's impact on sexual conduct between school employees and those students over the age of consent renders it unconstitutional. Central to his contentions was the premise that the federal and state constitutions recognize a fundamental liberty interest in "private sexual conduct between consenting adults" rooted in the rights to privacy, freedom of association, and due process, and that any state infringement on this fundamental right is subject to a "strict scrutiny" analysis—permitted only if narrowly tailored to serve a compelling state interest. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 721, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (due process); Zablocki v. Redhail, 434 U.S. 374, 388, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978) (freedom of association); Roe v. Wade, 410 U.S. 113, 155, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (privacy). Based on this premise, Morales urged that section 21.12 is impermissibly overbroad and vague in proscribing conduct beyond any which the state might have a compelling interest in regulating, and also violated his rights to due process and equal protection. The district court agreed, granted habeas relief, and ordered Morales discharged. This appeal followed.

DISCUSSION

In a single issue, the State contends that the district court erred in holding section 21.12 unconstitutional. Morales responds to the merits of the State's constitutional argument, but first challenges our jurisdiction to entertain the State's appeal.

We briefly emphasize the context of our legal inquiry within our larger constitutional system. As a court, we take no "side" in any policy debate regarding the wisdom of section 21.12's underlying purposes or the efficacy of that statute in advancing those goals. Our role is to determine, first, whether the State's appeal is within our jurisdiction to adjudicate, and if so, whether the district court erred in holding that the legislature's policy judgments manifested in section 21.12 are forbidden by the constitutional limitations that Morales has raised. As long as they do not exceed these constitutional limitations, any past or future policy decisions regarding section 21.12 remain with the legislature and the people. Moreover, as an intermediate state appellate court, we must similarly defer to the authoritative pronouncements of higher courts that currently define the scope of the constitutional principles we apply here.⁴

Subject matter jurisdiction

Morales asserts that this Court is without subject matter jurisdiction to hear the State's appeal for two reasons: (1) the State does not have a right to appeal from a habeas corpus ruling; and (2) the State did not timely file its notice of appeal.

Appeal from order granting habeas corpus relief

Morales first contends that the State is not authorized to appeal from orders granting habeas corpus relief. It is true that, as a general rule, the State cannot appeal an adverse ruling in a habeas proceeding. State ex rel. Holmes v. Klevenhagen, 819 S.W.2d 539, 541 (Tex. Crim.App.1991) (orig. proceeding); State v. Reyes, 115 S.W.3d 229, 231 (Tex.App.-Fort Worth 2003, pet. ref'd). However, the State may appeal an adverse habeas ruling if a statute provides for such an appeal. State v. Fowler, 97 S.W.3d 721, 721 (Tex.App.-Waco 2003, no pet.).

The State is entitled to appeal a court's order in a criminal case if the order "dismisses an indictment, information, or complaint or any portion of an indictment, information, or complaint." Tex.Code Crim. Proc. Ann. art. 44.01(a)(1) (West Supp.2005). When a trial court dismisses a prosecution on a writ of habeas corpus and the granting of relief "effectively terminates" the proceedings, the State may appeal under article 44.01. State v. Young, 810 S.W.2d 221, 223-24 (Tex.Crim. App.1991); see also Alvarez v. State, 977 S.W.2d 590, 592 (Tex.Crim.App.1998).

In this case, the district court's order granting habeas relief also dismissed the indictment against Morales, effectively terminating the proceedings. Thus, article 44.01 authorizes the State to appeal the dismissal.

Timely notice of appeal

Morales next asserts that we lack subject matter jurisdiction because the State failed to timely file its notice of appeal. In appeals authorized under article 44.01, the State's deadline to appeal is not "later than the 15th day after the date on which the order, ruling, or sentence to be appealed is entered by the court." Tex. Code Crim. Proc. Ann. art. 44.01(d). This requirement is consistent with Texas Rule of Appellate Procedure 26.2, which provides that, in criminal cases, the State must file its notice of appeal "within 15 days after the day the trial court enters the order, ruling, or sentence to be appealed." Tex.R.App. P. 26.2(b).

The district court orally granted Morales's writ of habeas corpus and dismissed the indictment against him on July 7, 2005. However, the court did not sign a written order until August 2, 2005. The State filed its notice of appeal on the third day thereafter, August 5, 2005. Morales contends that the State's fifteen-day appellate deadline began running on July 7, the date the court orally announced its decision, while the State argues that the appellate timetable did not begin until August 2, the date the court signed its written order. This dispute has already been resolved by the court of criminal appeals, which has held that "the appellate timetable for the State under Art. 44.01(d) begins running from the date the trial judge signs his or her order." State v. Rosenbaum, 818 S.W.2d 398, 403 (Tex.Crim.App.1991). Following Rosenbaum, this Court has held that the date an appealable order is "entered by the court" is the date the order is signed by the court. State v. Rollins, 4 S.W.3d 453, 454 (Tex.App.-Austin 1999, no pet.). Because the State filed its notice of appeal only three days after the court signed its written order, it timely perfected its appeal. We have jurisdiction over the State's appeal, and now turn to the merits.

Constitutionality of section 21.12

In its only issue on appeal, the State contends that the trial court erred in holding section 21.12 to be facially unconstitutional.⁵ Contending otherwise, Morales relies on federal constitutional protections and their Texas counterparts. Because Morales assumes that the Texas constitutional protections are coextensive with the federal counterparts, we need only consider the scope of the federal protections.⁶

Standard of review

Whenever we are confronted with an attack upon the constitutionality of a statute, we presume that the statute is valid and that the legislature has not acted unreasonably or arbitrarily. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex.Crim.App. 2002). The burden rests upon the individual who challenges the statute to establish its unconstitutionality. Id. In the absence of...