Sanchez v. State

• Decision Date: 30 June 1999
• Citation: 995 S.W.2d 677
• Parties: (Tex.Crim.App. 1999) ARTHUR GARCIA SANCHEZ, Appellant v. THE STATE OF TEXAS NO. 1259-98
• Court: Texas Court of Criminal Appeals

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995 S.W.2d 677 (Tex.Crim.App. 1999) ARTHUR GARCIA SANCHEZ, Appellant
v.
THE STATE OF TEXAS NO. 1259-98 IN THE COURT OF CRIMINAL APPEALS OF TEXAS June 30, 1999

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTH COURT OF APPEALS, BEXAR COUNTY

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Copyrighted Material Omitted

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O P I N I O N

KELLER, J. delivered the opinion of the Court in which McCORMICK, P.J., and MEYERS, MANSFIELD, PRICE, HOLLAND, JOHNSON and KEASLER, JJ., joined.

Appellant was convicted under the "sexual harassment" provision of the official oppression statute. See TEX. PEN. CODE 39.03(a)(3).¹ Relying in large part upon Long v. State, 931 S.W.2d 285 (Tex. Crim. App. 1996), he argued to the Court of Appeals that this provision is unconstitutionally vague on its face and as applied to his conduct. The Court of Appeals

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sustained these contentions, finding that the sexual harassment provision is (1) unconstitutionally vague on its face and as applied in violation of the Due Process Clause of the Fourteenth Amendment and (2) unconstitutionally overbroad in violation of the First Amendment. Sanchez v. State, 974 S.W.2d 307 (Tex. App.--San Antonio 1998). As a result, the Court of Appeals ordered the dismissal of the prosecution.² We will reverse the Court of Appeals.

I. THE STATUTE

A. The statutory language

The "sexual harassment" portion of the official oppression statute provides: "A

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public servant acting under color of his office or employment commits an offense if he . . . intentionally subjects another to sexual harassment." 39.03(a)(3). A detailed listing of categories falling within the classification of "public servant" is found in the definition section of the penal code. 1.07(41).³ A public servant acts under color of his office or employment "if he acts or purports to act in an official capacity or takes advantage of such actual or purported capacity." 39.03(b). "Sexual harassment" is specifically defined as meaning:

unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, submission to which is made a term or condition of a person's exercise or enjoyment of any right, privilege, power, or immunity, either explicitly or implicitly.

39.03(c).

B. The legislative history

In proposing the sexual harassment provision, the sponsor and supporters related an incident in which a municipal judge purportedly offered to dismiss a woman's traffic tickets in return for sexual favors. See H.B.370, Public Hearings, House Criminal Jurisprudence Committee and Subcommittee on Procedural Matters, April 3 (tape 2, side B & tape 3, side A), April 11 (tape 1, side 2), and April 17 (tape 1, side 2), 1989. The woman went to the judge's office to arrange a payment schedule because she did not have enough money to pay the full amount all at once. Charlotte Keel, H.B. 370, Public Hearings, House Criminal Jurisprudence Committee, April 3, 1989, tape 2, side B. The judge offered to take the woman in his truck for a ride and "see what they could work out." Id. After consulting law enforcement authorities, the woman went to the judge's office again, this time wearing a hidden microphone. Id. The judge told the woman he would take care of her ticket in exchange for oral sex. Id. The woman asked if there was anything else she could do, such as maintenance work around the courthouse, but the judge said, "No, I have something else in mind for you." Id. The hearings indicated that the municipal judge was originally prosecuted for official oppression, but that indictment was quashed, and the judge pled guilty to a lesser offense. See hearings cited above. One of the supporters of the bill contended that a public official should be held to a higher standard of care and subject to higher sanctions than someone "on the street." Daniel Rice, H.B. 370, Public Hearings, House Criminal Jurisprudence Committee, April 3, 1989, tape 2, side B.

Another supporter indicated, in the form of a question, that the proposed law addresses abuse by officials "not under an employment situation, isn't that right?" Richard Avena, House Criminal Jurisprudence Committee, April 3, 1989, tape 3, side A. But subcommittee hearing discussions indicated that the bill would apply to public employment situations. H.B. 370, House Criminal Jurisprudence Committee, Subcommittee on Procedural Matters, April 11, 1989, tape 1, side 2 (references to improper conduct by one's "boss" and to the concern that employees might use the statute to harass their employers).

The subcommittee deleted the phrase "unwelcome sexual advances" from the definition of "sexual harassment" and added "by word or deed," but these changes were later reversed and the original language - determined by the sponsor and the committee to be "far superior" to the subcommittee amendments - was restored. Representative Valigura, House Floor, May 20, 1989. The original language, and that which now appears in the "sexual harassment" definition, follows the language of the following Equal Employment

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Opportunity Commission (EEOC) regulation:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment.

29 C.F.R. 1604.11(a)(1)(divisions (2) and (3) omitted). Division (1) of 16.04(a) is commonly known as the "quid pro quo" theory of sexual harassment. This regulation is itself an interpretation of the federal employment discrimination statute in Title VII.⁴ The only significant difference between the sexual harassment definition in the official oppression statute and the EEOC regulation is the substitution of "exercise or enjoyment of any right, privilege, power or immunity" for "employment." The substituted phrase was apparently borrowed from another provision of the official oppression statute:

A public servant acting under color of his office or employment commits an offense if he:

...

(2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful.

39.03(a)(2).

II. COURT OF APPEALS' OPINION

The Court of Appeals found that many of the words used in 39.03(c) "are susceptible to uncertainties of meaning and are inherently vague." Sanchez, 974 S.W.2d at 318. The Court of appeals raised questions regarding the following:

(1) the meaning of "advances," "favors," and "other verbal or physical conduct of a sexual nature (for example, is a wink or a smile enough?),

(2) what makes conduct "sexual,"

(3) whether "unwelcome" applies to all conduct proscribed by the statute or only to "advances,"

(4) whose sensitivities are involved and whether the statute imposes a reasonable person standard,

(5) the meaning of "submission,"

(6) what constitutes an implicit term or condition,

(7) whether the rights, privileges, powers, and immunities must exist at the time of the alleged conduct,

(8) whether the statute can be violated by the conditioning of the rights, privileges, powers, or immunities of a person other than the recipient of the alleged conduct,

(9) the scope of a "right" under the statute - whether it may be perfect or imperfect, in personam or in rem, primary or secondary, absolute or qualified, legal or equitable and whether such rights include constitutional rights, natural rights, civil rights, political rights, or personal rights.

Id. at 314 (enumeration ours; discussion paraphrased). The Court of Appeals concluded that the statute fails to specify whose sensitivities are affected and fails to impose a reasonable person standard. Id. at 318. Although acknowledging that the statute contains the culpable mental state of "intentionally," the Court of Appeals held that the culpable mental state did not alleviate the vagueness of the underlying conduct. Id. Finally, the Court of Appeals held that it could not employ a narrowing construction because doing so would significantly alter the meaning of the statute. Id. at 319.

As an alternative basis for its holding, the Court of Appeals contended that the provision is unconstitutionally overbroad under the First Amendment. Id. at 320-

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321. In arriving at this alternative holding, the Court of Appeals said that the statute "deals with speech and expressive conduct" and that the "statute is not narrowly tailored to prohibit only . . . unprotected speech." Id. at 321 (ellipsis inserted).

III. ANALYSIS

A. General principles

In construing whether a law is vague and/or overbroad, we keep in mind the elementary principle of statutory construction: we interpret a statute in accordance with the plain meaning of its language unless the language is ambiguous or the plain meaning leads to absurd results. Boykin v. State, 818 S.W.2d 782, 785-786 & 786 n. 4 (Tex. Crim. App.1991). In determining plain meaning, "[w]ords and phrases shall be read in context and construed according to the rules of grammar and usage." TEX. GOV'T CODE 311.011(a); Dowthitt v. State, 931 S.W.2d 244, 258 (Tex.Crim.App. 1996). In the event that we find resorting to extratextual sources to be necessary under Boykin, these sources include but are not necessarily limited to: (1) circumstances under which the statute was enacted, (2) legislative history, (3) common law or former statutory provisions, (4) consequences of a particular construction, and (5) title (caption), preamble and emergency provision. TEX. GOV'T CODE 311.023, made applicable to Penal Code by TEX. PEN. CODE 1.05(b). We may also look to other offense provisions contained in the same statutory section. Long, 931 S.W.2d at 291 (comparing stalking provision to other provisions contained in 42.07).

In addressing the Court of Appeals' holdings, we address the First Amendment's applicability before addressing the Court of Appeals' vagueness...