State v. Garcia

• Decision Date: 31 January 1992
• Docket Number: No. 04-90-00319-CR,04-90-00319-CR
• Citation: 823 S.W.2d 793
• Court: Texas Court of Appeals
• Parties: The STATE of Texas, Appellant, v. Francisca T. GARCIA, Appellee.

Page 793

823 S.W.2d 793

The STATE of Texas, Appellant, v. Francisca T. GARCIA, Appellee.

No. 04-90-00319-CR.

Court of Appeals of Texas San Antonio.

Jan. 31, 1992.

Discretionary Review Refused May 20, 1992.

Fred G. Rodriguez, Former Criminal Dist. Atty., Steven G. Hilbig, Criminal Dist. Atty., Juanita Vasquez, Jill Mata, Daniel Thornberry, Asst. Criminal Dist. Attys., San Antonio, Tex., for appellant.

Edward Camara, Robert Switzer, Switzer, Carroll & De Prado, San Antonio, Tex., for appellee.

Before REEVES, C.J., and PEEPLES and ONION, JJ.

OPINION

ONION, Justice. ¹

The State appeals an order of the trial court dismissing the complaint and information charging the appellee with a Class B misdemeanor. See TEX.CODE CRIM.PROC.ANN. art. 44.01(a)(1) (Vernon Supp.1991). The appellee was charged with the offense of owning or operating a sexually oriented commercial enterprise in Bexar County outside the corporate limits of a city on or about July 8, 1989, without a valid permit issued by the sheriff, an alleged violation of an order of the Commissioner's Court of December 14, 1981.

The county regulations in question were adopted by the Commissioner's Court of Bexar County pursuant to TEX.REV.CIV.STAT.ANN. art. 2372 (1979 Tex.Gen.Laws ch. 229, § 1 at 498). ² The purpose of the statute was to provide local governments a means of regulating the location of certain sexually oriented commercial enterprises by authorizing cities by ordinance and counties by order of the Commissioners' Court to adopt regulations "restricting the location of massage parlors, nude studios, modeling studios, love parlors and other similar commercial enterprises whose major business is the offering of a service which is intended to provide sexual stimulation or sexual gratification to the customer." See Lindsay v. Papageorgiou, 751 S.W.2d 544, 545 (Tex.App.--Houston [1st Dist.] 1988, writ denied ).

The order of the Commissioners' Court adopted December 14, 1981 is similar to the Harris County regulations set out in Stansberry, 613 F.2d at 1291 (Appendix B) and Schope v. State, 647 S.W.2d 675, 681 (Tex.App.--Houston [14th Dist.] 1982, pet. ref'd) (appendix). Tracking the statute, section 4(1) of the Bexar County Regulations provided:

(1) "Sexually Oriented Commercial Enterprise" means a massage parlor, nude studio, modeling studio, love parlor, escort service and any other similar commercial enterprise whose major business is the offering of a service which is intended to provide sexual stimulations or sexual gratification to the customer.

Section 5(a) exempted bookstores and movie theaters from the regulations. Section 6(a) provided:

(a) It shall be unlawful for any person to own or operate a Sexually Oriented Commercial Enterprise at a location in the parts of the county outside the corporate limits of a city without a valid permit issued therefor by the Sheriff in accordance with the provisions of these regulations.

Section 18 of the regulations provided that a violation of any provision of the regulations was a Class B misdemeanor.

Appellee filed an amended motion to dismiss the complaint and information in which she alleged inter alia, that the Commissioners' Court order was "unconstitutionally vague, unreasonable, overbroad," and did not apprise a citizen of what conduct is prescribed. Appellee complained that the county regulations did not define the terms "own" or "operate" or the statement "any other similar commercial enterprise whose major business is the offering of a service which is intended to provide sexual stimulation or sexual gratification to the customer," and thus did not convey a sufficiently definite warning as to what conduct is prescribed. Appellee cited no provision of the federal or state constitutions in her motion.

On May 31 and June 6, 1990, the trial court conducted hearings on the appellee's amended motion to dismiss. Neither the appellee nor the State offered any evidence. The hearings consisted of legal arguments on the motion. At the conclusion of the hearing on June 6, 1990, the trial court granted the amended motion to dismiss the complaint and information. On June 12, 1990, the trial court entered a written order expressly superseding any previous order of the court. The written order found that the Commissioners' Court order was:

"in violation of the laws and Constitutions of the State of Texas and the United States, in that, it is unconstitutionally vague, unreasonable, overbroad, and does not apprise a citizen of what conduct is proscribed in that the terms "own", "operate" and "major business" found within the order are not defined and therefore do not convey a sufficiently definite warning as to what conduct is proscribed, or whose conduct is to be regulated."

The order did not make reference to any provision of the federal or state constitutions.

In its sole point of error, the State urges that the trial court erred in granting appellee's motion to dismiss the State's pleadings.

It is clear that the appellee made a facial attack upon the Commissioners' Court order. Such facial challenge to a legislative act, ordinance or order is the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the act, ordinance or order would be valid. Briggs v. State, 789 S.W.2d 918, 923 (Tex.Crim.App.1990).

In Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 102 S.Ct. 1186, 1190-91, 71 L.Ed.2d 362 (1982), the United States Supreme Court wrote:

In a facial challenge to the overbreadth and vagueness of a law, a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail. The court should then examine the facial vagueness challenge and, assuming the enactment implicates no constitutionally protected conduct, should uphold the challenge only if the enactment is impermissibly vague in all of its applications.

We turn first then to the trial court's finding that the order in question was "overbroad" and "unreasonable." It must be initially observed that an attack on a statute, ordinance or order as being overbroad is normally and traditionally reserved for complaints concerning First Amendment violations. Bynum v. State, 767 S.W.2d 769, 772 (Tex.Crim.App.1989). The United States Supreme Court has not recognized an "overbreadth" doctrine outside the limited context of the First Amendment. United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697, 707 (1987). In Stansberry, 613 F.2d at 1288, the court observed that the Harris County Regulations adopted under the authority of article 2372w did not attempt to zone businesses such as bookstores or movie theaters, which fall within the protection of the First Amendment, and that no First Amendment interests were at stake there. See also Schope, 647 S.W.2d at 679. The Bexar County Regulations likewise exempt bookstores and movie theaters, and we find no First Amendment interests at stake here.

It is true that a statute, ordinance or order is considered impermissibly overbroad if, in addition to proscribing activities which may constitutionally be forbidden, it sweeps within its coverage speech or conduct which is protected by the First Amendment. Morehead v. State, 807 S.W.2d 577, 580 (Tex.Crim.App.1991); Bynum, 767 S.W.2d at 772; Clark v. State, 665 S.W.2d 476, 482 (Tex.Crim.App.1984). However, if the questioned statute or ordinance proscribes both unlawful conduct and conduct protected by the First Amendment, this does not invariably mean that it will be considered overbroad in a constitutional sense. Bynum, 767 S.W.2d at 772. Only a statute that is substantially overbroad may be invalidated on its face. City of Houston v. Hill, 482 U.S. 451, 458, 107 S.Ct. 2502, 2508, 96 L.Ed.2d 398 (1987). The fact that the enforcement of a statute operates to prohibit and restrain freedom of speech does not itself mean that the statute is invalid. Allen v. State, 604 S.W.2d 191, 192 (Tex.Crim.App.1980).

In Schad v. Borough of Mount Ephraim, 452 U.S. 61, 68 n. 7, 101 S.Ct. 2176, 2183 n. 7, 68 L.Ed.2d 671 (1981), the court held that an ordinance prohibiting non-obscene nude dancing violated the rights of free expression guaranteed by the First and Fourteenth Amendments. The Court recognized, however, that a zoning law may be upheld, even though it infringes upon a protected activity, where the law is narrowly drawn to serve legitimate state interests and does not necessarily interfere with First Amendment freedoms. Thus, an ordinance is not invalid merely because it subjects the commercial exploitation of materials protected by the First Amendment to licensing or zoning requirements. Young v. American Mini Theaters, Inc., 427 U.S. 50, 62, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976); Jolar Cinema of Houston v. City of Houston, 695 S.W.2d 353, 355 (Tex.App.--Houston [1st Dist.] 1985, no writ). The justification for the application of overbreadth analysis applies weakly, if at all, in the ordinary commercial context. Bates v. State, 433 U.S. 350, 380, 97 S.Ct. 2691, 2707, 53 L.Ed.2d 810 (1977). Time, place and manner regulations that are content-neutral are acceptable when they are designed to serve a substantial government interest and do not unreasonably limit alternative avenues of communication. City of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 46-47, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). The county regulations in question are a content-neutral form of time, place and manner restriction. The reasonableness of similar county regulations and the substantial governmental interest involved has been discussed in Stansberry, 613 F.2d at 1289. Further, Papageorgiou, 751 S.W.2d at 549-50, has been decided contrary to any claim that the county regulations reach a substantial amount of conduct protected by article I,...