PD-0517-16 09/21/2016
"Whether Section 33.021 of the Texas Penal Code is a content-based restriction."
Leax was charged with online solicitation of a minor. His motion to quash the indictment alleged that section 33.021 is unconstitutionally overbroad and vague. The trial court denied his motion, and Leax pleaded guilty subject to appeal.
The court of appeals affirmed. Because it determined that the statute is conduct-based rather than content-based, it applied the normal presumption of constitutionality and held that Leax had not demonstrated that it was overbroad or vague.
Leax argues that the statute is content-based because it criminalizes only communications that express a particular view on a particular subject. Had the court of appeals correctly categorized it, it would have began its analysis with a presumption of unconstitutionality that required the State to satisfy the more rigorous "strict scrutiny" test.
