I’ve been fighting a battle against Texas Penal Code Section 33.021, the Texas Online Solicitation of a Child statute, for some time now. In one pending case, I was brought in by trial counsel to be the “law man,” filing a pretrial writ of habeas corpus alleging that the statute was overbroad as written, was void for vagueness, and violated the “dormant Commerce Clause.” The trial court (Judge Joan Campbell) denied relief; we appealed, the Court of Appeals affirmed; we moved for rehearing, the Court of Appeals denied; and we filed a Petition for Discretionary Review with the Texas Court of Criminal Appeals.
Today the Court of Criminal Appeals granted our petition and ordered oral argument. I’ll be briefing the issue (for the third time—trial court, Court of Appeals, Court of Criminal Appeals), and arguing it to the court (either in Austin or in the grand and recently restored 1910 Harris County courthouse, where the court may be visiting).
Challenging a statute on Constitutional grounds is always an uphill battle, but to affirm the Court of Appeals I think the Court will have to invent a new category of unprotected speech.