COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-116-CR
MAURICE FELTON LAWSON APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY COURT AT LAW NO. 1 OF WICHITA COUNTY
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OPINION
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I. Introduction
In three points, Appellant Maurice Felton Lawson appeals his conviction
for violation of a permanent injunction under the “gang injunction statute.” We
affirm.
II. Factual and Procedural Background
On September 18, 2006, the 89th District Court of Wichita County,
Texas, issued a temporary injunction under section 125.065 of the civil practice
and remedies code. See Tex. Civ. Prac. & Rem. Code Ann. § 125.065 (Vernon
2005). The injunction named seventeen members of the street gang Varrio
Carnales (“VC”), including Lawson, who had allegedly engaged in criminal
activity. The State, through the injunction, sought to prohibit the named
defendants from engaging in twenty-nine activities. Subsequently, the trial
court entered an order making the injunction permanent.
On or about February 20, 2007, Lawson violated the trial court’s order
enjoining organized criminal activity by “[a]ssociating, standing, sitting, walking,
driving, bicycling, gathering or appearing anywhere in public view” with a VC
gang member who was subject to the permanent injunction.1 Lawson pleaded
guilty, and pursuant to a plea bargain agreement with the State, the trial court
sentenced him to 300 days’ confinement and a $4,000 fine. Lawson now
appeals.2
III. Discussion
In his first two points, Lawson claims that penal code section 71.021 is
facially unconstitutional; in his third point, he argues that it is unconstitutional
as applied to him.
1
… See Tex. Penal Code Ann. § 71.021 (Vernon 2003).
2
… Lawson’s appeal is limited by the rules of appellate procedure and by
the trial court’s certification of his right to appeal. See Tex. R. App. P. 25.2.
2
A. Standard of Review
We review the constitutionality of a criminal statute de novo, as a
question of law. See Owens v. State, 19 S.W.3d 480, 483 (Tex.
App.—Amarillo 2000, no pet.); State v. Salinas, 982 S.W.2d 9, 10–11 (Tex.
App.—Houston [1st Dist.] 1997, pet. ref’d). When 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); Ex parte Dave, 220 S.W.3d
154, 156 (Tex. App.—Fort Worth 2007, pet. ref’d), cert. denied, 128 S. Ct.
628 (2007). The burden rests upon the individual who challenges the statute
to establish its unconstitutionality. Rodriguez, 93 S.W .3d at 69; Dave, 220
S.W.3d at 156. In the absence of contrary evidence, we will presume that the
legislature acted in a constitutionally sound fashion. Rodriguez, 93 S.W.3d at
69. The statute must be upheld if a reasonable construction can be ascertained
that will render the statute constitutional and carry out the legislative intent.
Shaffer v. State, 184 S.W.3d 353, 363 (Tex. App.—Fort Worth 2006, pet.
ref’d); see Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App. [Panel Op.]
1979).
3
B. Facial and As-Applied Challenges
There are two types of challenges to the constitutionality of a statute:
the statute is unconstitutional as applied to the defendant, or the statute is
unconstitutional on its face. Fluellen v. State, 104 S.W .3d 152, 167 (Tex.
App.—Texarkana 2003, no pet.). The constitutionality of a statute as applied
must be raised in the trial court in order to preserve error. Curry v. State, 910
S.W.2d 490, 496 (Tex. Crim. App. 1995). However, a defendant may raise a
constitutional challenge to the facial validity of a statute for the first time on
appeal. Garcia v. State, 887 S.W.2d 846, 861 (Tex. Crim. App. 1994), cert.
denied, 514 U.S. 1005 (1995).
1. Facial Constitutionality of Penal Code Section 71.021
In his first point, Lawson argues that penal code section 71.021 is
unconstitutionally vague and overbroad and therefore violates both the United
States Constitution and the Texas Constitution. This court recently rejected an
argument identical to Lawson’s. See Goyzueta v. State, 266 S.W.3d 126,
130–37 (Tex. App.—Fort Worth 2008, no pet.). Goyzueta involved the same
injunction that Lawson now challenges. Id. at 129. For the same reasons
articulated in our opinion in that case, we reject Lawson’s argument and,
accordingly, overrule his first point.
4
In Lawson’s second point, he argues that section 71.021 is
unconstitutional “on its face” because it violates the Nondelegation Doctrine. 3
Specifically, Lawson’s chief complaint is that section 71.021 is unconstitutional
because it is “plainly apparent” that it does not belong to any of the six
classifications listed by the Texas Supreme Court in Housing Authority of City
of Dallas v. Higganbotham, 135 Tex. 158, 171–72, 143 S.W.2d 79, 87
(1940).
a. Nondelegation Doctrine
In Higganbotham, the court listed six classifications of delegations of
legislative responsibility that do not run afoul of the Nondelegation Doctrine
enunciated in article II, section 1 of our state’s constitution.4 135 Tex. at
3
… On appeal, Lawson argues that section 71.021 is unconstitutional
based on the Nondelegation Doctrine; however, in his pretrial motions, Lawson
argued unconstitutionality based on the Separation of Powers Doctrine.
Because Lawson may raise a constitutional challenge to the facial validity of a
statute for the first time on appeal, we will address his second point. Garcia,
887 S.W.2d at 861.
4
… Article II, section 1 of the Texas Constitution of 1876 states:
The powers of the Government of the State of Texas shall be
divided into three distinct departments, each of which shall be
confided to a separate body of magistracy, to wit: Those which
are Legislative to one; those which are Executive to another, and
those which are Judicial to another; and no person, or collection of
persons, being of one of these departments, shall exercise any
power properly attached to either of the others, except in the
instances herein expressly permitted.
5
171–72, 143 S.W.2d at 87. The one of primary concern to us is the first,
which states that nondelegation is not violated “[w]here the legislature because
of the nature of the subject of legislation cannot practically and efficiently
exercise such powers . . . .“ Id., 143 S.W.2d at 87 (internal citations omitted).
While “[t]he power to pass laws rests with the Legislature, and that power
cannot be delegated to some commission or other tribunal,” Brown v. Humble
Oil & Refining Co., 126 Tex. 296, 306, 83 S.W.2d 935, 941 (1935), the
legislature can delegate power to a coordinate branch, so long as the legislature
has declared a policy and fixed a primary standard for its implementation. Ex
parte Granviel, 561 S.W.2d 503, 514 (Tex. Crim. App. 1978) (citing Margolin
v. State, 151 Tex. Crim. 132, 205 S.W.2d 775 (1947); Williams v. State, 146
Tex. Crim. 430, 176 S.W.2d 177 (1943)). That primary standard must be
“capable of reasonable application.” Granviel, 561 S.W.2d at 514.
b. Statutory Provisions
Section 71.021 of the penal code states that a person commits an
offense if the person knowingly violates a temporary or permanent order issued
under section 125.065(a) or (b) of the civil practice and remedies code, and
that this offense is a Class A misdemeanor. See Tex. Penal Code
Tex. Const. art. II, § 1.
6
Ann. § 71.021. Section 125.065 of the civil practice and remedies code
outlines when a trial court can enter a temporary or permanent injunction
against a criminal street gang member. See Tex. Civ. Prac. & Rem. Code Ann.
§ 125.065. It provides:
(a) If the court finds that a combination or criminal street gang
constitutes a public nuisance, the court may enter an order:
(1) enjoining a defendant in the suit from engaging in the
gang activities of the combination or gang; and
(2) imposing other reasonable requirements to prevent the
combination or gang from engaging in future gang activities.
(b) If the court finds that a place is habitually used in a manner that
constitutes a public nuisance, the court may include in its order
reasonable requirements to prevent the use of the place for gang
activity.
Id. The Texas Legislature enacted this statute in 1993, after establishing that
“gang activity” constitutes a public nuisance, to enable local governments to
obtain civil injunctions against gang members. See Tex. Civ. Prac. & Rem.
Code Ann. § 125.061 (Vernon Supp. 2008), § 125.062–.065 (Vernon 2005).
The overall purpose and policy behind the statute is to promote a peaceful
society by enjoining gang members from engaging in a variety of legal and
illegal activites within a specified area, often called the “safety zone.”
Section 125.065 provides a guide as to when a trial court can enter a
temporary or permanent order against a criminal street gang member. See Tex.
7
Civ. Prac. & Rem. Code Ann. § 125.065. In conjunction with section 125.065,
section 71.021 of the penal code describes the offense of violation of a court
order enjoining organized criminal activity. See Tex. Penal Code Ann. §
71.021. In other words, the legislature has authorized the trial courts to
impose reasonable requirements to prevent a gang member from engaging in
future gang activities while retaining the authority to impose a class A
misdemeanor for violating a court-imposed restriction. Goyzueta, 266 S.W.3d
at 136.
8
c. Analysis
While Lawson complains that section 71.021 violates the nondelegation
doctrine, he fails to articulate an argument in support of his claim other than his
statements that “[p]enal laws by their nature are most appropriately exercised
without Legislative delegation,” and “[i]n those instances when delegation is
necessary, power is ordinarily assigned if technical or scientific concerns make
enforcement impractical or inefficient for the legislature.” Lawson further
argues that the legislature enacted a law that proscribed no conduct at all but
instead delegated the power to define the misconduct to district judges through
“anti-gang injunction” orders.
We disagree on both accounts. We hold that it is neither practical nor
efficient for the Texas Legislature, which meets every other year for a few
months, to determine the exact requirements necessary in order to prevent
gang members from engaging in future gang activities. Higganbotham, 135
Tex. at 171–72, 143 S.W.2d at 87; see also State v. Rhine, 255 S.W.3d 745,
752 (Tex. App.—Fort Worth 2008, pet. granted) (holding that it is neither
practical nor efficient for the Texas Legislature to determine exactly what
materials should be banned from outdoor burning, and under what
circumstances, including the wind speed, time of day, and other minutiae
related to curbing the legislatively-defined “air pollution”). Therefore, section
9
71.021 falls within the first classification listed in Higginbotham. See
Higginbotham, 135 Tex. at 171–72, 143 S.W.2d at 87.
However, even if section 71.021 failed to fall within one of the six
classifications, the listed classifications in Higginbotham are merely indicative
of the supreme court’s prior decisions on the subject of nondelegation and
therefore are not exclusive. Id., 143 S.W.2d at 87. Here, the legislature has
merely asked the trial courts to impose reasonable requirements while the
legislature retains the power to make the law by determining that a violation of
the requirements, even those judicially imposed, is an offense. See Touby v.
United States, 500 U.S. 160, 165, 111 S. Ct. 1752, 1756 (1991) (“Congress
does not violate the Constitution merely because it legislates in broad terms,
leaving a certain degree of discretion to executive or judicial actors.”). 5
Furthermore, the legislature has defined the following key phrases:
(1) “Criminal street gang” means three or more persons having a
common identifying sign or symbol or an identifiable leadership who
continuously or regularly associate in the commission of criminal
activities.
(2) “Gang activity” [includes:] organized criminal activity[;]
terroristic threat[;] coercing, soliciting, or inducing gang
5
… Decisions of the United States Supreme Court on the doctrine of
separation of powers are instructive in interpreting our own express
constitutional provisions. Trimmier v. Carlton, 116 Tex. 572, 296 S.W. 1070
(1927).
10
membership; criminal trespass[;] disorderly conduct[;] criminal
mischief that causes a pecuniary loss of $500 or more; a graffiti
offense [that:] (i) causes a pecuniary loss of $500 or more; or (ii)
occurs at a school, an institution of higher education, a place of
worship or human cemetery, a public monument, or a community
center that provides medical, social, or educational programs[;] a
weapons offense in violation of Chapter 46, Penal Code[;] or
unlawful possession of a substance or other item in violation of
Chapter 481, Health and Safety Code.
(3) “Public nuisance” [is a] combination or criminal street gang that
continuously or regularly associates in gang activities.
Tex. Penal Code Ann. § 71.01(d) (Vernon 2003); see Tex. Civ. Prac. & Rem.
Code Ann. § 125.061 (using various provisions of the penal code to define
these types of activity); see also id. § 125.062 (using the penal code definition
for public nuisance as pertaining to gang activities).
Therefore, we hold that these limitations and guidelines, in addition to the
policy reasons behind the enactment of section 71.021, compel us to the
conclusion that section 71.021 does not violate the Nondelegation Doctrine and
therefore, is not unconstitutional “on its face.” See Granviel, 561 S.W.2d at
514 (holding that the legislature can delegate power to a coordinate branch, so
long as the legislature has declared a policy and fixed a primary standard for its
implementation). Accordingly, we overrule Lawson’s second point.
2. As-Applied Challenge
11
In his final point, Lawson challenges the constitutionality of section
71.021 “as applied” to him, claiming that because the State failed to serve
process on his biological mother, Janessa Lawson, in the civil injunction
proceeding, the trial court lacked personal jurisdiction over him to issue the
injunction. Therefore, he argues, because the anti-gang injunction was void as
to him, he could not be prosecuted under section 71.021 for violation of the
injunction.
For this court to review an attack on the constitutionality of a statute “as
applied,” Lawson must first have raised the issue before trial by written motion
and have obtained a ruling on the motion. Curry, 910 S.W.2d at 496. In
Lawson’s second motion to dismiss, he asserts the unconstitutionality of
section 71.021 in its “application”; however, he does not reference failure of
service of process as the reason. Instead, he claims that section 71.021 is
unconstitutional “as applied” because it violates the Separation of Powers
Doctrine. Based on the record before us, then, Lawson has failed to preserve
his “as applied” argument and has forfeited this point because his complaint on
appeal must comport with the one that he made in the court below.6 See
6
… Furthermore, Lawson’s guardian or custodian, Carlas Freeman,
received notice of the hearing and appeared. At Lawson’s bond reduction
hearing, Freeman testified that she was Lawson’s mother, although not his
biological mother, and that she had watched after him for eighteen
12
Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004); Bell v.
State, 938 S.W.2d 35, 54 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 827
(1997); Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990).
Therefore, we overrule Lawson’s third point.
IV. Conclusion
Having overruled all of Lawson’s points, we affirm the trial court’s
judgment.
BOB MCCOY
JUSTICE
PANEL: LIVINGSTON and MCCOY, JJ.; and WILLIAM BRIGHAM, J. (Senior
Justice, Retired, Sitting by Assignment).
years—Lawson’s entire life. Lawson acknowledged Freeman as his “guardian
and next friend” in pleadings filed on his behalf. Freeman appeared at the
hearing, even though Janessa’s name instead of Freeman’s appeared on the
citation, waiving any defect in notice. See Tex. Fam. Code Ann. § 53.06(e)
(Vernon 2008) (allowing anyone but the juvenile to waive service); K.M.P. v.
State, 701 S.W.2d 939, 941 (Tex. App.—Fort Worth 1986, no writ) (holding
that any right of juvenile’s father to be served with copy of summons and a
petition was waived by father’s appearance and voluntary submission to
jurisdiction of court). On these facts, any deficiencies in the service of process
did not adversely affect Lawson’s interests. See, e.g., Tex. Fam. Code Ann.
§ 53.06(a) (stating that, in juvenile court, issuance of summons shall be
directed to the child named in the petition and the child’s parent, guardian, or
custodian); In re V.C.H., 605 S.W.2d 643, 647 (Tex. Civ. App.—Houston [1st
Dist.] 1980, no pet.) (holding that failure of juvenile court to serve child’s
mother with notice did not invalidate transfer order where child’s foster father
was his custodian and foster father was served and appeared at the hearing).
13
PUBLISH
DELIVERED: February 5, 2009
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