PD-0761-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 12/1/2015 4:32:18 PM
Accepted 12/1/2015 4:47:59 PM
No. PD-0761-15 ABEL ACOSTA
CLERK
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
PATRICK MARCEL BROWN
Appellant
v.
December 1, 2015
THE STATE OF TEXAS
Appellee
On Petition for Discretionary Review from
Cause No. 14-13-00839-CR, affirming the decision in
Cause No. 1391739, in the 262nd Judicial District Court of Harris County, Texas
MOTION FOR REHEARING
SECTION 38.122 MUST BE INVALIDATED FOR THE THREAT IT PRESENTS TO THE
FIRST AMENDMENT
A. Initial Request to Review the Oral Argument in the Fourteenth Court of
Appeals
Appellant humbly requests that the Court of Criminal Appeals listen to the oral
argument in Appellant’s case if it has not done so already. There is a stark contrast
between the posture of the Court of Appeals at argument, where the Court of
Appeals acknowledges the impact of Section 38.122 on the valid practice of law, and
the Court of Appeals’s published opinion, which glosses over the issue of the statute’s
overbreadth. The Court of Appeals’s opinion gives an incomplete and limited
perspective of the important issues decided in Appellant’s case.
B. Section 38.122 as interpreted by this Court and the Fourteenth Court of
Appeals is particularly dangerous from a policy standpoint
Incrementally, this Court and the Fourteenth Court of Appeals have broadened
the definitions applicable to Section 38.122 to the point where they apply in
unreasonable contexts. In Celis, this Court made several important holdings: 1) that
the “mental-state requirement [is limited] to the economic-benefit element,” 2) that
“good standing” requirement applies regardless of whether a lawyer is licensed in
another state, and 3) Section 38.122 applies unless certain requirements are met. Celis
v. State, 416 S.W.3d 419, 428 (Tex. Crim. App. 2013). But Section 38.122 has no “truth
defense” and has no nexus to the practice of law within Texas. Under this Court’s
definition, an out-of-state lawyer violates the law whether the lawyer truthfully
represents her status as a lawyer (“licensed in Illinois”), conditions payment and
representation upon obtaining permission to appear before Texas courts pro hac vice in
the future, or offers to represent a client in matters outside of Texas state law. Section
38.122 prohibits speech that is neither misleading nor proposes an unlawful
transaction. See 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 528 (1996) (Even
where speech is purely commercial, where “the speech at issue concerns lawful
activity and is not misleading, and […] the asserted governmental interest is
substantial[, … the Court] must decide whether the regulation directly advances the
governmental interest asserted, and whether it is not more extensive than is necessary
to serve that interest.”).
The Fourteenth Court of Appeals ups the ante by concluding that a person can
“hold oneself out as a lawyer” if the person “acts like a lawyer,” even if that person
never actually claims to be a lawyer. Brown v. State, 468 S.W.3d 158, 166 (Tex. App.-
Houston [14th Dist.] 2015, pet. ref’d). The example posed at trial and considered by
the Court of Appeals is telling: if a person performs electrical work in a person’s
house, in the Court of Appeals’s eyes, that person ceases to be an honest handyman
and is transformed by subjective belief into a charlatan electrician. Id. at 164–166.
However, as criminal law must be clear in its meaning and application, it must avoid
being founded upon a subjective basis. See e.g. Michigan v. Bryant, 562 U.S. 344, 360 n. 7
(2011) (criminal law disfavors subjective inquiry). The transformation of the
requirement of “holding oneself out a lawyer” into criminalizing merely permitting
oneself to be perceived as a lawyer threatens lawful professions including legal
paraprofessionals, tax advisors, licensed advocates practicing before agencies, and
negotiators.
Section 38.122 is open to an even broader interpretation, and may be applied to
a number of unwitting people who could be said to be “holding themselves out to be
lawyers” for compensation. Law professors, who might not be licensed to practice
law, provide legal education for compensation. Actors frequently pretend to be
lawyers in paid acting jobs. See Brown v. Perez, 25 S.W. 980, 983 (Tex. Civ. App. 1894)
(defining “pretend” as “[t]o hold out as true that which is false; to feign; to
simulate.”). Similarly, satirists and comedians pretend to be lawyers as part of paid
creative works. None of these people should face the expense, emotional strain, and
threat of wrongful incarceration posed by the possibility of prosecution under Section
38.122 for lawful activities.
C. The licensing and good standing exceptions to Section 38.122 are
insufficient to protect the innocent or to satisfy First Amendment
In Stevens, the Government asserted that the clause “exempt[ing] from
prohibition any depiction that has serious religious, political, scientific, educational,
journalistic, historical, or artistic value” from the federal law banning depictions of
cruelty to animals sufficiently narrowed the statute’s reach. United States v. Stevens, 559
U.S. at 477-478. But the Supreme Court concluded that the exceptions did not go far
enough. First, the law limited its protection to speech of “serious value,” which was
not broad enough to save the statute Id. at 478. Second, the law did not protect
speech which lacked religious, political, scientific, educational, journalistic, historical,
or artistic value but was still afforded protection by the First Amendment. Id. at 478-
80.
Section 38.122 suffers from similar problems as the law considered in Stevens.
First, the exceptions to prosecution are not broad enough to save the statute, as they
narrowly exempt only lawyers in good standing with both the Texas bar and any
other bar organizations the person belongs to from prosecution. TEX. CODE CRIM.
PROC., ART. 38.122(a). But what of lawyers licensed by the Texas Bar who decide to
let other bar memberships lapse in other jurisdictions? What of licensed lawyers who
do not practice Texas law but who are fully credentialed to provide any services they
hold themselves out to provide? Second, the law provides no defense where a
person’s statements are truthful and not misleading. What happens to an unlicensed
or out-of-jurisdiction lawyer embarking upon a non-legal career? Or to the licensed
out-of-jurisdiction lawyer practicing out of state law from a summer home in Texas?
Section 38.122(a) is a poorly drafted statute that must be invalidated so that the
legislature can address the law’s glaring flaws.
D. Courts have the obligation to strike down statutes which unconstitutionally
infringe upon civil liberties
As Texas’s jurisprudence has slowly digested and interpreted Jackson v. Virginia,
Texas courts have established increasingly rigorous appellate standards and have
expressed an increased reluctance to overturn a trial court’s verdict. Brooks v. State, 323
S.W.3d 893, 894–895 (Tex. Crim. App. 2010) (rejecting the factual sufficiency
standard); Karenev v. State, 281 S.W.3d 428, 433–434 (Tex. Crim. App. 2009) (adopting
an increasingly rigid preservation standard to even purely legal challenges in case). At
the same time, Texas jurisprudence has generally (with few prominent exceptions)
retreated from drawing clear legal boundaries or interpreting unclear or unwise
statutes in a manner lenient to those who may face prosecution. Seals v. State, 187
S.W.3d 417, 422 (Tex. Crim. App. 2005) (“It is not our place within the judiciary,
however, to construe a statute based on our notions of what is rational or what makes
good common sense.”). As a consequence, any desire for the rational application of
Texas criminal law increasingly relies upon the discretion and the “noblesse oblige” of
the prosecution. See United States v. Stevens, 559 U.S. at 480. But constitutional rights
and fundamental liberty interests cannot not hang in the balance, subject to self-
imposed limits upon prosecutorial discretion. Id. Correspondingly, Courts have a duty
to see that laws “must be invalidated [when they] function[…] to suppress” the
exercise of protected rights and freedoms. Church of the Lukumi Babalu Aye, Inc. v. City
of Hialeah, 508 U.S. 520, 540 (1993).
E. A facially invalid statute must be invalidated even before a pattern of
unconstitutional applications arises from its use
The mere fact that the government has not yet applied a facially
unconstitutional statute in a patently unconstitutional way does not save the statute
from invalidation. Though no Texas resident was prosecuted for electronically
sending “Lolita,” “50 Shades of Grey,” “Lady Chatterley's Lover,” or Shakespeare's
“Troilus and Cressida” to a minor, a subsection of Texas’s Online Solicitation of a
Minor statute was declared unconstitutional. Ex parte Lo, 424 S.W.3d 10, 20 (Tex.
Crim. App. 2013), reh'g denied (Mar. 19, 2014). Although the United States
Government refrained from prosecuting production studios who filmed hunting
videos, journalists who wrote articles about animal cruelty, and photographers who
took pictures of bullfights, federal law prohibiting certain depictions of animal cruelty
was similarly declared unconstitutional. United States v. Stevens, 559 U.S. at 477-478.
Statutes which unconstitutionally limit expression must be invalided even when
applied to conduct which may be prohibited, as the very existence of unconstitutional
statutes poses a “significant threat to the public interest, infringing as it does upon
rights accorded the highest degree of protection under the First Amendment.” Wilson
v. Stocker, 819 F.2d 943, 952 (10th Cir. 1987). A Court cannot “uphold an
unconstitutional statute merely because the Government [so far has used the law]
responsibly.” Id. at 480.
PRAYER
Appellant prays that this Court grant discretionary review in Appellant’s case.
Respectfully submitted,
ALEXANDER BUNIN
Chief Public Defender
Harris County Texas
/s/ Nicolas Hughes
NICOLAS HUGHES
Assistant Public Defender
Harris County Texas
1201 Franklin Street, 13th Floor
Houston Texas 77002
(713) 368-0016
(713) 386-9278 fax
TBA No. 24059981
nicolas.hughes@pdo.hctx.net
CERTIFICATE OF SERVICE
I certify that a copy of this Motion for Rehearing has been served upon the Harris
County District Attorney's Office — Appellate Section and upon the State Prosecuting
Attorney on December 1, 2015 by electronic service.
/s/ Nicolas Hughes
NICOLAS HUGHES
Assistant Public Defender
CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements of Tex. R. App. P.
9.4(e) because it has been prepared in a conventional typeface no smaller than 14-
point for text and 12-point for footnotes. This document also complies with the page
and word count limitations of Tex. R. App. P. 9.4(i), if applicable, because it contains
1,474 words excluding portions not to be counted under Tex. R. App. P. 9.4(i)(1).
/s/ Nicolas Hughes
NICOLAS HUGHES
Assistant Public Defender
CERTIFICATION REGARDING GROUNDS FOR REHEARING
“A motion for rehearing an order that refuses a petition for discretionary
review may be grounded only on substantial intervening circumstances or on other
significant circumstances which are specified in the motion.” TEX. R. APP. P. R. 79.2.
Counsel for Appellant certifies that this motion is made in good faith, not made for
delay, and is made for the following reasons. 1) Counsel for Appellant believes that
Section 38.122 punishes speech that is neither misleading or untruthful and that is not
in any traditional category of unprotected speech. 2) Counsel for Appellate believes
that Section 38.122, as it has been interpreted and applied in this case, is capable of
broader application and reach than even Section 33.021(b), as it can be readily applied
to thousands of unwitting, law abiding citizens including licensed lawyers, para-
professionals, and citizens providing quasi-legal professional services.
/s/ Nicolas Hughes
NICOLAS HUGHES
Assistant Public Defender