In The 

Court of Appeals 

Seventh District of Texas at Amarillo

________________________

No. 07-21-00016-CV 

________________________

STONEWATER ROOFING, LTD. CO., APPELLANT 

 

V. 

 

TEXAS DEPARTMENT OF INSURANCE AND KENT SULLIVAN 

IN HIS OFFICIAL CAPACITY AS COMMISSIONER 

OF THE TEXAS DEPARTMENT OF INSURANCE, APPELLEES 

 

 

On Appeal from the 201st District Court 

Travis County, Texas 

Trial Court No. D-1-GN-20-003172; Honorable Lora J. Livingston, Presiding 

 

February 2, 2022 

 

OPINION 

 

Before QUINN, C.J., and PIRTLE and DOSS, JJ. 

 

Appellant, Stonewater Roofing, Ltd. Co., appeals from the trial court’s Order 

Granting Motion to Dismiss, entered pursuant to Rule 91a of the Texas Rules of Civil 

Procedure, in favor of Appellees, Texas Department of Insurance and Kent Sullivan, in 

his official capacity as Commissioner of the Texas Department of Insurance (hereinafter 
2

collectively “TDI”). By two issues, Stonewater contends the trial court erred in granting 

TDI’s motion to dismiss because its pleadings demonstrated an adequate basis in law

and in fact, under the appropriate Rule 91a standard, to support its causes of action under 

the First and Fourteenth Amendments to the United States Constitution. See TEX. R. CIV.

P. 91a.1 (providing for the dismissal of any cause of action that does not have a “basis in 

law or fact”). Based on the facts of this case, we will reverse the order of the trial court 

and remand the matter for further proceedings not inconsistent with this ruling. TEX. R.

APP. P. 43.2(d).2 

BACKGROUND

In 2005, the Texas Legislature enacted provisions under the insurance code 

regulating “public insurance adjusting.”3 Public insurance adjusters are frequently hired 

by an insured to help resolve and settle insurance claims. The enacted provisions provide 

that a public insurance adjuster must be licensed in order to adjust insurance claims on 

an insured’s behalf. TEX. INS. CODE ANN. § 4102.051 (West Supp. 2021).4 Under these 

provisions, any person or entity defined as a contractor is prohibited from adjusting

1 Rule 91a is analogous to Federal Rule of Civil Procedure 12(b)(6) and thus, case law interpreting 

Rule 12(b)(6) is helpful in our analysis herein.

2 Originally appealed to the Third Court of Appeals, sitting in Austin, this appeal was transferred to 

this court by the Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 

73.001 (West 2013). Should a conflict exist between precedent of the Third Court of Appeals and this court 

on any relevant issue, this appeal will be decided in accordance with the precedent of the transferor court. 

TEX. R. APP. P. 41.3. 

3 The Texas Legislature enacted chapter 4102 of the Texas Insurance Code effective September 

1, 2005. See Act of May 24, 2005, 79th Leg., R.S., ch. 728, § 11.082(a), 2005 Tex. Gen. Laws 2259, 2259-

72 (codified at TEX. INS. CODE ANN. §§ 4102.001-.208). Chapter 4102 is a comprehensive licensing statute 

regulating public insurance adjusters. See TEX. INS. CODE ANN. §§ 4102.001-.208 (West 2009 & Supp. 

2021).

4 This provision is simply a licensing requirement. The parties have little dispute regarding this 

provision. 
3

insurance claims for properties at which the contractor is, or will be, providing contracting 

services. TEX. INS. CODE ANN. § 4102.163 (West 2009). Likewise, licensed public 

insurance adjusters are prohibited from providing any contracting services on property at 

which they are, or will be, providing public insurance adjusting services. In other words, 

acting as a public insurance adjuster and a contractor on the same claim is a statutorily

defined conflict of interest. TEX. INS. CODE ANN. § 4102.158(a)(1) (West 2009). 

Stonewater is a professional roofing company that repairs and replaces 

commercial and residential roofs in Texas. Stonewater is not licensed as a public 

insurance adjuster. However, Stonewater’s website purportedly includes statements 

such as it is “highly experienced with the insurance claims process,” that it has “done 

thousands of roof restorations due to insurance claims over the years,” and it 

“understand[s] the supplement process required.” Stonewater’s website has also 

allegedly referenced the company as a “Trusted Roofing and Insurance Specialist” and 

“The Leader In Insurance Claim Approval,” having “developed a system which helps our 

customers settle their insurance claims as quickly, painlessly and comprehensively as 

possible.” Some of Stonewater’s prior form agreements ostensibly contained language 

that “authorized” Stonewater “to negotiate on [the customer’s] behalf with [the] insurance 

company and upon insurance approval to do the work specified.” One of Stonewater’s 

customers sued it, arguing these statements violated the prohibitions set forth in chapter 

4102 of the Insurance Code.

In June 2020, Stonewater filed suit against TDI, challenging the prohibitions as 

impermissible regulations of commercial speech and alleging the provisions were 
4

unconstitutionally vague.5 Stonewater requested a declaration that the prohibitions are 

invalid on their face and as applied under the First and Fourteenth Amendments to the 

United State Constitution and “corresponding provisions” of the Texas Constitution. TDI 

filed a general denial on July 17, 2020, and a Rule 91a motion to dismiss on August 21, 

2020. TDI argued that Stonewater’s constitutional challenges were subject to dismissal 

because they had no basis in law. The trial court held a hearing on the motion and without 

explanation as to the basis for its ruling, granted TDI’s motion to dismiss. 

STANDARD OF REVIEW

Rule 91a provides a procedure for dismissal of a case that has no basis in law or 

no basis in fact. TEX. R. CIV. P. 91a. A court of appeals reviews the merits of a Rule 91a 

motion “de novo because the availability of a remedy under the facts alleged is a question 

of law and the rule’s factual plausibility standard is akin to a legal-sufficiency review.” 

Antolik v. Antolik, No. 07-20-00281-CV, 2021 Tex. App. LEXIS 7272, at *6 (Tex. App.—

Amarillo Aug. 31, 2021, no pet.) (mem. op.) (citing City of Dallas v. Sanchez, 494 S.W.3d 

722, 724 (Tex. 2016)).

“A cause of action has no basis in law if the allegations, taken as true, together 

with reasonable inferences drawn from them, do not entitle the claimant to the relief 

sought.” Antolik, 2021 Tex. App. LEXIS 7272, at *6-7 (citation omitted). Except as 

required by 91a.7 (award of costs and attorney fees), the court “may not consider 

5 We note that Stonewater properly filed notice with the attorney general’s office that it was 

challenging the statute as unconstitutional. TEX. GOV’T CODE ANN. § 402.010 (requiring party to notify 

attorney general when raising constitutional challenge to statute); TEX. CONST. art. V, § 32 (permitting 

legislature to require court to provide notice to attorney general of constitutional challenge).
5

evidence in ruling on the motion and must decide the motion based solely on the pleading 

of the cause of action . . . .” Id. (citing TEX. R. CIV. P. 91a.6).

Furthermore, the trial court construes the pleadings liberally in favor of the plaintiff, 

looks to the plaintiff’s intent, and accepts the plaintiff’s factual allegations as true, and, if 

necessary, draws reasonable inferences from the factual allegations to determine if the 

cause of action has a basis in both law and fact. Antolik, 2021 Tex. App. LEXIS 7272, at 

*7 (citing In re Farmers Tex. Cty. Mut. Ins. Co., 604 S.W.3d 421, 425-26 (Tex. App.—San 

Antonio 2019, orig. proceeding)). Dismissal of a cause of action under Rule 91a is a 

harsh remedy with fee-shifting consequences; thus, an appellate court strictly construes 

the rule’s requirements. Antolik, 2021 Tex. App. LEXIS 7272, at *7 (citing Bedford 

Internet Office Space, LLC v. Tex. Ins. Grp., Inc., 537 S.W.3d 717, 720-21 (Tex. App.—

Fort Worth 2017, pet. dism’d)).

The trial court may not consider evidence in ruling on the dismissal motion and 

must decide the motion based solely on the pleading of the cause of action, together with 

any pleading exhibits permitted by the Texas Rules of Civil Procedure. Antolik, 2021 Tex. 

App. LEXIS 7272, at *7-8 (citing TEX. R. CIV. P. 91a.6.5; AC Interests, L.P. v. Tex. Comm’n 

on Envtl. Quality, 543 S.W.3d 703, 706 (Tex. 2018); ConocoPhillips Co. v. Koopmann, 

547 S.W.3d 858, 880 (Tex. 2018); Sanchez, 494 S.W.3d at 724). In deciding whether the 

trial court properly granted a motion to dismiss under Rule 91a, a reviewing court applies 

the fair-notice pleading standard in determining whether the allegations in the petition 

were sufficient to allege a cause of action. Antolik, 2021 Tex. App. LEXIS 7272, at *8 

(citing Thomas v. 462 Thomas Family Props., LP, 559 S.W.3d 634, 639-40 (Tex. App.—

Dallas 2018, pet. denied)). Under that standard, a court considers whether the opposing 
6

party “can ascertain from the pleading the nature and basic issues of the controversy and 

what testimony will be relevant.” Antolik, 2021 Tex. App. LEXIS 7272, at *8 (citing 

Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896 (Tex. 2000)). In other words, 

the fair-notice standard measures whether the pleading has provided the opposing party 

sufficient information to enable that party to prepare a defense or a response. Antolik, 

2021 Tex. App. LEXIS 7272, at *8 (citing First United Pentecostal Church of Beaumont v. 

Parker, 514 S.W.3d 214, 224-25 (Tex. 2017) (citing Kopplow Dev., Inc. v. City of San 

Antonio, 399 S.W.3d 532, 536 (Tex. 2013); Roark v. Allen, 633 S.W.2d 804, 810 (Tex. 

1982)).

ISSUES

Through two issues, Stonewater contends it sufficiently pleaded both a factual and 

a legal basis for its claim under the First and Fourteenth Amendments, for which TDI 

failed to identify any clear bar. Accordingly, it argues, the trial court’s judgment of 

dismissal must be reversed.

ISSUE ONE—FIRST AMENDMENT CLAIM

Via its first issue, Stonewater argues the trial court erred as a matter of law in 

granting TDI’s motion to dismiss its First Amendment claim. Stonewater argues its claim 

survives a Rule 91a motion to dismiss because the prohibitions in question restrict a broad 

range of commercial speech and facially regulate that speech on the basis of both its 

content and its speaker. As such, Stonewater contends the statutory prohibitions violate 

the First Amendment on its face. Stonewater further claims the statutory provisions 

amount to a content-based restraint of free speech, are presumptively unconstitutional, 

and fail to pass a strict scrutiny review. Alternatively, Stonewater asserts that the statutory 
7

provisions in question amount to an improper regulation of commercial speech and that 

they also fail intermediate scrutiny. TDI argues the trial court properly dismissed 

Stonewater’s First Amendment challenge to the prohibitions because the statutes do not 

trigger First Amendment scrutiny at all. As support for its argument, TDI contends the 

“First Amendment only applies to governmental regulations of speech, and the Public 

Adjusting Prohibitions do not regulate speech but instead regulate unprotected 

professional conduct.” TDI asserts the prohibitions do not require anything specific to be 

said, printed, or disseminated and do not prohibit general discussions of topics that are 

legal. As such, TDI contends, the provisions do not target speech as speech. Rather, 

the provisions regulate professional conduct by prohibiting the unlicensed practice of 

public insurance adjusting and prohibiting contractors from adjusting claims for certain 

properties. For the reasons stated hereinbelow, we disagree with TDI’s position and 

agree with Stonewater’s position.

The First Amendment to the United States Constitution, applicable to the States 

through the Fourteenth Amendment, prohibits the enactment of laws “abridging the 

freedom of speech.” U.S. CONST. amend I. See Reed v. Town of Gilbert, 576 U.S. 155, 

163 (2015). If a law simply prohibits non-expressive conduct rather than speech, the First 

Amendment is inapplicable, and the inquiry proceeds no further. Vizaline, L.L.C. v. Tracy, 

949 F.3d 927, 931 (5th Cir. 2020). (citation omitted). Thus, we must first determine 

whether the prohibitions at issue here (1) regulate only speech, (2) restrict speech only 

incidentally to their regulation of non-expressive professional conduct, or (3) regulate only 

non-expressive conduct. Id. (citation omitted). The United States Supreme Court spoke 

to these issues as it applied to occupational licensing regulations in Nat’l Inst. of Family 
8

& Life Advocates v. Becerra, 2018 U.S. LEXIS 4025, 138 S. Ct. 2361, 201 L. Ed. 2d 835 

(2018). There, the Court explained that “[s]peech is not unprotected merely because it is 

uttered by ‘professionals.’” Id. at 2371-72. A professional speech exception to the right 

of free speech, it warned, would “give the States unfettered power to reduce a group’s

First Amendment rights by simply imposing a licensing requirement.” Id. at 2375. Such 

power would give the States a powerful tool to impose “invidious discrimination of 

disfavored subjects.” Id. (quoting Cincinnati v. Discovery Network, Inc., 507 U.S. 410,

423-424, n.19, 113 S. Ct. 1505, 123 L. Ed. 2d 99 (1993)). Accordingly, the Court applied 

“the traditional conduct-versus-speech dichotomy” used in other cases.6 

Under the First Amendment, a government “has no power to restrict expression 

because of its message, its ideas, its subject matter, or its content.” Reed, 576 U.S. at 

163 (citing Police Dep’t of Chicago v. Mosley, 408 U. S. 92, 95, 92 S. Ct. 2286, 33 L. Ed. 

2d 212 (1972)). “Content-based laws—those that target speech based on its 

communicative content—are presumptively unconstitutional and may be justified only if 

the government proves that they are narrowly tailored to serve compelling state 

interests.” Reed, 576 U.S. at 163 (citing R.A.V. v. St. Paul, 505 U. S. 377, 395, 112 S. 

Ct. 2538, 120 L. Ed. 2d 305 (1992); Simon & Schuster, Inc. v. Members of N.Y. State 

Crime Victims Bd., 502 U. S. 105, 115, 118, 112 S. Ct. 501, 116 L. Ed. 2d 476 (1991)).

Government regulation of speech is content-based if a law applies to particular 

speech because of the topic discussed or the idea or message expressed. Reed, 576 

U.S. at 163 (citing Sorrell v. IMS Health, Inc., 564 U.S. 552, 263-565, 131 S. Ct. 2653, 

6 TDI notes that it is not arguing that the “professional speech” doctrine applies here, as Stonewater 

contends. TDI acknowledges that doctrine “is dead.” Rather, TDI’s argument is “squarely within the 

confines of the conduct-versus-speech dichotomy.” 
9

2663-64, 180 L. Ed. 2d 544, 555-56 (2011); Carey v. Brown, 447 U. S. 455, 462, 100 S. 

Ct. 2286, 65 L. Ed. 2d 263 (1980); Mosley, 408 U.S. at 95). This “commonsense meaning 

of the phrase ‘content based’ requires a court to consider whether a regulation of speech 

‘on its face’ draws distinctions based on the message a speaker conveys.” Reed, 576 

U.S. at 163 (citing Sorrell, 564 U.S. at 564). Some facial distinctions based on a message 

are obvious, defining regulated speech by particular subject matter, while others are more 

subtle, defining regulated speech by its function or purpose. Both are “distinctions drawn 

based on the message a speaker conveys, and, therefore, are subject to strict scrutiny.” 

Reed, 576 U.S. at 164.

We must address TDI’s argument that this case involves conduct, not speech. It 

contends the challenged statutes regulate professional conduct because the provisions 

do not prohibit Stonewater from engaging in communications related to insurance but 

rather simply prohibit Stonewater from receiving compensation for acting on behalf of an 

insured party and adjusting claims without a public insurance adjuster license. 

Accordingly, it asserts, the protections of the First Amendment are inapplicable and an 

intermediate rational basis scrutiny should apply because the provisions are rationally 

related to a legitimate government purpose, i.e., regulating the practice of insurance 

adjusting.

Section 4102.163(a) provides: “A contractor may not act as a public adjuster or 

advertise to adjust claims for any property for which the contractor is providing or may 

provide contracting services, regardless of whether the contractor: (1) holds a [public 

insurance adjuster] license under this chapter; or (2) is authorized to act on behalf of the 

insured under a power of attorney or other agreement.” TEX. INS. CODE ANN. § 
10

4102.163(a). While, in this instance, TDI maintains the statute speaks only to conduct, 

we find any conduct under the statute consists of communicating.7 TDI points to nothing 

that a public insurance adjuster does that is simply conduct. The business of public 

insurance adjusting necessarily and inextricably involves speech. See, e.g., Holder v. 

Humanitarian Law Project, 561 U.S. 1, 28, 130 S. Ct. 2705, 177 L. Ed. 2d 355 (2010). 

See also Bartnicki v. Vopper, 532 U.S. 514, 527, 121 S. Ct. 1753, 149 L. Ed. 2d 787 

(2001) (If “the acts of ‘disclosing’ and ‘publishing’ information do not constitute speech, it 

is hard to imagine what does fall within that category, as distinct from the category of 

expressive conduct.”). Courts have long held that dissemination of information is speech 

within the First Amendment. Sorrell, 564 U.S. at 570. Here, Stonewater’s statements 

and discussions consisted of communicating and of gathering and disseminating 

information. Accordingly, this case involves speech, not conduct.

We must turn then to a determination of whether the speech in question is contentbased. Under chapter 4102, the permissibility of a contractor’s communications is 

dependent on whether the contractor communicates with the function or purpose of 

“negotiating for or effecting the settlement of a claim” or “advertis[ing]” or “solicit[ing]” the

ability to do so. However, chapter 4102 does not prohibit the contractor from making 

other types of statements on behalf of the insured such as estimating the amount of 

damage to a customer’s home or the appropriate replacement cost. As such, it is 

necessary to examine the content of a given statement to determine whether it is 

prohibited under chapter 4102. Stonewater argues that because the prohibitions do “not 

simply have an effect on speech, but [are] directed at certain content and aimed at 

7 The same assertion is made in the Amici Curiae brief.
11

particular speakers,” they cannot satisfy strict scrutiny. See Barr v. Am. Ass’n of Political 

Consultants, 2020 U.S. LEXIS 3544, 140 S. Ct. 2335, 2342, 207 L. Ed. 2d 784 (2020). 

See also Nat’l Inst. of Family & Life Advocates, 138 S. Ct. at 2365-66. TDI concedes 

through its arguments that the prohibitions “do not prohibit general discussions of topics 

that are legal” and thus, appears to acknowledge that the legality of Stonewater’s 

statements is dependent on the topics discussed. 

The situation before us is similar to that at issue in Sorrell, 564 U.S. at 563. There, 

the statute prohibited pharmaceutical companies from selling, disclosing, or using 

prescriber-identifying information for marketing but not for other purposes such as 

“educational communications.” Id. at 563-64. The court found that on its face, the statute 

enacted content-and-speaker-based restrictions and thus, the statute was subject to 

heightened scrutiny. Id. at 565. The court further found that the law did “not simply have 

an effect on speech, but is directed at certain content and is aimed at particular speakers.” 

Id. at 567. Likewise, we find the prohibitions here are both content-based, as the 

prohibition is dependent on the content of the communications, and speaker-based,

because it is aimed specifically at roofing contractors, the speakers. Thus, the provisions 

are subject to strict scrutiny under the First Amendment. As such, the State would be 

required to present evidence to show that the prohibited communication had a direct 

causal relationship to the State’s compelling interest. Accordingly, we find Stonewater 

sufficiently pleaded a legal and factual basis for its First Amendment claim such that the 

trial court erred in granting TDI’s Rule 91a motion to dismiss. 

Moreover, we agree with Stonewater that even if these prohibitions restrict speech 

only incidentally in the regulation of non-expressive professional conduct, the less 
12

stringent standard under the First Amendment applies. See Central Hudson Gas & Elec. 

Corp. v. Public Serv. Comm’n, 447 U.S. 557, 561 (1980) (seminal case finding that the 

First Amendment, as applied to the States through the Fourteenth Amendment, protects 

commercial speech from unwarranted governmental regulation; sets forth a four-part 

analysis applying an intermediate level of scrutiny). As such, outright dismissal of 

Stonewater’s claim would still be improper under this standard of review. See McLemore 

v. Gumucio, No. 3:19-CV-00530, 2020 U.S. Dist. LEXIS 228082, at *48, 57 (M.D. Tenn. 

Dec. 4, 2020) (finding that advertising as and representing to be an auctioneer implicates 

speech, even if the regulation of speech is only incidental to a regulation of conduct (i.e., 

a sales transaction) and stating “even a neutral regulation unrelated to the content of 

expression that incidentally burdens speech is still subject to an intermediate form 

of scrutiny” and “intermediate scrutiny (like strict scrutiny) would require the court to make 

factual findings based on evidence, which cannot be done at the motion to dismiss 

stage”). See also Am. Med. Ass’n v. Stenehjem, 412 F. Supp. 3d 1134, 1149 (D.N.D. 

2019); Capital Associated Indus. v. Stein, 922 F.3d 198, 209 (4th Cir. 2019) (both applying 

intermediate scrutiny). 

Accordingly, we find Stonewater’s pleadings include factual allegations that satisfy 

the requisites of bringing a First Amendment claim. It is not for us to determine whether 

such allegations will ultimately be meritorious as our only inquiry here is whether 

Stonewater has sufficiently pleaded its claim to survive a Rule 91a motion to dismiss. We 

find it has and sustain Stonewater’s first issue.8

8 Stonewater also argues TDI failed to address its as-applied challenge. Given our disposition 

herein, we find it unnecessary to address that complaint. 
13

ISSUE TWO—FOURTEENTH AMENDMENT CLAIM

By its second issue, Stonewater argues the trial court erred as a matter of law in 

granting TDI’s motion to dismiss the Fourteenth Amendment claim because it failed to 

assert an argument that supported a dismissal of the claim. First, Stonewater argues, the 

prohibitions do not clearly proscribe Stonewater’s speech. Further, TDI argued only that 

Stonewater could not sustain a vagueness challenge as applied to Stonewater if the 

prohibitions clearly proscribed Stonewater’s alleged speech. However, that argument, 

Stonewater asserts, has no bearing on whether it can maintain its facial vagueness 

challenge because facial attacks are not dependent on the facts surrounding any 

particular decision.

9

TDI responds that the trial court properly dismissed Stonewater’s Fourteenth 

Amendment claim because Stonewater’s conduct was clearly proscribed, foreclosing a 

vagueness challenge. TDI argues that Stonewater failed to acknowledge that a void-forvagueness challenge fails if the complainant’s own conduct is clearly proscribed by the 

law. 

The Fourteenth Amendment provides that “[n]o person shall . . . be deprived of life, 

liberty, or property without due process of law.” U.S. CONST. amend. XIV. The 

“[v]agueness doctrine is an outgrowth of the Due Process Clause.” United States v. 

Williams, 553 U.S. 285, 304, 128 S. Ct. 1830, 170 L. Ed. 2d 650 (2008). Due process 

9 An as-applied challenge asserts that a statute is unconstitutional as applied to the challenger’s 

particular conduct. Columbus v. Meyer, 786 N.E.2d 521, 526 (10th Dist. Ohio 2003). In contrast, a facialvagueness challenge asserts the statute is vague in all of its applications. Hoffman Estates v. The Flipside, 

Hoffman Estates, Inc., 455 U.S. 489, 494-495, 102 S. Ct. 1186, 71 L. Ed. 2d 362 (1982). A facial-vagueness

challenge asserts that a law is unconstitutional as applied to the hypothetical conduct of a third party and 

without regard to the challenger’s specific conduct. Forsyth County, Georgia v. The Nationalist Movement,

505 U.S. 123, 129, 112 S. Ct. 2395, 120 L. Ed. 2d 101 (1992).
14

requires that statutes providing for criminal prosecution be drafted “with sufficient

definiteness that ordinary people can understand what conduct is prohibited and in a 

manner that does not encourage arbitrary and discriminatory enforcement.” See

Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983). See 

also Johnson v. United States, 576 U.S. 591, 135 S. Ct. 2551, 2557-58, 192 L. Ed. 2d 

569 (2015); Munn v. City of Ocean Springs, Miss., 763 F.3d 437, 439 (5th Cir. 2014) (“The

Due Process Clause requires that a law provide sufficient guidance such that a man of 

ordinary intelligence would understand what conduct is being prohibited.”). Violation of 

the prohibitions here subject the violator to civil and criminal penalties. 

Where a law infringes on fundamental rights, particularly First Amendment rights, 

courts permit standalone facial vagueness challenges. Sibley v. Watches, 501 F. Supp. 

3d 210, 226-27 (W.D.N.Y. 2020) (citations omitted). To prevail on a facial vagueness 

challenge of a law that implicates fundamental rights, the challenger must show that the 

law “reaches a substantial amount of constitutionally protected conduct.” Id. (citations 

omitted). In other words, the law will not be facially invalidated unless its chilling effect 

on constitutionally protected conduct is “both real and substantial.” Id. (quoting Young v. 

Am. Mini Theatres, Inc., 427 U.S. 50, 60, 96 S. Ct. 2440, 49 L. Ed. 2d 310 (1976)). “A 

statute can be impermissibly vague for either of two independent reasons. First, if it fails 

to provide people of ordinary intelligence a reasonable opportunity to understand what 

conduct it prohibits. Second, if it authorizes or even encourages arbitrary and

discriminatory enforcement.” Farrell v. Burke, 449 F.3d 470, 485 (2d Cir. 2006) (quoting 

Hill v. Colorado, 530 U.S. 703, 732, 120 S. Ct. 2480, 147 L. Ed. 2d 597 (2000)). “Thus, 

all vagueness challenges—whether facial or as-applied—require [courts] to answer two 
15

separate questions: whether the statute gives adequate notice, and whether it creates a 

threat of arbitrary enforcement.” Sibley, 501 F. Supp.3d at 227.

Stonewater argued that the prohibitions are void for vagueness because the 

provisions do not provide fair notice of the conduct that might be punished. Consequently,

it and other similarly situated roofing companies cannot definitively know what statements 

might trigger a violation because the language of the statute is sufficiently broad to 

encompass any of the routine statements made by such companies to insureds. 

Stonewater argues TDI totally failed to challenge this claim and thus, the trial court erred 

in dismissing the claim under Rule 91a. TDI disagrees, arguing it did challenge the facial 

vagueness claim and that the trial court dismissed it as part of its consideration of 

Stonewater’s as-applied challenge. The pleadings show TDI acknowledged Stonewater’s 

facial vagueness claim in its Rule 91a motion to dismiss. However, it said only that 

“Stonewater fails to show at the outset that the statute is vague as applied to its own 

actions, thereby eliminating any need for this court to ponder any hypothetical 

applications as to other conceivable parties.” Because TDI failed to fully develop its

argument on this point and because we cannot say the trial court necessarily considered 

Stonewater’s facial vagueness claim as part of the as-applied claim, we find Stonewater 

has sufficiently pleaded the claim so as to survive the Rule 91a motion to dismiss. 

Speech is not clearly proscribed if the plaintiff “had reason to suppose that his 

particular statements . . . would not violate the challenged law.” Holder, 561 U.S. at 23. 

TDI argues the prohibitions clearly proscribe these statements by Stonewater:

(1) Stonewater’s website stating that the company consists of “Trusted 

Roofing and Insurance Specialists” and is the [sic] “The Leader in 
16

Insurance Claim Approval” that “developed a system which helps our 

customers settle their insurance claims as quickly, painlessly and 

comprehensively as possible[,]” and (2) Stonewater’s use of a form 

agreement that “authorized Stonewater to negotiate on the customer’s 

behalf with the insurance company and upon insurance approval to do 

the work specified.”

The provisions prohibit advertising or soliciting oneself as an adjuster of claims and 

acts on behalf of an insured in negotiating for or effecting the settlement of a claim. The 

statements made by Stonewater set forth above do none of those things. In none of the 

statements does Stonewater ever say it is a public insurance adjuster or that it is acting 

as “an adjuster of claims” as barred by section 4102.001(3)(B) of the Insurance Code

and, accordingly, Stonewater had no reason to believe that any of the statements it made 

violated that provision. This is particularly true in the context in which its customers hired 

both Stonewater and a separate public insurance adjuster. Under those circumstances, 

Stonewater certainly had no reason to believe any of the statements it made violated the 

prohibitions. A customer would have no reason to hire a public insurance adjuster 

separate and apart from Stonewater if it was acting as a public insurance adjuster. 

Accordingly, Stonewater’s statements were not clearly proscribed, and it has sufficiently 

pleaded its claims under the Fourteenth Amendment sufficient to survive TDI’s Rule 91a 

motion to dismiss. We sustain Stonewater’s second issue.

CONCLUSION

Having sustained each of Stonewater’s appellate issues, we reverse the order of 

the trial court and remand the matter for further proceedings.

Patrick A. Pirtle

 Justice