IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-1123-19

EX PARTE CHARLES BARTON, Appellant

ON STATE’S PETITION FOR DISCRETIONARY REVIEW

FROM THE SECOND COURT OF APPEALS

TARRANT COUNTY

WALKER, J., delivered the opinion of the Court, in which HERVEY,

RICHARDSON, YEARY, and NEWELL, JJ., joined. YEARY, J., filed a concurring

opinion. KELLER, P.J., filed a dissenting opinion, in which KEEL, J., joined.

SLAUGHTER and MCCLURE, JJ., dissented.

O P I N I O N

In this case, the court of appeals held that § 42.07(a)(7) of the Penal Code, the electronic

harassment statute, is unconstitutionally vague and overbroad under the First Amendment. The court

determined that it was not bound to follow our decision in Scott v. State. 322 S.W.3d 662 (Tex.

Crim. App. 2010), disavowed on other grounds by Wilson v. State, 448 S.W.3d 418, 423 (Tex. Crim.

App. 2014). In Scott, we held that § 42.07(a)(4) of the Penal Code, the telephone harassment statute,

does not implicate the freedom of speech protections of the First Amendment of the United States

Constitution because it prohibits non-speech conduct. 322 S.W.3d at 669–70. Today, we clarify our
2

holding in Wilson and its impact upon our holding in Scott. Following Scott’s precedent, we hold that

§ 42.07(a)(7), the electronic harassment statute, also fails to implicate the First Amendment’s

freedom of speech protections because it too prohibits non-speech conduct. We reverse the judgment

of the court of appeals.

I — Background

Charles Barton, Appellant, was charged with violating Penal Code § 42.07(a)(7), the

electronic harassment statute, which provided:

(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse,

torment, or embarrass another, he:

(7) sends repeated electronic communications in a manner reasonably likely to

harass, annoy, alarm, abuse, torment, embarrass, or offend another.

Act of May 24, 1973, 63d Leg., R.S., ch. 399, § 1, sec. 42.07, 1973 Tex. Gen. Laws 883, 956–57

(amended 2001)1(current version at TEX. PENAL CODE Ann. § 42.07(a)(7)).2 Appellant filed a

motion to quash the information arguing that the statute was unconstitutional and that the

information failed to provide adequate notice because it lacked specificity. The motion was denied

1 Appellant’s case is governed by the 2001 version of the electronic harassment statute.

Accordingly, while we will reference the statute with its current citation, this opinion refers to the

2001 version.

2

“Electronic communication” means a transfer of signs, signals,

writing, images, sounds, data, or intelligence of any nature

transmitted in whole or in part by a wire, radio, electromagnetic,

photoelectronic, or photo-optical system. The term includes:

(A) a communication initiated by electronic mail, instant message, network call, or

facsimile machine; and

(B) a communication made to a pager.

TEX. PENAL CODE Ann. § 42.07(b)(1).
3

after a hearing. Appellant then filed a pre-trial application for habeas corpus relief again raising the

constitutionality of the statute. The trial court denied relief, but the court of appeals held §

42.07(a)(7) unconstitutional and reversed. Ex parte Barton, 586 S.W.3d 573, 585 (Tex. App.—Fort

Worth 2019) (op. on reh’g). Acknowledging that other appellate courts upheld the constitutionality

of § 42.07(a)(7) by applying Scott, the court of appeals below nevertheless declined to follow

Scott—finding that Scott’s reasoning was undermined by our later opinion, Wilson. Id. at 578 n.11,

579–80. The court of appeals found that § 42.07(a)(7) implicated the First Amendment and,

following the precedent of its earlier opinion in Karenev v. State, held that § 42.07(a)(7) was

unconstitutionally vague and overbroad. Id. at 580–85 (citing Karenev v. State, 258 S.W.3d 210,

213, 218 (Tex. App.—Fort Worth 2008), rev’d on other grounds, 281 S.W.3d 428, 434 (Tex. Crim.

App. 2009)).

We granted the State’s petition for discretionary review which raised two grounds:

1. The court of appeals decided a facial overbreadth claim that was not preserved at

trial or raised on appeal.

2. Is Tex. Penal Code § 42.07(a)(7), which prohibits harassing electronic

communications, facially unconstitutional?

We answer the question raised by State’s second ground for review: No. Section 42.07(a)(7) does

not implicate the First Amendment, and it satisfies the “rational basis” test. The overbreadth doctrine

is inapplicable, and we dismiss the State’s first ground for review as moot.

II — Overbreadth and Preservation of Error

The State’s first ground for review argues that the court of appeals erred in considering

overbreadth under the First Amendment because Appellant failed to present a proper overbreadth

argument in the trial court. The State and Appellant dispute whether the bare assertion, in
4

Appellant’s motion to quash and the hearing on that motion,3that the electronic harassment statute

is “overly broad” and “chills” protected speech is sufficiently specific to preserve the overbreadth

issue for consideration on appeal.

“The First Amendment doctrine of substantial overbreadth is an exception to the general rule

that a person to whom a statute may be constitutionally applied cannot challenge the statute on the

ground that it may be unconstitutionally applied to others.” Massachusetts v. Oakes, 491 U.S. 576,

581 (1989). “In the First Amendment context, . . . a law may be invalidated as overbroad if ‘a

substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly

legitimate sweep.’” United States v. Stevens, 559 U.S. 460, 473 (2010) (quoting Wash. State Grange

v. Wash. State Republican Party, 552 U.S. 442, 449 n.6 (2008)). “[O]utside the limited First

Amendment context, a criminal statute may not be attacked as overbroad.” Schall v. Martin, 467

U.S. 253, 268 n.18 (1984); United States v. Salerno, 481 U.S. 739, 745 (1987) (“[W]e have not

recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment.”).

Due to our resolution of the State’s second ground for review—that § 42.07(a)(7) does not

implicate the First Amendment4—overbreadth is inapplicable. See Martin, 467 U.S. at 268 n.18;

Salerno, 481 U.S. at 745. Because the doctrine is inapplicable, whether Appellant’s bare references

to overbreadth are sufficient to preserve the issue for appeal is entirely academic and unnecessary

for our analysis.

We therefore dismiss the State’s first ground for review as moot.

3 During the hearing on the pre-trial application for writ of habeas corpus, the trial court took

judicial notice of the arguments that were made in the earlier motion to quash the information and

the hearing on that motion.

4

 Infra Part VI.
5

III — Vagueness Challenges Are As-Applied Unless the First Amendment Is Implicated

The State’s second ground for review complains that the court of appeals erred in holding

that § 42.07(a)(7) is unconstitutionally vague and overbroad on its face.

Generally, “in addressing a vagueness challenge,” courts are to “consider whether the statute

is vague as applied to a defendant’s conduct before considering whether the statute may be vague

as applied to the conduct of others.” Wagner v. State, 539 S.W.3d 298, 314 (Tex. Crim. App. 2018).

“A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the

vagueness of the law as applied to the conduct of others. A court should therefore examine the

complainant’s conduct before analyzing other hypothetical applications of the law.” Id. (internal

quotations omitted).

This general rule gives waywhen freedom of speech under the First Amendment is involved.

“[W]hen a vagueness challenge involves First Amendment considerations, a criminal law may be

held facially invalid even though it may not be unconstitutional as applied to the defendant’s

conduct.” State v. Doyal, 589 S.W.3d 136, 144 (Tex. Crim. App. 2019) (internal quotations omitted).

A law implicating First Amendment freedoms may be found facially vague without “a showing that

there are no possible instances of conduct clearlyfalling within the statute’s prohibitions.” Id. at 145.

Determining that § 42.07(a)(7) implicates the First Amendment, the court of appeals

evaluated vagueness without first considering whether Appellant showed the statute was vague as

applied to his own conduct. See Barton, 586 S.W.3d at 580–85.

IV — Scott v. State: Conduct Under § 42.07(a)(4) is Non-Speech Conduct

In finding § 42.07(a)(7) unconstitutionally vague, the court of appeals distinguished our

opinion in Scott. See id. at 579. Although Scott involved a First Amendment challenge to a different
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subsection of § 42.07—subsection (a)(4), the telephone harassment statute—it has been relied upon

by other appellate courts to conclude that subsection (a)(7), the electronic harassment statute, does

not implicate the First Amendment. See, e.g., State v. Grohn, 612 S.W.3d 78, 83 (Tex.

App.—Beaumont 2020, pet. filed); Ex parte McDonald, 606 S.W.3d 856, 859–61 (Tex.

App.—Austin 2020, pet. filed); Lebo v. State, 474 S.W.3d 402, 406–08 (Tex. App.—San Antonio

2015, pet. ref’d).5

In Scott, the appellant argued that § 42.07(a)(4), the telephone harassment statute, is

unconstitutionally “vague and overbroad” in violation of the First Amendment. Scott, 322 S.W.3d

at 665. This statute provided:

(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse,

torment, or embarrass another, he:

(4) causes the telephone of another to ring repeatedly or makes repeated

telephone communications anonymously or in a manner reasonably likely to

harass, annoy, alarm, abuse, torment, embarrass, or offend another[.]

TEX. PENAL CODE Ann. § 42.07(a)(4). We concluded that the 2001 version of § 42.07(a)(4) is not

communicative conduct protected bythe FirstAmendment because the statute criminalizes harassing

5

See also Ex parte Sanders, No. 07-18-00335-CR, 2019 WL 1576076, at *4 (Tex.

App.—Amarillo Apr. 8, 2019, pet. granted) (mem. op., not designated for publication); Ex parte

Hinojos, No. 08-17-00077-CR, 2018 WL 6629678, at *5 (Tex. App.—El Paso Dec. 19, 2018, pet.

ref’d) (not designated for publication); Ex parte Ogle, No. 03-18-00207-CR, 2018 WL 3637385, at

*7 (Tex. App.—Austin Aug. 1, 2018, pet. ref’d) (mem. op., not designated for publication); Ex parte

Reece, No. 11-16-00196-CR, 2016 WL 6998930, at *3 (Tex. App.—Eastland Nov. 30, 2016, pet.

ref’d) (mem. op., not designated for publication); Blanchard v. State, No. 03-16-00014-CR, 2016

WL 3144142, at *3 (Tex. App.—Austin June 2, 2016, pet. ref’d) (mem. op., not designated for

publication); Duran v. State, No. 13-11-00205-CR, 2012 WL3612507, at *2–3 (Tex. App.—Corpus

Christi–Edinburg Aug. 23, 2012, pet. ref’d) (mem. op., not designated for publication). 

We note that one other court of appeals agreed with the appellate court in this case, finding that Scott

does not apply because Wilson had undermined Scott’s underpinnings. State v. Chen, 615 S.W.3d

376, 383 (Tex. App.—Houston [14th Dist.] 2020, pet. filed).
7

conduct that, although it may include spoken words, is essentially noncommunicative. Scott, 322

S.W.3d at 669–70. Furthermore, we determined that “persons whose conduct violates § 42.07(4)(a)

will not have an intent to engage in the legitimate communication of ideas, opinions, or information;

they will have only the intent to inflict emotional distress for its own sake.” Id. at 670. We held that

because § 42.07(a)(4) does not implicate the First Amendment, Scott failed to show it was

unconstitutionally vague on its face. Id. at 669, 670–71.

As the court of appeals correctly noted: “Because section 42.07(a)(4) did not reach

communicative conduct, it did not implicate the free-speech guarantee of the First Amendment.”

Barton, 586 S.W.3d at 578 (citing Scott, 322 S.W.3d at 669–70). The harassing conduct is noncommunicative. It is not speech.

V — Wilson did not Change Scott’s Holding

Although the court of appeals recognized our holding in Scott, it concluded that Scott’s

reasoning had been undermined by our opinion in Wilson. Id. at 579–80. In Wilson, we revisited §

42.07(a)(4), not on a constitutionality challenge, but on a challenge to the sufficiencyof the evidence

to support Wilson’s conviction. Wilson, 448 S.W.3d at 420.

Wilson was charged with violating § 42.07(a)(4), and the evidence showed that she left six

voicemail messages on her neighbor’s phone over a period of ten months. Id. at 420. The court of

appeals found the evidence insufficient to show that the telephone communications were “repeated”

because the six calls occurred over a ten-month period, and the messages that were not within a

thirty-day period of each other were not in close enough proximity to be considered a single episode.

Wilson v. State, 431 S.W.3d 92, 96 (Tex. App.—Houston [1st Dist.] 2013), rev’d, 448 S.W.3d at

426. This analysis followed from a footnote in Scott, which stated that:
8

The term “repeated” is commonly understood to mean “reiterated,” “recurring,” or

“frequent.” . . . Here, we believe that the Legislature intended the phrase “repeated

telephone communications” to mean “more than one telephone call in close enough

proximity to properly be termed a single episode,” because it is the frequent

repetition of harassing telephone calls that makes them intolerable and justifies their

criminal prohibition.

322 S.W.3d at 669 n.12. The court of appeals identified two messages that it thought might be in

close enough proximity to be termed a single episode—one made on August 31 and one made on

September 5. Wilson, 431 S.W.3d at 96. However, the court of appeals found that there was a

legitimate reason for the September 5 call,6negating both the element of an intent to harass and the

element requiring the call to be made in a manner reasonably likely to harass or annoy. Id. According

to the court of appeals, without the September 5 call, the remaining calls were too far apart to be

considered a “part of a single episode.” Id. The court of appeals found the element of “repeated”

unproven and rendered a judgment of acquittal. Id.

On discretionaryreview, we determined that Scott’s footnote twelve was “troublesome,” and

we accordingly disavowed it. Wilson, 448 S.W.3d at 423. We held that “‘repeated’ means, at a

minimum, ‘recurrent’ action or action occurring ‘again.’” Id. at 424. “‘[O]ne telephone call will not

suffice’ and a conviction secured byevidence of a single communication will not stand.” Id.(quoting

Scott, 322 S.W.3d at 669).

As a result, we found the evidence legally sufficient. Id. at 426. Based on

6

In the court of appeals’s opinion in Wilson, the September 5 message related to her

neighbor’s drivewayconstruction project. In themessageWilson reported that she saw cement debris

in the gutters that needed to be cleaned up. Wilson, 431 S.W.3d at 96.

In this Court’s opinion on discretionary review, we described this particular message as being made

on June 11, and the September 5 message instead demanded that her neighbor never talk to or

approach Wilson in public again. Wilson, 448 S.W.3d at 420, 421.
9

the content of the six calls over the ten-month period, combined with evidence of

Wilson’s combative conduct and verbal abuse toward [her neighbor], the jury could

have rationally found that Wilson, with the intent to harass, annoy, alarm, abuse,

torment, or embarrass [her neighbor], made repeated telephone communications . .

. in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass,

or offend her.

Id.

Regarding the court of appeals’s determination that, because the September 5th call was

made with a facially legitimate reason it could not be counted among the repeated telephone

communications, we disagreed and concluded, “by way of an alternate holding,” that the court of

appeals’s sufficiency analysis was flawed. Id. at 425. One reason the analysis was flawed—relevant

to Appellant’s case before us today—was that “the existence of evidence that may support the

conclusion that the call had a facially legitimate purpose does not legally negate the prohibited intent

or manner of the call.” Id.

In Appellant’s case, the court of appeals understood our alternate holding to mean that we

had “acknowledged that a potential offender could have more than one intent in delivering harassing

conduct.” Barton, 586 S.W.3d at 579. Because we “did acknowledge the potential that a ‘facially

legitimate’ reason may exist in a harassing phone call[,]” the court of appeals read Wilson to mean

“that a person who communicates with the intent to harass, annoy, alarm, abuse, torment, or

embarrass can also have an intent to engage in the legitimate communication of ideas, opinions,

information, or grievances.” Id. As a result, the court of appeals concluded that § 42.07(a)(4), and

therefore § 42.07(a)(7), implicated the First Amendment. Id. at 580.

Wilson should not be read so expansively. Wilson dealt with a challenge to the sufficiency

of the evidence. We specifically and primarily focused on what is sufficient to show the element of
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“repeated.” Our “alternate holding,” in turn, focused on the sufficiency of the evidence to show the

necessaryintent, or—more accurately—the impact of evidence of some additional intent beyond the

statutory requirement. Our “alternate holding” means that the existence of an intent to engage in the

legitimate communication of ideas does not negate the existence of the prohibited intent to harass,

annoy, alarm, abuse, torment, or embarrass another. Wilson, 448 S.W.3d at 425.

This point bears repeating today. Section 42.07(a)(4) makes it an offense for a person to make

repeated telephone communications, where those communications are made in a manner reasonably

likely to harass, annoy, alarm, abuse, torment, embarrass, or offend, so long as the person making

said communications has an intent to harass, annoy, alarm, abuse, torment, or embarrass another.

TEX. PENAL CODE Ann. § 42.07(a)(4). If the person harbors some extra intent in making those

communications, he nevertheless still has an intent to harass, annoy, alarm, abuse, torment, or

embarrass another. Unless the separate intent is specifically an intent not to harass, annoy, alarm,

abuse, torment, or embarrass another, the existence of a separate, facially legitimate intent to

communicate does not negate the prohibited intent.

That is the point of Wilson’s alternate holding. Our “alternate holding” in Wilson was not that

§ 42.07(a)(4) could regulate expressive conduct—speech implicating the First Amendment—if the

repeated telephone communications were made with an additional intent to engage in the legitimate

communication of ideas.

More importantly, even accepting that a person who violates § 42.07(a)(4) may harbor,

alongside an intent to harass, an additional intent to engage in the legitimate communication of ideas,

that fact does not convert non-expressive conduct into expressive conduct. The Supreme Court has

“rejected the view that ‘conduct can be labeled ‘speech’ whenever the person engaging in the
11

conduct intends thereby to express an idea.’” Rumsfeld v. Forum for Acad. & Institutional Rights,

Inc., 547 U.S. 47, 65–66 (2006) (quoting United States v. O’Brien, 391 U.S. 367, 376 (1968)).

Instead, First Amendment protection extends “only to conduct that is inherently expressive.” Id. at

66.

Accordingly, Wilson’s recognition that a person violating § 42.07(a)(4) with an intent to

harass, annoy, alarm, abuse, torment, or embarrass another may also have an additional intent to

engage in the legitimate communication of ideas does nothing to the core holding of Scott. Section

§ 42.07(a)(4), the telephone harassment statute, is a restriction on conduct that is non-expressive and

thus not speech. This remains true even if the offense is committed using words, and even if the

person does not have the sole intent to harass, annoy, alarm, abuse, torment, or embarrass another.

VI — Scott Applies to § 42.07(a)(7)

Several other appellate courts concluded that Scott’s reasoning applies to § 42.07(a)(7), the

electronic harassment statute, the same way it applies to § 42.07(a)(4), the telephone harassment

statute. See, e.g., Grohn, 612 S.W.3d at 83; McDonald, 606 S.W.3d at 859–61; Lebo, 474 S.W.3d

at 407; supra note 4.

Those courts found that § 42.07(a)(4) and (a)(7) are the same for First Amendment purposes.

As the Third Court of Appeals explained in McDonald:

“[t]he free-speech analysis in Scott is equally applicable to subsection 42.07(a)(7).”

. . . Although . . . the language in subsections 42.07(a)(4) and 42.07(a)(7) differs

slightlyin that subsection 42.07(a)(4) “provides an alternative manner of committing

the offense by making repeated phone calls ‘anonymously,’” . . . the slight “textual

difference is inconsequential to the First Amendment analysis” and . . . the remaining

statutory language in the two subsections “is identical.”

McDonald, 606 S.W.3d at 860 (quoting Blanchard, 2016 WL 3144142, at *3). Indeed,
12

all subsections of section 42.07(a) require the same specific intent, that “to harass,

annoy, alarm, abuse, torment, or embarrass another.” And while subsection (a)(4) is

violated when the actor “makes” repeated telephone communications and (a)(7) is

violated when the actor “sends” repeated electronic communications, both

subsections require for guilt that the repeated communications occur “in a manner

reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend

another.”

Sanders, 2019 WL 1576076, at *3.

We agree. For First Amendment purposes, Scott’s holding—that § 42.07(a)(4), the telephone

harassment statute, does not implicate the First Amendment—applies equally to § 42.07(a)(7), the

electronic harassment statute. The conduct regulated by § 42.07(a)(7) is non-speech conduct that

does not implicate the First Amendment.

VII — Section 42.07(a)(7) is a Facially Constitutional Regulation of Non-Speech Conduct

Section 42.07(a)(7) does not implicate the First Amendment’sfreedomofspeech protections.

Accordingly, we use “the familiar ‘rational basis’ test” to determine whether the statute is facially

unconstitutional. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 461 (1981). “The default,

‘general rule’ or ‘standard’ is that state action is ‘presumed to be valid’ and will be upheld if it is but

‘rationally related to a legitimate state interest.’” Estes v. State, 546 S.W.3d 691, 697 (Tex. Crim.

App. 2018) (quoting City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985)).

“This general rule ‘gives way, however,’ when a state action either ‘classifies by race, alienage, or

national origin,’ or ‘impinge[s] on personal rights protected by the Constitution.’” Id. (quoting

Cleburne Living Center, 473 U.S. at 440); Romer v. Evans, 517 U.S. 620, 631 (1996) (“[I]f a law

neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative

classification so long as it bears a rational relation to some legitimate end.”). In applying the rational

basis test:
13

Above all, a court should spurn any attempt to turn rational-basis review into a debate

over the wisdom, eloquence, or efficacy of the law in question. As its name would

suggest, rational-basis review should focus solely on the rationalityof the law or state

action. Should we determine that the State has invoked a legitimate governmental

purpose and, in enforcing its law, has charted a course that is “rationally related” to

it, “our inquiry is at an end.”

Estes, 546 S.W.3d at 698 (quoting FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313–14 (1993)).

Is a legitimate governmental interest served by § 42.07(a)(7)? As discussed above, the

conduct regulated by § 42.07(a)(7) is roughly equivalent to the conduct regulated by § 42.07(a)(4),

the telephone harassment statute—at issue in Scott. In Scott, we noted that the prohibited

conduct—making repeated telephone communications in a manner reasonably likely to harass,

annoy, alarm, abuse, torment, embarrass, or offend—“invades the substantial privacy interests of

another in an essentially intolerable manner.” Scott, 322 S.W.3d at 668–69, 670. The State has an

interest in vindicating the rights of the people which it serves and an interest in protecting the public

welfare. See State v. Rhine, 297 S.W.3d 301, 306 (Tex. Crim. App. 2009) (“The legislature may

enact laws that enhance the general welfare of the state[.]”); Williams v. State, 176 S.W.2d 177, 182

(Tex. Crim. App. 1943) (“the lawmaking bodies of each State pass laws to protect the peace, health,

happiness, and general welfare of society, and of the people as a whole.”). These interests are

legitimate, and § 42.07(a)(7) serves these interests.

Is § 42.07(a)(7) rationally related to serving those interests? Sending repeated electronic

communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass,

or offend would indeed invade the substantial privacy interests of another in an essentially

intolerable manner. Undoubtedly, if the idea is to protect the people from having their privacy

invaded in such a way, one of the best ways to do that is to punish those who violate that privacy
14

interest and deter those who would. The means chosen by the Legislature further the interest.

Thus, § 42.07(a)(7) is rationally related to a legitimate governmental interest. As for whether

the statute is unconstitutionally vague, because § 42.07(a)(7) does not regulate speech and therefore

“does not implicate the free-speech guarantee of the First Amendment,” Appellant, “in making his

vagueness challenge to that statutory subsection, was required to show that it was unduly vague as

applied to his own conduct. He has not done that. Therefore, his vagueness challenge fails.” See

Scott, 322 S.W.3d at 670–71. We hold that § 42.07(a)(7), the electronic harassment statute, is not

facially unconstitutional. 

We sustain the State’s second ground for review.

VIII — Conclusion

Since § 42.07(a)(7)does notregulate speech, and therefore does not implicate the free-speech

guarantee of the First Amendment, the statute is not susceptible to an overbreadth challenge. Thus,

we need not address whether Appellant preserved his overbreadth issue for appellate review. As a

regulation of non-speech conduct, § 42.07(a)(7) is not facially unconstitutional because it is

rationally related to a legitimate governmental interest. The question of whether the statute is vague

will have to wait for a proper as-applied challenge.

We reverse the judgment of the court of appeals and remand to that court for proceedings

consistent with this opinion.

Delivered: April 6, 2022

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