Opinion filed November 5, 2015

In The

Eleventh Court of Appeals 

__________

No. 11-14-00312-CR

__________

APRIL COLLINS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 244th District Court

Ector County, Texas

Trial Court Cause No. C-42,244

O P I N I O N

April Collins stands charged by indictment with four counts of improper 

relationship between educator and student. See TEX. PENAL CODE ANN. § 21.12 

(West Supp. 2014). Collins filed in the trial court a pleading in which she sought

to quash the indictment and to obtain habeas corpus relief based upon her 

contentions that the indictment was faulty and that the statute under which she was 
2

indicted is unconstitutional. The trial court held a hearing and denied the relief 

requested by Collins. We affirm in part and reverse in part. 

Collins presents six points of error in this appeal. In the first point, she

contends that each count in the indictment omits an essential element of the crime. 

In her remaining five points, Collins challenges the constitutionality of the statute 

under which she was charged. In each count of the indictment, Collins was 

charged with having an improper relationship with CD, a person whom Collins 

knew was enrolled in a public secondary school, Permian High School, within the 

same school district where Collins—who held a certificate or permit issued in 

accordance with Chapter 21, subchapter B, of the Education Code—worked. The 

specific conduct charged in Counts I and II was that Collins, with the intent to 

arouse or gratify her own sexual desire, intentionally distributed sexually explicit 

material to CD by text message, to-wit: a lewd photograph of her female genitals 

and a lewd photograph of her breasts, respectively. The specific conduct charged 

in Count III was that Collins, with the intent to arouse or gratify her own sexual 

desire, intentionally communicated by text message with CD in a sexually explicit 

manner, to-wit: “describing sexual intercourse and oral sex she desired to have” 

with CD. The specific conduct charged in Count IV was that Collins, with the 

intent to arouse or gratify her own sexual desire, “intentionally solicit[ed] sexual 

conduct by text message, to-wit: offering to rent a room for the purpose of 

[Collins] having sexual contact or sexual intercourse” with CD. 

Collins specifically complains in her first point of error that the indictment 

should have been quashed because an element of the offense was missing from 

each count in the indictment. Collins asserts that each count failed to allege that

CD was “a minor,” and she argues that CD’s being “a minor” as defined by

Section 33.021 was an essential element of the crimes charged because 
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Section 33.021 is subsumed within Section 21.12(a)(3). See PENAL §§ 21.12(a)(3), 

33.021 (West 2011). We disagree. 

Collins was charged with committing four offenses under 

Section 21.12(a)(3). That statute provides in relevant part as follows: 

(a) An employee of a public or private primary or secondary 

school commits an offense if the employee:

. . . .

(3) engages in conduct described by Section 

33.021, with a person [who is enrolled in that school or is 

enrolled in a public primary or secondary school in the 

same school district as the school at which the employee 

works], regardless of the age of that person. 

PENAL § 21.12(a)(3) (emphasis added). Section 33.021 criminalizes the online 

solicitation of “a minor.”1

Based upon the plain language used by the legislature, we interpret 

Section 21.12(a)(3) to reference only the “conduct” that is criminalized by 

Section 33.021. The legislature’s inclusion of the language “regardless of the age” 

of the student in Section 21.12(a)(3) indicates that the legislature did not intend to 

include Section 33.021’s requirement that the student be “a minor” as defined by 

Section 33.021. By doing so, the legislature made it an offense for an educator to 

have an improper relationship with a student even if the student was not a minor at 

the time. See Colleps v. State, No. 02-12-00396-CR, 2014 WL 1324422, at *1–2 

 

1We note that Section 33.021 was amended as of September 1, 2015, but that the former version 

of that section remains in effect and applies in this case because the alleged offenses were committed 

prior to the amendment’s effective date. See Act of May 5, 2015, 84th Leg., R.S., ch. 61, 2015 Tex. Sess. 

Law Serv. 1035, 1035–36 (West) (to be codified as an amendment to TEX. PENAL CODE ANN.

§ 33.021(a)(1), (b), (d), (e)). At the time of this offense, Section 33.021(a)(1) defined a minor as an 

individual “who represents himself or herself to be younger than 17 years of age” or “whom the actor 

believes to be younger than 17 years of age.” Act of May 25, 2005, 79th Leg., R.S., ch. 1273, § 1, 2005 

Tex. Gen. Laws 4049, 4050. As amended in 2015, Section 33.021(a)(1) now defines a minor as an 

individual “who is younger than 17 years of age” or “whom the actor believes to be younger than 17 years 

of age.”
4

(Tex. App.—Fort Worth Apr. 3, 2014, no pet.) (mem. op., not designated for 

publication) (upholding defendant educator’s convictions under Section 21.12 for 

acts committed with consenting adult students); Ex parte Morales, 212 S.W.3d 

483, 487 (Tex. App.—Austin 2006, pet. ref’d) (student above the age of 

seventeen). We overrule Collins’s first point of error. 

In her remaining points of error, Collins challenges the constitutionality of 

Section 21.12(a)(3) based upon its incorporation of Section 33.021—a statute that 

has been held to be unconstitutionally overbroad in part. See Ex parte Lo, 424 

S.W.3d 10, 14 (Tex. Crim. App. 2013) (holding that Section 33.021(b) was 

overbroad because it prohibited a wide array of constitutionally protected speech 

and was not drawn narrowly enough to achieve only the legitimate objective of

protecting children from sexual abuse). The constitutional complaints raised by 

Collins in the trial court and in her second through sixth points of error on appeal

are that Section 21.12(a)(3) is overbroad and violates the First Amendment, is 

vague and violates her due process rights, offends the Dormant Commerce Clause, 

offends notions of privacy and liberty that are tied to her due process rights, and 

does not comport with constitutional equal-protection standards. See U.S. CONST. 

amends. I, XIV; art. I, § 8. 

A defendant may file a pretrial application for writ of habeas corpus in order 

to raise a facial challenge to the constitutionality of the statute under which the 

defendant is charged. Ex parte Thompson, 442 S.W.3d 325, 333 (Tex. Crim. App.

2014). Whether a statute is facially unconstitutional is a question of law subject to 

de novo review. Lo, 424 S.W.3d at 14. When the constitutionality of a statute is 

attacked, a court usually must presume that the statute is valid and that the 

legislature has not acted unreasonably or arbitrarily. Id. at 15. With respect to 

constitutional provisions other than the First Amendment, a facial challenge to the 
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constitutionality of a statute will succeed only if it is shown that the statute is 

unconstitutional in all of its applications. State v. Johnson, No. PD-0228-14, 2015 

WL 5853115, at *2 (Tex. Crim. App. Oct. 7, 2015). 

However, when the statute restricts and punishes speech based on its 

content, the usual presumption of constitutionality does not apply. Lo, 424 S.W.3d 

at 15. Instead, content-based regulations are presumptively invalid, and the State 

bears the burden to rebut that presumption. Id. A court must use strict scrutiny in 

its review of a content-based regulation. Thompson, 442 S.W.3d at 344–45; Lo, 

424 S.W.3d at 15–16. “To satisfy strict scrutiny, a law that regulates speech must 

be (1) necessary to serve a (2) compelling state interest and (3) narrowly drawn.” 

Lo, 424 S.W.3d at 15 (citing Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115, 

126 (1989)). To be narrowly drawn, the statute must use the least restrictive means 

to achieve its goal, and there must be a close nexus between the State’s compelling 

interest and the restriction. Id. A statute does not satisfy strict scrutiny if a less 

restrictive alternative would be at least as effective in achieving the State’s

legitimate goal. Reno v. Am. Civil Liberties Union, 521 U.S. 844, 846 (1997); Lo, 

424 S.W.3d at 15–16. The court in Lo noted that, “when the content of speech is 

the crime, scrutiny is strict because . . . the First Amendment means that 

government has no power to restrict expression because of its message, its ideas, 

its subject matter, or its content.” 424 S.W.3d at 16 (quoting Ashcroft v. Am. Civil 

Liberties Union, 535 U.S. 564, 573 (2002)) (internal quotation mark omitted). 

In her second point of error, Collins urges that, because of its incorporation 

of Section 33.021, Section 21.12(a)(3) is overbroad and violates the First 

Amendment of the United States Constitution. We address this point of error in 

two parts. We first address it with respect to Section 33.021(b), which regulates 
6

speech based upon its content and is, thus, presumed to be invalid. We next 

address the second point of error with respect to Section 33.021(c). 

As Collins points out, the Court of Criminal Appeals has already determined

that Section 33.021(b),2 which proscribes sexually explicit online communications 

with a minor, is unconstitutionally overbroad and violates the First Amendment. 

See Lo, 424 S.W.3d at 14, 18–20. Section 33.021(b) is implicated in Counts I, II, 

and III of the indictment. Collins was charged in these three counts with a 

violation of Section 21.12(a)(3) by engaging in conduct described by 

Section 33.021(b), i.e., sending sexually explicit text messages. The State argues 

that, even though Section 33.021(b) is unconstitutional, “its incorporation within 

[Section 21.12(a)(3)] is not.” The State has not met its burden on this matter.

In Lo, the Court of Criminal Appeals acknowledged that the State has a 

compelling interest in protecting children from sexual predators. Lo, 424 S.W.3d 

at 19. And we would posit that the State also has a compelling interest in 

protecting students enrolled in primary and secondary schools in this state and in 

providing a safe educational environment conducive to learning. 

Section 33.021(b), however, is not narrowly tailored to achieve these legitimate 

goals. As pointed out by the court in Lo: 

“Sexual expression which is indecent but not obscene is protected by 

the First Amendment.” Subsection (b) covers a whole cornucopia of 

“titillating talk” or “dirty talk.” But it also includes sexually explicit 

literature such as “Lolita,” “50 Shades of Grey,” “Lady Chatterley’s 

Lover,” and Shakespeare’s “Troilus and Cressida.” It includes 

sexually explicit television shows, movies, and performances such as 

“The Tudors,” “Rome,” “Eyes Wide Shut,” “Basic Instinct,” Janet 

Jackson’s “Wardrobe Malfunction” during the 2004 Super Bowl, and 

 

2As we noted in Footnote No. 1, the legislature has since amended Section 33.021(b), but the 

former version applies in this case. Therefore, unless otherwise noted, when we reference Section 33.021 

in this opinion, we refer to the version in effect at the time that Collins allegedly committed the offenses

charged in this case. 
7

Miley Cyrus’s “twerking” during the 2013 MTV Video Music 

Awards. It includes sexually explicit art such as “The Rape of the 

Sabine Women,” “Venus De Milo,” “the Naked Maja,” or Japanese 

Shunga. Communications and materials that, in some manner, “relate 

to” sexual conduct comprise much of the art, literature, and 

entertainment of the world from the time of the Greek myths extolling 

Zeus’s sexual prowess, through the ribald plays of the Renaissance, to 

today’s Hollywood movies and cable TV shows.

Id. at 20 (footnotes omitted). Thus, Section 21.12(a)(3), through its incorporation 

of Section 33.021(b), would prohibit educators from electronically communicating 

with their students about valid, non-obscene topics. Following the rationale of the 

Court of Criminal Appeals in Lo, we hold that Section 21.12(a)(3) is 

unconstitutionally broad insofar as it incorporates the unconstitutionally broad 

Section 33.021(b). Consequently, Counts I, II, and III of the indictment against 

Collins must be dismissed. See id. at 27. 

Count IV of the indictment implicates Section 33.021(c), not (b). With 

respect to Count IV of the indictment, Collins argues that Section 21.12(a)(3) 

insofar as it incorporates Section 33.021(c) regulates speech based upon its 

content, is unconstitutionally broad, and violates the First Amendment. 

Section 33.021(c) provides: 

A person commits an offense if the person, over the Internet, by 

electronic mail or text message or other electronic message service or 

system, or through a commercial online service, knowingly solicits a 

minor to meet another person, including the actor, with the intent that 

the minor will engage in sexual contact, sexual intercourse, or deviate 

sexual intercourse with the actor or another person.

PENAL § 33.021(c). In simplified terms, we understand the combination of 

Sections 21.12(a)(3) and 33.021(c) to criminalize a primary or secondary school 

employee’s solicitation, via electronic means, of a student with whom the 

employee has a school connection when the employee solicits the student to meet 
8

with the employee or someone else and intends for the student to engage in certain

sexual behavior. As noted by the Court of Criminal Appeals in Lo, “it is the 

conduct of requesting a minor to engage in illegal sexual acts that is the gravamen 

of the offense” in Section 33.021(c). Lo, 424 S.W.3d at 16–17; see Ex parte 

Wheeler, No. 01-14-00868-CR, 2015 WL 5770850, at *3 (Tex. App.—Houston 

[1st Dist.] Sept. 29, 2015, no. pet. h.) (not yet released for publication) (concluding

that Section 33.021(c) “regulates conduct and unprotected speech”); Ex parte 

Victorick, No. 09-13-00551-CR, 2014 WL 2152129, at *2–3 (Tex. App.—

Beaumont May 21, 2014, pet. ref’d) (mem. op., not designated for publication) 

(concluding that Section 33.021(c) regulates conduct, not the content of speech 

alone), cert. denied, 135 S. Ct. 1557 (2015). Likewise, it is the school employee’s 

conduct of requesting the student to engage in illegal3sexual acts that is the 

gravamen of the offense in Section 21.12(a)(3) through its incorporation of 

Section 33.021(c). 

Because Section 21.12(a)(3) through its incorporation of Section 33.021(c) 

regulates the conduct of requesting a student to engage in illegal sexual acts—

rather than speech based upon the content of the speech, as in Section 33.021(b)—

we must presume that the statute is valid and that the legislature has not acted 

unreasonably or arbitrarily. See Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. 

App. 2002); see also Lo, 424 S.W.3d at 15. Collins has the burden to establish the 

unconstitutionality of Section 21.12(a)(3) through its incorporation of 

Section 33.021(c). See Rodriguez, 93 S.W.3d at 69. 

A statute is impermissibly overbroad if, in addition to proscribing activities 

that may be constitutionally prohibited, its sweeping coverage also proscribes

speech or conduct that is protected by the First Amendment. Bynum v. State, 767 

 

3We note that, pursuant to Section 21.12(a)(1) and (2), it is illegal for certain school employees to 

engage in sexual acts with students. 
9

S.W.2d 769, 772 (Tex. Crim. App. 1989). Particularly where conduct and not 

merely speech is involved, the overbreadth of a statute must not only be real, but 

substantial as well, judged in relation to the statute’s plainly legitimate sweep. 

Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973). When a statute is not 

substantially overbroad, whatever overbreadth may exist should be cured through 

case-by-case analysis. Id. at 615–16. A statute will not be invalidated for 

overbreadth merely because some unconstitutional applications are conceivable. 

Members of the City Council of the City of Los Angeles v. Taxpayers for Vincent, 

466 U.S. 789, 800 (1984). 

The First Court of Appeals addressed and rejected an overbreadth challenge 

to Section 33.021(c). Maloney v. State, 294 S.W.3d 613, 626–28 (Tex. App.—

Houston [1st Dist.] 2009, pet. ref’d). Furthermore, we observe that the Court of 

Criminal Appeals intimated in Lo that Section 33.021(c), in “contrast” to 

Section 33.021(b), was constitutional. Lo, 424 S.W.3d at 17. The Lo court also 

pointed out that the First Court of Appeals had upheld the constitutionality of 

Section 33.021(c). Id. (citing Maloney, 294 S.W.3d at 625–29). The overbreadth 

of Section 33.021(c) is not substantial when judged in relation to the statute’s

plainly legitimate sweep, which is the legitimate goal of the “prevention of sexual 

exploitation and abuse of children . . . a government objective of surpassing 

importance.” Maloney, 294 S.W.3d at 628 (citing New York v. Ferber, 458 U.S. 

747, 773 (1982); Broadrick, 413 U.S. at 615). 

 Likewise, at least two of our sister courts have rejected an overbreadth 

challenge to the face of Section 21.12, which at that time criminalized physical

sexual contact between school employees and students, not electronic 

communications as described by Section 33.021. In re Shaw, 204 S.W.3d 9, 14–15 

(Tex. App.—Texarkana 2006, pet. ref’d); see Morales, 212 S.W.3d at 492. We 
10

note that the legislature did not incorporate Section 33.021 into Section 21.12 until 

2007; thus, the courts in Shaw and Morales were not faced with the same issue that 

is before us. See Act of May 21, 2007, 80th Leg., R.S., ch. 610, § 1, 2007 Tex. 

Gen. Laws 1167. 

Although Section 21.12(a)(3), via its incorporation of Section 33.021(c),

could apply to situations in which the student is a consenting adult, we cannot say 

the statute is impermissibly broad when judged in relation to its “plainly legitimate 

sweep, i.e., employees and students in primary and secondary schools, when the 

vast majority of such students are undoubtedly not adults.” Shaw, 204 S.W.3d at 

15. The present case is similar to Shaw in that the record before us contains no 

data about what percentage of secondary school students affected by the statute are 

adults. Thus, even if the statute “could be said to infringe on fundamental First 

Amendment rights of those students and employees who are of age,” there is 

nothing in the record before us to indicate that Section 21.12(a)(3), via its 

incorporation of Section 33.021(c), reaches a substantial amount of constitutionally 

protected conduct. Id. The Morales court similarly concluded that Section 21.12 

did not implicate a substantial amount of conduct protected under the First 

Amendment. 212 S.W.3d at 492. Following the rationale of the courts in Lo,

Maloney, Shaw, and Morales and the authorities cited therein, we hold that 

Section 21.12(a)(3) insofar as it incorporates Section 33.021(c) is not 

unconstitutionally overbroad. Accordingly, the trial court did not err in failing to 

dismiss Count IV of the indictment on overbreadth grounds. 

We sustain Collins’s second point of error in part and overrule it in part. 

Because we sustain that portion of the second point of error that relates to Counts I, 

II, and III of the indictment, we need only address Collins’s remaining points as 

they apply to Count IV of the indictment. 
11

In her third point of error, Collins contends that the statute under which she 

is charged is unconstitutionally vague. Collins asserts that “Section 21.12, by its 

incorporation of Section 33.021(c), forbids ‘solicitation’ that is not intended to 

result in a meeting.” We disagree. A statute will be invalidated on vagueness 

grounds if it fails to give a person of ordinary intelligence a reasonable opportunity 

to know what conduct is prohibited. State v. Holcombe, 187 S.W.3d 496, 499 

(Tex. Crim. App. 2006). The combination of Sections 21.12(a)(3) and 33.021(c) 

provides that a primary or secondary school employee commits an offense if, via 

electronic means, the employee knowingly “solicits” a student—with whom the 

employee has a school connection as specified in the statute—“to meet” with the 

employee or someone else and if the employee has “the intent that the [student] 

will engage in sexual contact, sexual intercourse, or deviate sexual intercourse”

with the employee or another person. PENAL §§ 21.12(a)(3), 33.021(c). These 

sections, as combined, are not unconstitutionally vague and do not forbid 

solicitations made with no intent to result in a meeting. See Wheeler, 2015 

WL 5770850, at *4–5 (rejecting similar argument, determining that Section 33.021 

is not unconstitutionally vague, and holding that Section 33.021(d) refers only to 

the solicitor’s intent post-solicitation); Ex parte Zavala, 421 S.W.3d 227, 231–32 

(Tex. App.—San Antonio 2013, pet. ref’d) (same). We overrule Collins’s third 

point of error. 

In her fourth point, Collins argues that Section 21.12, by its incorporation of 

Section 33.021(c), violates the Dormant Commerce Clause because “it unduly 

burdens interstate commerce by attempting to place regulations on the entirety of 

the Internet.” Collins asserts that the “negative aspect” of the Commerce Clause 

prohibits state legislation that unduly restricts interstate commerce. The arguments 

asserted by Collins were specifically rejected by our sister court in Wheeler. 
12

There, the court of appeals held that Section 33.021(c) is an “even-handed” statute 

designed for the legitimate purpose of protecting children from sexual predators 

and that “the effect of the statute on interstate commerce is only incidental in 

relation to the local benefit of the statute.” Wheeler, 2015 WL 5770850, at *5. We 

agree and, likewise, reject the challenge to Section 21.12(a)(3), by its incorporation 

of Section 33.021(c), made by Collins under the Dormant Commerce Clause. 

Collins’s fourth point of error is overruled. 

In her fifth point, Collins argues that Section 21.12(a)(3) deprives 

consenting adults of their fundamental rights to liberty and privacy to which they 

are entitled under the Due Process Clause of the Fourteenth Amendment. Collins 

asserts that Section 21.12(a)(3), by its incorporation of Section 33.021(c), reaches 

far beyond a legitimate state interest and “punishes school employees who choose 

to exercise their right to solicit sex with any other consenting adult who is 

currently enrolled as a student” if certain criteria are met. Collins acknowledges 

that “the morality and ethics of some may abhor the idea of sexual solicitation 

between educator and student, even as between consenting adults,” and points out

that the obligation of this court is to define the liberty of all, not to mandate our 

own moral code. See Lawrence v. Texas, 539 U.S. 558, 571 (2003). 

Contrary to Collins’s assertion, we do not believe that the statutes at issue 

here implicate a fundamental right. The Court in Lawrence did not hold that the 

right of consenting adults to engage in certain manners of sexual conduct is a 

fundamental right subject to strict scrutiny. Morales, 212 S.W.3d at 493; see 

Lawrence, 539 U.S. at 578 (“legitimate state interest” test applied). Furthermore, 

the Morales court, prior to the addition of Section 21.12(a)(3), held that 

Section 21.12 did not implicate any fundamental rights. We agree and are of the 

opinion that Section 21.12(a)(3) does not implicate any fundamental rights. Thus, 
13

instead of strict scrutiny, we must determine whether the statutes at issue further a 

legitimate state interest that could justify their intrusions into the personal and 

private life of an individual. As noted above, the State has legitimate interests in 

preventing the sexual exploitation of students by educators (including the 

protection of minor students from sexual abuse) and in preserving an educational 

environment conducive to learning, and Section 21.12(a)(3) via its incorporation of 

Section 33.021(c) is rationally related to those legitimate interests. See Morales, 

212 S.W.3d at 494–98. Neither Section 21.12(a)(3) nor Section 33.021(c) violates

due process. We overrule Collins’s fifth point of error. 

In her final point, Collins argues that Section 21.12(a)(3) violates the equal 

protection guarantee of the Fourteenth Amendment because it treats relationships 

between consenting adults differently based upon the adults being in a particular 

group: school employees and students. Collins specifically asserts that there is “no 

rational basis for restricting public-school employees’ sexual communications with 

other adults who happen to attend school in the same district.” We disagree. 

Under the Equal Protection Clause of the Fourteenth Amendment, all 

persons similarly situated shall be treated alike under the law. Plyler v. Doe, 457 

U.S. 202, 216 (1982); Wood v. State, 18 S.W.3d 642, 651 n.9 (Tex. Crim. App.

2000). Because Sections 21.12(a)(3) and 33.021(c) do not implicate a fundamental 

right or discriminate against a suspect class, a rational basis test is appropriate. See 

Shaw, 204 S.W.3d at 17–18; Morales, 212 S.W.3d at 501; see also Wood, 18 

S.W.3d at 650. Collins thus has the burden to show that the statutory classification 

is not rationally related to a legitimate state interest. See Wood, 18 S.W.3d at 650–

51. As we stated above, the State has a legitimate interest in preventing the sexual 

exploitation of students by educators and in preserving an educational environment 

conducive to learning. See Shaw, 204 S.W.3d at 18. The statutory classification 
14

set out in Section 21.12(a)(3) is rationally related to those legitimate interests. 

Collins has not met her burden of showing otherwise. We overrule Collins’s sixth 

point of error. 

We affirm the order of the trial court in part, and we reverse it in part. We 

remand the cause to the trial court with instructions to dismiss Counts I, II, and III 

of the indictment. The trial court may proceed under Count IV of the indictment

against Collins. 

JIM R. WRIGHT

CHIEF JUSTICE

November 5, 2015

Publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.