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  1. VI. CONCLUSION

VI. CONCLUSION

When enacting a statute in Texas, it is presumed to comply with the Texas and United States Constitution.250 “The Texas Supreme Court has thereby held that when it is faced with multiple constructions of a statute, the court must interpret the statutory language in a manner that renders it constitutional, if possible to do so.”251 Further, if only a portion of the statute is invalid, without an expression of legislative intent regarding severability, “the valid remaining portions of a statute remain enforceable so long as the invalidity of one portion does not affect the other provisions or applications of the statute that can be given effect without the invalid provision or application.”252 If the unconstitutional parts of the statute are not so “inextricably interwoven in the texture” of the statute, the remainder of the statute is considered constitutional.253

Texas Penal Code Section 21.19’s largest flaw is its wording; the advocates for the bill had good intentions and could have found a constitutional way to prevent online indecent exposure, but failed to do so. An image of a person’s “intimate parts exposed” is not automatically unprotected speech under the Constitution and is used too broadly in this context to be considered constitutional. If a person sent their co-worker an image of their naked newborn’s buttocks without express consent or a request for the image, hoping to share joy for the birth of their child, they are breaking the law under TPC Section 21.19, punishable as a Class C

247Id. § 42.07(b)(3).

248. Id. § 21.19(b)(1).

249. Id. § 42.07.

250. TEX. GOV’T CODE ANN. § 311.021(1).

251. Ron Beal, The Art of Statutory Construction: Texas Style, 64 BAYLOR L. REV. 342, 428 (2012).

252. Id. at 429.

253. Fletcher v. State, 439 S.W.2d 656, 659 (1969).

misdemeanor254 and a maximum fine of $500. This substantial oversight could have and should have been avoided by completing a more thorough reading of the bill and evaluating each section, including the three categories of material being regulated and how the bill will be applied in everyday life.

The states can regulate obscenity because it is unprotected speech.255 If, when TPC Section 21.19 is applied, the “sexual conduct” transmitted encompasses the requirements of “obscenity,” this section of TPC Section 21.19 is constitutional as applied,256 but could be unconstitutional as applied if it is not obscene and is entitled to a higher level of protection, and the state failed to prove their burden of persuasion under either intermediate or strict scrutiny.257 Having one major component of TPC Section 21.19 being unconstitutional on its face, in addition to the concern of punishing sexual conduct that might not fit Texas’s standards of obscenity, leaves a bill that should not stand and should be rewritten more conscientiously.

The protection TPC Section 21.19 promotes and advocates for is much needed because there is no current Texas law as potentially successful in deterring unsolicited sexually explicit visual material as much as one that can be used to prosecute a sender of the material after the very first time it is sent. In the meantime, advocates for this needed law should promote Texas’s harassment law and provide Texans with the knowledge they need to report these incidents, gradually raising the awareness for online protection from indecent exposure until the Legislature introduces a constitutional version of TPC Section 21.19.

254. PENAL CODE § 21.19(c).

255. Obscenity, supra note 163 (“All fifty states have individual laws controlling obscene material.”).

256. See Hudson Jr., As-applied Challenges, supra note 38 (“In as-applied challenges in First Amendment cases, litigants contend that a governmental law, rule, regulation, or policy is unconstitutional as applied to their expressive activities.”).

257. See generally Steiner, supra note 3 (describing the levels of governmental scrutiny and what they entail).

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