JUDGE JOHNSON concurred.Curtis Fournier (the applicant) was convicted of online solicitation of a minor under Texas Penal Code § 33.021(b). The applicant filed an application for writ of habeas corpus.

The Texas Court of Criminal Appeals (TexCrimApp) this past October upset district attorneys and “tough on crime” legislators throughout the state when it declared a key provision of the state’s “Online Solicitation of a Minor” statute unconstitutional. Texas Penal Code § 33.021(b)(1) specifically criminalized any online communications with a minor “in a sexually explicit manner.” For the purpose of this statute, a “minor” is defined as a person who either represents himself or herself to be younger than 17 years of age or is believed to be younger than 17 years of age.§ 33.021 was enacted in 2005.

The appellant and the state both filed petitions for discretionary review. On appeal, the appellant argued that his conviction under Texas Penal Code § 33.021(b) was void because the Court of Criminal Appeals held in Ex parte Lo that the statute was unconstitutionally vague. The state contended that the reformation of the court costs was error because there are statutes that provide for the assessment of costs.The court first addressed appellant’s claim that his conviction was void.

You can read about the case hereand read the court’s decision here. The overturned law, Texas Penal Code 33.021(b)(1) states:A person who is 17 years of age or older commits an offense if, with the intent to arouse or gratify the sexual desire of any person, the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, intentionally: (1) communicates in a sexually explicit manner with a minor; or (2) distributes sexually explicit material to a minor. To be clear, you cannot solicit a minor for sex (conduct), but sending indecent, but not obscene materials (protected speech) is not illegal.