EX PARTE EVELIN D. GONZALEZ
Appeal from the County Criminal Court at Law No. 3 Harris
County, Texas, Trial Court Cause No. 2092697
consists of Justices Busby, Donovan, and Brown.
BRETT BUSBY JUSTICE.
Evelin Gonzalez was charged with violating the Harris County
Game Room Regulations. Tex. Loc. Gov't Code Ann. §
234.138 (West 2016) (making it a Class A misdemeanor to
intentionally or knowingly operate a game room in violation
of game room regulations adopted by a county). Appellant
filed a pretrial application for writ of habeas corpus
challenging the constitutionality of the Regulations. After a
hearing, the trial court issued an order denying the
application. Appellant appeals the trial court's denial,
raising five issues.
first issue, appellant argues section 3.10 of the Regulations
is unconstitutionally overbroad because it prohibits
activities protected by the First Amendment. We overrule this
issue for lack of standing because appellant is not charged
with violating section 3.10. In her second issue, appellant
argues that the first three enumerated definitions of
"to operate a game room" under section 1.4(e) are
unconstitutionally vague. We conclude this challenge is an
"as applied" challenge, which cannot be decided
prior to trial.
appellant's third, fourth, and fifth issues, she
challenges the civil penalties available under the
Regulations on various theories. Because the State is not
currently seeking civil penalties from appellant, however,
these challenges are not ripe for review. Finally, appellant
also contends in her fifth issue that sections 2.2(a) and
3.8(b) of the Regulations deprive game room owners,
operators, and employees of liberty and property without due
process. Because she is not charged with violating the
sections 2.2(a) and 3.8(b), appellant lacks standing to
challenge those sections. Accordingly, we affirm the trial
court's denial of her pretrial application for writ of
Harris County Commissioners Court adopted the Harris County
Game Room Regulations pursuant to section 234.133 of the
Texas Local Government Code. Under the Regulations, an owner
or operator must maintain onsite, and produce for inspection,
game room employee records. Regulations § 3.7(b). A
person who operates a game room in violation of this section
is subject to a civil penalty not to exceed $10, 000 per
violation. Id. § 3.7(d). Each record that is
missing or deficient is a separate violation. Id.
Further, each day a record is missing or is deficient is a
separate violation. Id. The Regulations provide that
it is also a Class A misdemeanor to intentionally or
knowingly operate a game room in violation of this section.
Id. § 3.7(e).
was charged with a Class A Misdemeanor for violating the
Regulations. Specifically, the information provides that
appellant did "unlawfully while acting as an OPERATOR of
a game room . . . intentionally and knowingly operate [the]
game room in violation of the Harris County Game Room
Regulations, namely, Defendant failed to maintain on the
premises . . . a record for each employee of [the] game room,
as set forth in Section 3.7." The record does not
reflect that civil penalties are being sought against
filed a pretrial application for writ of habeas corpus
challenging the constitutionality of the Regulations on five
different grounds. At the hearing, the trial court denied
appellant's requested relief on each ground. This appeal
Standard of review and applicable law
general, we review a trial court's ruling on an
application for writ of habeas corpus using an
abuse-of-discretion standard, and we view any evidence in the
light most favorable to that ruling and defer to implied
factual findings supported by the record. Le v.
State, 300 S.W.3d 324, 327 (Tex. App.-Houston [14th
Dist.] 2009, no pet.).
habeas corpus proceedings are separate criminal actions, and
the applicant has the right to an immediate appeal before
trial begins. Greenwell v. Court of Appeals for the
Thirteenth Judicial Dist., 159 S.W.3d 645, 649-50 (Tex.
Crim. App. 2005). A defendant may only seek pretrial habeas
relief in limited circumstances. Ex parte Smith, 178
S.W.3d 797, 801 (Tex. Crim. App. 2005). Those limited
circumstances are (1) to challenge the State's power to
restrain the defendant; (2) to challenge the manner of
pretrial restraint, i.e., the denial of bail or
conditions of bail; and (3) to raise certain issues that
would bar prosecution or conviction. Id.
threshold issue is whether a claim is cognizable on pretrial
habeas. Ex parte Ellis, 309 S.W.3d 71, 79 (Tex.
Crim. App. 2010). Pretrial habeas, followed by an
interlocutory appeal, is an extraordinary remedy, and we must
be careful to ensure that a pretrial writ is not misused to
secure pretrial appellate review of matters that should not
be put before the appellate courts at the pretrial stage.
Id. "Except when double jeopardy is involved,
pretrial habeas is not available when the question presented,
even if resolved in the defendant's favor, would not
result in immediate release." Ex parte Perry,
483 S.W.3d 884, 895 (Tex. Crim. App. 2016); see also Ex
parte Weise, 55 S.W.3d 617, 619 (Tex. Crim. App. 2001).
claim that a statute is unconstitutional on its face may be
raised by pretrial writ of habeas corpus because the
invalidity of the statute would render the charging
instrument void." Ex parte Flores, 483 S.W.3d
632, 638 (Tex. App.- Houston [14th Dist.] 2015, pet.
ref'd). To invalidate a statute as facially
unconstitutional, the defendant must show that the statute is
unconstitutional in all of its applications. Ellis,
309 S.W.3d at 80. Pretrial habeas may not be used to advance
an "as applied" challenge to a statute.
Id. at 79. If a claim is designated as a facial
challenge, but is actually a challenge to a particular
application of the statute, courts should refuse to consider
the merits of the claim. Id. at 80.
overbreadth doctrine, however, allows a statute to be
invalidated on its face even if it has a legitimate
application and even if the parties before the court have not
suffered a constitutional violation. Id. at 91. The
reason for this exception is to "vindicate First
Amendment interests and prevent a chilling effect on the
exercise of First Amendment freedoms . . . ."
Id. at 90-91.
constitutional attack may not be based on an apprehension of
future injury. Ex parte Spring, 586 S.W.2d 482, 485
(Tex. Crim. App. 1978). Such an attack is not ripe unless the
record shows that the challenged section will be applied to
the defendant. Ex parte Tamez, 4 S.W.3d 366, 367
(Tex. App.- Houston [1st Dist.] 1999, no pet.).
Appellant cannot challenge sections of the Regulations that