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Ex parte Gonzalez

Court of Appeals of Texas, Fourteenth District

April 13, 2017

EX PARTE EVELIN D. GONZALEZ

         On Appeal from the County Criminal Court at Law No. 3 Harris County, Texas, Trial Court Cause No. 2092697

          Panel consists of Justices Busby, Donovan, and Brown.

          OPINION

          J. BRETT BUSBY JUSTICE.

         Appellant Evelin Gonzalez was charged with violating the Harris County Game Room Regulations.[1] 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.

         In her 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.

         In 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 habeas corpus.

         Background

         The 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).

         Appellant 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 appellant.

         Appellant 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 followed.

         Analysis

         I. Standard of review and applicable law

         In 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.).

         Pretrial 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.

         A 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).

         "A 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.

         The 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.

         A 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.).

         II. Appellant cannot challenge sections of the Regulations that ...


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