                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-16-00157-CR

                        EX PARTE REBEKAH SEDIGAS



                      From the County Court at Law No. 2
                          McLennan County, Texas
                         Trial Court No. 20160002HC2


                                 No. 10-16-00189-CR

                         EX PARTE ERIKA HOLLAWAY



                      From the County Court at Law No. 1
                          McLennan County, Texas
                         Trial Court No. 20160001HC1


                           MEMORANDUM OPINION


      In two issues in appellate cause numbers 10-16-00157-CR and 10-16-00189-CR,

appellants, Rebekah Sedigas and Erika Hollaway, challenge the trial court’s denial of

their applications for writ of habeas corpus challenging the constitutionality of the City
of Waco’s “no touch” ordinance for sexually-oriented businesses.1 Because we conclude

that the complained-of ordinance is facially constitutional, and because appellants’

potential punishments do not violate the Eighth Amendment to the United States

Constitution, we affirm.

                                          I.      BACKGROUND

        Here, appellants were charged by information with a Class A misdemeanor for

violating City of Waco ordinance section 20-17(c), which provides the following:

        No employee who appears nude or semi-nude in a sexually oriented
        business shall knowingly or intentionally touch a customer or the clothing
        of a customer on the premises of a sexually oriented business. No customer
        shall knowingly or intentionally touch such an employee or the clothing of
        such an employee on the premises of a sexually oriented business.

CITY OF WACO ORDINANCE § 20-17(c).

        Thereafter, appellants filed pre-trial applications for writ of habeas corpus arguing

that the ordinance is facially unconstitutional because it is overboard and encompasses

lawful conduct. Appellants also asserted that the ordinance violates article 1, section 13

of the Texas Constitution and the Eighth Amendment of the United States Constitution

“because punishing a violation of this provision as a Class A misdemeanor is

disproportionate to the offense.” See U.S. CONST. amend. VIII; see also TEX. CONST. art. 1,

§ 13.



        1 Appellants are represented by the same attorney, who filed identical briefs in these matters.
Accordingly, because the facts and arguments are identical, we will consider the issues of both appellants
in one opinion.

Ex parte Sedigas & Ex parte Hollaway                                                               Page 2
       After a hearing, the trial court denied appellants’ habeas-corpus applications,

finding that the ordinance in question is constitutional. The trial court subsequently

certified appellants’ right of appeal, and these appeals followed.

             II.     CONSTITUTIONALITY OF THE WACO “NO TOUCH” ORDINANCE

       In their first issue, appellants contend that the City’s “no touch” ordinance violates

their First Amendment rights because it is facially overbroad in that it encompasses

lawful conduct, including any knowing touching by any dancer, even when not in a state

of nudity or performing.

A. Pre-Trial Habeas Relief and Standard of Review

       A claim that a statute is unconstitutional on its face may be raised by a pre-trial

writ of habeas corpus because the invalidity of the statute would render the charging

instrument void. Ex parte Weise, 55 S.W.3d 617, 620 (Tex. Crim. App. 2001). Although

pre-trial habeas can be used to bring a facial challenge to the constitutionality of the

statute, it may not be used to advance an “as applied” challenge. Ex parte Ellis, 309 S.W.3d

71, 79 (Tex. Crim. App. 2010).

       An appellate court reviews a trial court’s decision to grant or deny an application

for writ of habeas corpus under an abuse-of-discretion standard. Kniatt v. State, 206

S.W.3d 657, 664 (Tex. Crim. App. 2006). In reviewing the trial court’s ruling, we view the

evidence in the light most favorable to the trial court’s ruling. Ex parte Peterson, 117

S.W.3d 804, 819 (Tex. Crim. App. 2003), overruled in part on other grounds by Ex parte Lewis,


Ex parte Sedigas & Ex parte Hollaway                                                   Page 3
219 S.W.3d 335, 371 (Tex. Crim. App. 2007). The trial judge, as fact finder at the writ

hearing, is the exclusive judge of witness credibility. Ex parte Amezquita, 223 S.W.3d 363,

367 (Tex. Crim. App. 2006). When, as here, the resolution of the ultimate questions turns

on application of legal standards, we review the trial court’s ruling de novo. Doyle v.

State, 317 S.W.3d 471, 475 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d).

B. Facial Challenge and the Overbreadth Doctrine

       To prevail on a facial challenge, a party must establish that the statute always

operates unconstitutionally in all possible circumstances. State v. Rosseau, 396 S.W.3d 550,

557 (Tex. Crim. App. 2013). A facial challenge to a statute is the most difficult challenge

to mount successfully because the challenger must establish that no set of circumstances

exists under which the statute will be valid. Santikos v. State, 836 S.W.2d 631, 633 (Tex.

Crim. App. 1992).

       Whether a statute is facially constitutional is a question of law that we review de

novo. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). When the constitutionality

of a statute is attacked, we begin with the presumption that the statute is valid and that

the legislature has not acted unreasonably or arbitrarily. Id. at 14-15. The burden

normally rests upon the person challenging the statute to establish its unconstitutionality.

Id. at 15. In the absence of contrary evidence, we will presume that the legislature acted

in a constitutionally-sound fashion. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App.




Ex parte Sedigas & Ex parte Hollaway                                                  Page 4
2002). Moreover, we must “consider the statute only as it is written, rather than how it

operates in practice.” State ex rel. Lykos v. Fine, 330 S.W.3d 904, 908 (Tex. Crim. App. 2011).

       “According to the First Amendment overbreadth doctrine, a statute is facially

invalid if it prohibits a ‘substantial’ amount of protected speech ‘judged in relation to the

statute’s plainly legitimate sweep.’” Ex parte Lo, 424 S.W.3d at 19 (internal citation &

footnote omitted). To further clarify, the Court of Criminal Appeals has recently stated

the following with respect to the “overbreadth” doctrine:

       The First Amendment protects, among other things, the freedom of speech.
       The First Amendment right to freedom of speech applies to the states by
       virtue of the Fourteenth Amendment.

               ....

       The overbreadth doctrine is “strong medicine” that is used “sparingly and
       only as a last resort.” The overbreadth of a statute must be “substantial, not
       only in an absolute sense, but also relative to the statute’s plainly legitimate
       sweep.” The statute must prohibit a substantial amount of protected
       expression, and the danger that the statute will be unconstitutionally
       applied must be realistic and not based on “fanciful hypotheticals.” The
       person challenging the statute must demonstrate from its text and from
       actual fact” that a substantial number of instances exist in which the Law
       cannot be applied constitutionally.” The Supreme Court “generally do[es]
       not apply the ‘strong medicine’ of overbreadth analysis where the parties
       fail to describe the instances of arguable overbreadth of the contested law.”
       Moreover, the overbreadth doctrine is concerned with preventing the
       chilling of protected speech and that concern “attenuates as the otherwise
       unprotected behavior that it forbids the State to sanction moves from ‘pure
       speech’ toward conduct.” “Rarely, if ever, will an overbreadth challenge
       succeed against a law or regulation that is not specifically addressed to
       speech or to conduct that is necessarily associated with speech (such as
       picketing or demonstrating.”



Ex parte Sedigas & Ex parte Hollaway                                                      Page 5
State v. Johnson, 475 S.W.3d 860, 864-65 (Tex. Crim. App. 2015) (internal citations &

footnotes omitted).

       “Topless dancing is protected by the First Amendment.” Haddad v. State, 9 S.W.3d

454, 458 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (citing Lindsay v. Papageorgiou, 751

S.W.2d 544, 549 (Tex. App.—Houston [1st Dist.] 1988, writ denied)); see Schad v. Borough

of Mount Ephraim, 452 U.S. 61, 65-66, 68 L. Ed. 2d 671, 101 S. Ct. 2176 (1981). However,

“[t]ime, place, and manner restrictions of protected speech are permissible if they are

content-neutral, narrowly tailored to serve a significant government interest, and leave

open ample alternative channels for communication.” Haddad, 9 S.W.3d at 458 (citing

Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293, 104 S. Ct. 3065, 82 L. Ed. 2d 221

(1984)).

C. Discussion

       Appellants contend that City of Waco ordinance section 20-17(c) is overbroad

because the language purportedly prohibits any knowing or intentional touching by a

dancer, even when not in a state of nudity or performing. Appellants further argue that

the wording of the statute applies to employees who are fully clothed if they regularly

appear nude or semi-nude at a sexually-oriented business. In support of their arguments,

appellants rely on a case from the Supreme Court of Kentucky, whereby the Court

concluded that a particular no-touch ordinance was unconstitutionally overbroad. See

generally Blue Movies, Inc. v. Louisville/Jefferson County Metro Gov’t, 317 S.W.3d 23 (Ky.


Ex parte Sedigas & Ex parte Hollaway                                                    Page 6
2010). In Blue Movies, the no-touch restriction provided: “It shall be a violation of this

chapter for any employee, who regularly appears semi-nude in an adult entertainment

establishment, to knowingly or intentionally touch a customer or the clothing of a

customer.” Id. at 30. In concluding that the ordinance was overbroad, the Kentucky

Supreme Court noted:

        We do not agree with the Court of Appeals conclusion that all touching
        between a performer and a customer is not constitutionally protected. As
        noted above, touching during an erotic performance or while in the state of
        nudity is not protected expression. We would also agree that sexual
        touching would not be protected expression. However, we believe that
        nonsexual, consensual touching, such as a handshake or a pat on the back,
        as a greeting or show of fellowship, is a social custom and an integral part
        of our culture.

Id. at 31.

        Despite appellants’ assertions to the contrary, the ordinance in this case is different

than the ordinance in Blue Movies. In Blue Movies, the ordinance specifically pertained to

all employees who regularly appear semi-nude without a time specification. Id. at 30.

Conversely, the Waco ordinance does not prohibit contact between employees who are

clothed, and it does not include the term “regularly.”

        Furthermore, as noted earlier, City of Waco ordinance section 20-17(c), which

provides the following:

        No employee who appears nude or semi-nude in a sexually oriented
        business shall knowingly or intentionally touch a customer or the clothing
        of a customer on the premises of a sexually oriented business.[ 2] No

        2   The Waco ordinance defines “[e]mploy, employee, and employment” as pertaining:

Ex parte Sedigas & Ex parte Hollaway                                                         Page 7
       customer shall knowingly or intentionally touch such an employee or the
       clothing of such an employee on the premises of a sexually oriented
       business.

CITY OF WACO ORDINANCE § 20-17(c). The key word in the Waco ordinance is “appears,”

which, using its plain and ordinary meaning, is defined as “to be or come in sight . . . to

come into public view.” MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 56 (10th ed. 1993);

see TEX. GOV’T CODE ANN. § 311.011(a) (West 2013) (“Words and phrases shall be read in

context and construed according to the rules of grammar and common usage.”).

Therefore, the Waco ordinance prohibits an employee who has “come into public view”

as nude or semi-nude from knowingly or intentionally touching a customer while on the

premises of a sexually-oriented business. See CITY OF WACO ORDINANCE § 20-17(c); see

also MERRIAM WEBSTER’S COLLEGIATE DICTIONARY at 56.                       This is different from the

ordinance in Blue Movies in that the Waco ordinance does not apply to employees who

have appeared nude or semi-nude at a time other than the offense or who regularly

appear nude or semi-nude. It only applies at the time that the employee is nude or semi-

nude on the premises of a sexually-oriented business and touches a customer. Given this,

we are not persuaded by the Blue Movies opinion. And because a reasonable construction




       to any person who performs any service on the premises of a sexually oriented business,
       on a full time, part time, or contract basis, regardless of whether the person is denominated
       an employee, independent contractor, consultant, agent, lessee, or otherwise. “Employee”
       does not include a person exclusively on the premises for repair or maintenance of the
       premises or for the delivery of goods to the premises.

CITY OF WACO ORDINANCE § 20-2.

Ex parte Sedigas & Ex parte Hollaway                                                                   Page 8
based on the plain language of the ordinance avoids potential constitutional questions,

we reject appellants’ constitutional challenge to the ordinance using the overbreadth

doctrine. See Johnson, 475 S.W.3d at 864-65; Ex parte Lo, 424 S.W.3d at 14-15; see also

Rodriguez, 93 S.W.3d at 69.            Accordingly, we must presume the ordinance to be

constitutionally valid. See Johnson, 475 S.W.3d at 864-65; Ex parte Lo, 424 S.W.3d at 14-15;

Rodriguez, 93 S.W.3d at 69. We overrule appellants’ first issues.

                             III.      DISPROPORTIONATE PUNISHMENT

       In their second issue, appellants assert that Waco’s “no touch” ordinance violates

their Eighth Amendment right to be free from cruel and unusual punishment because the

punishment associated with the ordinance is disproportionate to the actual offense. In

making this argument, appellants complain that the “no touch” ordinance is classified as

a Class A misdemeanor, despite “offenses [, such as prostitution, which is a Class B

misdemeanor,] which the ordinance is purportedly designed to protect against have a

lessor or equal punishment.”

       The Eighth Amendment, which forbids cruel and unusual punishments, contains

a narrow proportionality principle prohibiting a sentence from being greatly

disproportionate to the crime it punishes. See Ewing v. California, 538 U.S. 11, 20, 123 S.

Ct. 1179, 1185, 155 L. Ed. 2d 108 (2003) (citing Harmelin v. Michigan, 501 U.S. 957, 996-97,

111 S. Ct. 2680, 2702, 115 L. Ed. 2d 836 (1991) (Kennedy, J., concurring in part and

concurring in judgment)).           Within the Constitution’s ban on cruel and unusual


Ex parte Sedigas & Ex parte Hollaway                                                  Page 9
punishments is the “precept of justice that punishment for crime should be graduated

and proportioned to [the] offense.” Weems v. United States, 217 U.S. 349, 367, 30 S. Ct. 544,

549, 54 L. Ed. 2d 793 (1910).          “The Eighth Amendment does not require strict

proportionality between crime and sentence; rather, it forbids only extreme sentences

that are grossly disproportionate to the crime.” Rivera v. State, 363 S.W.3d 660, 678 (Tex.

App.—Houston [1st Dist.] 2011, no pet.) (citing Ewing, 538 U.S. at 23, 123 S. Ct. at 1187).

       The United States Supreme Court has stated that generally there are two

classifications of proportionality challenges: (1) “The first involves challenges to the

length of term-of-years sentences given all the circumstances in a particular case” and (2)

“The second classification of cases has used categorical rules to define Eighth

Amendment standards.” Graham v. Florida, 560 U.S. 48, 59-60, 130 S. Ct. 2011, 2021-22,

176 L. Ed. 2d 825 (2010). Under the first approach, courts must determine “whether the

sentence for a term of years if grossly disproportionate for a particular defendant’s

crime.” Id. at 60, 130 S. Ct. at 2022. Under the second approach, we consider the nature

of the offense and the characteristics of the offender. Id. at 60, 130 S. Ct. at 2022. Here,

we are presented with a categorical challenge turning on the nature of the offense.

       In analyzing a categorical challenge, we consider the following: (1) whether there

is a national consensus against imposing the punishment for the offense; (2) the moral

culpability of the offenders at issue in light of their crimes and characteristics; (3) the

severity of the punishment; and (4) whether the punishment serves legitimate


Ex parte Sedigas & Ex parte Hollaway                                                  Page 10
penological goals. Id. at 61, 67-68, 130 S. Ct. at 2022, 2026; see Meadoux v. State, 325 S.W.3d

189, 194 (Tex. Crim. App. 2010). Appellants have the burden of showing these factors.

Meadoux, 325 S.W.3d at 194 n.7.

       Here, there is no evidence or discussion of a national consensus against

prosecuting a violation of an ordinance as a Class A misdemeanor. Notably, in 2011, the

First Court of Appeals addressed and rejected the same argument advanced by

appellants in this case. Rivera, 363 S.W.3d at 678-80. Specifically, the Rivera Court rejected

an argument that a similarly-worded “no touch” ordinance was unconstitutional because

it authorized punishment not proportionate to any offense committed for violating the

ordinance. See id. at 678-80. And like the Rivera Court, we can think of no reason why

exotic dancers would not be morally culpable for violating the ordinance. See id. at 679

(citing Meadoux, 325 S.W.3d at 194-95 (discussing a juvenile defendant’s argument that

he was less morally culpable for murder than adult offenders in support of his contention

that life in prison for juvenile offenders is a disproportionate sentence)).

       Additionally, we adopt the following reasoning of the Rivera Court with respect

to the remaining factors for a categorical challenge:

       For violating the Ordinance, a Class A misdemeanor, an offender can be
       fined up to $4,000, confined in jail for a term not to exceed one year, or
       receive both punishments. See TEX. PENAL CODE ANN. § 12.21 [(West 2011)].
       While it is not inconsequential, such punishment is less than the
       punishment range for offenses that the Ordinance was enacted to prevent,
       such as narcotics and prostitution violations. See N.W. Enters., Inc., 352 F.3d
       [162, 176 n.7 (5th Cir. 2003)] (detailing that Ordinance 97-75 enacted to
       prevent associated crimes, including narcotics offenses). For example, the
Ex parte Sedigas & Ex parte Hollaway                                                     Page 11
       offense of possession of less than one gram of a Penalty 1 controlled
       substance is a state jail felony, which has a punishment range of not more
       than two years or less than 180 days’ imprisonment. TEX. HEALTH & SAFETY
       CODE ANN. § 481.115(a) [(West 2010)]; TEX. PENAL CODE ANN. § 12.35(a)
       [(West Supp. 2016)].

              Significantly, certain prostitution offenses, which, as mentioned,
       appellants characterize as “the primary evil the [ ] ordinance was designed
       to curtail,” have punishment ranges greater than or equal to that of a
       violation of the Ordinance. The offense of prostitution is raised from a Class
       B misdemeanor to Class A misdemeanor if the offender has previously been
       convicted of prostitution once or twice under Penal Code section 43.02. See
       TEX. PENAL CODE ANN. § 43.02 [(West Supp. 2016)]. Section 43.02 further
       provides that if an offender has been previously convicted three or more
       times under that section, then the offense is a state jail felony. See id.

              Penal Code sections 43.03 and 43.04 define criminal offenses for
       promoting prostitution. See TEX. PENAL CODE ANN. §§ 43.03, 43.04 [(West
       Supp. 2016)]. Offenses relating to the promotion of prostitution range from
       a Class A misdemeanor to a third-degree felony. See TEX. PENAL CODE ANN.
       §§ 43.03(b), 43.04(b). In addition, Penal Code section 43.05 defines the
       offense of “compelling prostitution” as a second-degree felony. See TEX.
       PENAL CODE ANN. § 43.05 [(West Supp. 2016)].

               With respect to penological goals, a sentence can have a variety of
       justifications, such as incarceration, deterrence, retribution, or
       rehabilitation. Ewing, 538 U.S. at 25, 123 S. Ct. at 1187; see Meadoux, 325
       S.W.3d at 195. Some or all of these justifications may play a role in a State’s
       sentencing scheme. . . . Selecting the sentencing rationales is generally a
       policy choice to be made by state legislatures, not the courts. . . . Indeed,
       the Texas Legislature, when it enacted Chapter 243 [of the Texas Local
       Government Code], observed that “the unrestricted operation of certain
       sexually oriented businesses may be detrimental to the public health, safety,
       and welfare by contributing to the decline of residential and business
       neighborhoods and the growth of criminal activity.” TEX. LOC. GOV’T CODE
       ANN. § 243.001(a) [(West 2016)]. The legislature gave cities broad authority
       to “adopt regulations regarding sexually oriented businesses as the
       municipality . . . considers necessary to promote the public health, safety,
       or welfare.” [Id.]. As discussed by the Fifth Circuit in N.W. Enterprises,
       Ordinance 97-75 was enacted specifically to regulate and to prevent a
Ex parte Sedigas & Ex parte Hollaway                                                     Page 12
        gamut of criminal offenses associated with the operation of sexually
        oriented businesses. N.W. Enters., Inc., 352 F.3d at 176 & n.7. Prosecuting
        violations of the Ordinance as a Class A misdemeanor is justified to deter
        continuing violations of the Ordinance that legislative bodies have
        determined leads to greater criminal activities.



363 S.W.3d at 679-80. Like the Rivera Court, we, too, believe that prosecuting violations

of the City of Waco’s “no touch” ordinance as a Class A misdemeanor is justified to deter

continuing violations of the ordinance that legislative bodies have determined leads to

greater criminal activities.3 See id. at 680.

        Based on the foregoing, we conclude that appellants have not carried their burden

to show that the punishment range for a Class A misdemeanor is grossly

disproportionate to the offense of violating the City of Waco’s “no touch” ordinance. See

Meadoux, 325 S.W.3d at 194 n. 7. We overrule appellants’ second issue.




        3Our conclusion is further supported by the policy statement contained in City of Waco Ordinance
Section 20-1(a), which provides that:

        It is the purpose of this chapter to regulate sexually oriented businesses in order to promote
        the health, safety, and general welfare of the citizens of this city, and to establish reasonable
        and uniform regulations to prevent the deleterious secondary effects of sexually oriented
        businesses within the city. The provisions of this chapter have neither the purpose nor
        effect of imposing a limitation or restriction on the content or reasonable access to any
        communicative materials, including sexually oriented materials. Similarly, it is neither the
        intent nor effect of this chapter to restrict or deny access by adults to sexually oriented
        materials protected by the First Amendment, or to deny access by the distributors and
        exhibitors of sexually oriented entertainment to their intended market. Neither is it the
        intent nor effect of this chapter to condone or legitimize the distribution of obscene
        material.

CITY OF WACO ORDINANCE § 20-1(a).

Ex parte Sedigas & Ex parte Hollaway                                                                        Page 13
                                       IV.   CONCLUSION

       Having overruled appellants’ issues in both cause numbers, we affirm the

judgments of the trial court.




                                                AL SCOGGINS
                                                Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
(Chief Justice Gray dissenting)*
Affirmed
Opinion delivered and filed October 12, 2016
Do not publish
[CR25]

*(Chief Justice Gray dissents. A separate opinion will not issue. He provides, however,
the following comment: The Court rewrites the ordinance to narrow its scope so that it
might be constitutional. As written, there is no link between the time the employee
appears nude or semi-nude and the time the employee touches a customer. As written,
the totally nude pole dancer violates the ordinance when fully clothed checking in top-
coats. I have searched for the limitation the Court finds to limiting the touching to the
time period when the employee is nude or semi-nude. It is not there. As such, the City’s
ordinance is even more broad than the one found unconstitutional in Blue Movies. If Waco
had wanted the constraint written into the ordinance by the Court, all it had to do was
change “who appears” to “while appearing” so that the statute would read “No
employee while appearing nude or semi-nude . . . .” That is not what they passed but
that is how the Court rewrites it for them. I would not. Accordingly, I dissent.)




Ex parte Sedigas & Ex parte Hollaway                                              Page 14
