                                                                                                     ACCEPTED
                                                                                                 01-14-00868-CR
                                                                                      FIRST COURT OF APPEALS
                                                                                              HOUSTON, TEXAS
                              In the Court of Appeals for the                               5/21/2015 9:49:16 AM
                                                                                           CHRISTOPHER PRINE
                              First District Court of Appeals                                             CLERK

                                     No. 01-14-868-CR

                                                  On Appeal from
                                                                           FILED IN
Ex Parte                                          The 155th District 1st
                                                                     Court
                                                                         COURT OF APPEALS
                                                  Austin County, TexasHOUSTON, TEXAS
                                                                       5/21/2015 9:49:16 AM
Stuart Oland Wheeler
                                                                       CHRISTOPHER A. PRINE
                                                  Trial Court Cause    No. 2014V-0074
                                                                               Clerk

                                    Second Postsubmission Brief



       To Justices Jennings, Higley, and Huddle:

            Seeing from the State’s Postsubmission Reply Brief that the State has

            missed the entire point of this litigation, and to minimize the

            possibility that the fault is Mr. Wheeler’s, Mr. Wheeler files this

            Postsubmission Surreply Brief, and thanks the court for its patience.

       Content v. Conduct? No.

            The opposite of a content-based restriction on speech is not, as the

            State suggests, a “conduct-based regulation.” It is, rather, a “time,

            place, or manner” restriction, subject to intermediate scrutiny: it

            “must be narrowly tailored to serve the government's legitimate,

            content-neutral interests but … it need not be the least restrictive or

            least intrusive means of doing so.” Ward v. Rock Against Racism, 491

            U.S. 781, 799 (1989).

                 Section 33.021 is not a “time, place, or manner” restriction on

            speech because it is not content-neutral. It is not content-neutral
     because the factfinder must consider the content of the speech to

     determine whether it violates the law.

Actual Solicitation? No.

     It is true that the legislature could constitutionally forbid actual

     solicitation of an actual minor even though such a regulation would be

     content-based. This session the Texas Legislature has rewritten

     Section 33.021 to forbid actual solicitation of an actual minor; it has

     sent Senate Bill 344 to the Governor for his signature.

             Senate Bill 344 1 is instructive because it shows what a more

     constitutional online-solicitation statute looks like and hightlights the

     deficiencies in the current Section 33.021.

             Senate Bill 344 limits the definition of “Minor” to:
             (A) an individual who is younger than 17 years of age; or
             (B) an individual whom the actor believes to be younger than 17 years of age.

     The legislature eliminated the “represents himself or herself to be”

     language, thus eliminating the possibility that an actor can be

     prosecuted for ageplay with an adult whom he knows to be an adult

     but who pretends (“represents himself”) to be otherwise.




     1
         https://legiscan.com/TX/text/SB344/id/1224691




                                                   2
           Senate Bill 344 also restores the constitutionally required

      defenses of fantasy and lack of intent:
           (d) It is not a defense to prosecution under Subsection (c) that the meeting did not
           occur.

      This eliminates the possibility that people can be prosecuted for

      speech that is not intended to solicit sex, or for fantasy speech.

Conclusion

      The State’s Postsubmission Reply Brief would be a workmanlike

      defense of Senate Bill 344, but it misses the point of Mr. Wheeler’s

      challenge: that in the current version of Section 33.021 both:
           a) the definition of minor to include an adult who represents himself to be, but whom
           the actor does not believe to be a minor; and
           b) the explicit elimination of both “no intent” and “fantasy” defenses

      broaden the statute past all constitutional defensibility.

Certificate of Service

      A copy of this brief will be delivered to the attorney for the State by

      electronic filing.

Certificate of Compliance

      This brief contains a paltry 497 words, by Microsoft Word’s count.




                                                  3
    Thank you,



    ________________________
    Mark Bennett
    SBN 00792970
    Bennett & Bennett
    917 Franklin Street, Fourth Floor
    Houston, Texas 77002
    713.224.1747
    mb@ivi3.com




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