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Click here for the full text of this decision FACTS:Shelly Kasandra Shaw was charged by indictment with the offense of improper relationship between educator and student. Texas Penal Code �21.12. The indictment alleges Shaw engaged in prohibited sexual contact with a student of the secondary school where Shaw was employed. Shaw filed a pretrial motion for a writ of habeas corpus in the trial court, alleging �21.12 is unconstitutional on its face. The trial court denied relief, finding the statute is not unconstitutional. Shaw now appeals that ruling, contending the statute is facially void under the U.S. Constitution because it violates: 1. the First Amendment rights of privacy and freedom of association by being overly broad; 2. the due process clauses of the Fifth and Fourteenth Amendments by being void for vagueness; 3. the equal protection clause of the Fourteenth Amendment by creating a class treated differently from any other class; and 4. the Fifth Amendment prohibition against double jeopardy by authorizing the state to prosecute twice for the same offense. Shaw also claims the statute is in violation of corresponding provisions of the Texas Constitution, but, the court states, she makes no discernible argument for a separate application of state constitutional principles. HOLDING:Affirmed. Shaw imagines a number of circumstances involving sexual conduct between consenting adults where she alleges the statute would be applied unconstitutionally. The court cannot say the statute is impermissibly broad when judged in relation to the statute’s plainly legitimate sweep, i.e., employees and students in primary and secondary schools, when the vast majority of such students are undoubtedly not adults. The record contains no data about what percentage of secondary school students affected by this statute are adults. Thus, even if this statute could be said to infringe on fundamental First Amendment rights of those students and employees who are of age, there is no evidence indicating �21.12 reaches a substantial amount of constitutionally protected conduct. The court rejects Shaw’s contention that �21.12 violates the First Amendment by being overly broad. Vagueness challenge to an enactment will be upheld only if it is impermissibly vague in all of its applications. McDonald v. State, 693 S.W.2d 660 (Tex. App. – Dallas 1985, no pet.). To be vague in all of its applications, a statute must necessarily be vague as to the litigant; hence, if the statute is not vague as to the litigant, a due process challenge must necessarily fail. People of common intelligence need not guess as to this statute’s meaning, the court holds, neither is this statute impermissibly vague in all its applications. Shaw complains that the statute lacks a requisite mental state. However, if the definition of an offense does not prescribe a culpable mental state, then intent, knowledge or recklessness suffices to establish criminal responsibility. As for the lack of specific definitions for the terms “employee” and “student,” a statute is not vague simply because its terms are not specifically defined. Turning to Shaw’s equal protection argument, Shaw has not demonstrated, and the court does not find, that employees of a public or private primary or secondary school are a protected class for equal protection purposes. Although the lines between the various levels of scrutiny may sometimes be blurred, the court holds the appropriate level of scrutiny here is that of a rational basis. It is clear, the court believes, that the state has at least a rational basis for passing the statute at issue. Shaw complains of the last subsection of �21.12: “If conduct constituting an offense under this section also constitutes an offense under another section of this code, the actor may be prosecuted under either section or both sections.” The court finds nothing in the language of �21.12(c) causing its application to automatically and always violate the constitutional prohibition against double jeopardy. OPINION:Donald R. Ross, J.; Morriss, C.J., Ross and Carter, J.J.

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