Ex Parte James Burke Jarreau

• Court: Court of Appeals of Texas
• Decided: December 23, 2020
• Docket: 04-19-00704-CR
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas DISSENTING OPINION No. 04-19-00704-CR

EX PARTE James Burke JARREAU

From the 216th Judicial District Court, Gillespie County, Texas Trial Court No. 5552 Honorable Keith Williams, Judge Presiding

Opinion by: Irene Rios, Justice Dissenting Opinion by: Liza A. Rodriguez, Justice

Sitting: Luz Elena Chapa, Justice Irene Rios, Justice Liza A. Rodriguez, Justice

Delivered and Filed: December 23, 2020

I respectfully dissent because I believe the catch-all “unsafe for self-medication” portion

of the definition of a “dangerous drug” in the Dangerous Drug Act is unconstitutionally vague on

its face. TEX. HEALTH & SAFETY CODE ANN. §§ 483.001(2), 483.042(a). I would therefore reverse

the trial court’s order denying Jarreau’s pre-trial application for habeas corpus relief and remand

for dismissal of the indictment.

The provisions of the Dangerous Drug Act relevant to this appeal are section 483.042(a),

which defines the offense of delivery of a dangerous drug, and section 483.001(2), which defines

a “dangerous drug.” Id. Section 483.042(a) provides that a person commits an offense if the

person delivers or offers to deliver a dangerous drug unless: (1) the dangerous drug is delivered or

offered for delivery by a pharmacist under a prescription and the container in which the drug is

delivered has a label with the designated information; or (2) the dangerous drug is delivered or Dissenting Opinion 04-19-00704-CR

offered for delivery by a practitioner, registered nurse, or physician assistant in the course of

practice and the container in which the drug is delivered has a label with the designated

information. Id. § 483.042(a). Section 483.001(2) defines a “dangerous drug” as “a device or a

drug that is unsafe for self-medication and that is not included in Schedules I through V or Penalty

Groups 1 through 4 of Chapter 481 (Texas Controlled Substances Act).” The definition goes on

to state that the term “dangerous drug” “includes a device or a drug that bears or is required to bear

the legend: (A) ‘Caution: federal law prohibits dispensing without a prescription’ or ‘Rx only’ or

another legend that complies with federal law; or (B) ‘Caution: federal law restricts this drug to

use by or on the order of a licensed veterinarian.’” Id. § 483.001(2). Jarreau contends the statute

is facially unconstitutional because its definition of a “dangerous drug” is unduly vague in

violation of the Due Process Clause. See U.S. CONST. amends. V, IV; see also Grayned v. City of

Rockford, 408 U.S. 104, 108 (1972) (“It is a basic principle of due process that an enactment is

void for vagueness if its prohibitions are not clearly defined.”).

In a facial challenge, the court considers 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).

When resolving a facial challenge raised by a pretrial habeas application, we only consider the

statutory language and the charging instrument; we do not consider the defendant’s particular

conduct. 1 See Ex parte Weise, 55 S.W.3d 617, 620 (Tex. Crim. App. 2001); see also Ex parte

Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 2010). As discussed in the majority opinion, in order

to prevail on his claim of facial unconstitutionality, Jarreau was not required to establish that the

challenged portion of the statute always operates unconstitutionally in all circumstances. See

1 In arguing that Jarreau had fair notice that his conduct violated the statute because the person to whom he delivered the drug died, the State overlooks the pretrial procedural posture in which the facial challenge is presented. See Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 2010) (a pretrial habeas application is necessarily brought before any evidence has been developed through trial).

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Johnson v. United States, 576 U.S. 591, 602 (2015) (“merely because there is some conduct that

clearly falls within the provision’s grasp” does not make a vague provision constitutional); see

also State v. Doyal, 589 S.W.3d 136, 144 (Tex. Crim. App. 2019).

Specifically, Jarreau argues the portion of the statutory definition of a “dangerous drug” as

one “unsafe for self-medication” violates due process because it is so vague that it: (1) fails to

provide an ordinary person with reasonable notice of the prohibited conduct; and (2) fails to

establish determinate guidelines for law enforcement. See Kolender v. Lawson, 461 U.S. 352, 357-

58 (1983); Johnson, 576 U.S. at 595 (the government violates due process “by taking away

someone’s life, liberty, or property under a criminal law so vague that it fails to give ordinary

people fair notice of the conduct it punishes, or so standardless that it invites arbitrary

enforcement”); United States v. Williams, 553 U.S. 285, 304 (2008); see also Wagner v. State, 539

S.W.3d 298, 313 (Tex. Crim. App. 2018). A statute is not unconstitutionally vague merely because

the words or terms used are not specifically defined. Bynum v. State, 767 S.W.2d 769, 774 (Tex.

Crim. App. 1989). Rather, “the words or phrase must be read in the context in which they are

used,” and the statute is then construed according to the rules of grammar and common usage. Id.

A statute satisfies vagueness requirements if the statutory language “conveys sufficiently definite

warning as to the proscribed conduct when measured by common understanding and practices.”

Wagner, 539 S.W.3d at 314 (quoting Jordan v. De George, 341 U.S. 223, 231–32 (1951)).

With respect to fair notice of the prohibited conduct, Jarreau asserts the “unsafe for self-

medication” portion of the “dangerous drug” definition is so subjective that it does not provide an

ordinary person with sufficient guidance or basis to understand in advance what type of device or

drug will be considered “unsafe” for self-use. Jarreau argues the word “unsafe” is a fluid concept

that can mean different things to different people and its use provides only minimal guidance as to

the safety parameters for a “dangerous drug.” The Merriam-Webster’s Dictionary defines

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“unsafe” as “able or likely to cause harm, damage, or loss.” See www.merriam-

webster.com/dictionary/unsafe. The concept that a particular substance is “unsafe” for self-

medication, i.e., able or likely to cause harm, may differ based on multiple factors including the

physical health of the person using the drug, the type of drug, the method of use, the number of

times the drug is used, and various other factors. Jarreau also points out that the catch-all “unsafe

for self-medication” part of the definition does not indicate what degree of harm is sufficient to be

considered “unsafe” – is death required? Or serious bodily injury? Or is a headache or stomach

upset sufficient? Further, as Jarreau asks, can over-the-counter non-legend drugs with potentially

serious side effects, like Tylenol, be considered “unsafe” for self-medication within the meaning

of the statute? The “unsafe for self-medication” definition also does not include any timeframe or

time limitation for determining the safety of the drug. Must the harm be suffered immediately

after use of the drug, or within hours, days, weeks, months, or years? Is a one-time use of the drug

sufficient for it to be considered “unsafe” or must the usage be chronic to cause the harm? Does

the harm, or “unsafe” nature of the drug, depend on other variables that are unknown to the person

delivering the drug?

In my opinion, the phrase “unsafe for self-medication” is reasonably susceptible to

different meanings to different people in different circumstances. Given the inherent vagueness

of the word “unsafe,” I would conclude the catch-all “unsafe for self-medication” portion of the

definition of a dangerous drug lacks a clear standard and does not reasonably inform an ordinary

person of what type of drug falls within that catch-all part of the definition. 2 An ordinary person

2 This opinion does not address, and has no effect on, the portion of the definition stating that a legend drug is “included” as a dangerous drug. TEX. HEALTH & SAFETY CODE ANN. § 483.001(2); see Ex parte Ellis, 309 S.W.3d at 81 (stating a facial challenge based on vagueness could be made to the definition of “funds” in the money laundering statute “insofar as it extends outside the statutory list” because use of the term “includes” operates as an “‘enlargement and not [a] limitation,’ [and] essentially creates an implied ‘catch-all’ provision.”).

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untrained in medicine or pharmacology cannot know with any degree of accuracy in advance what

substances are “unsafe” for self-medication and thus cannot know what conduct is prohibited by

the criminal statute. See Goonan v. State, 334 S.W.3d 357, 363 (Tex. App.—Fort Worth 2011, no

pet.) (Dauphinot, J., concurring) (observing that “[t]he statutes defining ‘dangerous drug’ . . . do

not make sense and raise too many questions about what kind of testimony, expert or otherwise,

is required to prove a violation of the law,” and asking whether an over the counter non-legend

drug such as naproxen, sold as Aleve, is “unsafe” for self-medication). Here, as in Cotton v. State,

“[t]he perimeters of its prohibition are imprecise.” See Cotton v. State, 686 S.W.2d 140, 142-43

(Tex. Crim. App. 1985) (holding TABC provision making it illegal to sell beer to persons

“showing evidence of intoxication” was unconstitutionally vague because symptoms like slurred

speech and bloodshot eyes may appear in intoxicated as well as non-intoxicated persons); see also

May v. State, 765 S.W.2d 438, 439-40 (Tex. Crim. App. 1989) (holding former harassment statute

unconstitutionally “vague and indefinite because there is no objective standard to measure the level

of annoyance or alarm prohibited” and “failure to specify whose sensitivities are relevant”). “What

renders a statute vague is the ‘indeterminacy of precisely what’ the prohibited conduct is.” Doyal,

589 S.W.3d at 146 (quoting United States v. Williams, 553 U.S. at 306). As noted in Doyal,

“[s]tatutes have been struck down as vague when they tied the defendant’s criminal culpability to

conduct that was . . . [defined by] terms [that] encompassed ‘wholly subjective judgments without

statutory definitions, narrowing context, or settled legal meanings.’” Id. (internal citations

omitted). Here, the phrase “unsafe for self-medication” lacks any limiting language to clarify its

scope and operates as an indeterminate and abstract concept that fails to provide adequate notice

of the prohibited conduct. See Williams, 553 U.S. at 304; see also Doyal, 589 S.W.3d at 146.

With respect to the lack of guidelines for enforcement of the statute, Jarreau characterizes

the “unsafe for self-medication” definition as employing an arbitrary “fill in the blank” standard

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that relies on the law enforcement officer’s subjective determination of what does and what does

not constitute a dangerous drug. See Howard v. State, 617 S.W.2d 191, 192 (Tex. Crim. App.

1979) (“The result is that the ordinance … affirmatively assigns to the arresting officer the

legislative responsibility to give content and meaning to the ordinance by defining one of its

elements with the “fill in the blank” standard that makes the scope of offending conduct a product

of the officer’s subjective determination . . . .”). I agree. Given the indeterminate and subjective

nature of what drug or device is “unsafe” for self-medication, as discussed above, the phrase also

fails to provide guidelines to prevent arbitrary and discriminatory enforcement and indeed may

operate to encourage it. See Williams, 553 U.S. at 304 (statute that is “so standardless that it

authorizes or encourages seriously discriminatory enforcement” is unduly vague and facially

unconstitutional); see also Doyal, 589 S.W.3d at 146.

I would hold that Jarreau met his burden to establish that the catch-all “unsafe for self-

medication” portion of the definition of a dangerous drug is so vague and indeterminate that it does

not provide reasonable notice to an ordinary person of the prohibited conduct and fails to establish

determinate guidelines to prevent arbitrary and discriminatory enforcement. See Kolender, 461

U.S. at 357-58; see also Wagner, 539 S.W.3d at 313; Doyal, 589 S.W.3d at 146. Here, as in

Johnson, it is “the indeterminacy of the wide-ranging inquiry” required by the definition that

deprives citizens of fair notice and invites arbitrary enforcement. Johnson, 576 U.S. at 597. When

a statute is facially unconstitutional, “there is no valid statute and the charging instrument is void”

and must be dismissed. Ex parte Weise, 55 S.W.3d at 620 (internal citations omitted). Therefore,

I would reverse the trial court’s order denying Jarreau’s request for habeas corpus relief and

remand the cause to the trial court for dismissal of the indictment as void.

Liza A. Rodriguez, Justice

PUBLISH

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