HOUSERESEARCHORGANIZATION s e s s i o n f o c u s Texas House of Representatives January 10, 1997

No. 75-2

75thLegislature 75thLegislature

Rewriting the Stalking Law

The Legislature is faced with possibly rewriting thestalking law, which has been ruled unconstitutional bythe Texas Court of Criminal Appeals. In September1996 the court ruled that the state’s stalking law, asenacted in 1993, was unconstitutionally vague.Proposals for rewriting the law to address the court’sconcerns have already been filed, and Gov. George W.Bush has said he will declare stalking legislation anemergency, allowing it to be considered early in the1997 session.

The Court of Criminal Appeals decision, Long v.State, 931 S.W.2d (Tex. Crim. App. 1996), effectivelynullified current law outlawing stalking. As a result thestate now has no specific stalking statute in effect, butstalkers can still be prosecuted for related criminaloffenses, such as harassment, assault, disorderlyconduct or terroristic threat, or sanctioned forviolations of a court protective order. Victims can alsoutilize a law enacted in 1995 (HB 43 by McCall) thatgives victims the right to sue alleged stalkers fordamages in civil court.

Texas and most other states have made stalking astate criminal offense, and in 1996 Congress also madeit a federal crime, punishable by five years to life inprison, for a stalker to cross state lines to harm, injureor kill another person.

1993 and 1995 stalking laws

A 1993 law, SB 25 by Moncrief, made stalking aform of criminal harassment. In 1995 SB 126 byMoncrief moved the stalking portion of the harassmentoffense to a new, separate section of the Penal Code,sec. 42.071, and amended the 1993 provisions. Underboth the 1993 law and the 1995 revisions it is a ClassA misdemeanor to, on more than one occasion, engagein conduct directed specifically toward another person,

including following the person. The conduct must bereasonably likely to harass, annoy, alarm, abuse,torment or embarrass the person, and the offendermust on at least one occasion threaten to inflict bodilyinjury or to commit an offense against the person, hisor her family or property. Persons prosecuted forstalking may claim as an affirmative defense that theywere engaged in conduct that consisted of activity insupport of constitutionally or statutorily protectedrights, such as the right to picket or demonstrate.Repeat offenses are third-degree felonies.

The 1995 revisions eliminated a requirement thatthe victim had to have reported a previous stalkingincident to a law enforcement agency before a personcould be prosecuted for any subsequent stalking.Supporters of the change said it closed a loophole thatgave stalkers “one free stalk” and endangered victimswho had to notify police at least once before anoffense took place. Opponents of this change said therequirement was designed to limit abuses and falsereports and eliminating the requirement could increasethe chance that an alleged stalking victim could have aninnocent suspect arrested.

The 74th Legislature enacted two other laws dealingspecifically with stalking: HB 43 by McCall et al.,which created a civil cause of action allowing stalkingvictims to sue alleged stalkers for damages and torecover actual and exemplary damages regardless ofwhether criminal stalking charges have been filed, andSB 124 by Moncrief et al., which requires that beforea person who has been arrested for stalking may bereleased on bail, the law enforcement agency holdingthe person must make a reasonable attempt to notifythe alleged victim or a representative of the victim.

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the other person, including followingthat person, that is reasonably likely toharass, annoy, alarm, abuse, torment,or embarrass that person.

This description covers any conduct in which aperson could possibly engage and is even more broadthan in a 1983 Texas stalking statute that had been ruledunconstitutionally vague by the Fifth U.S. Circuit Courtof Appeals. The 1983 statute, which prohibitedcommunications by telephone or writing in “vulgar,profane, obscene or indecent language or in a coarseand offensive manner . . . to annoy or alarm therecipient,” did not adequately define what conduct wasprohibited or whose sensitivity must be offended,according to the federal court decision, Kramer v.Price, 712 F.2d 174 (5th Cir. 1983), that threw out the1983 law.

The Court of Criminal Appeals said of the 1993statute: “The words ‘annoy’ and ‘alarm’ remain in thestatute although they are now joined by the words‘harass,’ ‘abuse,’ ‘torment,’ and ‘embarrass.’ But, allthese terms are joined with a disjunctive ‘or,’ and thusdo nothing to limit the vagueness originally generatedby ‘annoy’ and ‘alarm.’ Moreover, the additional termsare themselves susceptible to uncertainties of meaning.”

The court said the law also lacks a reasonable personstandard, which is commonly used in laws to determinehow a reasonable person would act in similarcircumstances. Without a reasonable person standard orother clarifying provisions in the law, it is unclear fromwhose perspective — the victim, the accused, areasonable person or another — the probability that anaccused stalker’s conduct is “reasonably likely” toharass someone can be determined, the court said.

Link between stalking “threat” and“conduct.” The court also objected to the provisionthat requires one stalking act to involve a threat whilethe other act may involve certain types of conduct.One stalking incident must involve a threat to inflictbodily injury on the victim or to commit an offenseagainst the victim or the victim’s family or property.However, the other stalking instance can be conductdirected toward the victim, including following thevictim, that is reasonably likely to harass, annoy, alarm,abuse, torment or embarrass the victim. The courtdecided that the description of conduct is vague.

Court rules stalking lawunconstitutional

The Court of Criminal Appeals by 7-0 struck downthe state’s 1993 stalking statute as unconstitutionallyvague, effectively nullifying the state’s current stalkinglaw. Convictions under the 1993 law would be renderedvoid, and anyone convicted could be released fromcustody or other terms of supervision. Since firstoffenses under the 1993 law were misdemeanorspunishable by a maximum of one year in jail, first-timeoffenders would likely not be in jail or undersupervision now, but rendering the convictions voidcould affect punishment if the offender was laterconvicted of another crime. Convictions under thestalking law as it was revised in 1995 are also likely tobe challenged since most of the 1993 provisions struckdown by the court were not changed.

There is no statewide estimate of the number ofconvictions affected by the ruling. However, in the firstpart of 1996, before the court ruled the lawunconstitutional, about 300 stalking cases were filed inDallas County and about 36 in Travis County. Manyprosecutors have said they plan to refile charges againstpersons whose convictions were affected by the recentruling if the statute of limitations has not run out or thecircumstances fit another offense.

The court outlined three problems with the 1993statute: the vagueness of the language describing theprohibited conduct and the lack of a “reasonable person”standard for determining when conduct constitutesstalking; the lack of a requirement that two acts ofstalking have a link or “nexus;” and the law’s pre-1995requirement that one previous incident of stalking havebeen reported to law enforcement for an offense tooccur.

Vagueness and lack of a reasonable personstandard. Part of the statute describing the conductthat constitutes stalking contains vague language, and thelaw lacks a “reasonable person” or other standard ofinterpretation that would cure the vagueness problem,the court said.

The court criticized section (a)(7)(A) of the 1993stalking statute that partially defines the offense asbeing when a person:

on more than one occasion engages inconduct directed specifically toward

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The court outlined other states’ stalking statutes thathave been upheld, stressing limiting elements that arespecific enough that constitutionally protected conductis not outlawed. Some require that conduct consideredstalking involve a “continuity of purpose,” while otherslink conduct to a more specific or intense mental state— such as the intent to place someone in fear of bodilyinjury or to terrorize or frighten someone — ratherthan the “annoy” standard used in the Texas law.

The Texas law does not require that the two stalkingacts be related, and without a link between the two thelaw could chill protected First Amendment expression,the court said. “A political protester who crosses theline and makes a threat might find himself foreverbarred from engaging in peaceful, legitimate expressionfor fear of subjecting himself to punishment forstalking,” the court said. “The legislature maylegitimately punish the threat, but it should not bepermitted to hold someone’s First Amendment rightsforever hostage after he makes a threat.”

Report requirement. The 1993 stalking lawrequired the victim to have previously reported anincident of stalking to law enforcement authoritiesbefore an offense could occur. The court objected tothe requirement, saying the law does not require thatthe accused stalker know the victim has made a reportand, therefore, “does little or nothing to inform anordinary person that his conduct is forbidden becausethe subsection contains no culpable mental state.” Thecourt said, “The absence of a mental element rendersthe report requirement useless as a clarifying elementin an otherwise vague law . . . If the defendant isunaware of the report, then it cannot provide therequisite notice that he has violated the law.”

The report requirement was removed from thestalking statute in 1995.

Affirmative defense to prosecution. The courtalso said including an affirmative defense againstprosecution in the law for “conduct that consisted ofactivity in support of constitutionally or statutorilyprotected rights” does not save the law from beingunconstitutional because the affirmative defense merelyrestates well-settled constitutional restrictions. Theissue of what is protected speech versus what isstalking would have to be adjudicated case by case,creating another vagueness problem, the court said. Itwould also require people of ordinary intelligence andlaw enforcement officers to be First Amendmentscholars to know what is constitutionally protectedspeech, the court said.

Proposal to rewrite the stalking law

At least two bills have been filed to establish newstalking legislation and address the court’s concerns.Companion bills HB 2 by McCall and Danburg and SB97 by Moncrief would make it illegal for a person toengage in certain kinds of conduct generally associatedwith stalking. The conduct would have to occur onmore than one occasion and be pursuant to the samescheme or course of conduct directed specifically atanother person.

The conduct would have to meet these tests:

♦ the stalker would have to know or reasonablybelieve the victim would find it threatening;

♦ cause the victim or a member of the victim’s familyto fear bodily injury or death or that a crime would becommitted against the victim’s property; and

♦ cause a reasonable person to fear bodily injury ordeath for himself or herself, bodily injury or death fora member of the person’s family, or that an offensewould be committed against the person’s property.

The offense would be a Class A misdemeanor(maximum penalty of one year in jail and a $4,000fine) and repeat offenses a third-degree felony (two to10 years in prison and an optional fine of up to$10,000).

Supporters say: This proposal would helpprotect potential stalking victims and punish offenderswhile passing constitutional muster. A specificstalking statute is necessary to cover behavior notcovered by other laws and to intervene in situationsbefore violence escalates. This proposal would protectstalking victims by establishing necessary criteria fordefining the criminal offense of stalking and alsowould protect the accused by carefully screening outother, noncriminal behavior.

This proposal meets the court’s objections in threeways:

♦ it sets a standard for determining if stalking hasoccurred: victims or their families would have to beplaced in fear of injury or death, and a reasonableperson would have to fear injury or death;

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♦ it requires that stalking episodes be part of a courseof conduct, not just isolated or unrelated events; and

♦ the stalker would have to “know or reasonablybelieve” the victim would find the conduct threatening,thereby excluding someone who meant no harm to avictim.

The proposal attacks the problem identified by thecourt of whose perspective on the alleged crime is tobe considered. It requires both that a reasonable personmust fear injury or death and that the stalker know orreasonably believe the victim would find the conductthreatening. Prosecutors would have to prove in courtthat the stalking was part of a “course of conduct.”This would ensure that a person could not be considereda stalker for a one-time event or for unrelatedbehavior. Also, the proposal no longer specifies theprohibited conduct in terms the court found vague, suchas conduct reasonably likely to “annoy,” “alarm” or“embarrass.”

The stalking statute should not include an affirmativedefense to prosecution for constitutionally or statutorilyprotected rights because these rights are alwaysprotected without specific mention in the statute. TheCourt of Criminal Appeals ruling said people are alwayson notice that constitutionally protected conduct isexempt from prosecution and should not have to beconstitutional scholars to know what conduct isprotected speech. The proposal prohibits only criminalbehavior and is specific enough that it could not beused against constitutionally protected activities such aspicketing.

Opponents say: It is unnecessary to replace thestalking statute thrown out by the Court of CriminalAppeals with another specific offense for stalking. Thesituations described in these proposals are alreadycovered by Penal Code provisions on harassment,assault, terroristic threat, disorderly conduct or others.Establishing a specific offense for stalking would be astep backward from recent Penal Code revisions thatestablished broad categories of offenses and eliminatedmany special offenses and separate provisions.

The provision in the proposal requiring behavior tobe part of the same “course of conduct” is vague andcould lead to persons being accused of stalking forunrelated events that prosecutors are able to somehowstring together.

The definition of stalking in these proposals is stilltoo broad and could possibly undermine the FirstAmendment rights of lawful demonstrators, such asunion pickets or abortion clinic protestors, whom somecould consider threatening.

Other opponents say: The proposed revisionswould not adequately protect stalking victims whocould still be terrorized by a series of events before anoffense under the statute actually occurred. Stalkerswould be able to intimidate and harass victims beforethe criminal justice system could intervene. Victimsneed protection before they are seriously threatened orharmed by stalkers.

— by Kellie Dworaczyk