# Sanchez v. State > Court of Criminal Appeals of Texas · June 30, 1999 · 995 S.W.2d 677 URL: https://www.frixlaw.com/law-library/cases/9778469 ## Case - **Full name:** Arthur Garcia SANCHEZ, Appellant, v. the STATE of Texas - **Court:** Court of Criminal Appeals of Texas - **Decided:** June 30, 1999 - **Citations:** 995 S.W.2d 677; 80 Fair Empl. Prac. Cas. (BNA) 267; 1999 Tex. Crim. App. LEXIS 89; 1999 WL 435199 - **Precedential status:** Published - **Opinion:** Concurrence by Mansfield - **Judges:** Keller, McCormick, Meyers, Mansfield, Price, Holland, Johnson, Keasler, Womack - **Cited by:** 110 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9778469 ## How later opinions describe it (automated extraction) - holding that the term “unwelcome” applied to all proscribed forms of “sexual harassment” listed in Section 39.03(c) of the Penal Code because that construction made the most sense in the context of the overall statutory scheme - holding that a person who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others - applying the rule of construction in TEX. GOV’T CODE ANN. 8 3 11 .Ol 1(a)-(b) (Vernon 2005) to ‘Both offenses are Class A misdemeanors. TEX. PEN. CODEANN. 5s 36.07(c), .09(b) (Vernon 2003). The punishment for a Class A misdemeanor is a fine not exceeding $4,000, confinement in… ## Opinion text MANSFIELD, J., delivered a concurring opinion. I join the opinion of the majority but write further for two reasons: (1) To provide a more detailed description as to the events that gave rise to this cause; and (2) To try to clarify the difference between “sexual harassment” that is in bad taste, poor manners or otherwise might be that basis of civil liability and “sexual harassment” that may subject the actor to potential criminal liability under Texas Penal Code § 39.03. 1 Appellant, during the period of time in which the events resulting in the charge against him took place, was chairman of the Board of VIA, the public transportation system for the City of San Antonio. Complainant was employed by the Board as an assistant for governmental affairs. As such, complainant reported to appellant as her de facto supervisor. At trial, the complainant testified appellant began making sexual advances toward her. 2 These advances began in June of 1994. During August of 1994, according to the complainant, appellant’s behavior escalated into requests for sex (complainant was married at the time, a fact known to appellant), or an affair, and threats that should she not comply she could lose her job. She declined his advances. Appellant told her he had had an affair with her predecessor and she had to do likewise. The complainant testified appellant repeated his demand that they have an affair during a business trip to Washington, D.C. in September of 1994. When she declined his advances again, complainant testified appellant gave another employee of VIA the larger office that had been promised to her by appellant. During October of 1994, complainant testified, she spoke to a coworker, Zamora, about the situation and thereafter appellant’s sexual advances stopped for awhile. She also spoke with VIA’s in-house EEOC person, who, she testified, was not helpful and told her, in effect, appellant was very powerful. Complainant subsequently testified appellant’s advances became more frequent and more intense in December of 1994. On several occasions he told her she would be fired if she refused to have sex with him, and he would touch her on various parts of her body. He also belittled her marital status, talked about her legs, and, on one occasion, said a-bruise on her leg was a result of rough sex. Complainant testified she continually told him to leave her alone; his response was, essentially, he was the chairman, had lots of power, and could do whatever he wanted. During January of 1995, complainant told Zamora about appellant’s latest advances; Zamora told complainant she should get appellant’s advances on tape *691 but, other than that, given appellant’s power, there was not much she could do about it. 3 During February of 1995, complainant filed complaints with the EEOC. On March 10,1995, complainant give a written statement to a San Antonio Police detective concerning this matter, describing the events that gave rise to the charge filed against appellant. Texas Penal Code § 6.02 states that a person does not commit an offense unless he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct delineated in the definition of the offense. The only way that a definition of an offense may dispense with the requirement of a culpable mental state is if that definition plainly dispenses with any mental element. Tex. Penal Code, § 6.02(b). Section 39.03(a)(3) clearly describes the mental state necessary for an individual to commit the offense of official oppression by sexual harassment: the actor must intentionally subject another to “sexual harassment.” Furthermore, “sexual harassment” is carefully and specifically defined in § 39.03(c) as “unwelcome sexual advances.... ” Appellant’s conduct in the present case was blatantly intentional: testimony established he continually made advances toward the complainant despite her repeated pleas for him to stop. Such behavior is commonly referred to as “quid pro quo” sexual harassment, i.e., the harasser tells the harassee that failure to submit will result in adverse employment-related consequences for the harassee. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.1982); Burlington Industries v. Elleith, 524 U.S. 742 , 118 S.Ct. 2257 , 141 L.Ed.2d 633 (1998). Complainant sustained adverse job-related consequences due to her refusal to submit, namely, the loss of a raise, a bigger office and secretarial assistance. She also was threatened with the loss of her job itself. There is little doubt that such quid pro quo sexual harassment suffered by complaint might well give rise to redress under civil law. 4 Section 39.03 criminalizes only quid pro quo sexual harassment that is “intentional.” A statute will survive attack as being unconstitutionally vague provided it gives fair warning to the defendant as to what conduct it proscribes. New York v. Ferber, 458 U.S. 747 , 102 S.Ct. 3348 , 73 L.Ed.2d 1113 (1982). Section 39.03 is not unconstitutionally vague, especially as applied to appellant. Section 39.03 criminalizes only intentional sexual harassment. Furthermore, the intentional sexual harassment must have the added component of a threat of loss of job-related rights (or other protected rights) made by the harasser and directed at the harassee. For there to be a conviction under § 39.03, the State must prove the defendant’s actions were intentional and that the victim was threatened with the loss of a protected right or privilege should she not submit to the defendant’s demands. Testimony at trial established the required culpable mental state: appellant intentionally persisted in making unwelcome sexual advances despite complainant’s requests that he cease doing so. Testimony at trial also established appellant told complainant that failure to comply with his demands would result in loss of her job (she did lose a promised raise and other job-related benefits), which meets the requirement of § 39.03(c) that the sexual harassment involve a threat to a valuable right or privilege of the victim (such as a job) should she not submit. Certainly, § 39.03(c) does not criminalize protected speech, such as asking a *692 coworker out for a date, making a comment about someone’s dress or even what might amount to hostile work environment sexual harassment. In effect, all § 39.03(c) does is criminalize what is intentional sexual harassment coupled with extortion: either do what I want or else something bad will happen to you. It is difficult to see how this statute is either vague or runs afoul of the First Amendment, given how narrowly-drafted it really is. With these comments, I join the opinion of the Court. . Texas Penal Code, § 39.03(a)(3) provides that a person commits the offense of official oppression if he "intentionally subjects another to sexual harassment.” Section 39.03(c) defines sexual harassment as "unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, submission to which is made a term or condition of a person's exercise or enjoyment of any right, privilege, power or immunity, either explicitly or implicitly.” Official oppression is a Class A misdemeanor. . Complainant's testimony consists of over 100 pages of the trial record. The first sexual advances occurred on a business trip to Port Aransas. . Other testimony established complainant never received a promised raise, secretarial support or more office space. . The other major category of sexual harassment is so-called “hostile work environment” sexual harassment. Examples of hostile work environment sexual harassment might include leaving sexually-suggestive materials around the workplace, making comments on fellow employees’ appearance and/or dress, etc. It does not involve any threats of loss of employment or other rights or privileges. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9778469. Public record. Not legal advice.