Texas Department of Insurance and Cassie Brown, in Her Official Capacity as Commissioner of the Texas Department of Insurance v. Stonewater Roofing, Ltd. Co.

Supreme Court of Texas

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No. 22-0427

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Texas Department of Insurance and Cassie Brown, in her Official

Capacity as Commissioner of the Texas Department of Insurance,

Petitioners,

v.

Stonewater Roofing, Ltd. Co.,

Respondent

═══════════════════════════════════════

On Petition for Review from the

Court of Appeals for the Seventh District of Texas

═══════════════════════════════════════

Argued October 26, 2023

JUSTICE DEVINE delivered the opinion of the Court, in which Chief

Justice Hecht, Justice Lehrmann, Justice Busby, Justice Bland, Justice

Huddle, and Justice Young joined.

JUSTICE BLACKLOCK filed an opinion concurring in the judgment,

in which Justice Boyd joined.

JUSTICE YOUNG filed a concurring opinion.

Insurance adjusters investigate and help effectuate the

settlement of insurance claims. The Texas Insurance Code regulates

three kinds of adjusters: public, independent, and company.1 Public

insurance adjusters represent the insured in the claims-settlement

process; the others work on behalf of the insurer.2 Public insurance

adjusters, like the others, must be licensed and are prohibited from

acting as both contractor and adjuster in connection with a claim for loss

or damage to covered real or personal property.3 Texas is among more

than forty states with similar regulations.4

In this declaratory judgment action, a roofing contractor that is

not a licensed public insurance adjuster sued to invalidate Texas’s

licensing and dual-capacity regulations, alleging the laws violate free

speech and due process rights guaranteed by the First and Fourteenth

Amendments of the United States Constitution. In the trial court, the

state regulator prevailed on a Rule 91a motion to dismiss, which

asserted that (1) the First Amendment is inapplicable because the

challenged laws regulate professional conduct, not speech, and (2) the

roofer failed to state cognizable void-for-vagueness claims under the

Fourteenth Amendment’s Due Process Clause. We agree on both counts.

The challenged statutes do not regulate or restrict speech but,

rather, representative capacity with a nonexpressive objective:

employment to “act[] on behalf of an insured in negotiating for or

1 See TEX. INS. CODE §§ 4101.001–4102.208.

2 Compare id. §§ 4102.001(3) (defining “public insurance adjuster”),

.002 (general exemptions), with id. §§ 4101.001(a)(1) (defining “adjuster” as

including both independent contractors and insurance company employees),

.002 (general exemptions).

3 See id. §§ 4102.051, .158, .163; cf. id. §§ 4101.001(a), .051, .251.

4 See infra note 17.

2

effecting the settlement of a claim[.]”5 Sections 4102.051(a) and

4102.163(a) of the Insurance Code are conventional licensing

regulations that are triggered by the role a person plays in a

nonexpressive commercial transaction, not what any person may or may

not say. The statutes are also clear enough in proscribing the roofer’s

alleged conduct to preclude both its as-applied and facial vagueness

challenges. We therefore reverse the court of appeals’ contrary judgment

and render judgment dismissing the roofer’s claims.

I. Background

In 2003, the Legislature adopted laws governing “public

insurance adjusters” to close a gap in the regulatory scheme and address

concerns that unscrupulous contractors were preying on unwary Texans

in the aftermath of catastrophic weather events.6 Now codified as

Chapter 4102 of the Insurance Code, the Public Insurance Adjusters Act

defines the profession of “public insurance adjuster” as:

5 See TEX. INS. CODE § 4102.001 (defining “public insurance adjuster”).

6 See Act of June 1, 2003, 78th Leg., R.S., ch. 207, § 3.02, 2003 Tex. Gen.

Laws 962, 964-76 (regulating “public insurance adjusters” effective June 11,

2003) (current version at TEX. INS. CODE §§ 4102.001–.208); S. Comm. on Bus.

& Com., Bill Analysis, Tex. S.B. 127, 78th Leg., R.S. (2003); H. Rsch. Org., Bill

Analysis, Tex. S.B. 127, 78th Leg., R.S. (2003).

Laws regulating insurer-side adjusters had already been in effect for

three decades at that point. Act of May 26, 1973, 63d Leg., R.S., ch. 407,

§§ 1–23, 1973 Tex. Gen. Laws 1045 (regulating insurance “adjusters”) (current

version at TEX. INS. CODE §§ 4101.001–.251). Those laws have been amended

and expanded from time to time and are now codified as sections 4101.001

through 4101.251 of the Insurance Code.

3

(A) a person who, for direct, indirect, or any other

compensation:

(i) acts on behalf of an insured in negotiating for or

effecting the settlement of a claim or claims for loss

or damage under any policy of insurance covering

real or personal property; or

(ii) on behalf of any other public insurance adjuster,

investigates, settles, or adjusts or advises or assists

an insured with a claim or claims for loss or damage

under any policy of insurance covering real or

personal property; or

(B) a person who advertises, solicits business, or holds

himself or herself out to the public as an adjuster of

claims for loss or damage under any policy of insurance

covering real or personal property.7

Like other insurance adjusters,8 a person employed or seeking

employment as an insured’s representative in the settlement of a

property-damage claim must be licensed.9

To secure a license to adjust insurance claims on an insured’s

behalf, a person must have sufficient experience or training in the

assessment of property values and losses; be sufficiently informed about

the terms and effects of typical insurance contracts; and successfully

7 TEX. INS. CODE § 4102.001(3). “‘Person’ includes an individual, firm,

company, association, organization, partnership, limited liability company, or

corporation.” Id. § 4102.001(2).

8 See id. §§ 4101.001(a), .051.

9 Id. § 4102.051(a). Beyond the general exemptions set out in section

4102.002, the following are specifically excused from the licensing

requirement: (1) licensed attorneys with sufficient training or experience in

assessment of property values and losses; and (2) “a person licensed as a

general property and casualty agent or personal lines property and casualty

agent under Chapter 4051 while acting for an insured concerning a loss under

a policy issued by that agent.” Id. § 4102.051(b).

4

pass an examination of the applicant’s technical competence, basic

knowledge of relevant topics, and understanding of governing law and

ethical standards.10 Unlicensed persons may not advertise, solicit

business, or hold themselves out to the public as an insurance adjuster.11

Certain conflicts of interest are also prohibited.12 Among them, a

contractor, even if licensed as a public insurance adjustor, “may not act

as a public adjuster or advertise to adjust claims for any property for

which the contractor is providing or may provide contracting

services[.]”13 In other words, a person may not serve in a dual role—as

both contractor and adjuster—in connection with property subject to an

insurance claim or falsely advertise an ability to do so. A person

violating the statute is subject to administrative, criminal, and civil

penalties.14

Stonewater Roofing, Ltd. is a professional contractor that

provides roofing services to residential and commercial customers.

Stonewater is not licensed as a public insurance adjuster but reportedly

claims to have extensive experience in facilitating settlement of

10 Id. §§ 4102.053, .057.

11 Id. §§ 4102.001(3)(B), .051(a).

12 Id. §§ 4102.158, .163(a); see id. §§ 4102.151–.164 (setting out other

prohibited conduct).

13 Id. § 4102.163(a); accord id. § 4102.158 (prohibiting a licensed public

adjuster from engaging in conflicts of interest, including “participat[ing]

directly or indirectly in the reconstruction, repair, or restoration of damaged

property that is the subject of a claim adjusted by the license holder”).

14 Id. §§ 4102.201–.208; see TEX. BUS. & COM. CODE § 17.50 (consumer

remedies under the Texas Deceptive Trade Practices–Consumer Protection

Act).

5

insurance claims.15 Website advertising describes Stonewater as an

“Insurance Specialist[]” and “The Leader In Insurance Claim Approval”

with “a system” it has “developed” to “help[] [its] customers settle their

insurance claims as quickly, painlessly and comprehensively as

possible.” The roofer also touts itself as “highly experienced with the

insurance claims process,” having “done thousands of roof restorations

due to insurance claims over the years.” Along those lines, the

company’s customer contracts specifically “authorize” Stonewater “to

negotiate on [the customer’s] behalf with [the] insurance company and

upon insurance approval to do the work specified.”

After a dissatisfied commercial customer sued Stonewater for

alleged violations of Chapter 4102, Stonewater filed a collateral

declaratory-judgment suit against the Texas Department of Insurance

and its Commissioner16 (collectively, TDI) to invalidate the licensing

requirement in section 4102.051(a) and the dual-capacity prohibition in

section 4102.163(a).17 Stonewater contends that these provisions, both

15 When reviewing a motion to dismiss under Rule 91a, we take all

pleaded facts as true. See TEX. R. CIV. P. 91a(1).

16 Commissioner Cassie Brown was automatically substituted as a

defendant when her predecessor, Kent Sullivan, ceased to hold office. See TEX.

R. APP. P. 7.2(a).

17 “[I]n so many things, Texas stands alone,” Texas v. EPA, 829 F.3d

405, 431 (5th Cir. 2016), but not here: the vast majority of other states have

comparable public insurance adjuster regulations. See ARIZ. REV. STAT. ANN.

§§ 20-321(1), 20-321.01; CAL. INS. CODE §§ 15006, 15007, 15028; COLO. REV.

STAT. §§ 10-2-103(8.5), 10-2-417(a), (g), (h); CONN. GEN. STAT. §§ 38a-723,

38a-725; DEL. CODE ANN tit. 18, §§ 1750(4), 1751(a), 1758(b)(6); FLA. STAT.

§§ 626.112(1)(a), .852(2); .854(1), .869, .8795; GA. CODE ANN. §§ 33-23-1(13),

33-23-4(a)(4), 33-23-43.8(k); HAW. REV. STAT. §§ 431:9-105, 431:9-201(a);

IDAHO CODE §§ 41-5802(6), 41-5803; 215 ILL. COMP. STAT. §§ 5/1510, 5/1515;

IND. CODE §§ 27-1-27-1(g), 27-1-27-2, 27-1-27-15; IOWA CODE §§ 522C.2,

6

facially and as applied to the roofer’s alleged conduct, infringe speech

protected by the First Amendment and are void for vagueness under the

Fourteenth Amendment’s due process clause.18

522C.4; KAN. STAT. ANN. §§ 40-5502(l), 40-5503; KY. REV. STAT. ANN.

§§ 304.9-020(20), 304.9-430(1), 304.9-4331(6); LA. STAT. ANN. §§ 22:1692(7)-(8),

22:1693, 22:1706; ME. STAT. tit. 24-a, §§ 1402(1), 1411; MD. CODE ANN., INS.

§§ 10-401(g), 10-403; MASS. GEN. LAWS. ch. 175, § 172; MICH. COMP. LAWS

§ 500.1222, 500.1224(4), 500.1227; MINN. STAT. §§ 72B.02(6), 72B.03,

72B.135(4); MISS. CODE ANN. §§ 83-17-501(e), 83-17-503; MO. REV. STAT.

§§ 325.010(2), 325.015, 325.055; MONT. CODE ANN. §§ 33-17-102(1), (21),

33-17-301; NEB. REV. STAT. §§ 44-9203(9), 44-9204, 44-9217; NEV. REV. STAT.

§§ 684A.020, 684A.030(2), 684A.040; N.H. REV. STAT. ANN. §§ 402-D:2(III),

402-D:3, 402-D:17; N.J. STAT. ANN. §§ 17:22B-2, 17:22B-3; N.M. STAT. ANN.

§§ 59A-13-2(6), 59A-13-3, 59A-13-13; N.Y. INS. LAW §§ 2101(g)(2), 2108; N.C.

GEN. STAT. §§ 58-33A-5(7), 58-33A-10; N.D. CENT. CODE §§ 26.1-26.8-02(5),

26.1-26.8-03, 26.1-26.8-15; OHIO REV. CODE ANN. §§ 3951.01(B), 3951.02;

OKLA. STAT. tit. 36, §§ 6202(2), (4), 6207, 6220.1(A); OR. REV. STAT.

§§ 744.502(1), 744.505; 63 PA. CONS. STAT. §§ 1601, 1602, 1605(d); 27 R.I. GEN.

LAWS §§ 27-10-1.1(i), 27-10-1.2; S.C. CODE ANN. §§ 38-48-10, 38-48-20,

38-48-130; TENN. CODE ANN. §§ 56-6-902(8), 56-6-903; UTAH CODE ANN.

§§ 31A-26-102(5), (8), 31A-26-201, 31A-26-312; VT. STAT. ANN. tit. 8,

§§ 4791(4), 4793; VA. CODE ANN. §§ 38.2-1845.1, 38.2-1845.2, 38.2-1845.12(C);

WASH. REV. CODE §§ 48.17.010(1)(b), 48.17.060; W. VA. CODE §§ 33-12B-1(i),

33-12B-2; WIS. STAT. §§ 629.01(1), (5), 629.02, 629.10; WYO. STAT. ANN.

§§ 26-9-202(xxiii), 26-9-203.

Some states permit similar conflicts of interest with disclosure to the

insured or on the principal’s written consent. See HAW. REV. STAT.

§ 431:9-244(e); IDAHO CODE §§ 41-5815(4), 41-5818; 215 ILL. COMP. STAT.

5/1575(d), 5/1590; IOWA ADMIN. CODE r. 191-55.14(4), 191-55.17; KAN. STAT.

ANN. §§ 40-5514(d), 40-5516; MD. CODE ANN., INS. §§ 10-411, 10-414; MONT.

CODE ANN. 33-17-302(4); NEV. REV. STAT. § 684A.165; N.Y. INS. LAW

§ 2108(s)(2); N.C. GEN. STAT. §§ 58-33A-65(d), 58-33A-80(d); TENN. CODE ANN.

§ 56-6-917(d).

18 See U.S. CONST. amends. I, XIV. Stonewater’s live petition generally

asserts that the laws also violate “corresponding provisions” of the Texas

Constitution but only prays for a declaration that the laws violate the United

States Constitution.

7

After answering, TDI filed a Rule 91a dismissal motion,19 arguing

that Stonewater’s constitutional claims have no basis in law because the

statutes (1) regulate professional conduct, which is not protected by the

First Amendment, and (2) clearly proscribe Stonewater’s alleged

conduct, precluding its Fourteenth Amendment as-applied and facial

vagueness challenges as a matter of law. The trial court sided with TDI

and dismissed the suit.

The court of appeals reversed and remanded.20 First, the court

held that the regulations trigger First Amendment scrutiny because

“[t]he business of public insurance adjusting necessarily and

inextricably involves speech” and “any conduct under the statute

consists of communicating.”21 Going beyond the scope of the Rule 91a

motion, the court further concluded that the regulations are subject to

strict scrutiny as both content- and speaker-based speech restrictions.22

In the alternative, the court determined that the First Amendment

would still require intermediate scrutiny “even if these prohibitions

restrict speech only incidentally in the regulation of non-expressive

professional conduct.”23 Second, the court held that Stonewater’s

vagueness challenges survived because (1) TDI’s dismissal motion

“failed to fully develop its argument” on the roofer’s facial vagueness

challenge and (2) the Public Insurance Adjusters Act does not “clearly

19 See TEX. R. CIV. P. 91a (mandating early dismissal if a cause of action

has no basis in either law or fact).

20 641 S.W.3d 794, 803, 805 (Tex. App.—Amarillo 2022).

21 Id. at 802.

22 Id.

23 Id. at 803.

8

proscribe[]” Stonewater’s alleged website and contract statements,

which do not equate to “advertising or soliciting oneself as an adjuster

of claims” or as “acts on behalf of an insured in negotiating for or

effecting the settlement of a claim.”24

We granted TDI’s petition for review to address questions about

the proper construction and constitutional implications of state statutes

regulating public insurance adjusters.25

II. Discussion

Rule 91a authorizes dismissal of a cause of action that “has no

basis in law or fact.”26 TDI’s dismissal motion alleged that Stonewater’s

First and Fourteenth Amendment claims are legally unsound. Under

Rule 91a, “a cause of action has no basis in law if the allegations, taken

as true, together with inferences reasonably drawn from them, do not

entitle the claimant to the relief sought.”27 In addressing that question,

“the court may not consider evidence” and “must decide the motion

based solely on the pleading of the cause of action, together with any

pleading exhibits permitted by Rule 59.”28 Whether a defendant is

entitled to dismissal on the pleadings is a legal question we review de

24 Id. at 804-05.

25 To aid the Court, various amici curiae have submitted briefs weighing

in on the debate and supporting one side or the other: American Property

Casualty Insurance Association; Coalition Against Insurance Fraud; Institute

for Justice; Insurance Council of Texas; National Association of Mutual

Insurance Companies; National Association of Public Insurance Adjusters;

Prof. Rodney A. Smolla; Texas Association of Public Insurance Adjusters; and

Texas Civil Justice League.

26 TEX. R. CIV. P. 91a(1).

27 Id.

28 TEX. R. CIV. P. 91a(6).

9

novo.29 The issues here are whether Stonewater’s pleadings state

cognizable speech and due process claims under the First and

Fourteenth Amendments. We agree with the trial court that they do

not.

A. First Amendment: Free Speech

The First Amendment, applied to states through the Fourteenth

Amendment, prohibits laws abridging freedom of speech.30 As one of

“our most cherished liberties,”31 the right to speak or not speak is

afforded robust protection. Except for certain categories of historically

unprotected speech,32 the government cannot “restrict expression

because of its message, its ideas, its subject matter, or its content” unless

the regulations survive an exacting standard of judicial scrutiny.33 The

29 City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016).

30 U.S. CONST. amends. I, XIV; see Reed v. Town of Gilbert, 576 U.S. 155,

163 (2015).

31 Pittsburgh Press Co. v. Pittsburgh Comm’n on Hum. Rels., 413 U.S.

376, 381 (1973).

32 Among the “historic and traditional categories” of constitutionally

proscribable speech are obscenity, defamation, fraud, incitement, and speech

integral to criminal conduct. United States v. Stevens, 559 U.S. 460, 468 (2010)

(collecting cases and quoting Simon & Schuster, Inc. v. Members of N.Y. State

Crime Victims Bd., 502 U.S. 105, 127 (1991) (Kennedy, J., concurring)).

33 Reed, 576 U.S. at 163 (quoting Police Dep’t of Chi. v. Mosley, 408 U.S.

92, 95 (1972)); Barr v. Am. Ass’n of Pol. Consultants, Inc., 140 S. Ct. 2335, 2346

(2020) (plurality op.) (“Content-based laws are subject to strict scrutiny.”); see

Texas v. Johnson, 491 U.S. 397, 404-06 (1989) (expressive conduct with

sufficient communicative elements is subject to heightened First Amendment

scrutiny); Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557,

561-66 (1980) (heightened, but less than strict, judicial scrutiny applies to

regulation of otherwise lawful “speech proposing a commercial transaction”

(quoting Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 455-56 (1978))); cf. Hill

v. Colorado, 530 U.S. 703, 725-26 (2000) (content-neutral time, place, and

10

government has a much freer hand in regulating commerce and

conduct;34 such laws generally do not offend the First Amendment and

are often upheld under rational-basis review.35

In the procedural posture of this case, the appropriate degree of

judicial scrutiny is not our concern. Nor are we tasked with determining

whether the challenged statutes pass constitutional muster. As framed

by the Rule 91a motion, the question is more limited and more

fundamental: whether the First Amendment applies at all. The answer

depends on whether the challenged statutes are directed at protected

speech (as Stonewater contends) or not (as TDI maintains).

Construing the statutory language under well-established

principles,36 we have little trouble concluding that sections 4102.051(a)

manner speech regulations must be “narrowly tailored” to “governmental

interests that are significant and legitimate”).

34 See, e.g., Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 108

(1992) (observing that states “‘have broad power to establish standards for

licensing practitioners and regulating the practice of professions’” (quoting

Goldfarb v. Va. State Bar, 421 U.S. 773, 792 (1975))).

35 See, e.g., Nat’l Inst. of Fam. & Life Advocs. v. Becerra, 585 U.S. 755,

769 (2018) (laws directed at commerce or conduct typically do not implicate the

First Amendment); FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313-14 (1993)

(regulations in areas of social and economic policy that neither employ a

“suspect” classification nor infringe on constitutional rights will be upheld

against equal protection challenge if there is a rational basis for the

classification); Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 488 (1955)

(applying rational-basis review to an economic regulation under the Due

Process Clause); see also, e.g., Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S.

356, 367 (2001) (upholding law on rational-basis review); Heller v. Doe by Doe,

509 U.S. 312, 320 (1993) (same).

36 See Aleman v. Tex. Med. Bd., 573 S.W.3d 796, 802 (Tex. 2019)

(“Statutory interpretation involves questions of law that we consider de

novo[.]”); see also City of Austin v. Quinlan, 669 S.W.3d 813, 821 (Tex. 2023)

(statutory terms carry their common, ordinary meaning absent a statutory

11

and 4102.163(a) do not regulate speech protected by the First

Amendment. The parties’ debate about that matter rests largely on a

misreading of the public adjuster laws, and TDI wins the day because

those statutes operate much more narrowly than Stonewater fears.

Section 4102.051(a)’s licensing requirement does not, by its own

terms, regulate protected expression: “A person may not act as a public

insurance adjuster in this state or hold himself or herself out to be a

public insurance adjuster in this state [without a license].”37 Section

4102.051(a) prescribes what a person must do: get a license. The bare

mandate of a license pertains to status or capacity, neither of which is

speech. Section 4102.051(a) also prohibits holding oneself out as a

public insurance adjuster if unlicensed, which involves expression. But

there is no question that if the State may permissibly require a license

to engage in the profession, it may permissibly prohibit false commercial

speech about the same.38

definition or an absurd result); El Paso Educ. Initiative, Inc. v. Amex Props.,

LLC, 602 S.W.3d 521, 531-32 (Tex. 2020) (“[W]e read the statute to give effect

to every word.”); Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015)

(“Our objective in construing a statute is to give effect to the Legislature’s

intent, which requires us to first look to the statute’s plain language.”); cf.

Antonin Scalia & Bryan A. Garner, READING LAW: THE INTERPRETATION OF

LEGAL TEXTS 247-51 (2012) (even if a statute is ambiguous, the “constitutional

doubt” canon reflects “a judicial policy” that “[a] statute should be interpreted

in a way that avoids placing its constitutionality in doubt”).

37 TEX. INS. CODE § 4102.051(a).

38 See, e.g., In re R.M.J., 455 U.S. 191, 203 (1982) (inherently misleading

or false advertising is not protected by the First Amendment and “may be

prohibited entirely”); Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n,

447 U.S. 557, 563-64 (1980) (“The government may ban . . . commercial speech

related to illegal activity.”); Pittsburgh Press Co. v. Pittsburgh Comm’n on

Hum. Rels., 413 U.S. 376, 389 (1973) (“Any First Amendment interest which

12

The same is true for section 4102.163(a)’s dual-capacity

prohibition. Whether licensed or not, “[a] contractor may not act as a

public adjuster or advertise to adjust claims for any property for which

the contractor is providing or may provide contracting services.”39 This

is not a speech constraint. Section 4102.163(a) dictates what a

contractor may not do: undertake a business engagement giving rise to

a conflict of interests.40 Regulated persons are permitted to provide

either contracting services or adjusting services but not both types of

services for the same property on the same claim. Section 4102.163(a)

compels an economic choice about which line of business to pursue; it

does not purport to dictate, proscribe, or otherwise limit expression.

Like the licensing requirement, the dual-capacity prohibition

circumscribes nonexpressive commercial activity. The provision’s only

speech-related aspect prohibits advertising that is illegal under the

statute and, therefore, not protected by the First Amendment.41

might be served by advertising an ordinary commercial proposal and which

might arguably outweigh the governmental interest supporting the regulation

is altogether absent when the commercial activity itself is illegal and the

restriction on advertising is incidental to a valid limitation on economic

activity.”).

39 TEX. INS. CODE § 4102.163(a).

40 The Act underscores the conflicting interests that arise in a

dual-capacity situation by recognizing the existence of a fiduciary relationship

between the insured and a public insurance adjuster with respect to the

proceeds of any funds the latter receives or holds on a claim. Id. § 4102.111(a)

(“All funds received as claim proceeds by a license holder acting as a public

insurance adjuster are received and held by the license holder in a fiduciary

capacity. A license holder may not divert or appropriate fiduciary funds

received or held.”).

41 See supra note 38 and accompanying text.

13

None of this is genuinely contested. The nub of the dispute

concerns the scope of the defined profession itself, which in turn

determines whether the licensing and dual-capacity laws apply to a

commercial engagement. In section 4102.001(3), the Public Insurance

Adjusters Act subjects a person to regulation as a “public insurance

adjuster” if that person “[1] for direct, indirect, or any other

compensation . . . [2] acts on behalf of an insured [3] in negotiating for

or effecting [4] the settlement of a claim or claims for loss or damage

under any policy of insurance covering real or personal property.”42

Stonewater construes “negotiating for or effecting” as entirely

communicative and thus dispositive of the definition’s expressive aim.

But this selective reading of the statutory language misses the forest for

the trees. The gravamen of the defined profession is the role a person

plays in a nonexpressive commercial transaction, not what anyone may

or may not say. Giving effect to all of its language, section 4102.001(3)

targets nonexpressive commercial activities, not speech.

As defined, the profession’s actuating activity and dominant focus

is employment in a representative (or agency) capacity.43 Under state

42 TEX. INS. CODE § 4102.001(3)(A)(i). The defined profession also

extends to other activities, including “a person who advertises, solicits

business, or holds himself or herself out to the public as an adjuster of claims,”

but whether those additional activities are within the statute’s scope turns

entirely on subsection (3)(A)(i)’s definition. See id. § 4102.001(3)(A)(ii)

(including in the definition a person employed to adjust, advise, or assist in the

adjustment of an insurance claim on behalf of a public insurance adjuster),

(3)(B) (extending the definition to a person publicly claiming to be an insurance

adjuster).

43 The statute’s emphasis on an actor’s capacity is confirmed by the Act’s

exemptions, which exclude from the regulation’s ambit certain transaction

participants when they are acting in other capacities. Id. § 4102.002.

14

law, assuming authority to act “on behalf of” someone else gives rise to

a status of legal significance that carries material consequences for the

principal and imposes corresponding burdens on the agent.44 Status and

capacity are not speech. Regulation of agency capacity may not

invariably suffice to place a professional regulation beyond First

Amendment scrutiny, but our conclusion that such scrutiny is not

required here is sealed by the profession’s notably discrete objective:

settlement of a claim under an insurance contract. In this context,

“settlement” refers to “payment, satisfaction, or final adjustment” of an

insurance claim,45 which is not speech.

It is true that “negotiating for” and “effecting” a settlement can

involve communicative endeavors.46 And it is true that both the

44 See, e.g., Biggs v. U.S. Fire Ins. Co., 611 S.W.2d 624, 629 (Tex. 1981)

(holding that an agent acting within the scope of apparent authority binds the

principal); see also Lesley v. Veterans Land Bd. of State, 352 S.W.3d 479, 490

(Tex. 2011) (“A fiduciary duty . . . for agent and principal . . . ‘requires a party

to place the interest of the other party before his own[.]’” (quoting Crim Truck

& Tractor Co. v. Navistar Int’l Transp. Corp., 823 S.W.2d 591, 594 (Tex.

1992))); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 200 (Tex. 2002)

(“[A]gency is also a special relationship that gives rise to a fiduciary duty. . . .

‘The agreement to act on behalf of the principal causes the agent to be a

fiduciary, that is, a person having a duty, created by his undertaking, to act

primarily for the benefit of another in matters connected with his

undertaking.’” (emphasis added) (quoting RESTATEMENT (SECOND) OF AGENCY

§ 13, cmt. a (AM. L. INST. 1958))); RESTATEMENT (THIRD) OF AGENCY § 1.01,

cmt. e (AM. L. INST. 2005) (“[An] agent owes a fiduciary obligation to the

principal.”).

45 BLACK’S LAW DICTIONARY at 1650 (11th ed. 2019); see, e.g., EBS Sols.,

Inc. v. Hegar, 601 S.W.3d 744, 758 (Tex. 2020) (when construing a statute,

undefined terms carry their ordinary meaning as informed by the context of

the statute as a whole).

Neither “negotiating” nor “effecting” is necessarily nor unfailingly

46

communicative. “Effect” means “[t]o bring about; to make happen,” BLACK’S

15

actuating activity (representative capacity) and the commercial

objective (settlement of an insurance claim) may be manifested or

carried out by those activities. But under a plain reading of the statute,

speech is not remotely the defining characteristic of the public insurance

adjuster’s job.

In fact, settling a property-loss claim implicates a great deal of

nonexpressive activity that the Public Insurance Adjusters Act

regulates only in the context of an agency relationship: evaluating

insurance coverage, assessing property value, assessing property

damage, and calculating repair costs.47 When an agency relationship

has been established, communicating with the insurer and insured and

LAW DICTIONARY at 651, and in this context could include myriad

nonexpressive actions such as signing or exchanging settlement documents,

accepting payments as the insured’s representative, and assessing property

values, property losses, and repair costs. “Negotiate” can encompass both

expressive and nonexpressive activities. “Negotiating” may refer to

“communicat[ing] with another party for the purpose of reaching an

understanding” or “bring[ing] about by discussion or bargaining.” Id. at 1248.

The term may also refer to “transfer[ing] (an instrument) by delivery or

indorsement” including under circumstances “whereby the transferee becomes

its holder.” Id. Section 4102.001(3)’s use of the linking word “for” suggests the

first usage: communication, discussion, or bargaining to reach a settlement.

But the second usage would also fall under the broader term “effecting,” given

that a public insurance adjuster’s status as the insured’s agent enables the

adjuster to receive and hold funds for the insured’s benefit as a fiduciary. See

supra note 40.

47 See TEX. INS. CODE §§ 4102.053(a)(6)–(7) (a public insurance adjuster

license may only be issued to a resident applicant with “sufficient experience

or training relating to the assessment of: (A) real and personal property values;

and (B) physical loss of or damage to real or personal property that may be the

subject of insurance and claims under insurance” and who “is sufficiently

informed as to the terms and effects of the types of insurance contracts that

provide coverage on real and personal property”), .054(6)–(7) (same for a

nonresident applicant).

16

advocating for coverage would also fall under the umbrella of a public

insurance adjuster’s job. But whether expressive elements are

encompassed or not, “negotiating” and “effecting” are merely incidental

to the nonexpressive commercial activities delimiting the profession.

The First Amendment does not reach those activities even though they

may be evidenced or effectuated by speech.48 As the Supreme Court

recently reaffirmed: “‘[T]he First Amendment does not prevent

restrictions directed at commerce or conduct from imposing incidental

burdens on speech,’ and professionals are no exception to this rule.”49

Incorporating section 4102.003(a)’s definition of the profession,

neither section 4102.051(a) nor section 4102.163(a) purports to regulate

what a person may or may not say or to whom they may or may not

speak.50 None of the challenged statutes is activated by what a person

48 See Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949);

see also R.A.V. v. City of St. Paul, 505 U.S. 377, 389 (1992) (“[W]ords can in

some circumstances violate laws directed not against speech but against

conduct (a law against treason, for example, is violated by telling the enemy

the Nation’s defense secrets)[.]”).

49 Nat’l Inst. of Fam. & Life Advocs. v. Becerra, 585 U.S. 755, 769 (2018)

(citations omitted) (quoting Sorrell v. IMS Health Inc., 564 U.S. 552, 567

(2011)); compare Rumsfeld v. F. for Acad. & Inst’l Rts. (FAIR), 547 U.S. 47, 62

(2006) (explaining that regulation of nonexpressive activity need not be

analyzed as a speech regulation despite incidentally compelling speech), with

Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456-57 (1978) (noting that

communications incident to conduct may be regulated “without offending the

First Amendment,” but because “commercial speech” was an “essential”

component of the activity being regulated—a lawyer’s in-person solicitation of

business—the First Amendment was implicated under a lower level of judicial

scrutiny “commensurate with its subordinate position in the scale of First

Amendment values”).

50 See FAIR, 547 U.S. at 60-62 (finding the First Amendment

inapplicable to a law regulating what a person “must do” instead of “what they

may or may not say”); see Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S.

17

says about property subject to an insurance claim or to whom they say

it but, rather, activities undertaken in the settlement of an insurance

claim under the auspices of a commercial representative relationship.

Properly construed, sections 4102.003(a), 4102.051(a), and 4102.163(a)

apply based only on the legal status or relationship a person holds or

seeks to secure with respect to the insured in a nonexpressive

transaction. Speech may be an adjunct to the regulated relationship,

but none of these provisions can be fairly characterized as limiting,

proscribing, prescribing, or otherwise regulating protected speech.51

781, 796-97 (1988) (“[T]he First Amendment guarantees ‘freedom of speech,’ a

term necessarily comprising the decision of both what to say and what not to

say.”).

51 The First Amendment precedent Stonewater relies on is readily

distinguishable as involving laws plainly directed at regulating communicative

content. See, e.g., Barr v. Am. Ass’n of Pol. Consultants, Inc., 140 S. Ct. 2335,

2346 (2020) (plurality op.) (statutory exception from robocall restriction

favoring debt-collection speech over all other speech, including political speech,

was “about as content-based as it gets”); Becerra, 585 U.S. at 762-66 (laws

compelling dissemination of government-drafted notices were “content-based”

because they altered the content of speech); Reed v. Town of Gilbert, 576 U.S.

155, 164 (2015) (sign code that subjected ideological signs, church direction

signs, and political signs to differing restrictions was a facially content-based

speech regulation); Sorrell, 564 U.S. at 563-64 (restrictions on the sale,

disclosure, and use of prescriber-identifying information that applied only to

pharmaceutical manufacturers and marketers and not “a wide range of other

speakers” were “on [their] face” “content- and speaker-based rules”); Holder v.

Humanitarian L. Project, 561 U.S. 1, 27 (2010) (statute’s “material support”

prohibition extended to giving advice based on “specialized knowledge,” but not

“general . . . knowledge,” to designated terrorist organizations, so liability

“depend[ed] on what they say”); FCC v. League of Women Voters of Cal., 468

U.S. 364, 375-76 (1984) (law restricting “the expression of editorial opinion on

matters of public importance”).

18

Any incidental impact on speech is not sufficient to bring the First

Amendment into play.52

We therefore hold that Stonewater has not stated a cognizable

First Amendment claim and the trial court properly sustained TDI’s

Rule 91a challenge.

B. Fourteenth Amendment: Vagueness

The “[v]agueness doctrine is an outgrowth not of the First

Amendment, but of the Due Process Clause,”53 which is applicable to the

states through the Fourteenth Amendment.54 In its second issue, TDI

argues, as it did in its Rule 91a dismissal motion, that Stonewater’s

facial vagueness claim has no basis in law because its as-applied

52 See FAIR, 547 U.S. at 61-62 (law that neither dictated the content of

speech nor prohibited speech regulated only conduct and did not abridge First

Amendment rights even though ordinarily accompanied by speech). In urging

that the First Amendment applies to “regulation of conduct that incidentally

impacts speech,” Stonewater conflates incidental speech impacts with conduct

that is “inherently expressive” and tantamount to “symbolic speech.” See id.

at 65-66. The distinction between the two concepts is elucidated in FAIR,

which involved a federal law limiting higher-education funding to those

institutions affording military recruiters access to students on par with other

recruiters. Compare id. at 61-62, 65 (holding that any speech compelled by

that statute was incidental to the law’s regulation of conduct, so the law did

not “impermissibly regulate[] speech”), with id. at 65-68 (determining that the

regulated conduct was not “inherently expressive” for purposes of O’Brien’s

intermediate scrutiny standard while explaining that “First Amendment

protection [extends] only to conduct that is inherently expressive” (citing

United States v. O’Brien, 391 U.S. 367, 376 (1968))). Because this case does

not involve inherently expressive conduct, O’Brien and its progeny have no

bearing on the issues before us.

53 United States v. Williams, 553 U.S. 285, 304 (2008); see U.S. CONST.

amend. V (“No person shall . . . be deprived of life, liberty, or property, without

due process of law . . . .”).

54 Welch v. United States, 578 U.S. 120, 124 (2016); see U.S. CONST.

amend. XIV, § 1 (“[N]or shall any State deprive any person of life, liberty, or

property, without due process of law . . . .”).

19

vagueness claim fails as a matter of law. That is, because sections

4102.051(a) and 4102.163(a) clearly proscribe Stonewater’s alleged

actions, the roofer cannot mount a successful facial attack on those

statutes.

The court of appeals declined to consider the merits of

Stonewater’s facial vagueness claim on the basis that (1) TDI’s dismissal

motion did not “fully develop its argument on this point” and (2) it was

therefore unclear whether “the trial court necessarily considered

Stonewater’s facial vagueness claim as part of the as-applied claim.”55

We disagree with that assessment. TDI’s dismissal motion pointedly

tethered the merits of a facial attack to the merits of Stonewater’s

as-applied challenge; the trial court’s dismissal order just as clearly

rendered a final judgment dismissing all claims; and the viability of both

claims is properly before us on appeal. Even so, our analysis is focused

on the effect of vagueness as applied to Stonewater’s alleged conduct

because that is how TDI’s Rule 91a motion framed the issues.

An as-applied challenge, as the name suggests, asserts that a

statute is unconstitutional in its particular application to the challenger

even if it operates constitutionally in other applications.56 Although “a

plaintiff who engages in some conduct that is clearly proscribed cannot

complain of the vagueness of the law as applied to the conduct of

others,”57 Stonewater disputes that its facial vagueness claim hinges on

the validity of its as-applied challenge. Stonewater contends that

55 See 641 S.W.3d 794, 804-05 (Tex. App.—Amarillo 2022).

56 In re Commitment of Fisher, 164 S.W.3d 637, 656 n.17 (Tex. 2005).

57 Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489,

495 (1982).

20

controlling precedent relaxes the general rule “when the assertedly

vague statute has the potential to affect First Amendment freedoms,”58

and because the public adjuster statutes do just that, “the potential to

chill some protected expression” permits Stonewater to complain about

vagueness as applied to others regardless of any constitutional infirmity

as applied to Stonewater.59

Even if a relaxed standard applies in free speech cases—which

TDI contests, but we need not decide60—we have already determined

58 Comm’n for Law. Discipline v. Benton, 980 S.W.2d 425, 438 (Tex.

1998).

59 See id. (when First Amendment rights are implicated, a relaxed rule

“‘is deemed justified since the otherwise continued existence of the statute in

unnarrowed form would tend to suppress constitutionally protected rights’”

(quoting Gooding v. Wilson, 405 U.S. 518, 521 (1972))).

60 Compare Holder v. Humanitarian L. Project, 561 U.S. 1, 20 (2010)

(explaining the difference between First Amendment overbreadth and due

process vagueness in addressing the lower court’s improper consideration of

“facts not before it” in evaluating an as-applied vagueness claim: “‘[A] plaintiff

who engages in some conduct that is clearly proscribed cannot complain of the

vagueness of the law as applied to the conduct of others,’” and “[t]hat rule

makes no exception for conduct that is in the form of speech,” so “a plaintiff

whose speech is clearly proscribed cannot raise a successful vagueness claim

under the Due Process Clause of the Fifth Amendment for lack of notice. And

he certainly cannot do so based on the speech of others. Such a plaintiff may

have a valid overbreadth claim under the First Amendment” but not a

vagueness claim (quoting Vill. of Hoffman Ests., 455 U.S. at 495)), with Benton,

980 S.W.2d at 438 (applying the relaxed rule for considering facial-vagueness

challenge to law impinging freedom of speech), and State v. Doyal, 589 S.W.3d

136, 144-45 & n.33 (Tex. Crim. App. 2019) (concluding that Johnson v. United

States, 576 U.S. 591 (2015), “appears to have disavowed” Holder “without

naming [it]” by broadly stating that despite “‘statements in some of our

opinions . . . our holdings squarely contradict the theory that a vague provision

is constitutional merely because there is some conduct that clearly falls within

the provision’s grasp’” (quoting Johnson, 576 U.S. at 602)). But see Doyal, 589

S.W.3d at 168-70 (Yeary, J., dissenting) (stating that Holder’s “clear holding”

21

that sections 4102.051(a) and 4102.163(a) do not implicate First

Amendment rights. That being so, we must first examine the law as

applied to Stonewater’s conduct before considering other hypothetical

applications of the law.61 And if Stonewater’s as-applied claim fails, so

too does its facial vagueness claim.62

Under settled principles, a vague statute offends due process in

two ways. First, it fails to give fair notice of what conduct may be

punished, forcing ordinary people to guess at the statute’s meaning.63

Second, the statute’s language is so unclear that it invites arbitrary or

discriminatory enforcement.64 Stonewater asserts that the Public

Insurance Adjuster Act’s licensing and dual-capacity provisions flunk

the due-process inquiry for both reasons.

“The degree of vagueness that the Constitution tolerates—as well

as the relative importance of fair notice and fair enforcement—depends

in part on the nature of the enactment.”65 More leeway is allowed for

economic regulations because the “subject matter is often more narrow,

and because businesses . . . can be expected to consult relevant

had not been repudiated sub silentio and expressing skepticism that the

majority’s analysis “reflects an accurate statement of the law”).

61 See Vill. of Hoffman Ests., 455 U.S. at 495; accord Ex parte Barton,

662 S.W.3d 876, 885 (Tex. Crim. App. 2022) (“[B]ecause § 42.07(a)(7) does not

regulate speech and therefore does not implicate the free-speech guarantee of

the First Amendment, Appellant, in making his [facial] vagueness challenge to

that statutory subsection, was required to show that it was unduly vague as

applied to his own conduct.” (citation and quotation marks omitted)).

62 Holder, 561 U.S. at 20; Vill. of Hoffman Ests., 455 U.S. at 495.

63 Holder, 561 U.S. at 18.

64 Vill. of Hoffman Ests., 455 U.S. at 498.

65 Id.

22

legislation in advance of action.”66 Statutes authorizing criminal

penalties, like this one,67 carry qualitatively more severe consequences,

so “fair notice” may warrant more precision than when only civil

penalties are at stake.68

Although “a more stringent vagueness test” may also apply when

a statute interferes with freedom of speech,69 that is not the case here.

But even if it were, “perfect clarity and precise guidance have never been

required even of regulations that restrict expressive activity.”70 Due

process is satisfied so long as the prohibition is “set out in terms that the

ordinary person exercising ordinary common sense can sufficiently

understand and comply with.”71 “Because we are concerned with

whether an enactment gives ‘fair notice to those to whom [it] is

directed,’” the “ordinary person” standard refers to those persons subject

to regulation—in this case, contractors and public insurance adjusters.72

66 Id. (footnote omitted).

67 TEX. INS. CODE § 4102.206(a) (“A person commits an offense if the

person violates this chapter. An offense under this subsection is a Class B

misdemeanor.”).

68 Vill. of Hoffman Ests., 455 U.S. at 499.

69 Holder, 561 U.S. at 19, 21 (quoting and applying Village of Hoffman

Estates, 455 U.S. at 499, in a dubious tone).

70 Id. (quoting United States v. Williams, 553 U.S. 285, 304 (2008)).

71 Broadrick v. Oklahoma, 413 U.S. 601, 608 (1973) (quoting U.S. Civ.

Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, AFL-CIO, 413 U.S. 548, 578-79

(1973)); see United States v. Davis, 588 U.S. 445, 451 (2019) (“Vague laws

contravene the ‘first essential of due process of law’ that statutes must give

people ‘of common intelligence’ fair notice of what the law demands of them.”

(quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926))).

72 Comm’n for Law. Discipline v. Benton, 980 S.W.2d 425, 437 (Tex.

1998) (quoting Grayned v. City of Rockford, 408 U.S. 104, 112 (1972)); see id.

23

Stonewater alleges that it “regularly communicates directly with

the customer’s insurer” to provide factual information about repairs and

to respond to requests for information about property damage, the scope

of necessary repair work, estimated costs, and repair methods. The

statute does not prohibit a contractor like Stonewater from talking to its

customers or an insurer about repairs that are subject to a pending

insurance claim and providing information of this nature. TDI’s formal

guidance confirms this understanding, stating that contractors may

“discuss” and “answer questions about” topics like “the amount of

damage to the consumer’s home,” “the appropriate replacement,”

“reasonable cost of replacement,” “estimate for a consumer’s claim,” “the

scope of work in [a] repair estimate,” or “supplements and clarifications

concerning the revised estimate.”73 The statute does not prohibit

contractors from sharing their knowledge and expertise about repairs.

Indeed, the foregoing is the type of information that would be pertinent

any time damaged property needs repair, not just in the context of an

insurance claim.

But TDI’s formal guidance is oversimplified in stating that the

Public Insurance Adjusters Act prevents contractors from “discuss[ing]

insurance policy coverages and exclusions” or “advocat[ing] on behalf of

(framing the inquiry as “whether the ordinary lawyer, with the benefit of

guidance provided by case law, court rules, and the lore of the profession, could

understand and comply with [the law]” (quoting Howell v. State Bar of Tex.,

843 F.2d 205, 208 (5th Cir. 1988) (quotation marks omitted)).

73 See TEX. DEP’T OF INS., Frequently Asked Questions: Unlicensed

Individuals and Entities Adjusting Claims at 1 (2014),

https://www.tdi.texas.gov/bulletins/2014/documents/unlicensedfaq.pdf.

24

a consumer.”74 The Act constrains such activities only in connection

with engagement as the insured’s representative or agent in the

claims-settlement process. Because the statute is implicated only by the

role a person plays in the settlement transaction, we understand the

formal guidance as referring to the possibility that communications of

the described nature can evidence a prohibited engagement,75 not that

the Public Insurance Adjusters Act regulates such communications for

all purposes.76

In this case, the regulated relationship is what proves

problematic for Stonewater under the allegations in the pleadings,

which we take as true under Rule 91a. Although Stonewater is not a

licensed public insurance adjuster, its form contracts expressly

authorize it to “negotiate” with the insurance company “on the

customer’s behalf” and perform construction work “upon insurance

approval.” Stonewater’s website messaging also describes the roofer as

“The Leader In Insurance Claim Approval,” a “Trusted Roofing and

Insurance Specialist[],” “highly experienced with the insurance claims

process,” and the developer of “a system which helps [its] customers

settle their insurance claims as quickly, painlessly and comprehensively

as possible.” These contracting and advertising activities, viewed

together or in their respective buckets, fall plainly within the scope of a

“public insurance adjuster” as statutorily defined and regulated.

74 Id.

75 Cf. R.A.V. v. City of St. Paul, 505 U.S. 377, 389 (1992) (observing that

words can sometimes violate laws directed at conduct).

76 Whether and to what extent such communications are subject to

regulation under other law is outside the scope of this opinion.

25

As TDI says, Stonewater’s form contract practically recites the

statutory definition of the profession. Not only does the contractual

engagement run afoul of section 4102.051(a)’s licensing requirement, it

also squarely invokes section 4102.163(a)’s dual-capacity prohibition by

contracting for authority to both negotiate settlement of a claim and

perform the ensuing repair work. Sections 4102.051(a) and 4102.163(a)

do not merely prohibit the actual conduct; they also prohibit a person

from illegally claiming an ability to engage in that conduct and agreeing

to provide prohibited services.77 The website statements are less

explicitly proscribed, but the messaging, which is the sum of its parts,

describes conduct an ordinary industry participant exercising common

sense would understand to violate section 4102.051(a)’s prohibition on

an unlicensed person acting, advertising, or holding itself out as an

insurance adjuster. The touchstone is fair notice, not an exhaustive

articulation of prohibited conduct,78 and the challenged provisions of the

Public Insurance Adjusters Act easily surpass that threshold to survive

Stonewater’s as-applied challenge. Accordingly, both the as-applied and

facial vagueness claims fail as a matter of law. We therefore need not,

77 TEX. INS. CODE §§ 4102.001(3) (defining the profession in terms of an

agreement to be paid for such services), .051(a) (prohibiting unlicensed persons

from holding themselves out as a public insurance adjuster), .163(a)(1) (“A

contractor may not act as a public adjuster or advertise to adjust claims for any

property for which the contractor is providing or may provide contracting

services, regardless of whether the contractor [is a licensed public insurance

adjuster].”).

78 See United States v. Nat’l Dairy Prods. Corp., 372 U.S. 29, 32 (1963)

(“The strong presumptive validity that attaches to an Act of Congress has led

this Court to hold many times that statutes are not automatically invalidated

as vague simply because difficulty is found in determining whether certain

marginal offenses fall within their language.”).

26

and do not, consider whether the statutes might be vague as applied to

hypothetical situations not before us.

III. Conclusion

Stonewater failed to state cognizable First and Fourteenth

Amendment speech and vagueness claims. Because the trial court

properly granted TDI’s Rule 91a dismissal motion, we reverse the court

of appeals’ judgment and render judgment dismissing the case.

John P. Devine

Justice

OPINION DELIVERED: June 7, 2024

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