Respondents Brief — Rodolfo Canales, Jr., Petitioner v. Ken Paxton, Attorney General of Texas, et al.

Supreme Court briefMar 21, 2022

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No. 21-658

In the Supreme Court of the United States

RODOLFO CANALES, JR., PETITIONER

KEN PAXTON, ATTORNEY GENERAL OF TEXAS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE TEXAS COURT OF APPEALS FOR THE

THIRD JUDICIAL DISTRICT

BRIEF IN OPPOSITION

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney

General

JUDD E. STONE II

Solicitor General

Counsel of Record

LISA A. BENNETT

KATHRYN M. CHERRY

Assistant Solicitors General

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

Judd.Stone@oag.texas.gov

(512) 936-1700

QUESTION PRESENTED

Nearly two decades ago, Rodolfo Canales was ordered by a state court to fulfill certain child support obligations for his severely autistic son. Seeking to evade

those obligations, Canales now insists that Texas’s guidance regarding how courts are to determine the amount

of such obligations violates the due process rights of litigants in child support proceedings because it is impermissibly vague. Though no Texas court has ever passed

upon it, the question presented is:

Whether Texas Family Code section 154.302 is unconstitutionally vague on its face because it does not tell

state court judges how to define common terms such as

“because,” “will not,” or “capable.”

(I)

TABLE OF CONTENTS

Page

Question Presented ............................................................ I

Table of Authorities .......................................................... V

Introduction ........................................................................ 1

Statement ............................................................................ 2

I. Statutory Background ........................................... 2

II. Factual Background ............................................... 4

A. The child support order for Daniel ................. 4

B. Canales’s attempt to modify or terminate the

order ................................................................... 4

III.Procedural Background ......................................... 6

Reasons to Deny Certiorari .............................................. 8

I. The Lower Courts Never Addressed the

Question Presented. ............................................... 8

A. No Texas court held that section 154.302 is

constitutional unless it is vague in all its

applications. ....................................................... 9

B. The court of appeals’ holding does not

implicate Canales’s alleged federal and state

court split. ........................................................ 11

II. This Case Is Not a Proper Vehicle To Address

the Question Presented........................................ 12

A. Canales lacks standing. .................................. 12

B. Canales’s requested relief would upset child

support orders throughout Texas. ................ 14

III.The Court of Appeals Correctly Resolved the

Questions It Actually Decided. ........................... 15

A. The void-for-vagueness doctrine is

inapplicable, as section 154.302 does not

prohibit any conduct. ...................................... 15

(II)

III

B. Even if a non-proscriptive law could be void

for vagueness, the court of appeals applied

the correct standard for civil laws. ............... 19

C. Section 154.302 withstands even more

stringent versions of the void-for-vagueness

doctrine. ........................................................... 26

Conclusion ......................................................................... 30

TABLE OF AUTHORITIES

Page(s)

Cases:

A.B. Small Co. v. Am. Sugar Refining Co.,

267 U.S. 233 (1925) ........................................................ 19

Agency of Nat. Res. v. Persons,

75 A.3d 582 (Vt. 2013) ................................................... 25

Alexander v. Transp. Sec. Admin.,

No. 20-14455, 2021 WL 3855844 (11th

Cir. Aug. 30, 2021) ......................................................... 24

In re App. of Columbus S. Power Co.,

983 N.E.2d 276 (Ohio 2012) .......................................... 25

Bartlow v. Costigan,

13 N.E.3d 1216 (Ill. 2014), as modified

on denial of reh’g (May 27, 2014) ................................ 25

Baxter v. Ruddle,

794 S.W.2d 761 (Tex. 1990)............................................. 5

Beckles v. United States,

137 S. Ct. 886 (2017) ................................................ 17, 18

Belcher v. State,

962 S.W.2d 653 (Tex. App.—Austin

1998, no pet.) .................................................................. 23

Boyce Motor Lines, Inc. v. United States,

342 U.S. 337 (1952) .................................................. 20, 22

Brockert v. Skornicka,

711 F.2d 1376 (7th Cir. 1983) ....................................... 24

Chaidez v. United States,

568 U.S. 342 (2013) ........................................................ 22

City of Chicago v. Morales,

527 U.S. 41 (1999) .......................................................... 16

(IV)

Cases—Continued:

Page(s)

City of Mesquite v. Aladdin’s Castle, Inc.,

455 U.S. 283 (1982) .................................................. 16, 17

Cline v. Frink Dairy Co.,

274 U.S. 445 (1927) ........................................................ 19

Comm’n for Lawyer Discipline v. Benton,

980 S.W.2d 425 (Tex. 1998)........................................... 25

Cutter v. Wilkinson,

544 U.S. 709 (2005) .......................................................... 8

Dow Chem. Co. v. Francis,

46 S.W.3d 237 (Tex. 2001)............................................. 10

Edwards v. Vannoy,

141 S. Ct. 1547 (2021) .................................................... 14

Expressions Hair Design v.

Schneiderman,

137 S. Ct. 1144 (2017) .................................................... 11

FCC v. AT&T Inc.,

562 U.S. 397 (2011) ........................................................ 26

FCC v. Fox Television Stations, Inc.

567 U.S. 239 (2012) .................................................. 21, 22

Gary Inv. Corp. v. D.C. Dep’t of Health,

896 A.2d 193 (D.C. 2006) ............................................... 25

Giaccio v. Pennsylvania

382 U.S. 399 (1966) ........................................................ 19

Grayned v. City of Rockford,

408 U.S. 104 (1972) .................................................... 7, 21

Hafley v. State,

No. 03-16-00501-CR, 2016 WL 4177235

(Tex. App.—Austin Aug. 3, 2016, no

pet.) .................................................................................. 13

Heckman v. Williamson Cnty,

369 S.W.3d 137 (Tex. 2012)..................................... 12, 13

Cases—Continued:

Page(s)

Holder v. Humanitarian Law Project,

561 U.S. 1 (2010) ............................................................ 26

In re J.M.C.,

395 S.W.3d 839 (Tex. App.—Tyler 2013,

no pet.) ................................................................ 21, 26, 27

In re J.O.A.,

No. 14-14-00968-CV, 2016 WL 1660288

(Tex. App.—Houston [14th Dist.] April

26, 2016, no pet.) ........................................................ 2, 29

Jae Lee v. United States,

137 S. Ct. 1958 (2017) .................................................... 22

Johnson v. Morales,

946 F.3d 911 (6th Cir. 2020) ......................................... 24

Johnson v. United States,

576 U.S. 591 (2015) ............................................... passim

Jordan v. De George,

341 U.S. 223 (1951) ........................................................ 26

Kashem v. Barr,

941 F.3d 358 (9th Cir. 2019) ......................................... 24

Keyishian v. Board of Regents of the

University of the State of New York,

385 U.S. 589 (1967) ........................................................ 16

King Street Patriots v. Tex. Democratic

Party,

521 S.W.3d 729 (Tex. 2017)........................................... 25

Kreimer v. Bureau of Police for Town of

Morristown,

958 F.2d 1242 (3d Cir. 1992) ......................................... 24

Manning v. Caldwell,

930 F.3d 264 (4th Cir. 2019) ........................................ 24

VII

Cases—Continued:

Page(s)

Mistretta v. United States,

488 U.S. 361 (1989) ........................................................ 18

Mugler v. Kansas,

123 U.S. 623 (1887) ........................................................ 27

Nautilus, Inc. v. Biosig Instruments, Inc.,

572 U.S. 898 (2014) ........................................................ 11

Papachristou v. City of Jacksonville,

405 U.S. 156 (1972) .................................................. 16, 20

Pennington v. Singleton,

606 S.W.2d 682 (Tex. 1980)..................................... 22, 28

People v. Graves,

368 P.3d 317 (Colo. 2016) .............................................. 25

Plains All Am. Pipeline L.P. v. Cook,

866 F.3d 534 (3d Cir. 2017) ........................................... 19

Ridley v. Mass. Bay Transp. Auth.,

390 F.3d 65 (1st Cir. 2004) ............................................ 24

Rockdale Cnty v. U.S. Enters., Inc.,

865 S.E.2d 135 (Ga. 2021) ............................................. 25

Rowles v. Curators of Univ. of Mo.,

983 F.3d 345 (8th Cir. 2020) ......................................... 24

Sessions v. Dimaya,

138 S. Ct. 1204 (2018) ........................................... passim

Simon v. E. Ky. Welfare Rights Org.,

426 U.S. 26 (1976) .......................................................... 13

State v. Cook,

444 P.3d 877 (Idaho 2019) ............................................. 25

State v. Doyal,

589 S.W.3d 136 (Tex. Crim. App. 2019) ...................... 25

VIII

Cases—Continued:

Page(s)

Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83 (1998) .................................................... 13, 14

Taylor v. Roswell Indep. Sch. Dist.,

713 F.3d 25 (10th Cir. 2013) ................................... 24, 25

Tex. State Bd. of Exam’rs of Marriage &

Family Therapists v. Tex. Med. Ass’n,

511 S.W.3d 28 (Tex. 2017)............................................. 26

Texas v. United States,

523 U.S. 296 (1998) ........................................................ 11

Thompson v. Smith,

483 S.W.3d 87 (Tex. App.—Houston

[1st Dist.] 2015, no pet.) ................................................ 27

Trans Union Corp. v. FTC,

245 F.3d 809 (D.C. Cir. 2001) ....................................... 25

United States v. Batson,

706 F.2d 657 (5th Cir. 1983) ......................................... 24

United States v. L. Cohen Grocery Co.,

255 U.S. 81 (1921) .................................................... 18, 19

United States v. Nat’l Dairy Prods. Corp.,

372 U.S. 29 (1963) .......................................................... 20

United States v. Watkins,

940 F.3d 152 (2d Cir. 2019) ........................................... 24

United States v. Williams,

553 U.S. 285 (2008) ........................................................ 26

Vill. of Hoffman Ests. v. Flipside,

Hoffman Ests., Inc.,

455 U.S. 489 (1982) ...................................... 16, 20, 22, 24

Vista Healthcare, Inc. v. Tex. Mut. Ins.,

324 S.W.3d 264 (Tex. App.—Austin

2010, pet. denied) ................................................. 7, 21, 22

Cases—Continued:

Page(s)

Wagner v. State,

539 S.W.3d 298 (Tex. Crim. App. 2018) ...................... 26

Whole Woman’s Health v. Jackson,

142 S. Ct. 522 (2021) ...................................................... 14

Williams v. Patton,

821 S.W.2d 141 (Tex. 1991)........................................... 23

Winters v. New York,

333 U.S. 507 (1948) .................................................. 19, 20

Worford v. Stamper,

801 S.W.2d 108 (Tex. 1990) .......................................... 29

Wright v. City of St. Petersburg,

833 F.3d 1291 (11th Cir. 2016) ..................................... 18

Zaborac v. Tex. Dep’t of Pub. Safety,

168 S.W.3d 222 (Tex. App.—Fort

Worth 2005, no pet.) ...................................................... 21

Constitutional Provisions, Statutes, and Rules:

U.S. Const.:

art. III ............................................................................. 12

amend. I .................................................................... 21, 25

amend. V ..................................................................... 9, 15

amend. XIV .................................................................... 15

Tex. Civ. Prac. & Rem. Code §§ 37.001-.011...................... 6

Statutes and Rules—Continued:

Page(s)

Tex. Fam. Code:

ch. 154 ................................................................ 3, 8, 21, 28

ch. 157 ................................................................................ 3

§ௗ14.051(b) ......................................................................... 2

§ 104.001.......................................................................... 28

§ 105.005.................................................................... 21, 29

§ 154.007............................................................................ 3

§ 154.125...................................................................... 2, 23

§ 154.127...................................................................... 2, 23

§ 154.130.......................................................................... 24

§ 154.188............................................................................ 3

§ 154.302................................................................. passim

§ 154.302(a) ................................................................. 2, 18

§ௗ154.302(a)(1) ................................................................ 28

§ 154.302(a)(2) ................................................................ 28

§ 154.303............................................................................ 3

§ 154.306.......................................................................... 23

§ 154.307...................................................................... 3, 23

§ௗ156.401 ...................................................................... 8, 28

§ௗ156.401(a)(1) .............................................................. 3, 5

§ 156.401(a-1)................................................................ 3, 5

§ௗ157.001 ............................................................................ 3

§ 157.165.......................................................................... 13

§ 157.264............................................................................ 3

§ 157.312............................................................................ 3

Tex. Gov’t Code:

§ 22.002(c) ......................................................................... 6

§ௗ311.011(a) ..................................................................... 26

Tex. Penal Code:

§ 25.05(d) ......................................................................... 23

§ௗ25.05 .......................................................................... 3, 23

Statutes and Rules—Continued:

Page(s)

Tex. R. App. P.:

56.1(a) .............................................................................. 11

56.1(b)(1) ......................................................................... 11

56.1(c) .............................................................................. 11

Tex. R. Civ. P.:

204.4 ........................................................................... 28, 29

683 .................................................................................... 14

Miscellaneous:

Act of April 6, 1995, 74th Leg., R.S., ch. 20,

§ 1-2, 1995 Tex. Gen. Laws 113, 167-68 ........................ 2

Act of May 29, 1997, 75th Leg., R.S., ch.

1173, § 1, 1997 Tex. Gen. Laws 4520,

4520-21 .............................................................................. 2

Op. Tex. Att’y Gen. No. JM-176 (1984)............................. 13

Perfecting lien, O’Connor’s Texas Family

Law Handbook ch. 10-F § 5 (2022 ed.) ....................... 13

Stephen M. Shapiro, Supreme Court

Practice (11th ed. 2019) .............................................. 8, 9

INTRODUCTION

The petition attempts to present an intriguing story

about how federal and state courts have interpreted this

Court’s recent jurisprudence concerning facial challenges to unconstitutionally vague statutes. Unfortunately for Petitioner, this second attempt to renege on

his agreed-upon child support obligations does not.

The first time that Rodolfo Canales, Jr. (“Canales”)

sought to avoid his child support obligations to his autistic son, the state courts dismissed his vagueness claim as

a prohibited collateral attack on the original child support order. This time around, Canales seeks to enjoin issuance and enforcement of thousands of child support orders for disabled children throughout Texas on the

ground that sectionௗ154.302 of the Texas Family Code is

unconstitutionally vague.

None of the state courts that heard Canales’s

claims—the trial court, court of appeals, or Texas Supreme Court—expressly (or even necessarily) passed on

the issue that he presents to this Court. As the only court

that provided an explanation for its holding noted, section 154.302 provides non-binding guidance for courts issuing child support orders. Pet. App. 13-14. In this way,

section 154.302 functions much like the federal Sentencing Guidelines. Neither proscribes conduct, so neither

implicates the due process concerns that arise when a

law fails to clearly define that which is proscribed.

Not only is Canales’s description of the state courts’

holdings on the question presented incorrect (as there

were none), but threshold standing questions make this

a poor vehicle to clarify the void-for-vagueness doctrine.

This Court should deny Canales’s petition for a writ of

certiorari.

(1)

STA TEM ENT

I. Statutory Background

Texas Family Code section 154.302 is one of several

state laws intended to protect the interests of individuals

with disabilities. See Act of April 6, 1995, 74th Leg., R.S.,

ch. 20, §§ௗ1–2, 1995 Tex. Gen. Laws 113, 167–68, amended

by Act of May 29, 1997, 75th Leg., R.S., ch. 1173, §ௗ1, 1997

Tex. Gen. Laws 4520, 4520–21 (codified at Tex. Fam.

Code §ௗ154.302) (recodifying and amending, inter alia, a

previous version of the statute, Tex. Fam. Code

§ௗ14.051(b), into the current statutory scheme). Under

section 154.302, as relevant here, courts “may order either or both parents to provide for the support of a child

for an indefinite period and may determine the rights

and duties of the parents if the court finds that: (1) the

child, whether institutionalized or not, requires substantial care and personal supervision because of a mental or

physical disability and will not be capable of self-support;

and (2) the disability exists, or the cause of the disability

is known to exist, on or before the 18th birthday of the

child.” Tex. Fam. Code § 154.302(a). The burden of proof

is placed on the caregiver—typically a parent—seeking

support on behalf of the disabled person. In re J.O.A.,

No. 14-14-00968-CV, 2016 WL 1660288, at *5 (Tex. App.—

Houston [14th Dist.] April 26, 2016, no pet.). If the court

finds that the factors in section 154.302(a) are met, the

court may issue an order requiring one or both parents

to financially support their disabled child. Tex. Fam.

Code §ௗ154.302(a). The terms of the order depend on factors such as the caregiver’s or parent’s net income, the

number of children involved, and the amount of support

the children will likely need in the future. Id. §§ 154.125,

154.127.

If the trial court issues a support order, the individuals subject to the order are required by law to obey it

unless and until the court grants modification (or termination) of the original order. See id. § 154.307. Such modification (or termination) is available only if “the circumstances of the child or a person affected by the order

have materially and substantially changed” since the order was issued. Id. §ௗ156.401(a)(1), (a-1).

Though potentially the source of criminal liability, see

Tex. Penal Code §ௗ25.05; Pet. App. 21, orders under section 154.302 are often enforced through a civil action

brought by the caregiver seeking support. Tex. Fam.

Code §ௗ157.001. Alternatively, as actually happened to

Canales, the Attorney General (with appropriate notice)

may seek to garnish the missed payments from tax refunds or the wages of the obligor. CR.324-25.1 Parents

and some child support recipients over the age of eighteen may also bring a civil suit against the obligor for child

support, Tex. Fam. Code § 154.303, submit a motion to

enforce a child support order resulting in contempt or a

restraining order, id. § 157.001, or request a court-imposed lien on the obligor’s property, id. § 157.312. A

court can order income withholding, id. § 154.007, and increased penalties for failure to pay for health or dental

insurance, id. § 154.188. The Family Code also provides

that a judgment for retroactive support under chapter

154, or a money judgment rendered in an enforcement action, can be enforced by any means available for the enforcement of a judgment for debts or collection of child

support. Id. §ௗ157.264; see also id. ch. 157 (describing the

procedures for requesting enforcement of child support

orders).

“CR” refers to the Clerk’s Record produced by the trial court.

II. Factual Background

A. The child support order for Daniel

Canales and Juanita Canales divorced in March 2003,

after which Juanita cared for their two children, including their then-15-year-old son Daniel. CR.789. The divorce decree concluded that Daniel, who has autism, “requires substantial care and personal supervision because

of a mental or physical disability and will not be capable

of self-support,” so “payments for the support of this

child should be continued after the child’s eighteenth

birthday for an indefinite period, and . . . both parents

have a duty to support the child.” CR.789. Because of

that finding, Canales was ordered to pay an additional

$200 a month for Daniel’s care “until further order modifying this child support.” CR.789. Canales did not challenge or appeal the finding that Daniel had a “mental or

physical disability,” or that he would be required to support Daniel for “an indefinite period.” CR.789.

B. Canales’s attempt to modify or terminate the

order

In 2014, Canales filed motions with the trial court to

terminate his support obligation for Daniel (then in his

mid-twenties). CR.789. The trial court denied Canales’s

requests to modify the order, terminate the support obligation, or reimburse payments already made, finding

that Daniel “continues to require substantial care and

personal supervision because of a mental or physical disability.” CR.792.

On appeal to the Thirteenth Court of Appeals,

Canales argued that the trial court “misconstrued” section 154.302 because the court “did not use the common,

ordinary meaning of undefined words” in the statute

such as “substantial,” “and,” “personal supervision,”

“because,” “disability,” “will not,” “capable,” and “support.” CR.794. The court of appeals, however, held that

“the immediate issue before the trial court was” whether

modification was appropriate because “Daniel’s circumstances had ‘materially and substantially changed’ since

the time the divorce decree was issued such that termination of child support was in Daniel’s best interest.”

CR.794 (citing Tex. Fam. Code §ௗ156.401(a)(1), (a-1)).

The court of appeals rejected Canales’s vagueness

challenge to section 154.302 as a “subsequent collateral

attack” on the divorce decree, which was barred by res

judicata. CR.792 (quoting Baxter v. Ruddle, 794 S.W.2d

761, 762 (Tex. 1990)). Concerning the modification, the

court of appeals held that the trial court had not abused

its discretion in finding that there had been no material

or substantive change and affirmed its decision. CR.795.

Canales sought discretionary review from the Supreme Court of Texas, which was denied. Pet. App. 22.

Justice Guzman concurred in the denial of the petition

for review because she believed “procedural impediments” “prevent[ed] the Court” from addressing a number of Canales’s complaints about section 154.302. Id. at

23. Nevertheless, she went on to observe that “[t]he

Family Code does not define mental or physical disability or specify the type of proof required to meet the statutory standard.” Id. at 24. She advised “[p]ractitioners

and the lower courts” to be “mindful of these unanswered

questions when litigating section 154.302 issues,” and

“pending a legislative response, [the Texas Supreme

Court] should, in an appropriate case, give the lower

courts guidance regarding how ‘detailed and specific’ the

evidence must be to meet section 154.302’s standards.”

Id. at 28. At no point did she suggest that the statute was

unconstitutionally vague.

III. Procedural Background

After failing to modify the order through the procedure offered by the Family Code, Canales brought this

suit—a facial challenge to the constitutionality of section

154.302. Pet. App. 1. He sued Attorney General Ken Paxton in his official capacity and the Office of the Attorney

General (collectively, “the Attorney General”) under the

Uniform Declaratory Judgments Act (“UDJA”), Tex.

Civ. Prac. & Rem. Code §§ௗ37.001-.011, seeking declaratory and injunctive relief on the ground that section

154.302 is so vague that it violates due process. Pet. App.

1. The Attorney General timely challenged the jurisdiction of the court and sought summary judgment. Id.

at 3-4. Among other things, the Attorney General argued

that pursuant to Texas Government Code section

22.002(c), only the Texas Supreme Court has the authority to enjoin the Attorney General from “collecting or establishing” support for disabled individuals, id. at 4-6,

and that section 154.302 was not void for vagueness, id.

at 4.

In an unreasoned judgment, the trial court concluded

that it had jurisdiction to afford Canales relief but that

no such relief was warranted because the statute was not

unconstitutional. Id. at 16; CR.1205-06. The parties

cross-appealed. Pet. App. 4.

2. In an unpublished memorandum opinion, the

Third Court of Appeals affirmed the trial court’s judgment. Id. at 1, 14. The court of appeals first addressed

the trial court’s denial of the Attorney General’s jurisdictional challenge. Id. at 4. According to the court of appeals, rather than requiring the Attorney General to act,

Canales’s challenge sought to restrain what he alleged

was an unlawful action, and sovereign immunity did not

apply in such a case. Id. at 5.

The court of appeals then turned to the district

court’s grant of summary judgment to the Attorney General on Canales’s constitutional claim. Canales argued

that section 154.302 “lacks definitions, standards, and

guidelines rendering it facially unconstitutional under

the void-for-vagueness doctrine.” Id. at 8. The court of

appeals disagreed, holding that section 154.302 “does not

proscribe any conduct and, consequently, does not violate due process guarantees by failing to provide a person with fair notice of prohibited conduct.” Id. at 10-11.

“Because the statute does not prohibit conduct, there is

no danger that it may ‘trap the innocent by not providing

fair warning’ or result in ‘arbitrary and discriminatory

enforcement.’” Id. at 11 (quoting Grayned v. City of

Rockford, 408 U.S. 104, 108 (1972)). Instead, the statute

“sets forth the circumstances under which a court can order child support for an indefinite period.” Id.

The court then assumed, arguendo, that the statute

“imposes some type of economic regulation and is therefore susceptible of a constitutional void-for-vagueness

challenge,” and found that it is still not unconstitutionally

vague because it “need only provide a reasonable degree

of certainty as to its application to provide fair notice.”

Id. at 11-12 (citing Vista Healthcare, Inc. v. Tex. Mut.

Ins., 324 S.W.3d 264, 273-74 (Tex. App.—Austin 2010,

pet. denied)). The court of appeals also held that in section 154.302, the undefined terms could be given their

plain and ordinary meaning. Id. at 12.

Canales had also argued that the “statute does not

provide sufficiently detailed guidance as to the standards

of proof, the guidelines or criteria courts should apply, or

the type and nature of evidence that would satisfy the

statute’s requirements.” Id. at 13. The court of appeals

rejected that claim as well, holding that the section “provides reasonably clear guidelines and objective criteria,”

combined with other parts of the Texas Family Code. Id.

(citing Tex. Fam. Code ch. 154 (guidelines for child support) and Tex. Fam. Code §ௗ156.401 (modification of child

support order)). The court of appeals acknowledged Justice Guzman’s concurrence in the denial of Canales’s petition for review before the Texas Supreme Court but explained that “[r]ather than conclude that the statute was

unconstitutional, .ௗ.ௗ. Justice Guzman expressed the view

that the Texas Supreme Court should provide guidance

to the lower courts charged with considering requests

for, and modification of, indefinite child support orders

pursuant to Section 154.302 to forestall ‘inconsistent

treatment and, in some cases, injustice.’” Id. at 13-14

(quoting Justice Guzman’s concurrence).

Canales petitioned the Texas Supreme Court for review of the court of appeals’ holding, which that court

again denied. Id. at 19. Canales now seeks a writ of certiorari from this Court.

REASONS TO DENY CERTIORARI

I. The Lower Courts Never Addressed the Question

Presented.

Canales seeks review on the question of whether “a

statute .ௗ.ௗ. is unconstitutionally vague on its face only if

it is vague in all its applications.” Pet. i. Neither the

Texas trial court, nor the court of appeals, nor the Texas

Supreme Court addressed that question. Because this is

“a court of review, not of first view,” e.g., Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005), this case is not a

suitable vehicle for resolving that question. As a result,

it is not worthy of the Court’s review. Stephen M.

Shapiro, Supreme Court Practice § 6.26(b) (11th ed.

2019).

A. No Texas court held that section 154.302 is

constitutional unless it is vague in all its

applications.

Canales’s petition mischaracterizes the court of appeals’ opinion affirming the trial court’s judgment and

raises an issue those courts never reached. As his own

authority acknowledges, a statute is void for vagueness

only if it “fails to give ordinary people fair notice of the

conduct it punishes, or [is] so standardless that it invites

arbitrary enforcement.” Johnson v. United States, 576

U.S. 591, 595 (2015). Canales insists that “the Texas Supreme Court and the Texas Court of Appeals, Third District” misapplied the doctrine by “requir[ing] a statute to

be vague in all its applications.” Pet. i. But the courts below never reached that question: they held that the voidfor-vagueness doctrine is not implicated because section

154.302 does not prohibit (or punish) any conduct—rather, it functions as guidance for courts ordering child

support. Pet. App. 11. Even if it did somehow proscribe

conduct, the court of appeals held that the statute was

not unconstitutionally vague because it provides sufficient guidance to courts to satisfy the Due Process

Clause. Id. at 13.

1. Canales first misstates the trial court’s ruling. He

states (at 9) that “[t]he trial court agreed with Respondents’ argument that the vagueness standard in [Johnson,

576 U.S. 591] and [Sessions v. Dimaya, 138 S. Ct. 1204

(2018)] does not apply to a facial challenge of a civil statute.” But the trial court’s unreasoned decision states

only that Plaintiff’s motion for summary judgment is denied and Defendants’ is granted. Pet. App. 17-18. The

theories presented to the trial court at summary

judgment included both the question presented and the

threshold question of whether the statute was vague at

all. CR.364-65, 372, 547-51. The trial court’s judgment

does not specify the grounds on which it found for the

State, or even if its judgment reflected any of the arguments made by counsel. Canales’s statement (at 9) that

the trial court’s decision concerned Johnson or Dimaya

is nothing more than speculation.

2. Canales’s description of the court of appeals’ holding is even more misleading. He claims (at 10) that “the

court of appeals affirmed Respondents’ contention that a

statute must be vague in all its applications” “by overruling Petitioner’s third issue.” See also Pet. 32 (same).

That is not how courts in Texas work. Under Texas

law, “[w]hen a trial court’s order granting summary

judgment does not specify the ground or grounds relied

on for its ruling, summary judgment will be affirmed on

appeal if any of the theories advanced are meritorious.”

Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001)

(internal quotation marks omitted). Here, the court of

appeals held that (1) section 154.302 did not raise the

same due process concerns as prohibitory statutes, so

the void-for-vagueness inquiry did not apply, and (2)

even if it did, section 154.302 was not vague because it

“provides reasonably clear guidelines and objective criteria.” Pet. App. 10, 12-13. Thus, there was no need to

reach Canales’s further argument that a vague statute

need not be vague in all its applications on a facial challenge. The court of appeals did not “affirm[] Respondents’ contention” on that point—it found no need to address it at all. Canales can no more tie the court of appeals’ holding to his Question Presented than he can the

trial court’s.

3. Canales also claims in his Question Presented (at i)

that “the Texas Supreme Court and the Texas Court of

Appeals, Third District, at Austin require a statute to be

vague in all its applications.” As he clarifies later (at 1),

however, the Texas Supreme Court denied review of

Canales’s appeal. See Pet. App. 19. In other words, whatever the Texas Supreme Court may have decided in

other cases, it made no such holding in this case for this

Court to review. See Tex. R. App. P. 56.1(a), (b)(1), (c).

B. The court of appeals’ holding does not

implicate Canales’s alleged federal and state

court split.

Canales spends most of his petition (at 12-30) building support for a split he claims exists among both federal and state courts on whether, in a facial challenge, a

law must be vague in all its applications to be void for

vagueness. The split, however, is irrelevant because

Canales may not transform the only legal questions resolved by the state courts in his case into a different

question to create issues worthy of this Court’s review.

If this Court granted review on Canales’s question, it

would be “consider[ing] [that] question[] in the first instance,” as none of the state courts passed on it in this

case. Expressions Hair Design v. Schneiderman, 137 S.

Ct. 1144, 1151 (2017). But this Court is “a court of review,

not of first view.” Nautilus, Inc. v. Biosig Instruments,

Inc., 572 U.S. 898, 913 (2014). And waiting “until a more

concrete controversy arises[] also has the advantage of

permitting the state courts”—and here, the Texas Legislature—“further opportunity to construe” section

154.302, as is this Court’s normal course. Texas v. United

States, 523 U.S. 296, 301 (1998).

II. This Case Is Not a Proper Vehicle To Address the

Question Presented.

Even if the Court were inclined to break from its normal practice and review the question presented in the

first instance, this would be a poor vehicle with which to

do so. As Justice Guzman observed the last time that

Canales tried to avoid his support obligations, there are

“procedural impediments” to using Canales’s case to

clarify anything about the interpretation of section

154.302—let alone its validity. Pet. App. 23. Canales’s demand for an injunction (yet another collateral attack on

the child support order) falls outside the jurisdiction of

the state courts. Moreover, Canales’s injunction would

upset thousands of child support orders on which disabled individuals and their caregivers rely.

A. Canales lacks standing.

“In Texas, the standing doctrine requires a concrete

injury to the plaintiff and a real controversy between the

parties that will be resolved by the court.” Heckman v.

Williamson Cnty, 369 S.W.3d 137, 154 (Tex. 2012). In

this regard, standing under Texas law “parallels the federal test for Article III standing.” Id. Standing requires

that “the plaintiff’s injury be likely to be redressed by

the requested relief.” Id. at 155 (internal quotation

marks omitted). If a plaintiff suing in Texas state court

“requests injunctive relief[,] . . . but the injunction could

not possibly remedy his situation, then he lacks standing

to bring that claim.” Id.

“[T]he plaintiff’s alleged injury must also be fairly

traceable to the defendant’s conduct.” Id. (internal quotation marks omitted). Traceability ensures that “a court

act only to redress injury that fairly can be traced to the

challenged action of the defendant, and not injury that

results from the independent action of some third party

not before the court.” Id. (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976)).

Canales’s claim falters in the light of his requested

relief—to enjoin the Attorney General from enforcing

child support orders issued under section 154.302.

RR.412; see RR.35-40; CR.70. The plain text of section

154.302 indicates that state courts—not the Attorney

General—are the ones who, relying on the language in

the statute, determine support obligations and issue the

relevant orders. If the order is Canales’s injury, the responsible party is the court issuing the order, not the

party enforcing it.3

Traceability and redressability sink Canales’s claim.

As explained supra I, actions to enforce a child support

order can be brought by several different parties, such

as the caregiver and the adult disabled individual. See,

e.g., Tex. Fam. Code § 157.165; Hafley v. State, No. 0316-00501-CR, 2016 WL 4177235, at *1 (Tex. App.—Austin Aug. 3, 2016, no pet.); Perfecting lien, O’Connor’s

Texas Family Law Handbook ch. 10-F § 5 (2022 ed.). And

if a court has ordered the obligor to be on “probation”—

a type of “deferred adjudication” for failure to pay support obligations—and the obligor continues to fail to pay

support, a district attorney represents the State in moving to revoke the obligor’s probation. Op. Tex. Att’y Gen.

No. JM-176 (1984).

That creates a serious vehicle problem for Canales.

“Relief that does not remedy the injury suffered cannot

“RR” refers to the Reporter’s Record produced by the trial

court.

Although the court of appeals denied the Attorney General’s

plea to the jurisdiction, it did not address the question of whether

the Attorney General was the correct defendant. Pet. App. 4-5.

bootstrap a plaintiff into federal court.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 107 (1998). Canales

could, in an enforcement action brought by any of these

parties, raise his constitutional argument as a defense.

But the relief Canales seeks—preemptively enjoining

the Attorney General from enforcing section 154.302

(CR.877-78)—will not prevent other actors from enforcing the child support order against him. Canales cannot

“lawfully enjoin the world at large.” Whole Woman’s

Health v. Jackson, 142 S. Ct. 522, 535 (2021); see Tex. R.

Civ. P. 683.

B. Canales’s requested relief would upset child

support orders throughout Texas.

As the trial court noted, there is essentially no way to

allow Canales’s crusade against child support orders issued pursuant to section 154.302 without “shutting down

the entire child support system for the State of Texas.”

RR.38. It is near-impossible to determine which child

support obligations resulted from court orders, legal settlements, or private agreements between parties, and

which involve disabled individuals above the age of eighteen. Even if his requested injunction could be applied

only to child support orders currently involving adult disabled individuals, it would affect as many as 2,900 families. See CR.930.

This Court has been sensitive to reliance interests

and upending the legislature’s purpose when interpreting laws. Cf. Edwards v. Vannoy, 141 S. Ct. 1547, 1554

(2021) (observing that retroactive application of a law

could “overturn decades of convictions” and “require significant state resources”). Here, the harm is particularly

acute because it affects adults who, by definition, have

disabilities that leave them unable to support themselves—as well as the caregivers who depend on child

support payments to provide for these highly vulnerable

individuals. RR.38. There are other cases with less devastating effects in which this Court can address any split

in authority about how to apply this Court’s void-forvagueness doctrine.

III. The Court of Appeals Correctly Resolved the

Questions It Actually Decided.

Finally, review would be inappropriate because the

court of appeals was correct to reject Canales’s claim.

Section 154.302 is not amenable to a void-for-vagueness

challenge because it does not proscribe conduct. But

even if the void-for-vagueness doctrine applies, section

154.302 is not unconstitutionally vague under any version

of the vagueness standard. Accordingly, this Court’s resolution of Canales’s question presented is unwarranted,

as it would not affect the outcome in this case.

A. The

void-for-vagueness

doctrine

inapplicable, as section 154.302 does not

prohibit any conduct.

The void-for-vagueness doctrine derives from the

Fifth Amendment’s Due Process Clause, which is applicable to States through the Fourteenth Amendment and

provides that “[n]o person shall . . . be deprived of life,

liberty, or property, without due process of law.” U.S.

Const. amend V. This Court has held that this “guarantee” of due process includes preventing the government

from “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.” Johnson,

576 U.S. at 595. That guarantee is not applicable to a law

that governs not an individual’s conduct but the rule of

decision that a court applies.

1. Under this Court’s precedent, the void-for-vagueness doctrine applies to statutes that “punish[]” conduct,

such as those that “defin[e] elements of crimes,” “fix[]

sentences,” and impose criminal-level civil penalties. Id.

at 595-96; Vill. of Hoffman Ests. v. Flipside, Hoffman

Ests., Inc., 455 U.S. 489, 498-99 (1982). Examples include

City of Chicago v. Morales, 527 U.S. 41, 45-46 (1999)

(“criminal street gang members” who “loiter[]” must disperse when told to do so by a police officer); Papachristou v. City of Jacksonville, 405 U.S. 156, 165-71 (1972)

(vagrancy statute imposing civil penalties); and Keyishian v. Board of Regents of the University of the State

of New York, 385 U.S. 589, 597-604 (1967) (statute requiring removal from University for “treasonable or seditious” utterances or acts, when those terms are undefined).

But this Court emphasized in City of Mesquite v.

Aladdin’s Castle, Inc., that the law must “punish” or prohibit certain conduct. 455 U.S. 283, 289 (1982) (“an enactment is void for vagueness if its prohibitions are not

clearly defined”). There, a city ordinance directed the

Chief of Police to consider, among other things, “whether

a license applicant has any ‘connections with criminal elements.’” Id. at 285. The Court assumed that the phrase

“connections with criminal elements,” if used to charge

an individual with “having such a connection,” or deny

the application for a “license to operate,” would be void

for vagueness. Id. at 290 (emphasis added). But in the

challenged ordinance, “[t]he applicant’s possible connection with criminal elements is merely a subject that the

ordinance directs the Chief of Police to investigate before he makes a recommendation to the City Manager

either to grant or to deny a pending application.” Id. at

291 (emphasis added). As a result, the ordinance was not

unconstitutionally vague. Id.

This Court noted that, in general, “[t]he Federal Constitution does not preclude a city from giving vague or

ambiguous directions to officials who are authorized to

make investigations and recommendations,” such as to

review “all relevant information” or “make such investigation as he deems appropriate.” Id. Such directions do

not implicate the concerns underlying the void-forvagueness doctrine because they neither punish an undefinable set of conduct nor create the risk of arbitrary

enforcement. If anything, they work to prevent such arbitrariness by announcing guidelines for law enforcement to follow in exercising its discretion.

This Court has also squarely held that statutes that

“merely guide the exercise of a court’s discretion” are

“not subject to a vagueness challenge under the Due Process Clause.” Beckles v. United States, 137 S. Ct. 886, 892

(2017) (emphasis added). For example, in Beckles, this

Court addressed the Guidelines Manual issued by the

United States Sentencing Commission and held that

“[b]ecause they merely guide the district courts’ discretion, the Guidelines are not amenable to a vagueness

challenge.” Id. at 894. Although the Sentencing Guidelines “serv[e] as the framework for sentencing,” “the

court must make an individualized assessment based on

the facts presented and the other statutory factors” Id.

(internal quotation marks omitted). The constitutional

need for notice of prohibited conduct is not implicated

because “even if a person behaves so as to avoid an enhanced sentence under the . . . guideline[s], the sentencing court retains discretion to impose the enhanced sentence.” Id. And arbitrary enforcement is not implicated

because the Guidelines “do not regulate the public by

prohibiting any conduct or by ‘establishing minimum and

maximum penalties for [any] crime.’” Id. at 895 (quoting

Mistretta v. United States, 488 U.S. 361, 396 (1989)).

“Rather, the Guidelines advise sentencing courts how to

exercise their discretion within the bounds established

by Congress.” Id. Put another way, a court does not “enforce” the Guidelines; it relies on them “merely for advice in exercising its discretion” in how to sentence the

violation of a law that is being enforced. Id.

Section 154.302 fits easily within the ambit of these

cases, as it provides guidance to a court concerning issuing a child support order, but does not prohibit any actions by interested parties, cannot be used to enforce

their monetary obligations, and fixes no penalties for

conduct. See, e.g., Wright v. City of St. Petersburg, 833

F.3d 1291, 1298 n.6 (11th Cir. 2016) (holding that an ordinance was not vague because it “does not prohibit conduct or impose punishment or sanction . . . .”). The language in section 154.302 is permissive, not prohibitive.

See Tex. Fam. Code §ௗ154.302(a) (“[t]he court may order

either or both parents” to provide child support) (emphasis added); id. (the court “may determine the rights and

duties of the parents”). And the provision is directed to

the courts, not interested parties, because it is a grant of

discretion to the courts, not a prohibition of conduct or a

means to set forth punishments.

2. Although the question of whether the void-forvagueness doctrine is even applicable to section 154.302

is issue-determinative, Canales spends only three pages

addressing it. Canales insists (at 32) that “[t]his Court

has applied the vagueness doctrine to non-conduct

cases,” but his examples lend him no support. United

States v. L. Cohen Grocery Company addressed a law

prohibiting sellers from charging “any unjust or

unreasonable rate” for “necessaries.” 255 U.S. 81, 89-93

(1921). The statute in Cline v. Frink Dairy Company

banned antitrust combinations unless they sought a “reasonable profit.” 274 U.S. 445, 453-65 (1927). A.B. Small

Company v. American Sugar Refining Company examined the Lever Act, which erected a defense for certain

breach-of-contract actions that were defined in terms of

a “reasonable profit.” 267 U.S. 233, 238 (1925). And Giaccio v. Pennsylvania concerned a state law setting penalties for criminal defendants—it allowed the jury to determine the “costs” due. 382 U.S. 399, 401 (1966).4 That

is, every single case that he cites for the proposition that

a void-for-vagueness challenge can lie against a non-proscriptive law involved a law that prohibited some particular conduct.

B. Even if a non-proscriptive law could be void

for vagueness, the court of appeals applied the

correct standard for civil laws.

Even if section 154.302 were amenable to a void-forvagueness challenge, the court of appeals followed numerous courts—including this one—in looking to

whether it is intelligible and provides a reasonable degree of certainty. Pet. App. 11-12. And it properly concluded that section 154.302 passed that undemanding

test.

1. This Court has long held that “[t]he standards of

certainty in statutes punishing for offenses is higher

Canales also asserts (at 16) that Plains All American Pipeline

L.P. v. Cook, 866 F.3d 534 (3d Cir. 2017), involves a vagueness challenge to a statute that does not “proscribe conduct.” Leaving aside

that a lower court decision cannot expand a constitutional doctrine

established by this Court, Canales’s description is again incorrect.

The statute in Plains required holders of “property presumed abandoned” to remit it to the State or suffer civil penalties. Id. at 537.

than in those depending primarily upon civil sanction for

enforcement.” Winters v. New York, 333 U.S. 507, 515

(1948). For “enactments with civil rather than criminal

penalties,” courts “express[] greater tolerance” for

vagueness because “the consequences of imprecision are

qualitatively less severe.” Village of Hoffman Estates,

455 U.S. at 498-99; see Papachristou, 405 U.S. at 162.

This Court has recognized that only a “reasonable degree of certainty” can be demanded from civil laws intended to be applied to varying real-world facts. In Boyce

Motor Lines, Inc. v. United States, this Court explained:

“[M]ost statutes must deal with untold and unforeseen

variations in factual situations, and the practical necessities of discharging the business of government inevitably

limit the specificity with which legislators can spell out

prohibitions. Consequently, no more than a reasonable

degree of certainty can be demanded.” 342 U.S. 337, 340

(1952). Thus, statutes are not invalidated as vague simply

because it may be difficult to decide borderline cases.

United States v. Nat’l Dairy Prods. Corp., 372 U.S. 29,

32 (1963).

The court of appeals’ approach in this case is consistent with the approach of this Court and other circuit

and state courts. The court recognized that the void-forvagueness doctrine “applies to both criminal and civil

statutes that proscribe conduct,” but “‘the degree of

vagueness that the Constitution [allows] depends in part

on the nature of the enactment,’” as this “Court has ‘expressed greater tolerance of enactments with civil rather

than criminal penalties because the consequences of imprecision are qualitatively less severe.’” Pet. App. 9

(quoting Dimaya, 138 S. Ct. at 1212 (plurality opinion)).

Thus, “[a]ssuming that section 154.302” is “susceptible of

a constitutional void-for-vagueness challenge,” the court

held that “the statute need only provide a reasonable degree of certainty as to its application to provide fair notice.” Id. at 11-12 (citing Vista Healthcare, Inc., 324

S.W.3d at 273-74).

The court properly concluded that it did by using

straightforward terms in the statute that are “defined in

dictionaries and with meanings so well known as to be

understood by a person of ordinary intelligence.” Id. at

12 (citing Zaborac v. Tex. Dep’t of Pub. Safety, 168

S.W.3d 222, 225 (Tex. App.—Fort Worth 2005, no pet.));

see Grayned, 408 U.S. at 108-09. The court noted that

state courts have used such statutory construction tools

when interpreting the statute. Pet. App. 12-13 (citing In

re J.M.C., 395 S.W.3d 839, 845 (Tex. App.—Tyler 2013,

no pet.)). Moreover, section 154.302 is accompanied by

other guidance in the Texas Family Code concerning

child support and modifying an existing child support order. Id. at 13; see, e.g., Tex. Family Code § 105.005 (setting standard of review for evidence in a child support

hearing); id. ch. 154 (“Child Support Guidelines”). Finally, the court referred to Justice Guzman’s observation

that the statute lacks guidance “regarding how ‘detailed

and specific’ the evidence must be” to meet the statute’s

standards, Pet. App. 13-14, but emphasized that she did

not conclude that the statute was unconstitutional, id. at

14.

2. Canales argues (at 31) that the court of appeals applied the wrong standard by requiring a “reasonable degree of certainty”—and citing another court of appeals

case for that standard—rather than the standard applied

in FCC v. Fox Television Stations, Inc., 567 U.S. 239, 253

(2012). But Fox is inapposite, as it was addressing regulations “touch[ing] upon ‘sensitive areas of basic First

Amendment freedoms’” and thus was subject to a

stricter vagueness standard. Id. at 254. In addition, the

“reasonable degree of certainty” standard the Third

Court of Appeals applied below and in Vista, which it

cited, is derived from the Texas Supreme Court case

Pennington v. Singleton, 606 S.W.2d 682, 689 (Tex.

1980), which in turn quotes this Court’s statement in

Boyce Motor Lines that “no more than a reasonable degree of certainty can be demanded,” 342 U.S. at 340.

To be sure, if a civil law is of a comparably “grave nature” to a criminal law, a vagueness challenge will also be

considered under “the most exacting vagueness standard.” Dimaya, 138 S. Ct. at 1213 (plurality opinion). Dimaya applied that principle in the immigration context,

where the penalty of deportation is particularly serious.

That case concerned a residual clause analogous to the

one that had recently been invalidated in Johnson—

meaning that the primary question was whether vagueness in the two statutes should be analyzed using the

same “exacting” standard. The plurality concluded that

“deportation is ‘a particularly severe penalty’” that “may

be of greater concern to a convicted alien than ‘any potential jail sentence’” and that, as deportation orders are

often tied to prior convictions, removal proceedings are

“intimately related to the criminal process.” Id. (citing

Jae Lee v. United States, 137 S. Ct. 1958, 1968 (2017), and

Chaidez v. United States, 568 U.S. 342, 352 (2013)).

There may be other areas of civil law that likewise

would warrant a “relatively strict test” for vagueness.

For instance, a more stringent evaluation may be called

for if the law is “quasi-criminal” and has a stigmatizing

effect. Village of Hoffman Estates, 455 U.S. at 499-500.

But even the most expansive view of the scope of civil

laws that might be deserving of more exacting vagueness

review would ask whether the civil law provides

“similarly severe sanctions” to the categories of laws that

currently receive that level of scrutiny. See Dimaya, 138

S. Ct. at 1231 (Gorsuch, J., concurring) (giving as potential examples civil laws that “subject a citizen to indefinite civil commitment, strip him of a business license essential to his family’s living, or confiscate his home”).

No such sanctions exist here. In fact, it is far from

obvious that Canales would, as he claims (at 1), be subjected to criminal penalties at all, even if he chose to violate his child support order. First, section 25.05 of the

Texas Penal Code allows as an “affirmative defense to

prosecution” the fact that “the actor could not provide

support for the actor’s child,” Tex. Penal Code § 25.05(d),

and the order alone does not prove the actor could pay,

Belcher v. State, 962 S.W.2d 653, 658 (Tex. App.—Austin

1998, no pet.). Second, there are numerous civil remedies

for failure to pay child support aimed at recouping

skipped payments, such as altering the terms of the order, garnishing wages, imposing liens, and assigning

monetary penalties. See supra I.

Texas also imbues child support law with flexibility so

courts can reach an outcome in the best interests of the

child. Williams v. Patton, 821 S.W.2d 141, 143 (Tex.

1991) (“The legislature intended that courts exercise independent judgment in matters affecting children, including the support obligation.”). Thus, courts consider

the obligor’s ability to pay and any changes in the obligor’s ability to pay, Tex. Fam. Code § 154.125, child support already available for children, id. § 154.306, and

changes in the level of support required if a child reaches

the age of majority or a disabled individual is capable of

self-support, id. § 154.127. And the obligor can return to

court with any material or substantial change to modify

or terminate the child support obligation. Id. § 154.307.

Courts must also justify decisions requiring more child

support than the Guidelines in Texas Family Code subchapter C provide. Id. § 154.130.

3. The court of appeals’ decision does not conflict with

any of the cases Canales cites (at 12-30) applying a more

exacting vagueness test because section 154.302 is a runof-the-mill civil law under which a judge crafts the terms

of a child support order. See Village of Hoffman Estates,

455 U.S. at 498-99 (“the degree of vagueness that the

Constitution tolerates . . . depends in part on the nature

of the enactment”). It is not a case where a criminal proceeding is “inevitable” and thus can be considered an “integrated structure” warranting application of the more

exacting vagueness standard. Manning v. Caldwell, 930

F.3d 264, 273 (4th Cir. 2019) (en banc).

When it comes to the vagueness analysis the court of

appeals applied here—that the degree of vagueness tolerated depends in part on the type of statute, with less

clarity demanded of purely civil statutes—the circuits

are all in accord and their holdings are consistent with

this Court’s authorities. See Ridley v. Mass. Bay

Transp. Auth., 390 F.3d 65, 94-95 (1st Cir. 2004) (explaining that “vagueness inquiries . . . are not static inquiries,

impervious to context”); United States v. Watkins, 940

F.3d 152, 159 (2d Cir. 2019); Kreimer v. Bureau of Police

for Town of Morristown, 958 F.2d 1242, 1267 (3d Cir.

1992); Manning, 930 F.3d at 272 (4th Cir. 2019); United

States v. Batson, 706 F.2d 657, 680 (5th Cir. 1983); Johnson v. Morales, 946 F.3d 911, 929 (6th Cir. 2020); Brockert v. Skornicka, 711 F.2d 1376, 1381 (7th Cir. 1983);

Rowles v. Curators of Univ. of Mo., 983 F.3d 345, 356

(8th Cir. 2020); Kashem v. Barr, 941 F.3d 358, 370 (9th

Cir. 2019); Taylor v. Roswell Indep. Sch. Dist., 713 F.3d

25, 50 (10th Cir. 2013); Alexander v. Transp. Sec.

Admin., No. 20-14455, 2021 WL 3855844, at *3 (11th Cir.

Aug. 30, 2021); Trans Union Corp. v. FTC, 245 F.3d 809,

817 (D.C. Cir. 2001).

State courts on both sides of Canales’s alleged split

are in accord that purely civil statutes are generally subjected to less stringent vagueness review than criminal

statutes or those impinging on First Amendment freedoms. See, e.g., King Street Patriots v. Tex. Democratic

Party, 521 S.W.3d 729, 743-44 (Tex. 2017) (“If a law interferes with the right of free speech or of association, a

more stringent vagueness test should apply.”) (internal

quotation marks omitted); Comm’n for Lawyer Discipline v. Benton, 980 S.W.2d 425, 437 (Tex. 1998) (concluding that “[a]ttorney disciplinary proceedings in

Texas are civil, so disciplinary rules need not satisfy the

higher degree of specificity required of criminal statutes”) (citation omitted); State v. Doyal, 589 S.W.3d 136,

146 (Tex. Crim. App. 2019) (highlighting “law[s] that impose[] criminal liability” and laws that “implicate[] First

Amendment freedoms” as subject to the vagueness analysis and noting that “[g]reater specificity is required

when First Amendment freedoms are implicated”); see

also, e.g., Rockdale Cnty v. U.S. Enters., Inc., 865 S.E.2d

135, 144 (Ga. 2021); State v. Cook, 444 P.3d 877, 881

(Idaho 2019); People v. Graves, 368 P.3d 317, 324 (Colo.

2016); Bartlow v. Costigan, 13 N.E.3d 1216, 1225 (Ill.

2014), as modified on denial of reh’g (May 27, 2014);

Agency of Nat. Res. v. Persons, 75 A.3d 582, 587 (Vt.

2013); In re App. of Columbus S. Power Co., 983 N.E.2d

276, 281 (Ohio 2012); Gary Inv. Corp. v. D.C. Dep’t of

Health, 896 A.2d 193, 196 (D.C. 2006).

C. Section 154.302 withstands even more

stringent versions of the void-for-vagueness

doctrine.

Even if this Court were to adopt more stringent formulations of the void-for-vagueness doctrine, section

154.302 would still be constitutional. A statute is not unconstitutionally vague merely because it does not supply

a statutory definition of terms with well-understood

meanings such as “because” and “will not”—or even “disability” and “substantial care.” “Many perfectly constitutional statutes use imprecise terms.” Dimaya, 138 S.

Ct. at 1214 (plurality op.); see Holder v. Humanitarian

Law Project, 561 U.S. 1, 19 (2010) (“‘[P]erfect clarity and

precise guidance have never been required even of regulations that restrict expressive activity.’”) (quoting

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

1. A statute satisfies vagueness requirements if it

“conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.” Jordan v. De George, 341 U.S. 223,

231-32 (1951); see Wagner v. State, 539 S.W.3d 298, 314

(Tex. Crim. App. 2018). In the absence of a statutory definition, courts apply the “ordinary meaning” of a term,

construed “in light of the terms surrounding it.” FCC v.

AT&T Inc., 562 U.S. 397, 403, 405 (2011) (internal quotations omitted); see also Tex. Gov’t Code §ௗ311.011(a).

That ordinary meaning may be supplied by dictionary

definitions, as well as by “the term’s usage in other statutes, court decisions, and similar authorities.” Tex. State

Bd. of Exam’rs of Marriage & Family Therapists v. Tex.

Med. Ass’n, 511 S.W.3d 28, 35 (Tex. 2017).

The lower courts in Texas have routinely applied

these principles to construe section 154.302. See, e.g., In

re J.M.C., 395 S.W.3d at 845 (considering ordinary

meaning and dictionary definitions of terms “capable,”

“substantial,” and “support”); Thompson v. Smith, 483

S.W.3d 87, 94 (Tex. App.—Houston [1st Dist.] 2015, no

pet.) (finding the child’s qualification as disabled for purposes of the federal Social Security statute supported the

trial court’s disability finding under section 154.302).

2. Most significantly, section 154.302 does not involve

the “categorical approach” this Court found troubling in

Johnson and Dimaya, which required courts to “tie[] the

judicial assessment of risk to a judicially imagined ‘ordinary case’ of a crime, not to real-world facts or statutory

elements.” Johnson, 576 U.S. at 597; see also Dimaya,

138 S. Ct. at 1213-14 (plurality op.). By contrast, the

Court in Johnson explained that it “do[es] not doubt the

constitutionality of laws that call for the application of a

qualitative standard such as ‘substantial risk’ to realworld conduct; the law is full of instances where a man’s

fate depends on his estimating rightly . . . [to] some matter of degree.” Johnson, 576 U.S. at 603-04 (internal quotation marks omitted). Ordinary ambiguity regarding

applications of a statute does not warrant application of

the void-for-vagueness doctrine. See Mugler v. Kansas,

123 U.S. 623, 661 (1887) (When evaluating the constitutionality of a state statute, a federal court must “indulge[]” “every possible presumption . . . in favor of the

validity of [the] statute.”).

Applying a “qualitative standard” to “real-world”

conduct, Johnson, 576 U.S. at 603-04, is precisely what

section 154.302 requires the judiciary to do here. After

all, state courts applying that statute are examining a human being’s need for ongoing support to address a disability—a question that varies not just between individuals but over time. In circumstances presenting such complex questions, statutory language “must remain flexible

because it is impossible to list all” of the factors that must

be considered. Pennington, 606 S.W.2d at 689 (addressing a deceptive trade practices statute). Put simply, it

would be impossible for a statute to contemplate every

factor that may result in a child having a “substantial

need” for ongoing child support—and due process does

not require that the statute do so. See Johnson, 576 U.S.

at 603-04.

3. The statute also does not invite arbitrary or discriminatory enforcement. Section 154.302 contains sufficient standards to guide the lower courts’ discretion. The

trial court can order child support under section 154.302

only if it finds that the terms of both subsections (a)(1)

and (2) have been met. Even within subsection (a)(1), the

conjunctive “and” is used to ensure that ongoing support

will be ordered only if the child requires “substantial

care and personal supervision,” “and will not be capable

of self-support.” Tex. Fam. Code §ௗ154.302(a)(1). And the

need for substantial care must be “because of a mental

or physical disability.” Id. These parameters guiding the

trial court’s discretion contradict Canales’s view of the

statute as standardless and inviting arbitrary application.

And section 154.302 should not be read in isolation.

The Texas Family Code provides various standards,

guidelines, and objective criteria for establishing child

support and modifying an existing child support order.

See supra III.B; see also, e.g., Tex. Fam. Code ch. 154

(guidelines for child support); id. §ௗ156.401 (modification

of child support order).

The Family Code also provides that the Texas Rules

of Evidence apply as in other civil cases. Id. §ௗ104.001.

And Texas Rules of Civil Procedure section 204.4 provides that under the Family Code, the court, on its own

or via a party’s motion, can appoint a psychologist or psychiatrist to perform a mental examination. The burden of

proof—measured under a preponderance of the evidence

standard, Tex. Fam. Code §ௗ105.005—is placed on the

moving party, regardless of whether the party is moving

to establish, modify, or enforce a child support order. In

re J.O.A., 2016 WL 1660288, at *5. And the trial court’s

determination is appealable and reviewed under the

abuse of discretion standard. Worford v. Stamper, 801

S.W.2d 108, 109 (Tex. 1990) (per curiam).

Because the challenged statute provides fair notice

and contains safeguards against arbitrary enforcement

sufficient even to clear the bar set for criminal cases in

Johnson and Dimaya, the court of appeals was correct

to hold that section 154.302 passes constitutional muster

under the void-for-vagueness doctrine.

C O NCL U SI O N

The petition for a writ of certiorari should be denied.

Respectfully submitted.

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney

General

JUDD E. STONE II

Solicitor General

Counsel of Record

LISA A. BENNETT

KATHRYN M. CHERRY

Assistant Solicitors General

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

Judd.Stone@oag.texas.gov

(512) 936-1700

MARCH 2022

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.