Jurisdictional Statement — Collection Consultants, Inc. v. Texas

Supreme Court, U.S, -

FILED

JAN 3 1978

MULOALL BODAK IR. CLERK

In the

Supreme Court of the Unitec States

October Term, 1977

47-950

COLLECTION CONSULTANTS, INC.

AND STELLA THORNTON,

Appellants,

v.

THE STATE OF TEXAS,

Appellee.

On Appeal from the

Court of Criminal Appeals of Texas

JURISDICTIONAL STATEMENT

Rosert B. Cousins, lV,

3100 First National Bank

Building,

Dallas, Texas 75202,

Attorney for Appellants.

OF COUNSEL:

Ivan Irwin, Jr.

3100 First National

Bank Building

Dallas, Texas 75202

James E. Sutton

2819 North Fitzhugh

Dallas, Texas 75221

TABLE OF CONTENTS

Page

har a Ee RRS A ATC TEN 1

CSREES Ti tite ERR a Ie eee Pe ee 2

Constitutional and Statutory Provisions Involved ...... ey

REE a ha, 3

How the Federal Question Was Raised

as cennisonstopecdioeeh 4

The Federal Question Is Substantial ........... 5

ii TABLE OF CASES

Anniskette v. State, 489 P, 2d 1012 (Alaska 1971) ... 5,7

California Water Service Company v.

City of Redding, 301 U.S. 252 (1938) ig,

Coates v. City of Cincinnati, 402 U.S. 611 (1971) ... 2,5, 6,7

Connally v. General Const. Co.,

269 U.S. 385 (1926) ........ a ME OS OSES VE SL 5, 6

Grayned v. City of Rockford, 408 U.S. 104 (1972) 6

Huntley v. Public Utilities Commission,

442 P. 2d 685 (Cal. 1968) | |

Hynes v. Mayor of Oradell, 425 U.S. 610 (1976)

Moyer v. Peabody, 212 U.S. 78 (1909)

NAACP v. Alabama, 377 U.S. 288 (1964)

Norton v. Whiteside, 239 U.S. 144 (1915)

Papachristou v. City of Jacksonville,

405 U.S. 156 (1972) ms

Smith v. Gougen, 415 U.S. 566 (1974). 8

Sugarman v. United States, 249 U.S. 182 (1919) 8

Walker v. Dillard, 523 F. 2d 3 (4th Cir.),

cert. denied, 423 U.S. 906 (1975) ........... ee

oco8sT7Tvr. nae o

TABLE OF CONSTITUTIONAL AND ili

STATUTORY PROVISIONS

U.S. Const. amend, I

U.S. Const. amend, XIV

28 U.S.C. §1257 (2) ......

28 U.S.C. §2103

Tex. Penal Code Ann. §42.07(a) (2) (1974)

Tex. Rev. Civ. Stat. Ann, art. 5069-11.03 (Supp.

2,3, 4, 5,7

1974) 4

In the

Supreme Court of the United States

October Term, 1977

No.

COLLECTION CONSULTANTS, INC.

AND STELLA THORNTON,

Appellants,

v.

Tue Srate or Texas,

Appellee.

On Appeal from the

Court of Criminal Appeals of Texas

JURISDICTIONAL STATEMENT

The Appellants, Collection Consultants, Inc. and Stella

Thornton, respectfully pray that an order issue noting prob-

able jurisdiction to review the Judgment and Opinion of

the Court of Criminal Appeals of Texas entered on Oc-

tober 5, 1977.

Opinion Below

The Court of Criminal Appeals of Texas is the court of

last resort for criminal appeals in Texas. The Opinion of

that court in this case appears in the Appendix at page 3.

The opinion is reported at 556 S.W. 2d 787 (Tex. Crim.

App. 1977).

2

Jurisdiction

Jurisdiction of this Court is invoked pursuant to 28 U.S.C..,

§ 1257(2), this being an appeal which draws into question

the validity of Tex. Penal Code Ann., § 42.07(a) (2) (1974),

on the ground it is repugnant to the Constitution of the

United States.

The Appellants were convicted of telephone harassment

in the County Criminal Court at Law No. 6 of Harris

County, Texas. On appeal, their convictions and sentences

were reversed on May 3, 1977. On the State’s Motion for

Rehearing the convictions and sentences were affirmed on

October 5, 1977. On November 7, 1977, the Appellants’ Mo-

tion for Rehearing was denied without written order. Timely

notice of appeal to this Court was filed in the Court of

Criminal Appeals of Texas on December 28, 1977. As the

Court of Criminal Appeals of Texas explicitly rejected the

Appellants’ challenge to Tex. Penal Code Ann., § 42.07 (a)

(2) (1974), this matter is appropriately brought to this

Court by appeal. Coates v. City of Cincinnati, 402 U.S.

611 (1971).

In the event the Court does not consider appeal the

proper method of review, the Appellants request the papers

whereupon this appeal is taken be regarded and acted upon

as a petition for writ of certiorari pursuant to 28 U.S.C.

§ 2103. Appellants would show that the state court below

has decided the substantial federal question raised here in

a way not in accord with applicable decisions of this Court,

including Coates v. City of Cincinnati, supra.

Constitutional and Statutory Provisions Involved

This case involves the First and Fourteenth Amendments

to the Constitution of the United States. This case also

3

involves Tex. Penal Code Ann. § 42.07(a) (2) (1974), which

states:

§42.07 Harassment.

(a) a person commits an offense if he intentionally:

(2) threatens, by telephone or in writing, to

take unlawful action against any person and by

this action intentionally, knowingly, or reck-

lessly annoys or alarms the recipient or intends

to alarm or annoy the recipient; (4 V.T.C.A.

Penal Code, pp. 167-168.)

Question Presented

Whether Tex. Penal Code Ann. § 42.07(a) (2) (1974)

which prohibits speech that allegediy annoys or alarms

another person violates the First and Fourteenth Amend-

ments to the Constitution of the United States?

Statement

Appellant Collection Consultants, Inc. (hereinafter “Col-

lection”) is engaged in the business of debt collection. Ap-

pellant Stella Thornton (hereinafter “Thornton”) was an

employee of Collection. The Appellants were charged by

separate informations filed on October 15, 1974, with com-

mitting the offense of telephone harassment in violation of

Tex. Penal Code Ann. § 42.07(a) (2) (1974). The informa-

tions charged that in attempting to collect an alleged debt

owed by Ervin O. Grice, the Appellants threatened by

telephone to take unlawful action against Mr. Grice. By

this action, it was alleged that the Appellants intentionally

and knowingly annoyed or alarmed the recipient of the

calls or attempted to annoy or alarm the recipient.

The unlawful action allegedly threatened was to con-

tinue to call Mr. Grice until the debt was paid. Although

4

it did not appear on the face of the informations, it was

the State’s contention at trial that such conduct would

violate Tex. Rev. Civ. Stat. Ann. art. 5069-11.03 (Supp.

1974), which states:

Art. 5069-11.03. Harassment; Abuse.

~ In connection with the collection of or attempt to col-

lect any debt alleged to be due and owing by a con-

sumer, no debt collector may oppress, harass, or abuse

any person by methods which employ the following

practices:

. (d) causing a telephone to ring repeatedly or con-

tinuously or making repeated and continuous tele-

phone calls with the willful intent to harass any per-

son at the called number.

The case was tried before a jury from Feoruary 19, 1975

to February 21, 1975. The jury returned a verdict of guilty.

Formal sentencing was rendered on March 13, 1975. The

court fined Collection $1,000.00 and Thornton $150.00, and

sentenced Thornton to 30 days confinement in the county

jail, probated for 180 days.

On appeal, the Court of Criminal Appeals of Texas af-

firmed the convictions. The court summarily held that

Tex. Penal Code Ann. § 42.07(a) (2) (1974) does not vio-

late the First and Fourteenth Amendments to the Con-

stitution of the United States.

How the Federal Question Was Raised

and Decided Below

Prior to trial, the Appellants moved for dismissal of the

_ informations on the ground that Tex. Penal Code Ann.

§ 42.07 (a) (2) (1974) is unconstitutional because it is vague

and overbroad. The trial court overruled these motions

without written order. On appeal to the Court of Criminal

5

Appeals of Texas, the Appellants’ First Point of Error was

that the trial court erred in not dismissing the informations

because Tex. Penal Code Ann. § 42.07 (a) (2) (1974) is

unconstitutional for it violates the First and Fourteenth

Amendments to the Constitution of the United States. The

convictions were affirmed with the court summarily rejecting

the Appellants’ constitutional challenge to the statute in

question. See Appendix, pp. 9-10.

The Federal Question is Substantial

Telephonic communication is a means of speech and ex-

pression protected by the First and Fourteenth Amend-

ments. Walker v. Dillard, 523 F. 2d 3 (4th Cir.), cert

denied, 423 U.S. 906 (1975); Huntley v. Public Utilities

Commission, 442 P. 2d 685 (Cal. 1968); Anniskette v.

State, 489 P. 2d 1012 (Alaska 1971). As construed by the

highest criminal court of the State of Texas, Tex. Penal

Code Ann. § 42.07(a) (2) (1974) permits the restriction

of this type of speech in a vague, overbroad, and standard-

less manner. Such a restriction contravenes the First and

Fourteenth Amendments to the Constitution of the United

States. ,

In holding that the statute in question is not unconstitu-

tional, the Court of Criminal Appeals of Texas ignored this

Court’s holding in Coates v. City of Cincinnati, 402 U.S.

611 (1971). The Coates decision held that a city ordinance

prohibiting conduct “annoying” to persons was vague and

overbroad, and therefore, contravened the constitutional

right of freedom of speech.

Precision in the definition of a criminal offense is a right

of citizens guaranteed by the Fourteenth Amendment. A

statute which either forbids or requires the doing of an act

in language so vague that men of common understanding and

)

6

intelligence must guess at its meaning and differ on its appli-

cation violates an essential element of due process of law.

Connally v. General Const. Co., 269 U.S. 385 (1926);

Papachristou v. City of Jacksonville, 405 U.S. 156 (1972).

In Grayned v. City of Rockford, 408 U.S. 104 (1972), this

Court stated:

It 1s a basic principle of due process that an enactment

is void for vagueness if its prohibitions are not clearly

defined. Vague laws offend several important values.

First, because we assume that man is free to steer be-

tween lawful and unlawful conduct, we insist that laws

give the person of ordinary intelligence a reasonable

opportunity to know what is prohibited so that he may

act accordingly. Vague laws may trap the innocent by

not providing fair warning. Second, if arbitrary and dis-

criminatory enforcement is to be prevented, laws must

provide explicit standards for those who apply them. A

vague law impermissibly delegates basic policy matters

to policemen, judges and juries for resolution on an ad

hoc and subjective basis, with the intended dangers of

arbitrary and discriminatory application . . . 408 U.S. at

108.

Since the words “annoy” and “alarm” are not defined in

the Penal Code of Texas, the statute in question leaves the

public uncertain about the conduct that is prohibited. It

leaves judges and juries to subjectively decide, without a

legally fixed standard, what is prohibited in each case.

ce is vague, not in the sense

that it requires a person to conform his conduct to an

imprecise but comprehensible normative standard, but

4

7

rather in the sense that no standard of conduct is spe-

cified at all. As a result, ‘men of common intelligence

must necessarily guess at its meaning’. 402 U.S. at 614.

The problem identified in Coates is exemplified by the

situation of the Appellants. Assertive language may be

necessary for the successful collection of debts which are

long past due. The Appellants could not possibly have known

when their conduct became “annoying” or “alarming” and

therefore violated the Texas statute. The statute clothes

the listener with the sole power of determining if Appel-

lants’ speech was beyond the protection of the First Amend-

ment. A similar statute was held unconstitutional by the

Supreme Court of Alaska in Anniskette v. State, supra,

wherein the Court stated:

That the officer was personally offended by the tele-

phone calls does not render the defendant’s conduct a

crime. That would be to make the terms of the statute

in the content of the First Amendment shift from the

mentation and emotional status of the recipient to the

verbal communication. Under an objective standard, it

is not permissible to make criminality hinge upon the

ideological vicissitudes of the listener. A great deal more

is required to place speech outside the pale of the First

Amendment protection. 489 P. 2d at 1015.

The unconstitutionality of the statute is magnified since

it authorizes the listener to determine if the caller commits

a crime.

Not only is Tex. Penal Code Ann. §42.07(a) (2) (1974)

void for vagueness, but also it violates the related consti-

tutional principle of overbreadth. In NAACP v. Alabama,

377 U.S. 288 (1964), this Court stated:

A governmental purpose to control or prevent activities

constitutionally subject to state regulation may not be

8

achieved by means which would sweep unnecessarily

broadly and thereby invade the area of protected free-

doms. 377 U.S. at 307.

Since the statute in question does not provide a readily

ascertainable standard of guilt and leaves to conjecture

what conduct may subject an actor to criminal prosecu-

tion, it is a direct infringement on the constitutional right

of freedom of expression. State legislatures may not allow

such an infringement by abdicating their responsibility for

setting standards of criminal laws. Smith v. Gougen, 415

U.S. 566 (1974).

The Court of Criminal Appeals of Texas has not inter-

preted the statute to limit its workings to constitutionally

permitted regulation of speech. This has resulted in a denial

of due process to the Appellants. Hynes v. Mayor of Oradell,

425 U.S. 610 (1976).

This constitutional challenge to the validity of a statute

of the State of Texas is a substantial federal question.

Classically, review has been denied where the constitutional

claim was a mere reference to a constitutional provision,

Sugarman v. United States, 249 U.S. 182 (1919); where

the contention was obviously without merit or frivolous,

Moyer v. Peabody, 212 U.S. 78 (1909) ; or where the Supreme

Court has already ruled adversely. California Water Service

Company v. City of Redding, 304 U.S. 252 (1938). This

case presents a real controversy over constitutional rights

which depends upon the construction given the statute by

this Court. The question, therefore, must be considered a

substantial one justifying review by this Court. Norton v.

Whiteside, 239 U.S. 144 (1915). Where the fundamental

rights of free speech and liberty are so clearly involved, as

here, the question presented is so substantial as to require

consideration of the entire record, with briefs on the merits

and oral argument, for its resolution.

9

Conclusion

Wherefore, for the foregoing reasons, these Appellants

pray for an order of this Court noting probable jurisdiction

to review the judgment and opinion of the Court of Crim-

inal Appeals of Texas.

Respectfully submitted,

CCR RR RRR RRR eee eee eee

Rosert B. Cousins, IV,

3100 First National Bank

Building,

Dallas, Texas 75202,

(214) 748-9696

Attorney for Appellants.

OF COUNSEL:

Ivan Irwin, Jr.

3100 First National

Bank Building

Dallas, Texas 75202

James E. Sutton

2819 North Fitzhugh

Dallas, Texas 75221

10

Proof of Service

I, Robert B. Cousins, IV, attorney for Cottecrion Con-

SULTANTS, INc. and Sretta THORNTON, Appellants herein,

aud a member of the Bar of the Supreme Court of the

United States, hereby certify that on the 30th day of

December, 1977, I served three (3) copies of the foregoing

Jurisdictional Statement to the Supreme Court of the United

States on all parties in this proceeding required to be served

by depositing the same in a United States mailbox, with first

class postage pre-paid, at their post office addresses as

follows:

Mr. Carol S. Vance

District Attorney

Harris County, Texas

500 Criminal Courts Building

Houston, Texas 77002

Mr. Clyde F. DeWitt

Assistant District Attorney

Harris County, Texas

500 Criminal Courts Building

Houston, Texas 77002

Mr. Jim D. Vollers

State’s Attorney

P. O. Box 12308, Capitol Station

Austin, Texas 78711

/s/ Rosert B. Cousins, IV

ORR ee

Rosert B. Cousins, [V,

3100 First National Bank

Building,

Dallas, ‘Texas 75202,

(214) 748-9696

Attorney for Appellants.