Texas Attorney General Opinion: DM-500 Page: 4 of 9
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The Honorable Toby Goodman - Page 4
public media that they will place a child in adoption, or provide a childfor adoption."10 And, in
explaining House Bill 1091 on the floor of the House of Representatives, you stated that the bill
"amends chapter 25 of the Penal Code creating an offense to advertise in the public media that a
child will beplacedfor adoption orprovide a childfor adoption."" Thus at least two explanations
of the bill to the legislature omitted any reference to application of the prohibition to prospective
adoptive parents. While the bill's sponsor may have contemplated a different construction, when
interpreting a statute a court must seek to effectuate the "collective" intent of the legislators who
enacted it.'2 In doing so a court normally focuses on the literal text of the statute, which in this case
we think is susceptible to more than one understanding. In light of the ambiguity in both the
wording of the statute and its legislative history, we cannot predict how a court would rule on this
question. Moreover, we believe this ambiguity makes the statute susceptible to a challenge that it
is unconstitutionally vague.
Criminal laws must give notice to the populace as to what activity is made criminal because
lack of notice poses a trap for the innocent." A criminal statute must be clear enough so that a
person of ordinary intelligence is given reasonable notice of what conduct is prohibited.'4 It must
also provide adequate standards to those who enforce it so that it cannot be arbitrarily and
discriminatorily applied." Furthermore, where the constitutional right to freedom of speech is
implicated, as it is in this case, the law requires a greater degree of specificity than in other
contexts.'6 We will not predict how a court would rule on this question. We note, however, that it
is within the power of the legislature to avoid constitutional challenges by amending the statute to
make clear its intended scope.
Your third question is whether a member of the public media commits an offense if it
publishes an advertisement prohibited by section 25.09. You ask us to consider the application of
Penal Code sections 7.01 and 7.02, known as the "law of parties," in answering this question.
Section 7.01 makes a person criminally responsible as a party to an offense if the offense is
committed by the person's own conduct or by the conduct of another for which the person is
criminally responsible. We will assume that you are asking about a situation in which an
'0House Comm. on Juvenile Justice & Family Issues, Bill Analysis, H.B. 1091, 75th Leg. (1997) (emphasis
added).
"Debate on H.B. 1091 on the Floor of the House of Representatives, 75th Leg. (Apr. 29, 1997) (audio tape
available from House Video/Audio Services) (emphasis added).
'2Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crime. App. 1991).
"'3Acosta v. State, 972 S.W.2d 95, 97 (Tex. App.--El Paso 1998, no pet.).
'4Long v. State, 931 S.W.2d 285, 287 (Tex. Crime. App. 1996).
'SAcosta, 972 S.W.2d at 98.
6Long, 931 S.W.2d at 287-88 (citing Kramer v. Price, 712 F.2d 174, 177 (5th Cir. 1983)).p. 2867
(DM-500)
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Texas. Attorney-General's Office. Texas Attorney General Opinion: DM-500, text, December 29, 1998; (https://texashistory.unt.edu/ark:/67531/metapth274309/m1/4/: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.