Texas Attorney General Opinion: GA-113 Page: 4 of 7
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The Honorable Richard J. Miller - Page 4
When these principles are applied to the situation you pose, it is clear that, whatever the
legislature's intent in enacting section 38.16(a) of the Penal Code, the statute may not, under the
Fourth Amendment, validly be applied to an individual who refuses to permit a constable to enter
the restricted area of a business for the purpose of serving process. We conclude that the personnel
director in the scenario you have described cannot be convicted of violating section 38.16(a) of the
Penal Code because, as applied to that situation, the statute contravenes the Fourth Amendment to
the United States Constitution.
You also ask whether section 38.16 is "overly vague to the extent that it is not enforceable."
Request Letter, supra note 1, at 2. The doctrine of void-for-vagueness, as applied to the states, is
derived from the due process guarantees of the Fourteenth Amendment to the United States
A vague statute offends due process in two ways. First, it fails to
give fair notice of what conduct may be punished, forcing people to
guess at the statute's meaning and threatening to trap the innocent.
Second, it invites arbitrary and discriminatory enforcement by failing
to establish guidelines for those charged with enforcing the law,
"allow[ing] policemen, prosecutors, and juries to pursue their
To survive a vagueness challenge, a statute need not spell out
with perfect precision what conduct it forbids. "Words inevitably
contain germs of uncertainty." Due process is satisfied if the
prohibition is "set out in terms that the ordinary person exercising
ordinary common sense can sufficiently understand and comply
Comm 'nfor Lawyer Discipline v. Benton, 980 S.W.2d 425, 437 (Tex. 1998) (citations omitted).
The courts of Texas have found that a regulation of the Liquor Control Board requiring licensed
private clubs to provide "regular food service" and "complete meals" was not unconstitutionally
vague, Texas Liquor Control Board v. Attic Club, Inc., 457 S.W.2d 41, 45 (Tex. 1970); that a
regulation of the State Board of Insurance, deeming a "pattern of action" as prima facie evidence
of the violation of the regulation was not vague, Nunley v. State Board of Insurance, 552 S.W.2d
624, 630 (Tex. Civ. App.-Eastland 1977, writ ref'd n.r.e.); that a statute under which a nurse was
disciplined for "unprofessional or dishonorable conduct which, in the opinion of the Board [of
Nurse Examiners] is likely to injure the public" was not vague, Murphy v. Rowland, 609 S.W.2d
292, 297 (Tex. Civ. App.-Corpus Christi 1980, writ ref'd n.r.e.); and that ordinances or county
regulations forbidding the owning or operating of a sexually oriented business without a license
were not vague, Mayo v. State, 877 S.W.2d 385,389 (Tex. App.-Houston [1st Dist.] 1994, no pet.),
State v. Garcia, 823 S.W.2d 793, 799 (Tex. App.-San Antonio 1992, pet. ref'd), Memet v. State,
642 S.W.2d 518, 522-23 (Tex. App.-Houston [14th Dist.] 1982, pet. ref'd). Even in the criminal
context, "[a] provision need not... be cast in terms that are mathematically precise; it need only
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Texas. Attorney-General's Office. Texas Attorney General Opinion: GA-113, text, 2003; (texashistory.unt.edu/ark:/67531/metapth275009/m1/4/: accessed December 14, 2018), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; crediting UNT Libraries Government Documents Department.