Fair Warning Before Making An Activity Criminal In Texas
In Bynum v. State, 767 S.W.2d 769, 773 (Tex. Crim. App. 1989) the court stated:
As a fundamental proposition, all criminal laws must give notice to the populace as to what activity is made criminal so as to provide fair notice to persons before making their activity criminal.
The rationale for this is obvious: crimes must be defined in advance so that individuals have fair warning of what is forbidden.
As the Supreme Court has stated: a lack of notice poses a "trap for the innocent ...," United States v. Cardiff, 344 U.S. 174, 176, 73 S. Ct. 189, 190, 97 L. Ed. 200 (1952) and "violates the first essential of due process." Connally v. General Construction Co., 269 U.S. 385, 46 S. Ct. 126, 70 L. Ed. 322 (1926).
In other words, initially the inquiry must be whether the ordinary, law-abiding individual would have received sufficient information that his or her conduct risked violating a criminal law.
This is what the Supreme Court meant in Grayned v. City of Rockford, 408 U.S. 104, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972), when it adopted a two part analysis:
Vague laws offend several important values.
First, because we assume that man is free to steer between 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 discriminatory 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 attendant dangers of arbitrary and discriminatory applications. Grayned, 408 U.S. at 108-109, 92 S. Ct. at 2298-2299.