Texas Penal Code Section 42.05 Interpretation
Texas Penal Code section 42.05 provides in relevant part: "A person commits an offense if, with intent to prevent or disrupt a lawful meeting, procession, or gathering, he obstructs or interferes with the meeting, procession, or gathering by physical action or verbal utterance."
In Morehead v. State, 807 S.W.2d 577, 581 (Tex. Crim. App. 1991) at 581, the Court held that 42.05 can be rendered constitutional only if it is construed to criminalize physical acts or verbal utterances that "substantially impair the ordinary conduct of lawful meeting ... ."
In Morehead the appellant argued that 42.05 was impermissibly overbroad in that it prohibited some constitutionally protected activity. 807 S.W.2d at 579.
Although we concluded that the statute was overbroad, we held that it was susceptible to a narrowing construction that would be consistent with its language and apparent purpose. We explained:
Given the competing First Amendment freedoms at stake, 42.05 can be rendered constitutional if it is construed to criminalize only physical acts or verbal utterances that substantially impair the ordinary conduct of lawful meetings, and thereby curtail the exercise of others' First Amendment rights. Id. at 581.
In Morehead, the defendant was convicted under 42.05 and on appeal argued that the statute was overbroad.
The court of appeals held that the statute, read literally, was unconstitutionally broad, but the statute could "be narrowed to reach only unprotected expression if it is construed to prohibit only speech and physical action incompatible with the normal activity of a particular place at a particular time."
In his petition for discretionary review, the defendant argued that "it was inappropriate for the court of appeals to assume the legislative prerogative and rewrite 42.05 in order to save it."