|Former SSHS teacher challenging state law
Attorney for woman arrested on improper relationship with student charge files writ questioning constitutionality of 2003 Texas statute
|Kerry Craig | News-Telegram Assistant Editor|
Dec. 2, 2005 -- Attorneys in two Texas cities are challenging the constitutionality of a state law prohibiting relationships between school employees and students, and attorneys on both sides say the issue could end up in the U.S. Supreme Court.
Defense attorneys Phil Smith in Sulphur Springs and Abigale Klamert in San Marcos have both filed challenges to the law, which went into effect Sept. 1, 2003.
Smith represents former Sulphur Springs High School math teacher Shelly Kasandra Shaw, who was charged with having an improper relationship with a female student in October of 2004.
Klamert is the attorney for Santiago Morales, who was indicted in January of 2004 of having an improper relationship with a then-17-year-old male student at San Marcos Baptist Academy, where Morales worked as a recreation and dormitory assistant.
Section 21.12 of the Texas Penal Code, titled "Improper Relationship Between Educator and Student," states, "An employee of a public or private primary or secondary school commits an offense if the employee engages in sexual contact, sexual intercourse, or deviate sexual intercourse
with a person who is enrolled in a public or private primary or
secondary school at which the employee works and who is not the
employee's spouse." The offense is classified as a second-degree felony.
Smith's pretrial motion asking that the law be declared unconstitutional was denied Thursday by Eighth Judicial District Judge Robert Newsom. The defense attorney says he will now take the case to the criminal appeals court in Texarkana.
He argued the statue is void for vagueness and violates the equal protection clauses in the U.S. and Texas Constitutions, as well as the due process clauses of the U.S. and Texas Constitutions.
Smith's motion also argued that the law discriminates against homosexuals, as the statute does not prohibit relationships between spouses. Texas voters in November approved a constitutional amendment strengthening prohibitions against same-sex marriages.
"The title of this law is 'Improper Relationship Between Educator and Student," Smith said. "However, in the law itself, it just says any employee of a school district who has an improper relationship with a student is guilty of a second-degree felony. I mean, we are talking cafeteria workers, we are talking part-time student employees in the summer months mowing grass on the football field."
Klamert, meanwhile, has already won the first round in her case involving a male teacher and male student.
274th Judicial District Judge Gary Steel agreed with Klamert's argument and struck down the law at a pretrial hearing in July. In explaining his ruling, he cited examples of potential abuse, such as a 17-year-old boy hired to mow lawns at school being prosecuted for having sex with his girlfriend, Klamert said.
"Under these very real possibilities, a jury would have to reach an illogical and unjust conclusion based on a bad law," Klamert said. "Nobody disagrees that the state has an interest in protecting minors. But the law goes far beyond teachers coercing students to have sex."
While the ruling by Judge Newsom upholding the law in Hopkins County is being appealed by the defense attorney, the ruling by the San Marcos judge is being appealed by the state.
Regardless of how the appellate courts find, those rulings are expected to be appealed by the losing sides to the Criminal Appeals Court of Texas. And according to both defense attorneys and Hopkins County Distirct Attorney Martin Braddy, the issue may very well end up before the Supreme Court of the United States.
"This very well could be the case that decides the constitutionality of criminalizing that activity," Braddy said. "That could have very far-reaching implications and could go not only to our court of appeals in Texarkana, but to the Texas Court of Criminal appeals, as well as the United States Supreme Court. This is a very big issue."