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Anderson Courier Service v. State3/6/2003
In this case, we examine the constitutionality of House Bill 1544 ("H.B.1544"), which amended section 38 of the Texas Penal Code. The bill provides that a person commits a Class B misdemeanor if he uses certain accident report information obtained from the Texas Department of Public Safety or other governmental entity for pecuniary gain. Shortly after the bill was passed, Anderson Courier Service, ACC-A-FAX, Accident Review, Inc., and Dr. Eric Randolph (collectively, "Anderson Courier") brought suit claiming that H.B.1544 violates their rights to commercial free speech guaranteed by article I, section 8 of the Texas Constitution. Anderson Courier sought a temporary restraining order as well as temporary and permanent injunctions to have the law declared unconstitutional and enjoined from taking effect. The temporary restraining order was granted. At the hearing for the temporary injunction, the parties agreed to have the court rule on the merits of the case. The trial court denied all injunctive and declaratory relief. Anderson Courier appeals on the following grounds: (1) the trial court erroneously concluded that H.B.1544 regulated access to information rather than commercial free speech; and (2) the trial court incorrectly applied the constitutional test. We reverse the judgment of the trial court and render judgment that H.B.1544 unconstitutionally regulates commercial free speech.
FACTUAL BACKGROUND
This appeal involves three private businesses that sell accident reports for purposes of solicitation and one chiropractor who relies on such reports to solicit clients. Anderson Courier Service obtains accident reports in bulk and sells them to a variety of companies who use the information for marketing purposes. ACC-A-FAX retrieves and faxes specific accident reports to insurance companies and attorneys who use the reports to investigate cases and claims. Accident Review is a private investigation company that conducts accident scene investigations for insurance companies. It obtains accident reports to aid in its investigations. Dr. Eric Randolph is a licensed chiropractor who uses accident reports as a means of soliciting business.
In 2001, the legislature passed H.B.1544, which criminalized the means by which Anderson Courier and others make their living. Anderson Courier alleges that H.B.1544 violates its rights to commercial free speech guaranteed by the Texas Constitution. The provision of H.B.1544 challenged at trial and in this appeal provides in part: "A person commits an offense if: (1) the person obtains information . . . from the Department of Public Safety of the State of Texas or other governmental entity; and (2) the information is subsequently used for the direct solicitation of business or employment for pecuniary gain . . . ." Act of May 22, 2001, 77th Leg., R.S., ch. 1032, § 1, 2001 Tex. Gen. Laws 2281 (codified at Tex. Pen. Code Ann. § 38.18 (West Supp. 2003)).
Anderson Courier sought a temporary restraining order, which was granted. Anderson Courier also sought a temporary and permanent injunctions to have the law declared unconstitutional and enjoined from taking effect. The trial court denied Anderson Courier's request for temporary and permanent injunction and declaratory relief. The temporary restraining order expired and the law went into effect.
DISCUSSION
Standard of Review
In evaluating the constitutionality of a statute, the court must presume a statute enacted by the legislature is constitutional. Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 662 (Tex. 1996); Spring Branch Indep. Sch. Dist. v. Stamos, 695 S.W.2d 556, 558 (Tex. 1985). The party seeking to inval
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