Hastings Constitutional Law Quarterly


In 2015, the Supreme Court struck down the residual clause of a major federal "habitual offender" statute in Johnson v. United States. The Court determined that combining the ambiguously worded "residual clause" with a pure "categorical approach" for interpreting qualifying crimes violated the notice provision of the Due Process Clause. Additionally, the Court identified an inability to create a clear and consistent standard of application for applying the residual clause as a second independent ground for holding the residual clause unconstitutional. Although the Court's holding specifically applied to a federal sentencing enhancement scheme, the holding is undoubtedly applicable to state habitual offender statutes through the Fourteenth Amendment's incorporation of the Fifth Amendment Due Process Clause. This Note applies Johnson's holding to Texas' habitual offender statute. Under the Texas two-strikes or habitual offender statute, criminal offenders can qualify for sentencing enhancement for foreign convictions, or offenses committed outside of Texas, if the conviction "contain[s] elements that are substantially similar to the elements of an offense" that would be subject to enhancement in Texas. This Note argues that the foreign jurisdiction clause in Texas fails under both the first and second independent vagueness holdings in Johnson. Thus, this Note (1) addresses the constitutional vagueness arguments in the foreign convictions clause of Texas' habitual offender statute; (2) analyzes the propensity for arbitrary judicial application of the law due to a lack of consistent "standards;" and (3) considers cures to the defect and proposes an alternative to the "foreign conviction" clause used in Texas.