Texas obscenity statute

The Obscene Device Law is a Texas statute dealing with obscenity. In 1973, the Texas Legislature passed Section 43.21 of the Texas Penal Code which, in part, prohibited the sale or promotion of ""Obscene device[s]" mean[ing] a device including a dildo or artificial vagina, designed or marketed as useful primarily for the stimulation of human genital organs."

Prosecution under the statute is rare but has occasionally occurred. In Burleson in 2004, Joanne Webb, a mother of three and a former schoolteacher, faced up to one year in prison for selling a vibrator to two undercover police officers posing as a married couple at a private party.^[1] She was later acquitted, and the undercover officers were issued reprimands. In 2007, a lingerie shop in Lubbock was raided, and items "deemed to be illegal by the Texas Penal Code" were confiscated. The clerk on duty at the time was arrested and may have to register as a sex offender.^[2] In 2001, attorneys Mary and Ted Roberts used the obscenity statute in an elaborate extortion scheme against a number of men who had engaged in extramarital relations with Mary Roberts.^[3]

Section 43.23 of the Code dealt with promotion ("A person commits an offense if, knowing its content and character, he... promotes or possesses with intent to promote any obscene material or obscene device... A person who possesses six or more obscene devices or identical or similar obscene articles is presumed to possess them with intent to promote the same."). This legislation was last updated in 2003.^[4]

Two companies filed suit, Reliable Consultants, Inc. (d/b/a Dreamer's and Le Rouge Boutique), who operate four retail stores in Texas that carry a stock of sexual devices, and PHE, Inc. (d/b/a Adam & Eve, Inc.), which is also engaged in the retail distribution of sexual devices through their website and catalogs, filed suit, claiming that the statute is unconstitutional.

In an appeal from the United States District Court for the Western District of Texas, a three-judge panel of the 5th Circuit Court of Appeals overturned the statute on February 12, 2008, by a vote of 2–1, holding that "the statute has provisions that violate the Fourteenth Amendment of the U.S. Constitution". (The original case name has been shortened to "Reliable Consultants v. Abbott (5th Cir. 2008) (Texas)" from its original and complete name shown in the filings.)

The majority opinion stated that "Because of Lawrence v. Texas, 539 U.S. 558 (2003), the issue before us is whether the Texas statute impermissibly burdens the individual's substantive due process right to engage in private intimate conduct of his or her choosing. Contrary to the district court's conclusion, we hold that the Texas law burdens this constitutional right. An individual who wants to legally use a safe sexual device during private intimate moments alone or with another is unable to legally purchase a device in Texas, which heavily burdens a constitutional right."

The State of Texas argued that the state has the right to regulate morality: "The state also argued in a brief that Texas has legitimate “morality based” reasons for the laws, which include “discouraging prurient interests in autonomous sex and the pursuit of sexual gratification unrelated to procreation.”"

The State of Texas (through Attorney General Greg Abbott) filed a petition on February 22, 2008, for the Circuit Court to rehear the argument en banc.^[5]

On July 3, 2008, the Texas 13th District Court of Appeals in Corpus Christi^[6] in the case of Villareal vs. State,^[7] addressed the ruling of the federal 5th Circuit Court of Appeals. The 13th District Court of Appeals ruled that until the Texas Court of Criminal Appeals rules that 43.23 is unconstitutional, the promotion of obscene devices remains illegal.^[8] Therefore, despite the actions of the federal courts and the Texas Attorney General described elsewhere in this article, section 43.23 remains in effect in the twenty-county area of Texas covered by the jurisdiction of the 13th District Court of Appeals.^[9]

On August 1, 2008, the Fifth Circuit denied Texas's request to re-hear the case en banc.^[10]

That refusal by the Fifth Circuit created a split between federal circuits: the 5th Circuit overturned the Texas law and the 11th Circuit upheld a nearly identical Alabama law. That would usually mean that the United States Supreme Court would grant a writ of certiorari and rule in order to clear up the disagreement between the two circuits.^[11]

On November 4, 2008, U.S. District Judge Lee Yeakel released a two-page document dated October 29, 2008, in which he stated that the Texas Attorney General's Office notified him that they would not file a writ of certiorari with the Supreme Court (Unable to find a copy of this filing; this is one source of the notification:^[12]). With the appeal dropped, Texas sellers of adult devices outside of the jurisdiction of the Texas 13th District Court of Appeals are now safe from prosecution under this law.

See also

• Anti-Obscenity Enforcement Act (Alabama statute)

References

External links

• Texas statute
• Texas Tech University Law School
• Austin Chronicle article
• PDF Version of Circuit Court Opinion (Rev Mar 10, 2008)
• Statutes.legis.state.tx.us