Texas obscenity statute

The Obscene Device Law is a Texas statute prohibiting the sale of sex toys. The law was introduced in 1973, and was last updated in 2003. While the law was never formally repealed, in 2008 a U.S. District Judge released a report declaring it to be "facially unconstitutional and unenforceable".

History

In 1973, the Texas Legislature passed Section 43.21 of the Texas Penal Code, which, in part, prohibited the sale or promotion of "obscene devices"', being defined as "a device including a dildo or artificial vagina, designed or marketed as useful primarily for the stimulation of human genital organs." The legislation was last updated in 2003, and Section 43.23 currently states "A person commits an offense if, knowing its content and character, he wholesale promotes or possesses with intent to wholesale promote any obscene material or obscene device."[1]

Prosecuted cases

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.[2] 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 had to register as a sex offender.[3] 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.[4]

Appeals

Reliable Consultants, Inc., who operate four retail stores in Texas that carry a stock of sexual devices, and PHE, Inc., which is also engaged in the retail distribution of sexual devices through their website and catalogs, both filed lawsuits against the legislation, 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".[5] The State of Texas filed a petition on February 22, 2008, for the Circuit Court to rehear the argument en banc.[6]

On July 3, 2008, the Texas 13th District Court of Appeals in Corpus Christi[7] in the case of Villareal vs. State,[8] 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.[9] 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.[10]

On August 1, 2008, the Fifth Circuit denied Texas's request to re-hear the case en banc.[11] The refusal 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.[12]

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. The next month, on November 13, Yeakel filed a "joint status report" that noted the parties had come to an agreement. "Texas Penal Code §§ 43.23, to the extent that it applies to "obscene devices" as defined in Texas Penal Code § 43.21(a)(7), is declared to be facially unconstitutional and unenforceable throughout the State of Texas".[13]

See also

References
  1. "Penal Code Chapter 43. Public Idecency". Statutes.legis.state.tx.us. Archived from the original on September 18, 2012. Retrieved July 15, 2017.
  2. "Texas mom faces trial for selling sex toys". CNN. February 11, 2004. Archived from the original on January 10, 2013. Retrieved July 15, 2017.
  3. "Police Raid Lingerie Shop". klbk13.tv. May 21, 2007. Archived from the original on May 25, 2007. Retrieved May 21, 2007.
  4. "There's something about Mary1 …". Texas District & County Attorneys Association. Archived from the original on September 18, 2012. Retrieved July 15, 2017.
  5. "PHE v. State of Texas, Intervenor-Defendant-Appellee". FindLaw. Archived from the original on July 15, 2017. Retrieved July 15, 2017.
  6. Print Untitled (55 pages)
  7. Texas Office of Court Administration. "Welcome to the official site of the Thirteenth Court of Appeals of Texas". 13thcoa.courts.state.tx.us. Retrieved 2013-09-01.
  8. "Texas Judiciary Online - HTML Opinion". 13thcoa.courts.state.tx.us. Retrieved 2013-09-01.
  9. Guest, Robert (October 6, 2008). "Are Dildos Illegal in Texas (again)?". Dallas Criminal Defense Lawyer Blog. Archived from the original on July 30, 2012. Retrieved July 15, 2017.
  10. "Dildos & Sexually Obscene "Toys" Illegal in Texas … for now | Austin Attorney Dax Garvin". Dax Legal. January 31, 2012. Archived from the original on July 16, 2012. Retrieved July 15, 2017.
  11. "United States Court of Appeals" (PDF). Ca5.uscourts.gov. Retrieved 2013-09-01.
  12. Brayton, Ed (August 11, 2008). "Dildos at the Supreme Court?". ScienceBlogs. Archived from the original on October 18, 2008. Retrieved August 11, 2008.
  13. https://www.scribd.com/document/322594597/2008-11-13-Texas-Western-Court-Order-Obscenity-Law
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