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‘Homosexual conduct’ not the only unconstitutional Texas law dealing with sex

Mahuringavel-courtroom-door1_676.jpg
Mahuringavel-courtroom-door1_676.jpg

Major news publications are paying attention to the fact that a Texas law against “homosexual conduct” is still in the Penal Code despite being ruled unconstitutional in 2003. That law isn’t the only statute to remain on the books after being declared unconstitutional, nor the only one dealing with offenses of a sexual nature.

Mother Jones is the latest to weigh in on legislation aimed at excising the archaic anti-sodomy statute, about which the Texas Independent first reported in January. The Austin American-Statesman took note of the issue in late March. Even though lawmakers have balked at removing the anti-”homosexual conduct” language from the Penal Code, the Texas Department of State Health Services has already responded to the court ruling by removing mention of the Penal Code statute from its sexual education program.

In addition to the archaic anti-sodomy statute — which made it a Class C Misdemeanor if a person “engages in deviate sexual intercourse with another individual of the same sex,” punishable by a maximum fine of $500″ — two other portions of the Penal Code addressing sexual offenses are still on the books despite being ruled unconstitutional.

The two related sections of the law (Penal Code Sections 43.21 and 43.23), which a federal appeals court declared unconstitutional in the 2008 case Reliable Consultants, Inc. v. Earle, attempted to define “obscene” and made it a state jail felony to “wholesale promote any obscene material or obscene device,” or to intend to. (A person was assumed to intend to wholesale promote those materials or devices if he/she had six or more of those items — the same standard applied to child pornography.)

Without delving into details, the definition of ‘obscene’ includes terms such as, “prurient interest in sex,” “discernibly turgid” and “to affront current community standards of decency.”

Additionally, six sections of the Business & Commerce Code — together creating a so-called “pole tax” of $5 per customer on strip clubs, to be paid into a fund for sexual assault victims — were struck down in 2009 by a lower court in Combs v. Texas Entertainment Association, Inc. The Texas Supreme Court heard arguments in March 2010, but an opinion has not been issued.

Other unconstitutional sections of Texas law aren’t quite so titillating. According to information provided by the Texas Legislative Reference Library, there are about two-dozen in all — appearing in the Alcoholic Beverage Code, Civil Practice & Remedies Code, Family Code and Government Code. None of the relevant court rulings on the constitutionality of the sections are older than 2003.

One of the duties of the Texas Legislative Council, which helps lawmakers draft and research bills, is to sweep the state code for unconstitutional provisions, and generally to help clean up and update sections of the law. In January, a staffer told the Texas Independent that TLC tackles the law one code at a time, and it can take years to cycle through all of the sections.

See below for a list of unconstitutional statutes in Texas law:

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