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, prohibits 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 occurred on occasion. 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. 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.

Section 43.23 of the Code deals with promotion ("A person commits an offense if he…possesses with intent to wholesale promote any obscene material or obscene device. A person who possesses six or more obscene devices…is presumed to possess them with intent to promote the same.") This section carries higher penalties, and for this reason, those businesses that trade in items covered under the act usually market them as "novelties" or "educational items." This legislature was also last updated in November of 2009.

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.), while is s also engaged in the retail distribution of sexual devices through their website and catalogues, filed suit, claiming that the statute is unconstitutional.

In 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 Feb 22, 2008, for the Circuit Court to rehear the argument "en banc".

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

That refusal by the Fifth Circuit creates an issue that will need to be addressed. There is now a split between federal circuits: the 5th circuit overturned a Texas law and the 11th Circuit upheld a nearly identical Alabama law. That usually means that the Supreme Court will grant cert and rule in order to clear up the disagreement between the two circuits.

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 has notified him that they will not file a "writ of certiorari" with the Supreme Court. With the appeal dropped, Texas sellers of adult devices are now safe from prosecution from this law. (Unable to find a copy of this filing; this is one source of the notification: )