Texas obscenity statute

The Texas obscenity statute is a slang name for a Texas state law. In 1973 the state 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."

Two companies filed suit to declare the Texas Statute unconstitutional. Reliable Consultants, Inc. d/b/a Dreamer’s and Le Rouge Boutique, operate four retail stores in Texas that carry a stock of sexual devices. PHE, Inc. d/b/a Adam & Eve, Inc. is also engaged in the retail distribution of sexual devices through their website and catalogues. The 5th Circuit Court of Appeals overturned the statute on February 12, 2008 by a vote of two to one. The court held 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: "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".

As of June 16, 2008, there has been nothing to indicate if and/or when the 5th circuit will re-hear the case.