Are Dildos Illegal in Texas (again)?

Texas has some stupid laws. Unfortunately Texas also has legislators who lack the courage or wisdom to repeal stupid laws. Instead, Texans must rely on federal courts, or even the Supreme Court to declare our stupid laws unconstitutional.

One such stupid law bans the “promotion” (sale) of dildos.

§ 43.23. OBSCENITY. (a) 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.

An obscene device is a dildo, vibrator etc. Of all the things to waste law enforcement resources on, dildo prohibition is probably the most useless (marijuana would be a close second).

This brings us to a recent decision by the 13th District Court of Appeals in Corpus Christi-

Villareal vs. State
Facts (from the court’s opinion)-

On June 25, 2004, Corpus Christi Police Officer Adrian Dominguez was working undercover when he visited a business, called Friends 4 Ever, to determine if it was selling obscene materials or devices. Dominguez was aware that law enforcement agents had previously informed the business owner that the business needed to cease selling certain items that were considered obscene under state law. Appellant was at the business working as a cashier and sales clerk. During the visit, Dominguez purchased a vibrator from appellant; the vibrator was called “Lick it Lover” and resembled the male sexual organ. A few hours after Dominguez’s purchase, police officers arrived at the business, where they executed a search warrant and placed appellant under arrest.

You would think that a city with twice the national average for property crime, and 21 murders annually could find a better use of their undercover police. But I digress. A jury found Villareal guilty, and the judge sentenced her to 6 months in county jail!

Wait a minute, wasn’t that law declared unconstitutional?
That’s right. The federal 5th Circuit Court of Appeals issued an injunction in February declaring 43.23 unconstitutional. However, the Court of Appeals in Corpus Christi held that a federal court injunction is not binding on State courts. That is, until our state’s highest criminal court, the Court of Criminal Appeals, rules that 43.23 is unconstituional, the conviction still stands.

Now, it’s clear that the judges in Corpus recognize how untenable their position is. In their own words.

This Court thus remains duty-bound, for better or worse, to follow the rulings of the court of criminal appeals, which has held–in contrast to the Fifth Circuit–that section 43.23 does not violate the due process clause of the Fourteenth Amendment.

So, for now, the promotion of dildos is illegal in Texas, again.