Last edited: April 15, 2007

 

Texas

The state Republican Party platform explicitly opposes the decriminalization of sodomy, stating that "the practice of sodomy tears at the fabric of society" and "contributes to the breakdown of the family unit."

Also see the section on Lawrence and Garner v. Texas

Statute

Sec. 21.01. Definitions.

In this chapter:

(1) "Deviate sexual intercourse" means:

(A) any contact between any part of the genitals of one person and the mouth or anus of another person; or

(B) the penetration of the genitals or the anus of another person with an object.

(2) "Sexual contact" means any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person.

(3) "Sexual intercourse" means any penetration of the female sex organ by the male sex organ.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1979, 66th Leg., p. 373, ch. 168, Sec. 1, eff. Aug. 27, 1979; Acts 1981, 67th Leg., p. 203, ch. 96, Sec. 3, eff. Sept. 1, 1981; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 21.06. Homosexual Conduct.

(a) A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex.

(b) An offense under this section is a Class C misdemeanor.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

History

            1836     Texas outlaws common-law crimes, which includes sodomy, with uniquely redundant wording: “A common law offence for which punishment is prescribed by the statute, shall be punished only in the mode prescribed by statute, shall be punished only in the mode prescribed.” No word as to whether Gertrude Stein wrote this.

            1873     The Texas Supreme Court rules, because the law is worded in vague common-law terms and the state forbids vague criminal statutes, that there is no such thing as a “crime against nature” in the state. The law forbidding vague criminal statutes is repealed in 1879, so this permits prosecution again.

            1893     The Texas Court of Criminal Appeals is the first in the nation to face a case in which acts of fellatio are prosecuted under the general sodomy law, rather than under a more specific amended law. The Court rules that fellatio does not constitute sodomy.

            1896     The Texas Court of Criminal Appeals is the first in the nation to face a case in which the heterosexual defendants claim that sodomy laws don’t apply to them. As does every other court facing the issue, the court rules against the claim.

            1898     The Texas Court of Criminal Appeals upholds the sodomy conviction of a man called “a raving, vicious bull, running at large upon the highways, seeking whom he should devour.”

            1907     The Texas Court of Criminal Appeals is the first to face the question of whether juveniles can receive the same sentence as adults for sodomy. The Court rules that they can.

            1970     The first federal court decision striking down a sodomy law eliminates the Texas law, but the U.S. Supreme Court later reverses the decision on other grounds.

            1971     The Texas Court of Criminal Appeals is the first to limit the right to privacy in public restroom stalls to those stalls closed and locked.

            1973     Texas enacts a new criminal code and renames its sodomy law “homosexual conduct,” since it makes its law discriminatory. It also sets the maximum penalty at a $200 fine, the lowest penalty in the nation.

            2003     The Texas law is invalidated by the U.S. Supreme Court in the decision that struck down sodomy laws throughout the nation.

Case law in conflict:

Lawrence and Garner v. Texas (June 8, 2000) Settled in 2003.

Majority opinion in PDF format from Lambda Legal: http://www.lambdalegal.org/sections/library/decisions/lawrence.pdf

Desenting opinion in PDF format from Lambda Legal: http://www.lambdalegal.org/sections/library/decisions/lawrenced.pdf

Burdine v. State of Texas 1996
Calvin Burdine was convicted of capital murder and sentenced to death by a Houston jury in 1984. The Project filed an amicus brief in support of his federal court petition for habeas corpus arguing that Burdine’s constitutional rights were violated by the extreme homophobia that permeated his trial. Among the more egregious examples was the prosecutor’s argument to the jury that putting a gay man in prison is not punishment but is, instead, akin to putting a kid in a candy store, and the court’s decision that the jury could use a 1970 consensual sodomy conviction as proof of future dangerousness. Also at issue are allegations that the defense attorney slept through important parts of the trial; and that while on death row, Burdine was subjected to a "mock execution." Burdine’s execution was stayed, and a hearing will be set on the merits of his habeas petition.

State v. Morales, 826 S.W.2d 201 (Tex. App. 1992),

City of Dallas v. England, 846 S.W.2d 957 (Tex. App. 1993) review by higher court denied. The case did not present a direct legal challenge.

Repeal Bills

1999 - HB 337 Repeal of the sodomy law by State Representative Debra Danburg referred to Criminal Jurisprudence. HB 337 died in committee.

It would remove Texas’ 119-year-old sodomy statute which makes private anal and oral sex between two consenting adults of the same gender a class C misdemeanor:

 

A BILL TO BE ENTITLED

AN ACT
relating to the repeal of the offense of homosexual conduct.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 21.06, Penal Code, is repealed.

SECTION 2. An offense under Section 21.06, Penal Code, may not be prosecuted after the effective date of this Act. If on the effective date of this Act a criminal action is pending for an offense under Section 21.06, the action is dismissed on that date. However, a final conviction for an offense under Section 21.06 that exists on the effective date of this Act is unaffected by this Act.

SECTION 3. This Act takes effect September 1, 1999.

SECTION 4. The importance of this legislation and the crowded condition of the calendars in both houses create an emergency and an imperative public necessity that the constitutional rule requiring bills to be read on three several days in each house be suspended, and this rule is hereby suspended.

 

For further information check out http://www.capitol.state.tx.us/ This website also provides complete addresses and phone numbers for your legislator.

News

Also see the section on Lawrence and Garner v. Texas

Editorials

Advocates

Lesbian Gay Rights Lobby of TexasLesbian Gay Rights Lobby of Texas
PO Box 2340
Austin, Texas 78768
512-474-5475
Fax: 512-474-4511

Texas Human Rights Foundation (THRF)
P.O. Box 667157
Houston 77266
713-522-0636
thrf@thrf.org

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