Houston Case May Test Sodomy Law Lawyer Says His Clients' Privacy Invaded
DA plans to prosecute
Dallas Morning News,
November 7, 1998
Box 655237, Dallas, TX 75265
Fax 972-263-0456
Email: DMNEditor@aol.com or letters@dallasnews.com
By Bruce Nichols / The Dallas Morning News
HOUSTON -- Two men arrested while having sex in an apartment may use
their case to try to overturn the Texas anti-sodomy law, their lawyer said Friday.
"We think they've got a right to privacy that was invaded by the cops," attorney
David Jones said.
"We think the same conduct by heterosexuals is legal, and there's no compelling
state interest for homosexual conduct to be treated differently," Mr. Jones said.
The men were charged Sept. 17 with homosexual conduct, a Class C misdemeanor, the
lowest ranking violation, carrying a $500 fine on conviction. They are free on $200 bond
each.
The arrests of a 55-year-old medical technician and an unemployed man, 31, occurred
after Harris County sheriff's deputies saw them while responding to a false report of a
man with a gun.
The false report apparently came from a 41-year-old man who had been with the men
earlier the same evening, and he directed deputies to the older man's apartment, Mr. Jones
said.
The man who called the sheriff later pleaded guilty to making a false report and served
30 days in jail, according to court records.
Harris County District Attorney John Holmes said his office will prosecute the case,
even though gay rights groups have argued for years it is unconstitutional.
Although he doesn't condone homosexuality, Mr. Holmes said, "I'm not sure I agree
with government regulating private sex acts between consenting adults, but it's not my
call."
Mr. Holmes said his job is to enforce the law, and if people don't like it, they should
ask the Texas Legislature to change the law.
Gay advocates have been campaigning on a state-by-state basis to change anti-sodomy
laws.
Nineteen states have laws banning oral and anal sex. Fourteen ban those sex acts
between all couples. Five, including Texas, limit the ban to same-sex couples.
Challenges in Texas so far have failed, said Ray Hill, a Houston gay community leader.
The Texas Supreme Court rejected a civil challenge of the law's constitutionality,
saying it lacked jurisdiction over criminal matters.
Mr. Hill said he hopes the men fight the case and are convicted so that the
constitutional issue can be pressed on appeal.
"I'm concerned the judge is going to throw it out," Mr. Hill said. "If
he does, there goes the first chance in eight years for a direct criminal side
appeal."
A similar case eight years ago ended in a plea bargain, which might have benefited the
individual parties but did not serve the larger issue, he said.
Few cases have ever been brought, Mr. Holmes said, because the conduct usually occurs
unobserved in private. But he recalled prosecuting a case prior to 1973 when it was a
felony.
Some media reports suggested that the Houston case was part of the national gay rights
strategy, and that's why public disclosure of the case was delayed.
But Mr. Jones and spokesmen for the gay community in Houston said the case was not a
planned confrontation.
"It is absolutely anything but that," Mr. Jones said, declining even to
identify his clients. He said they are not ready to go public with their stance.
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