Sodomy Case Goes to Highest Texas Court
April 13, 2001
500 Lovett, Suite 200, Houston, Texas 77006-3942
By Wendy K. Mohon
A petition is expected to be filed today asking the Texas Court of Criminal
Appeals to reexamine the homosexual conduct law case involving two Houston
Houston attorney Mitchell Katine said he plans to file a petition
requesting the Texas Court of Criminal Appeals review a March ruling from the
14th Court of Appeals which upheld the states homosexual conduct law.
Houston attorney, Mitchell Katine, told the Houston Voice he will file the
petition for discretionary review before noon today in an effort to get the
court to effectively strike down Section 21.06 of the Texas Penal Code, also
known as the homosexual conduct law.
The case stems from the 1998 arrests of Katines clients John Lawrence
and Tyron Garner, whom sheriffs deputies charged with sodomy after finding
the men engaged in sex in Lawrences home. The officers were responding to a
false third-party report of an armed intruder. Police arrested both men and
held them in jail for more than 24 hours before releasing each on $200 bond.
The two men pleaded "no contest" to the charges in criminal court.
On March 15, the full 14th Court of Appeals issued a ruling upholding the
homosexual conduct law. The decision overturned a June 2000 ruling by a
three-judge panel of the same court that said the law violated the Texas
Constitution because it discriminates based on sex.
Texas has had a sodomy law since 1860, but the state decriminalized sodomy
by opposite-sex partners in 1974.
The Texas Court of Criminal Appeals is the highest court in the state,
along side the Texas Supreme Court, which handles only civil appeals. Cases
denied review, as well as rulings by either branch may then be appealed to the
United States Supreme Court.
"If they (the Texas Court of Criminal Appeals) deny consideration, we
then have the right to appeal to the United States Supreme Court," Katine
said. "If they decide they want to take the case, well schedule
briefings and go from there."
Katine said should the court accept the case for review, the process for
the nearly 3-year-old case could take another two years to resolve.
Though reluctant to speculate on the outcome should the Texas Court of
Criminal Appeals review the case, Katine said should the court rule to uphold
the statute, he will continue to fight to have the homosexual conduct law
"If we win, this is the end of the case, but if we lose, we can and
will take it to the U.S. Supreme Court."
But Katine is optimistic about the chances of the case and said the
petition "poses important Constitutional law issues."
"We feel very good about our case and the law," Katine said.
State Rep. Debra Danburg, D-Houston, has filed a bill in this sessions
legislature to repeal the states sodomy law. While Danburg files the bill
each session, the legislation typically dies in committee. However, Katine
says even if Danburgs bill were to pass and the law be abolished by the
legislature, his fight on the case will continue.
"If the legislature were to decide to repeal the statute, thats
good for everybody else in the state, but it doesnt help my clients,"
Katine said. "They would still be convicted. The repeal of the law would
not be retroactive, so I would still work to vindicate Mr. Lawrence and Mr.
Bill Delmore, the assistant prosecutor who has handled the case for the
Harris County District Attorneys office said he wasnt surprised that
Katine is filing the petition for a review from the Texas Court of Criminal
"Its completely expected," Delmore said. "I had predicted
whichever side lost would take this step."
Once the petition is filed, the District Attorneys office has 30 days to
file a response, which will also be considered by the court. Delmore said
until he reads the petition, he wont know if his office will file a
"I havent really decided," he said. "Typically, I do not
respond [to discretionary review petitions]. We receive so many that we cant
respond to all of them and if you do respond to one, youre typically
calling attention to the case.
"However, this is such an unusual case, we may respond to it. Ill
just have to take a look at what the other side has filed and make my decision
based on that."
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