In a case that could have broad legal implications, two area men have
been charged under the state's sodomy statute for engaging in consensual sex in a private
residence. Harris County sheriff's deputies, responding Sept. 17 to a false report of an
armed intruder in a northeast Harris County apartment, found two men engaged in sex and
charged them with "homosexual conduct." One of the men lived in the apartment.
The two men spent several hours in jail before being released on $200 bail. They are to
be arraigned in a justice of the peace court on Nov. 20.
The state's 119-year-old sodomy law, which was modified by the 1995 Legislature, makes
homosexual oral and anal sex a class C misdemeanor, which carries a fine of up to $500.
The defendants, who are 31 and 55, could not be reached for comment. But one of their
attorneys, who declined to discuss the specifics of the case, said they appear willing to
fight it in court.
"This is just unbelievable that in 1998, this sort of arrest could happen,"
said their other attorney, Mitchell Katine. "For all those people who have said over
the years that this statute is never enforced need to realize that that's not true."
In fact, such prosecutions are rare. Activists and attorneys could cite no Texas case in
which consenting adults were prosecuted for engaging in private sexual conduct. Harris
County District Attorney John B. Holmes Jr. said two or three sodomy law cases had been
prosecuted over the last 30 years, although those involved homosexual contact witnessed by
others in a public jail.
Gay activists have tried for years to have the sodomy statute struck from the books,
arguing that it is often used to justify anti-gay discrimination in such areas as hiring
and adoptions. But with no defendant in a criminal case, efforts to remove the law have
met with mixed success.
In 1994, for instance, the Texas Supreme Court ruled it did not have jurisdiction over
a civil challenge to the sodomy law because the plaintiffs never had been prosecuted under
it. However, in a separate civil case, a lower court had ruled the statute was
unconstitutional.
Activists say this new case could sink the sodomy statute. Though outraged over the
arrests, several appeared eager for the case to go to trial. "Obviously, that's what
we're hoping," said Clarence Bagby, president of the Houston Gay and Lesbian
Political Caucus. "We certainly hope to move this forward, and we'd love to see it
move all the way up the ladder and be declared unconstitutional. We need to get this off
the books."
Holmes also questioned the fairness of the law, but said his office is obligated to try
to uphold it.
"We're supposed to presume that these laws are constitutional," Holmes said.
"If we just say, `Let this thing go away,' then we're not really complying with the
law and I'm not comfortable with that. ... But I've always said that the best way to get
rid of a bad law is to enforce it."
Holmes said there have been no such cases because police rarely find themselves in a
position to witness private sexual contact in people's homes. Typically, he said, police
make arrests for public lewdness -- a more serious class B misdemeanor -- for sex acts in
such places as parks and public restrooms.
According to police reports and government sources, officers from the Harris County
Sheriff's Department were dispatched to a northeast Harris County apartment complex around
11 p.m. on Sept. 17 after receiving a report that an armed man was in the apartment. Upon
arrival, the officers met a man in the parking lot who told them of the armed intruder and
directed them to an upstairs unit.
Deputies found no armed man in the apartment and the man who reported it later admitted
that he was lying. A government source said the man was convicted of making a false report
to officers and sentenced to a jail term.
The two men are scheduled to be arraigned two weeks from today before Justice of the
Peace Mike Parrott, whose court is at 14350 Wallisville. For the constitutionality of the
case to be tested, it must first make it to county court and then into the state's
criminal court system.
"If they want a good case to throw this law out on, they may have their
opportunity," Holmes said. "We plan to go forward."
