Last edited: December 20, 2004

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: or

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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