Last edited: February 14, 2005

Surprising Start Made in Challenge of Gay Ruling

Houston Chronicle, June 28, 2000
801 Texas Avenue, Houston, TX  77002
Fax: 713-220-6575

By Steve Brewer

Harris County prosecutors have taken a surprising first step in challenging an appellate court’s decision to overturn the state’s homosexual conduct law.

Instead of taking their case directly to the Texas Court of Criminal Appeals in Austin, as was expected, prosecutors opted to request a hearing in front of all nine justices of the 14th Court of Appeals in Houston.

A three-judge panel from the 14th Court, which included Chief Justice Paul Murphy, voted 2-1 earlier this month to overturn the law.

The majority based its decision on a belief that the law violated the Equal Rights Amendment of the Texas Constitution because it unfairly discriminates against homosexuals who engage in sex acts that are legal for heterosexuals.

The challenge to the law stemmed from the 1998 arrests of John Lawrence, 57, and Tyrone Garner, 33.

They were charged with "deviant homosexual conduct" after sheriff’s deputies, acting on a false tip, entered Lawrence’s home looking for an armed intruder.

The panel’s opinion, released on June 5, overturned the conviction of the two men, whose lawyers vowed to take their challenge to the U.S. Supreme Court, if necessary.

While gay-rights advocates and the attorneys for the two men called the decision a big victory, prosecutors questioned it and said they would appeal because they thought the justices were intervening in a matter that should be addressed by lawmakers.

When the ruling was released on June 5, Harris County District Attorney John B. Holmes, Jr. and others in his office said they would probably take their appeal directly to the court in Austin so the matter could be dealt with quickly.

But prosecutor William Delmore, who argued the case before the panel, said that strategy changed because the district attorney’s office wants every chance to argue its case.

If, for example, a request for a review sent straight to the Texas Court of Criminal Appeals was denied, then prosecutors would have closed the door on their options, Delmore said. This way, the 14th Court can decide if it will conduct a full hearing and the option of going to the Texas Court of Criminal Appeals still exists.

And, Delmore and other attorneys say, the 14th Court and the other local appellate court €" the 1st Court of Appeals €" have shown more of a willingness in recent years to reconsider decisions made by three-judge panels.

That has apparently stemmed from unrest among justices on those courts who have said they want a greater hand in considering what rulings are given another look by all the judges.

In addition, prosecutors say, a quick hearing on the matter in front of the Austin justices is unlikely because that court is about to take its summer break.

Mitchell Katine, the Houston lawyer for the Lawrence and Garner, said Tuesday he was surprised by the request to the 14th Court because of public statements prosecutors made about taking the case directly to Austin.

But, he said, the legal team opposing the law will be ready to argue against it again in front of the full 14th Court if the request is granted.

In the state’s motion for a rehearing, which was filed Friday, Delmore said the June 5 majority opinion was wrong.

He argues that the law does not violate the equal-rights provision in the state’s constitution because it applies equally to both men and women who engage in homosexual conduct.

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