Last edited: December 08, 2004

Sodomy Case Goes to Highest Texas Court

Houston Voice, 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 men.

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 state’s 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 Katine’s clients John Lawrence and Tyron Garner, whom sheriff’s deputies charged with sodomy after finding the men engaged in sex in Lawrence’s 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, we’ll 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 struck down.

"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 session’s legislature to repeal the state’s sodomy law. While Danburg files the bill each session, the legislation typically dies in committee. However, Katine says even if Danburg’s 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, that’s good for everybody else in the state, but it doesn’t 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. Garner."

Bill Delmore, the assistant prosecutor who has handled the case for the Harris County District Attorney’s office said he wasn’t surprised that Katine is filing the petition for a review from the Texas Court of Criminal Appeals.

"It’s completely expected," Delmore said. "I had predicted whichever side lost would take this step."

Once the petition is filed, the District Attorney’s office has 30 days to file a response, which will also be considered by the court. Delmore said until he reads the petition, he won’t know if his office will file a response.

"I haven’t really decided," he said. "Typically, I do not respond [to discretionary review petitions]. We receive so many that we can’t respond to all of them and if you do respond to one, you’re typically calling attention to the case.

"However, this is such an unusual case, we may respond to it. I’ll just have to take a look at what the other side has filed and make my decision based on that."

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