Texas Retailers May Not Have To Worry About 5th Circuit Ruling

DALLAS - On Sunday, AVN reported that Texas retailers might not get relief from the Fifth Circuit's decision not to grant an en banc petition by the state to rehear Reliable Consultants, Inc. v. Earle, the ruling from last February which struck down Texas' "obscene device" law as unconstitutional based on the U.S. Supreme Court's Lawrence v. Texas decision.

At that time, we reported that the fly in the ointment was a ruling in an unpublished case, Villarreal v. State of Texas, which was incorrectly ascribed to the Texas Court of Criminal Appeals. It was in fact a ruling from the 13th Judicial District Court of Appeals (Corpus Christi) - which may or may not affect novelty sales in any of Texas' other 13 judicial districts.

Attorney Gary Krupkin explains:

"When I originally read your article, I was very concerned about any holding handed down by the Texas Court of Criminal Appeals (CCA), regarding adult businesses. The Court of Criminal Appeals is the 'Supreme Court' deciding criminal matters in Texas. Texas has a bifurcated system for its highest tribunal."
"For many years, I have represented the legal interests of Condoms To Go and Sara's Secret. I make every effort to be aware of cases 'in the pipeline' at both the Federal and State (Texas) level, but the Villarreal case escaped me. However, after some research it appeared that the CCA did not issue the instant opinion; rather, the 13th Judicial District Court of Appeals (Corpus Christi) issued the Villarreal opinion. In Texas, the various courts of appeal are not required to apply the holdings of their sister courts as precedent. The courts of appeal are at liberty to fully adopt the opinion of a sister court, but are not required to find those opinions persuasive."
"I respect the work of the Corpus Christi Court. However, in this particular case, I find the reasoning in Villarreal as judicially strained and narrowly cabined. In reaching its result, the Villarreal Court relies on an Illinois interpretation of a prior Texas case holding. Further, Villareal avoids any well-reasoned constitutional analysis; preferring to rely on an interpretation of the Supremacy Clause of the U.S. Constitution. Villareal avoids a substantive due process analysis under either strict scrutiny, required when the state violates fundamental constitutional guarantees, or a rational basis test. In avoiding either (or both) of these analyses, Villareal summarily concludes that Texas may permissibly vitiate benchmark constitutional protections through tautological exercise. I am encouraged that the Court granted Villareal's counsel the opportunity to re-brief his position in light of Reliable Consultants (citation omitted)(rehearing denied). Undoubtedly, Reliable was a cogent, well-reasoned holding and a logical extension of Lawrence v. Texas (citation omitted)."
"I would respectfully request you advise your readers that Villareal is to be narrowly construed; at this point applicable only to cases originating in the 13th Supreme Judicial District of Texas. Further, Villareal has little or no precedential value in federal courts. I would urge anybody engaged in adult businesses in Texas to check with their legal counsel regarding the effect of Villarreal, and invite those businesses without counsel or counsel with additional questions to contact me directly if they so choose."
"Thank you for the brief opportunity to respond your recent article. I always enjoy your reporting and look forward to reading AVN both on-line and in print."
Gary P. Krupkin
Sara's Secret & Condoms To Go, Richardson, TX