You can’t go there

This case concerns a “human display establishment.”

In 2005 San Antonio adopted Ordinance 101022, which contains a section that prohibits an individual from “intentionally or knowingly appear[ing] in a state of nudity in a public place.” Another section of the Ordinance makes it ”unlawful for any person to intentionally or knowingly entertain or appear in a state of semi-nudity on the premises of a human display establishment unless the person is more than three (3) feet from any patron or customer.” Any violation of these Ordinance sections is punishable “by a fine not to exceed two thousand dollars.” Simple enough, right?

Maybe not. In 2006 vice officers visited XTC Cabaret (a gentleman’s club) and, based on what they saw, cited three women for violating the Ordinance sections (a) prohibiting nudity, and (b) requiring a 3-foot separation. [Here is a key point of law: Texas Code of Criminal Procedure (art. 4.14) restricts municipal court jurisdiction to criminal cases in which the offense is punishable by fine only; Class 'C' misdemeanors, which are the least serious of the three categories of misdemeanors (A, B and C), are punishable generally by fine only.] Anyway, because violations of these code sections are punishable by fine only, the defendants were set to appear in municipal court — where they promptly challenged that court’s jurisdiction to hear the case. 

The municipal court agreed that it did not have jurisdiction. The problem:

[S]ection 21-303(a), the punishment provision of the Ordinance, which provided for punishment of a violation as a Class C misdemeanor, was void because it conflicts with section 243.010(b) of the Texas Local Government Code, which declares that violations of municipal ordinances regulating sexually oriented businesses are Class A misdemeanors. Because a Class A misdemeanor is beyond the jurisdiction of the municipal court, and because the pending charges against the defendants for violating Ordinance 101022 could only be properly punished as a Class A misdemeanor, the municipal court granted the appellees’ pleas to the jurisdiction.

The State of Texas appealed the municipal court ruling to the county court, which affirmed the dismissals. The State then perfected an appeal to the Fourth Court of Appeals, which held: “Because the penalty provision in the city ordinance does directly conflict with section 243.010(b) of the Texas Local Government Code, we affirm the judgment of the municipal court dismissing the cases for lack of jurisdiction.”

Read the majority opinion, and the dissenting opinion. Yes, there’s a dissent. So maybe this case hasn’t reached the last rung on its appeal ladder. We’ll see.

For now, when a police officer observes an entertainer “appear in a state of semi-nudity on the premises of a human display establishment … [within] three (3) feet from any patron or customer,” that officer might ask, “2 feet? 2.5 feet? Municipal court?”

You can’t go there.

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