August 31, 1987

HonorableJerry Cobb CriminalDistrictAttorney P. 0. Box 2344 Denton, Texas 76201 OpinionNo.JM-780

Re: Validity of a proposed municipal ordinance defining "contemporary community standard" for purposes of regulationof obscenity

DearMr. Cobb:

You ask whether the city of Lewisville, Texas, may adopt an ordinancedefining "contemporarycommunity standards" for purposes of regulationof obscenity. You state thatLewisville,a home rule city, has received a petition requesting an election to adopt a city ordinance defining "contemporary standards" and "contemporary community standards" for obscenity-related matters within the city limits. The proposed ordinance isworded as follows:

AN ORDINANCEDEFINING 'CONTEKPORARYCOMHUNITY STANDARDS'WITHIN THE CITY OF LEWISVILLE,TEXAS

PURPOSEAND INTENT

It is the purpose of this ordinance to define the terms 'contemporary standards' and 'contemporary community standards' as that term is used as one elementof a definitionof obscenity;

It is the further purpose of this ordinance to Provide the city of Lewisville, Texas, its officers, agents, employees, and governing bodies with a standard or measure by which to determine, when used in conjunctionwith the latest judicial decisions on the subject, what constitutes obscenitywithin theCity ofLewisville,Texas.
STANDARDS
Within theCity of Lewisville.anybusiness, or work, which contains, utilizes, displays, distributes,or gives representationsor descriptions of any of the following, involving children or

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adults: ultimate sexual **acts,** normal or perverted. actual or simulated; and patently offensive representations or descriptions of masturbatorv. excretorv functions. and lewd exhibition of the genitals, is determined~~to~~~be patently offensive to the adults c If the City of Lewisville, Texas, and shall be presumed by such emolovees. asent*. reuresentatives and eoverninn bodies to-'appeal-tothe prurient inter&.' Th; City of Lewisville. Texas, its officers, agents, employees. representatives, and all of its de&ion-making bodies shall recognize this as a standard set by the adults of the City of Lewisville. Texas, to whether such business or work shall be obscene, when considered together with applicable law and judicialdecisions. (Emphasisadded.)

As we stated in Attorney General Opinion JM-619 (1987). a municipal ordinance may not conflict with state law.. city of Brookside Village v. Comeau, 633 S.W.2d 790, 796 (Tex. 1982), cert. denied, 459 U.S. 1087 (1982). Nor may a city regulate in an area where the legislature intends state law to be controlling. It isnot entirely clearhow thisordinance is intended tobe effected. It does **not** contain criminal penalties. We assume it was intended as instruction to juries in criminalcases in the area.

In our opinion, the proposed ordinance conflictswith state law in several respects.
Penal Code section 43.23 creates offenses for the promotion, possession, and distribution of obscene material. Relevant definitions are found in subsection (a) of Penal Code section 43.21 as follows:
(a) In this subchapter:



### (1) 'Obscene' means material or a performance that:

(A) the average person, applying contemporary coxmmnity standards, would find that taken as a vhole appeals to the prurient interest in sex; (B) depictsor describes:
(I) patently offensive representations or descriptions of ultimate sexual acts, normal or

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perverted, actual or simulated, including sexual intercourse,sodomy, and sexualbestiality;or (ii) patently offensive representationsor descriptionsofmasturbation, excretory functions, sadism, masochism, lewd exhibition of the genitals, themale or femalegenitals in a state of sexual stimulation or arousal, covered male genitals in a discernibly turgid state or a device designed and marketed as useful primarily for stimulation of the human genital organs; and
(C) taken as a whole, lacks serious literary, artistic, political, and scientificvalue.
(2) 'Material' means anything tangible that is capable of being used or adapted to arome interest, whether through the medium or reading, observation, sound, or in any othermanner, but does not include an actual three dimensionalobscene device.

. . . . (4) 'Patently offensive' **means so**  offensive on its face as to affront current community standardsof decency.

. . . . (b) If any of the depictions or descriptions of sexual conduct described in this section are declared by a court of competent jurisdiction to be unlawfully included herein, this declaration shall not invalidate this section as to other patently offensive sexual conduct includedherein.
The federal constitutional standard which must be met when a stateattempts to regulateobscenematerialswas articulated inMiller V. California, 413 U.S. 15 (1973). See also PopeV. Illinois. 107 S. ct. 1918 (1987). State regulation, according to Miller, must be confined to works which depict or describe sexual conduct that is specifically defined by state law as written or authoritatively construed. The United States SupremeCourt stated:

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A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex,which portray sexualconduct in a patently offensive way, and which, **taken** as a whole, do not have serious literary, artistic, political, or scientificvalue. Miller, 413U.S. at 24.
The Miller decision provided the jury with “guidelines” for determining whether the material being reviewed in a given instance is. in fact,obscene.

The basic guidelines for the trierof factmust be: (a) whether ‘the average person, applying contemporary comaunity standards’would find that the work, taken as a whole, appeals to the prurient interest (citationomitted); (b)whether the work depicts or describes, in a patently offensiveway, sexual conduct specificallydefined by the applicable state law: and (c)whether the work, taken as a whole, lacks serious literary, artistic,political, or scientificvalue.

Acknowledging the diversityof the fifty states, theMiller court rejected as futile any attempt to formulate a national standard for jurors to use in considering whether “the average person, applying contemporary community standards” would consider certain materials “prurient.” Id. at 30. The Court validated the statewide community standard thatwas challenged inMiller. Id. at 33. - The Texas obscenity statute, amended afterMiller v. California, supra, virtually tracks the Supreme Court’s holding. The Texas statute does not expressly define the geographical area that constitutes the “community.” Rowever, the Court of Criminal Appeals has consistently rejected attempts to instruct juries in obscenity cases that they are to limit theirconsiderationto standards of their local community. Several Texas cases have expressly held that the geographical scope is not limited to one county. Andrew6 v. State, 652 S.W.2d 370 (Tex. Grim. App. 1983, no pet.); LaRue v. State, 637 S.W.2d 934 (Tex. Grim. App. 1982, no pet.); Graham v. State, 620 S.W.2d 133 (Tex.Grim.App. 1981,no pet.);LaRuev. State, 611 S.W.2d 63 (Tex.Grim. App. 1980);Berg V. State, 599 S.W.2d 802 (Tex.Grim. App. 1980).

In the earlier LaRue decision, the court noted the absence of language in chapter 43 of the Penal Code describing the community scope but referred to two general provisions of the Penal Code for

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evidence of legislative intenrto provide for atatevideuniformity in the application of the code. LaRue v. State, 611 S.W.2d at 64. Finally, the LaRue court relied on the failure of the legislature to redefine “community”after theBerg court rejecteda local standardas evidence that the statewide standard is the proper scope for determining obscenity. The Court of Criminal Appeals affirmatively established a statewide community standard in Brewer v. State, 659 S.W.2d 441 (Tex.Grim. App. 1983,no pet.).
The proposed ordinance conflicts with state law, as judicially defined,by restrictively designating **the** applicablecommunity as the adult residents of the city of Lewisville. An ordinance aimed at punishingan offense that is also addressedby state law must conform to the definitionsprescribed by the state law. “If the ordinance is in conflict with the state law, it will be held invalids.” Ex Parte Farley, 144 S.W. 530 (Tex.Grim. App. 1912).
The Texas obscenity statute and federal and state cases requir,e the trierof fact toperform -several tasks in determining whether certainmaterial is obscene. The proposed ordinance invades the fact finder’s province (1) by fixing the standard of the community as of thedate of the ordinance; (2)by creating a presumption that certain depictions do appeal to the prurient interest;and (3)by determining thatcertaindepictions arepatently offensive. In our opinion, these invasions are in conflict with federal and state law and render the proposedordinancevoid.

In Smithv. United States, 431 U.S. 291 (1977)the United States Supreme Court reiterated the role of the jury in applying the three-part test set forth inMiller v. California,supra:

The phrasing of the Miller test makes clear that contemporary community standards take on meaning only when they are considered with reference to theunderlying questionsof fact that must be resolved in an obscenity case. The test itself shows that appeal to the prurient interest is one such question of fact for’the jury to

code I’,uPenal Code section 1.02(6) states that one objective of the

to define the scope of state interest in law enforcement against specific offenses and to systematize the exercise of state criminal jurisdiction.” Penal Code section 1.08 preempts any governmental subdivision or agency from enacting or enforcing a law that makes’any conduct covered by the code an offense subject to a criminalpenalty.

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resolve. The Miller opinion indicates thatpatent offensiveness is tobe treated in the sameway. Smithv. United States, 431 U.S. at 300-01. Smith rejected thenotion that a legislativebody may declarewhat the community standardswill be.

It would be just as inappropriate for a legislature to attempt to freeze a jury to one definition of reasonablenessas it would be for a legislature to try to define the contemporary community standard of appeal to prurient interestor patent offensiveness, if itwere evenpossible for such a definition tobe formulated.
Smith 431U.S. at 302.
While the Smith court acknowledged that legislative~enactments -Y set substantive limitations for obscenity cases, the court concluded that:

the question of the community standard to apply, when appeal to prurient interest and patent offensivenessare considered, is not’one that can be defined legislatively.
Id. at 303. - Texas courts echo this focus on the juror’s responsibility to determine the community standard and to decide patent offensiveness and appeal to theprurient interest.

Under this definition [obscenity], the issue of what is nor is not acceptable according to ‘contemporary community standards’ is a question the jury must resolve before determiningwhether the particular material distributed is in fact obscene. In other words, the community’s contemporary standards regarding obscenity are at issue. (Emphasisadded.)
Carlockv. State, 609 S.W.2d 787, 788 (Tex.Grim.App. 1980).

Thus, it goes without saying that before members of a jury can decide whether given material is in fact obscene under the ambit of 1643.21 and 43.23, supra, they must first determine what are the governing ‘contemporary communitystandards.’

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Berg v. State. 599 S.W.2d 802, 804 (Tex.Grim.App. 1980).

In a more recent discussion of the Texas obscenity statute, the Court of CriminalAppeals relied **on** language in Millerv. California, supra, to conclude that the trier of fact plays the pivotal role in obscenitydeterminations.

We believe the Court, in using ‘the average person,’ standard, makes the contemporary or current communitystandardportionof the test the backdrop against which the jury identifies the material and measures questions of appeal to the prurient interest in sex and what may constitute patent offensiveness.

As previously noted, when the Legislature of this State enacted **the** present obscenity statute, it was attempting to satisfy the new test announced by the Supreme Court in Miller. In doing so, it defined ‘patentlyoffensive’ to mean ‘so offensive on its face as to affront current community standards of decency.’ We believe this is in accordance with Miller’s holding. In applying its test, we do not believe that the Supreme Court wanted a jury to simply hold everythingthat couldbe construedas questionably obscene material **to** be obscenity, but, instead, required that before material could be held obscene, it had to be patently offensive to the average Derson. aoolvinn current communitv - _ .._ - standards, or. to put it anotherway, the Supreme Court conferred on the trier of fact, who was to be guidedby ‘thesafeguards that judges,rules of evidence, [the] presumption of innocence, and other lsuchl orotective features Iurovidel.’ Miller, ‘&, 413 U.S. at 26, 93 S.Ct, at 2616, the right to make the first determination of identifyingthematerial. Therefore, the right to make the firstdetermination, that is,whether the average person, applying contemporary community standards, would find that the material was facially offensive, and whether, according to contemporary community standards, the material appealed to theprurient interestin sex,was left to the trierof fact. (Emphasisadded.)
Andrew6 v. State, 652 S.W.2d 370, 379-80 (Tex. Grim. APP. 1983, no pet.).

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By removing from the trier of fact the responsibility to determine the current community standard and to apply that standard to the material in question, the proposed ordinance violates the statutory scheme. Similarly, the ordinance’spronouncement of certainmaterial as patently offensiveandpresumptivelyappealing toprurient interest conflictswith state law.

SUMMARY

A proposed municipal ordinance regulating obscenity thatdefines the community standardon a less than statewidebasis and that determines, as amatter of law, issuesthat are questionsof fact isvoid as conflictingwith state and federal law.

Attorney General of Texas

MARY KELLER ExecutiveAssistantAttorneyGeneral

JUDGE ZOLLIE STEAKLEY SpecialAssistantAttorneyGeneral

RICK GILPIN Chairman,Opinion Committee Preparedby Karen Gladney AssistantAttorney General

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