August 31, 1987 

Honorable Jerry Cobb 

Criminal District Attorney 

P. 0. Box 2344 

Denton, Texas 76201 

Opinion No. JM-780 

Re: Validity of a proposed municipal 

ordinance defining "contemporary 

community standard" for purposes of 

regulation of obscenity 

Dear Mr. Cobb: 

You ask whether the city of Lewisville, Texas, may adopt an 

ordinance defining "contemporary community standards" for purposes of 

regulation of obscenity. You state that Lewisville, 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 is worded as follows: 

AN ORDINANCE DEFINING 'CONTEKPORARY COMHUNITY 

STANDARDS' WITHIN THE CITY OF LEWISVILLE, TEXAS 

PURPOSE AND 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 element of a definition of 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 conjunction with the latest judicial 

decisions on the subject, what constitutes 

obscenity within the City of Lewisville, Texas. 

STANDARDS 

Within the City of Lewisville. any business, or 

work, which contains, utilizes, displays, distributes, or gives representations or descriptions 

of any of the following, involving children or 

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Bonorable Jerry Cobb - Page 2 (JM-780) 

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-to the 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 

judicial decisions. (Emphasis added.) 

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 is not 

entirely clear how this ordinance is intended to be effected. It does 

not contain criminal penalties. We assume it was intended as 

instruction to juries in criminal cases in the area. 

In our opinion, the proposed ordinance conflicts with 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) depicts or describes: 

(I) patently offensive representations or descriptions of 

ultimate sexual acts, normal or 

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Honorable Jerry Cobb - Page 3 (JM-780) 

perverted, actual or simulated, 

including sexual intercourse, sodomy, 

and sexual bestiality; or 

(ii) patently offensive representations or descriptions of masturbation, excretory functions, sadism, 

masochism, lewd exhibition of the 

genitals, the male or female genitals 

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 

scientific value. 

(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 

other manner, but does not include an actual 

three dimensional obscene device. 

. . . . 

(4) 'Patently offensive' means so 

offensive on its face as to affront current 

community standards of 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 included herein. 

The federal constitutional standard which must be met when a 

state attempts to regulate obscene materials was articulated in Miller 

V. California, 413 U.S. 15 (1973). See also Pope V. 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 Supreme Court stated: 

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Honorable Jerry Cobb - Page 4 (JM-780) 

A state offense must also be limited to works 

which, taken as a whole, appeal to the prurient 

interest in sex, which portray sexual conduct in a 

patently offensive way, and which, taken as a 

whole, do not have serious literary, artistic, 

political, or scientific value. 

Miller, 413 U.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 trier of fact must 

be: (a) whether ‘the average person, applying 

contemporary comaunity standards’ would find that 

the work, taken as a whole, appeals to the 

prurient interest (citation omitted); (b) whether 

the work depicts or describes, in a patently 

offensive way, sexual conduct specifically defined 

by the applicable state law: and (c) whether the 

work, taken as a whole, lacks serious literary, 

artistic, political, or scientific value. 

Acknowledging the diversity of the fifty states, the Miller 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 in Miller. Id. at 33. - 

The Texas obscenity statute, amended after Miller 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 their consideration to 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.); LaRue v. 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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Honorable Jerry Cobb - Page 5 (JM-780) 

evidence of legislative intenrto provide for atatevide uniformity 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 the Berg court rejected a local standard as 

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 applicable community as the 

adult residents of the city of Lewisville. An ordinance aimed at 

punishing an offense that is also addressed by state law must conform 

to the definitions prescribed 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 trier of fact to perform -several tasks in determining whether 

certain material is obscene. The proposed ordinance invades the fact 

finder’s province (1) by fixing the standard of the community as of 

the date of the ordinance; (2) by creating a presumption that certain 

depictions do appeal to the prurient interest; and (3) by determining 

that certain depictions are patently offensive. In our opinion, these 

invasions are in conflict with federal and state law and render the 

proposed ordinance void. 

In Smith v. 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 in Miller 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 the underlying questions of 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’, u 

Penal 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 

criminal penalty. 

P. 3674 
Honorable Jerry Cobb - Page 6 (JM-780) 

resolve. The Miller opinion indicates that patent 

offensiveness is to be treated in the same way. 

Smith v. United States, 431 U.S. at 300-01. Smith rejected the notion 

that a legislative body may declare what the community standards will 

be. 

It would be just as inappropriate for a legislature to attempt to freeze a jury to one definition 

of reasonableness as it would be for a legislature 

to try to define the contemporary community 

standard of appeal to prurient interest or patent 

offensiveness, if it were even possible for such a 

definition to be formulated. 

Smith 431 U.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 

offensiveness are 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 the prurient 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 determining whether 

the particular material distributed is in fact 

obscene. In other words, the community’s 

contemporary standards regarding obscenity are at 

issue. (Emphasis added.) 

Carlock v. 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 

community standards.’ 

p. 3675 
Ronorabla Jerry Cobb - Page 7 (JM-780) 

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 Criminal Appeals relied on language in Miller v. California, 

supra, to conclude that the trier of fact plays the pivotal role in 

obscenity determinations. 

We believe the Court, in using ‘the average 

person, ’ standard, makes the contemporary or 

current community standard portion of 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 ‘patently offensive’ 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 

everything that could be construed as 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 another way, the Supreme 

Court conferred on the trier of fact, who was to 

be guided by ‘the safeguards 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 

identifying the material. Therefore, the right to 

make the first determination, 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 the prurient interest in sex, was left 

to the trier of fact. (Emphasis added.) 

Andrew6 v. State, 652 S.W.2d 370, 379-80 (Tex. Grim. APP. 1983, no 

pet.). 

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Ronorable Jerry Cobb - Page 8 (JM-780) 

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’s pronouncement of certain material 

as patently offensive and presumptively appealing to prurient interest 

conflicts with state law. 

SUMMARY 

A proposed municipal ordinance regulating 

obscenity that defines the community standard on a 

less than statewide basis and that determines, as 

a matter of law, issues that are questions of fact 

is void as conflicting with state and federal law. 

Attorney General of Texas 

MARY KELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Karen Gladney 

Assistant Attorney General 

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