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Respondent's Brief

Statement

A citizen informed Harris County sheriff's deputies that an armed man was "going crazy" in the apartment of petitioner Lawrence. Pet. App. 129a. The investigating officers entered the apartment and observed the petitioners engaged in anal sexual intercourse. Id. They were then charged by complaint in a Harris County justice court with the commission of the Class C misdemeanor offense of engaging in homosexual conduct, an offense defined by TEX. PENAL CODE § 21.06(a) (Vernon 1994), as follows: "A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex."1 A Class C misdemeanor is punishable only by a fine not to exceed five hundred dollars. TEX. PENAL CODE § 12.23 (Vernon 1994).

After the petitioners were convicted and fined in the justice court,2 they gave notice of appeal and the proceedings were transferred to Harris County Criminal Court at Law No. 10.3 The petitioners moved to quash the complaints on various constitutional grounds. Pet. App. 117a, 130a. In support of those motions, the petitioners offered into evidence only the complaints themselves and the supporting "probable cause affidavits" filed by a sheriff's deputy in the justice court. See Pet. App. 129a, 141a. The two affidavits contained identical descriptions of the events leading to the filing of the complaints:

Officers dispatched to 794 Normandy # 833 reference to a weapons disturbance. The reportee advised dispatch a black male was going crazy in the apartment and he was armed with a gun. Officers met with the reportee who directed officers to the upstairs apartment. Upon entering the apartment and conducting a search for the armed suspect, officers observed the defendant engaged in deviate sexual conduct namely, anal sex, with another man.

After the county court denied the petitioners' motions to quash the complaints, they entered pleas of nolo contendere, and the court found them guilty of engaging in homosexual conduct. The court sentenced each petitioner, pursuant to a plea bargain, to payment of a fine in the amount of two hundred dollars, and the petitioners again gave notice of appeal from their convictions.4

A three-judge panel of the Court of Appeals for the Fourteenth District of Texas initially held that the State's prosecution of the petitioners under section 21.06 violated the Equal Rights Amendment of the Texas Constitution,5 with one justice dissenting. The State's motion for rehearing en banc was granted, however, and on March 15, 2001, the en banc court of appeals rejected all of the petitioners' constitutional challenges to the enforcement of section 21.06. See Lawrence v. State, 41 S.W.3d 349 (Tex. App.—Houston [14th Dist.] 2001, pet. ref 'd) (Pet. App. 4a, et seq.). The en banc opinion of the court of appeals may be briefly summarized as follows:

  1. Enforcement of the statute prohibiting homosexual conduct does not violate the Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution and Article I, § 3, of the Texas Constitution, because the statute does not implicate fundamental rights or a suspect class, and it has a rational basis in the Texas Legislature's determination that homosexual sodomy is immoral. The fact that heterosexual sodomy is no longer a criminal offense under Texas law is not constitutionally significant, because the Legislature could rationally distinguish between an act performed with a person of the same sex and a similar act performed with a person of different sex. Pet. App. 13a-18a.
  2. Enforcement of section 21.06 does not violate the Equal Rights Amendment of the Texas Constitution, because the statute applies equally to both men and women who engage in the prohibited conduct, and it is not the product of prejudice towards persons of either gender. Pet. App. 20a-24a.
  3. The State's prosecution of the petitioners for the offense of engaging in homosexual conduct did not violate any constitutional right to privacy under the State or Federal Constitutions, in light of the long history of the imposition of criminal sanctions for such conduct, because it could not be said that the State of Texas or the United States recognized any "fundamental right" to engage in homosexual activity. Pet. App. 25a-31a.

1 The term "deviate sexual intercourse" is defined in the Texas Penal Code as "any contact between any part of the genitals of one person and the mouth of or anus of another person," or "the penetration of the genitals or the anus of another person with an object." TEX. PENAL CODE § 21.01(1) (Vernon 1994).

2 The record contains no information concerning the course of proceedings which occurred in the justice court.

3 An appeal from a judgment of conviction in a Texas justice court results in a trial de novo in a county court. TEX. CODE CRIM. PROC. art. 45.042 (Vernon Supp. 2003).

4 A case which has been appealed from a Texas justice court to a county court may be further appealed to a court of appeals if the fine exceeds $100 or the sole issue is the constitutionality of the statute on which the conviction is based. TEX. CODE CRIM. PROC. art. 4.03 (Vernon Supp. 2003).

5 TEX. CONST. art. I, § 3a.

A petition for discretionary review was denied, without written opinion, by the Texas Court of Criminal Appeals. Pet. App. 1a.

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