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JUSTICE REFORM BILL OMITS SODOMY LAW
Legislation would repeal 1879 statute

By Mike Ward
American-Statesman Capitol Staff

While the state continues its years-long legal battle to ensure
that homosexual acts remain illegal in Texas, a legislative plan
overhauling the state's criminal justice system would repeal the
so-called sodomy statute.

The justice reform bill, unveiled Wednesday and set for a Senate
hearing next week, would create a system of state jails and
rewrite the state's criminal laws, which otherwise would expire
in 1994.

The 334-page bill omits the sodomy law which has been on the
books since 1879 and prohibits "deviate sexual intercourse with
another individual of the same sex."  The rarely used law makes
homosexual sodomy a misdemeanor punishable by a $200 fine.

State Attorney General Dan Morales is defending the law in a
state lawsuit filed by the Texas Human Rights Foundation on
behalf of five gays and lesbians.  The Texas Supreme Court heard
arguments in the case in January and could rule at any time.

State attorneys have been defending the law in court since the
mid-1980s, when a Dallas school teacher filed suit in federal
court.  The 5th U.S. Circuit Court of Appeals upheld the law in
1985, and the U.S. Supreme Court has upheld similar law in other
states.

State Sen. John Whitmire, chairman of  the Criminal Justice
Committee and a Senate sponsor of the criminal justice plan, said
Thursday he will oppose any attempts in the Senate to leave the
sodomy law on the books.

"It isn't being used for prosecution; it's principally used for
discrimination against people in the workplace and in job
applications," Whitmire said.  "We don't need it."

He said he hoped the sodomy law would not be a major concern
during debate on the larger bill.  "It shouldn't be a major
concern," he said.

But Rep. Warren Chisum, D-Pampa, who heads the Texas Conservative
Coalition, promised, "You can bet it's going to come up...and I
think it will be put back in over here (in the House."

An Austin judge declared the law unconstitutional in December
1990, and the 3rd Court of Appeals upheld the decision.  Both
courts found that the law violates the state constitutional right
to privacy.

Late last year, the Texas Punishment Standards Commission - a
panel that studied streamlining criminal laws as a prelude to the
legislative plan - recommended repealing the sodomy law.

"It is the only section that criminalizes consensual sexual
conduct between adults," an analysis by the commission stated.

But those recommendations never gained Senate support, and one
House version left the statute intact.

The new legislative plan is the result of months of closed-door
negotiations between legislative leaders, prosecutors, judges,
police and county officials and representatives of criminal
justice groups.

"No one spoke up for keeping that law" during those talks, said
Whitmire, D-Houston.

Repealing the law "just makes sense," Whitmire said.  He pledged
to oppose any efforts to amend the bill in the Senate to retain
the anti-sodomy provision.

But Chisum said he believes "the House is still pretty solid
against changes like this."

"Until the Supreme Court knocks it out, it is still the law.  It
should still be in there," Chisum said.

In 1992, 29 state lawmakers filed papers with the appellate court
supporting the sodomy law.  In their filing, they argued that
homosexuality endangers health and causes moral decay.

Rep. Glen Maxey, D-Austin, the only openly gay Texas lawmaker,
said he will fight for the repeal.

"There's no reason to have this law," he said.  "This state
doesn't need to put law enforcement in a position of poking
around in the affairs of adults in the privacy of their own
homes."

Lawmakers said they are unsure what, if any, effect repealing the
law might have on the state's pending legal case.  But Ron Dusek,
a spokesman for Morales, said "the whole issue before the court
could be moot" if the law is repealed.

Patrick Wiseman, an Austin attorney representing the Texas Human
Rights Foundation, said a ruling by the state's highest civil
court would put to rest questions surrounding the law.

"By agreement between all the parties in this case, the state
appealed this all the way to the Supreme Court to have a final
resolution of this question, once and for all," he said.

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