Texas agency blocked from seizing porn without court OK

By The Associated Press
07.28.06

HOUSTON — The Texas Alcoholic Beverage Commission can't seize adult materials it deems obscene without getting a judge's consent, a federal judge has ruled.

U.S. District Judge Gray Miller said the practice violated the constitutional protection of free speech. He also deemed unconstitutional the law TABC agents were enforcing in seizing the materials.

The July 24 ruling came in response to a lawsuit filed in 2003 by Carico Distributing Co., a Houston-based vendor of adult materials. Carico sued to stop TABC raids on convenience and liquor stores distributing its adult magazines, videos and CDs.

"It goes to show the cowboy mentality of the TABC agents," said Michael Lamson, a lawyer for Carico.

The TABC refused to comment, as did the Texas Attorney General's Office, which represented the agency in court.

Lamson said the TABC could appeal or wait for the Legislature to rewrite the law.

Miller ordered a permanent injunction stopping the TABC seizures.

"The TABC may not simply designate materials 'obscene,' and then proceed from that untested premise," Miller wrote. "The law demands a judicial determination that this designation is accurate."

Miller also said the state law that forbids the possession or display of "immoral, indecent, lewd or profane" materials by merchants with TABC licenses or permits was unconstitutionally vague.

"It cuts a wide and broad swath across territory covered by the First Amendment," Miller wrote. Non-obscene erotic movies and books are protected by the First Amendment, he said.