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