                             August 31, 1987




Honorable Jerry Cobb               Opinion No. JM-780
Criminal District Attorney
P. 0. Box 2344                     Re: Validity of a proposed municipal
Denton, Texas   76201              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 'contem-
          porary 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, dis-
          tributes, or gives representations or descriptions
          of any of the following, involving children or




                                 p. 3670
Bonorable Jerry Cobb - Page 2   (JM-780)




          adults: ultimate sexual acts,     normal or per-
          verted.   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 cIf 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 defini-
tions 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 repre-
                        sentations   or   descriptions  of
                        ultimate sexual acts, normal or




                                p. 3671
Honorable Jerry Cobb - Page 3            (JM-780)




                                perverted,   actual   or   simulated,
                                including sexual intercourse, sodomy,
                                and sexual bestiality; or

                                     (ii) patently offensive repre-
                                sentations or descriptions of mastur-
                                bation, 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:




                                        P.3672
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




                                p. 3673
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




          Penal Code section 1.02(6) states that one objective of the
code I’, uto 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 legisla-
          ture 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.).




                                P.   3676
Ronorable Jerry Cobb - Page 8     (JM-780)




     By removing from the trier of fact the responsibility to deter-
mine 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




                                  p. 3677
