               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 98-11161
                          Summary Calendar



CHARLES A. WATSON,

                                             Plaintiff-Appellant,

versus

TEXAS DEPARTMENT OF
CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Price Daniel Unit; Et Al.,

                                             Defendants-Appellees.

                       - - - - - - - - - -
          Appeal from the United States District Court
               for the Northern District of Texas
                        USDC No. 97-CV-387
                       - - - - - - - - - -

                             June 17, 1999

Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Charles A. Watson, Texas prisoner # 738898, argues that the

magistrate judge erred in dismissing his 42 U.S.C. § 1983

complaint in which Watson alleged that his legal mail was opened

outside of his presence by prison officials and that he has been

denied publications which he has purchased, or has received them

in a damaged condition.



     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                             No. 98-11161
                                  -2-

     We have reviewed the record and Watson’s brief, and find

that the magistrate judge did not err in determining that Watson

had failed to state a constitutional claim with respect to the

the opening of his legal mail outside his presence because he

failed to show that his legal position was prejudiced by the

action of the defendants.    See Brewer v. Wilkinson, 3 F.3d 816,

825-26 (5th Cir. 1993).    We have further determined that Watson’s

allegations that in September 1997, he was denied a publication

containing sexually graphic materials fails to state a

constitutional claim because the court has found that prison

officials have a legitimate interest in prohibiting prisoners

from receiving materials containing explicit sexual activity

because it would promote deviant sexual behavior in the prison

population.   See Thomspson v. Patteson, 985 F.2d 202, 206 n.1

(5th Cir. 1993).

     The magistrate judge also did not err in dismissing Watson’s

claim concerning the denial of a publication arriving in October

1997, accompanied by an invoice, because Watson failed to exhaust

his administrative remedies with respect to this claim.     See 28

U.S.C. § 1997e(a).

     We have determined, however, that the magistrate judge

prematurely dismissed Watson’s claims with regard to the denial

of the comic books because the record does not reflect whether

the prohibition of the comic books serves a legitimate

penological interest.     See Procunier v. Martinez, 416 U.S. 396,

413 (1974); Adams v. Gunnell, 729 F.2d 362, 367 (5th Cir. 1984).
                          No. 98-11161
                               -3-

     The dismissal of Watson’s claim concerning the comic books

is VACATED and the case is REMANDED to the district court for

further consideration of this claim.   The magistrate judge’s

judgment is AFFIRMED in all other respects.

     AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
