Braha v. State of Texas, Civ. A. No. SA70CA451.

• Decision Date: 16 December 1970
• Docket Number: Civ. A. No. SA70CA451.
• Citation: 319 F. Supp. 1331
• Parties: Maurice BRAHA, Herman Sallock, Roger Chavez, and Aztec Theater, Inc. v. The STATE OF TEXAS, Ted Butler and Preston H. Dial, Jr.
• Court: U.S. District Court — Western District of Texas

319 F. Supp. 1331

Maurice BRAHA, Herman Sallock, Roger Chavez, and Aztec Theater, Inc. v. The STATE OF TEXAS, Ted Butler and Preston H. Dial, Jr.

Civ. A. No. SA70CA451.

United States District Court, W. D. Texas, San Antonio Division.

December 16, 1970.

Joel H. Pullen, San Antonio, Tex., for plaintiffs.

Charles Albidress, San Antonio, Tex., for defendants.

ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER

SPEARS, Chief Judge.

This case is before the Court on a motion for temporary restraining order enjoining the defendants from interfering with the exhibition of a motion picture without giving plaintiffs adequate notice and time to prepare for a proper adversary hearing as required by law.

Plaintiffs are engaged in the public exhibition of commercial motion pictures in Bexar County, Texas, and defendants are, respectively, the State of Texas, the Criminal District Attorney of Bexar County, and the Judge of the 175th District Court of Bexar County.

The motion picture "The ABC's of Marriage" was licensed for exhibition at the Aztec Theater in San Antonio, beginning December 10, 1970. At noon on December 11, 1970, the individual plaintiffs herein were served with a petition for temporary injunction, permanent injunction, and order for destruction. A show cause hearing was set by the state judge for 4:00 P.M. on December 11, 1970, in order to determine whether the said motion picture film was obscene, why the film should not be seized, and why the individual plaintiffs should not be temporarily enjoined from possessing or distributing the film.

At the appointed hour for the hearing, counsel for plaintiffs urged a motion for continuance for from five to ten days, asserting that he had not had adequate time to prepare for the hearing, since he had not been employed until the plaintiffs were served; that he had not personally seen the film; and that his prior professional commitments would preclude him from giving attention to the matter for several days; whereupon, the Court stated that he would grant the motion for continuance only on the condition that the movie in question would not be shown pending the hearing. This condition was unacceptable to the plaintiffs so the hearing commenced, and a Sergeant in the San Antonio Police Department, assigned to the Vice Bureau, testified at length concerning his viewing of the film on December 10, 1970. At the conclusion of this testimony, counsel for the plaintiffs requested the right to postpone cross examination until he had had an opportunity to see the movie, to which the Court responded that the request would be granted and the film could...