State v. Scott

• Decision Date: 11 November 1970
• Docket Number: No. B--2006,B--2006
• Citation: 460 S.W.2d 103
• Parties: The STATE of Texas, Petitioner, v. Steve SCOTT et al., Respondents.
• Court: Texas Supreme Court

Page 103

460 S.W.2d 103

The STATE of Texas, Petitioner, v. Steve SCOTT et al., Respondents.

No. B--2006.

Supreme Court of Texas.

Nov. 11, 1970.

Rehearing Denied Dec. 16, 1970.

Timothy D. Eyssen, Wichita Falls, Crawford R. Martin, Atty. Gen., Lonny Zwiener, Asst. Atty. Gen., Austin, for appellant.

Maley & Friedman, Mel S. Friedman, Houston, for appellees.

CALVERT, Chief Justice.

The record in this case presents such a strange melange of unauthorized and inconsistent pleadings and orders that it has been difficult to determine what issues were properly before the trial court for decision and are now properly before this court for review.

This case was begun on January 20, 1970, as a simple action by the State of Texas for injunctive relief against the Cinne Arts Theatre, Inc. and its manager, Steve Scott. The suit grew out of the showing by the defendants of seven movies alleged to be obscene, and was filed pursuant to authority contained in Section 13, Article 527, Penal Code of Texas. The relief sought was (1) a temporary restraining order directing that the pictures not be altered in any way or be removed from the county, but be presented to the judge for viewing; (2) a temporary injunction and (3) a permanent injunction against exhibiting obscene matter or possessing such matter for exhibition. The court entered an order setting a hearing on the petition for a temporary injunction for January 22 at 9 a.m. and directing that the motion pictures not be altered or removed from the county and be produced for viewing by the judge. In addition, a subpoena duces tecum was issued for Scott directing him to appear at 9 a.m. on the 22nd and to bring the motion picture films with him together with a projector suitable for showing them.

Counsel for defendants filed a series of pleadings denominated 'motions,' far too numerous to describe or even to catalogue, many of which are unauthorized by our rules of civil procedure and are unknown to our procedural law. One of the pleadings became the basis for the trial court's judgment. It should be analyzed.

The pleading is denominated 'MOTION TO DISMISS THIS LAWSUIT AND MOTION TO DECLARE THE TEXAS OBSCENITY STATUTE, ARTICLE 527, UNCONSTITUTIONAL AND VOID.' In this so-called 'motion,' defendants asked the court to (1) dismiss the State's suit, (2) declare the Texas obscenity law unconstitutional, and (3) '* * * in the alternative, if this Court should not declare said Statute unconstitutional, that this Court stay any further proceeding and issue no further order and that this entire record be finalized and certified to the Texas Supreme Court for the purpose of deciding the constitutional questions presented in this motion and for declaring the said Texas obscenity law unconstitutional * * *.' The reasons given in the motion for declaring the statute unconstitutional are substantially the same as those hereafter shown to have been adopted by the trial judge.

Although the trial court's judgment recites that on February 9 a hearing was held on the State's application for temporary injunction and on defendants' motion to dismiss and to declare Article 527 of the Penal Code unconstitutional, the record before us indicates that the court simply sustained the defendants' motion without hearing evidence on the State's application. In its judgment, the court (1) denied the State's application for a temporary injunction; (2) denied the State's application for a permanent injunction; (3) dismissed the State's suit with prejudice; and (4) permanently enjoined the State and its law enforcement agencies in Wichita County and all of its subdivisions from enforcing Article 527. In addition, the court in its judgment Declared ¹ Sections 1(E), 1(F), 3, 9 and 13 of Article 527 to be unconstitutional and void. The sections thus declared to be unconstitutional and void read:

'Section 1. As used in this Article:

'(E) 'Distribute' means to transfer possession of, whether with or without consideration.

'(F) 'Knowingly' means having actual or constructive knowledge of the subject matter. A person shall be deemed to have constructive knowledge of the contents if he has knowledge of facts which would put a reasonable and prudent man on notice as to the suspect nature of the material.

'Sec. 3. Every person who knowingly: sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state prepares for distribution, publishes, prints, exhibits, distributes, or offers to distribute, or has in his possession with intent to distribute or to exhibit or offer to distribute, any obscene matter is guilty of a misdemeanor.

'Sec. 9. Where possible and practical, obscene matter upon which prosecutions are based under the provisions of this article, should be obtained by peace officers or prosecuting attorneys without resorting to seizure of such matter pursuant to a search warrant. Where seizure of alleged obscene matter is necessary and practical, a search warrant to search for and seize such matter is expressly authorized. Moreover, no peace officer shall seize any obscene matter from the possession of any person except under the authority of a search warrant issued under the provisions of the Code of Criminal Procedure of Texas. Where practical, the matter alleged to be obscene shall be attached to the complaint to afford the issuing magistrate the opportunity to examine such materials to assist him in deciding whether the warrant shall issue. Where the alleged obscene matter is not available to present to the magistrate, the affiant or affiants to the complaint shall describe the alleged obscene materials in detail so as to assist the magistrate in deciding whether the warrant should issue. Moreover, where alleged obscene matter is not attached to the complaint, as in the case of motion pictures or statutes, the magistrate to whom the complaint is presented shall, where practical, personally view the matter alleged to be obscene before issuing the warrant. Where a search warrant is issued under the provisions of this section, only that matter described in the complaint shall be seized by the executing peace officer or officers. Nothing contained in this section shall prevent the obtaining of alleged obscene matter under injunction proceedings as authorized by this Act or by any other statute of the State of Texas.

'Sec. 13. The district courts of this state and the judges thereof shall have full power, authority, and jurisdiction, upon application by any district or county attorney within their respective jurisdictions, or the attorney general to issue any and all proper restraining orders, temporary and permanent injunctions, and any other writs and processes appropriate to carry out and enforce the provisions of this article. Such restraining orders or injunctions may issue to prevent any person from violating any of the provisions of this article. However, no restraining order or injunction shall issue except upon notice to the person sought to be enjoined. Such person shall be entitled to a trial of the issues within one day after joinder of issue and a decision shall be rendered by the court within two days of the conclusion of the trial. In the event that a final order or judgment of injunction be entered against the person sought to be enjoined, such final order or judgment shall contain a provision directing the person to surrender to the sheriff of the county in which the action was brought any obscene matter in his possession and such sheriff shall be directed to seize and destroy such matter.'

The court also filed Findings of Facts and Conclusions of Law in which Sections 1(E), 1(F), 3, 9 and 13 were Adjudged and declared to be unconstitutional and void. Section 1(E) was declared to be unconstitutional because it is 'overbroad in that in its definition of 'distribute' it also fails to differentiate between public and mere private Distribution * * *.' Section 1(F) was declared to be 'unconstitutionally vague and overbroad in setting forth the constitutionally required scienter element of knowledge By constructively imposing knowledge through a use of vague and indefinite terms so as to amount to absolute and strict liability. * * *' Section 3 was declared to be unconstitutional because 'it is over broad, and fails to differentiate between public and mere private Distribution, and fails further to differentiate between public and mere private possession of alleged obscene materials. * * *' Section 9 was declared to be 'unconstitutional in that it specifically sets forth An ex parte search warrant provision * * * (without) requiring a prior-adversary-determination of the obscene nature of the press materials involved, before any search, seizure, arrest or any other criminal process can be instituted against press materials.' Section 13 was declared unconstitutional 'in that it fails to define proper safeguards to protect freedoms of speech and press * * * (in that) it fails to set forth * * * (a) the procedural guidelines for issuing temporary and permanent injunctions; (b) it fails to set forth proper guidelines as to the date and time of defendants' answer, the type of evidence to be used and produced at such a hearing, and more specifically it fails to set forth the burden of proof before an injunction should issue restraining freedom of the press * * * (and) it fails to provide for adequate notice to a defendant to be able to answer and defend allegations raised in a petition for injunction, in that it sets forth a trial setting which could be within one day after joinder of issue * * *.'

In this direct appeal, prosecuted pursuant to Rule 499a Texas Rules of Civil Procedure, the State by proper points of error challenges the various phases of the trial court's judgment as well as its several declarations of unconstitutionality. We sustain all of the points, albeit for reasons differing generally from those given by the State,...