Universal Amusement Co., Inc. v. Vance

• Decision Date: 03 July 1975
• Docket Number: Civ. A. No. 73-H-528.
• Citation: 404 F. Supp. 33
• Parties: UNIVERSAL AMUSEMENT CO., INC., et al. v. Carol VANCE et al.
• Court: U.S. District Court — Southern District of Texas

404 F. Supp. 33

UNIVERSAL AMUSEMENT CO., INC., et al. v. Carol VANCE et al.

Civ. A. No. 73-H-528.

United States District Court, S. D. Texas, Houston Division.

July 3, 1975.

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Clyde Woody and Marian Rosen, Woody & Rosen, Houston, Tex., for Universal Amusement Co., Inc., et al.

Joseph G. Rollins, Sr. Asst. City Atty., Joe Moss, Asst. Dist. Atty., Houston, Tex., Lonnie F. Zwiener, Asst. Atty. Gen., Austin, Tex., for Carol Vance et al.

Malcolm Dade, Dallas, Tex., J. Mack Ausburn, San Antonio, Tex., Frierson M. Graves, Jr., Memphis, Tenn., for King Arts Theatre, Inc.

John L. Hill, Atty. Gen., by Max P. Flusche, Jr., Asst. Atty. Gen., Austin, Tex., for George E. McCrea et al.

Mike Aranson, Tony Kaufman, Dallas, Tex., for Ellwest Stereo Theatres, Inc.

N. Alex Bickley, City Atty., Joseph G. Werner, Asst. City Atty., Dallas, Tex., for Donald Byrd and Mel Southall.

John B. Tolle, Asst. Dist. Atty., Dallas, Tex., for Robert Cole.

John L. Hill, Atty. Gen., by Lonny F. Zwiener, Asst. Atty. Gen., Austin, Tex., for State of Texas.

J. Mack Ausburn, San Antonio, Tex., for Richard C. Dexter.

Keith W. Burris, Dist. Atty., Nelson M. Atwell, Asst. Crim. Dist. Atty., Edgar Pfeil, Jane H. Macon, San Antonio, Tex., for Ted Butler et al.

Before INGRAHAM, Circuit Judge, and SINGLETON and TAYLOR, District Judges.

SINGLETON, District Judge:

I. Introduction

This case comes before this three-judge court in a unique posture. The original case, Universal Amusements v. Vance, the captioned case, was brought in the Southern District of Texas, Houston Division, and concerned the impending trial of a motion picture theater operator who had shown the film "Deep Throat." Plaintiffs in that case challenged the constitutionality of article 527 of the Texas Penal Code which at that time constituted the statutory law in Texas on obscenity. The plaintiffs sought, among other remedies, injunctive relief to enjoin the pending criminal prosecution. This three-judge court was constituted as a result of that case.

At approximately the same time as the Houston prosecutions were being instituted and carried out, a motion picture theater operator in Dallas, Texas, was being prosecuted for also showing "Deep Throat." This prosecution was under the same statute. Chief Judge John R. Brown consolidated these two "Deep Throat" cases.

In May of 1973 a hearing on a preliminary injunction was heard by a three-judge court and denied. The cases were then continued. Over the next two years, many changes in the posture of these cases occurred. The Houston state court prosecution for the showing of the motion picture "Deep Throat" was twice tried. Each time the trial ended in a mistrial because the jury was unable to agree on a verdict. More importantly, however, the prosecution for alleged obscenity-connected activities mushroomed all over the state of Texas. Each time a defendant would seek to have his obscenity prosecution enjoined in a federal court in Texas, Chief Judge John R. Brown would consolidate such case with the instant three-judge case. A full list of all of the cases can be found in an appendix to this opinion.

On August 12 the managing judge of this three-judge court, Honorable John V. Singleton, held a pretrial conference at which attorneys representing all of the parties in each of the cases then consolidated appeared.

The cases, as they were consolidated into the original case, presented a variety of challenges to Texas statutes. Not only was the constitutionality of the substantive obscenity statutes challenged but also the use of statutes allegedly designed for purposes other than the closing down of purported commercial obscenity was challenged, as were the old and new public nuisance statutes used to abate the alleged public nuisance of commercial obscenity. Finally, the law on obscenity had changed. In June of 1973, the Supreme Court decided the Miller quintet.¹ Shortly thereafter, two more important cases in the obscenity field were decided: Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973) and Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973). These cases dealt not with substantive obscenity laws but with the procedures to be used to bring into court those who are alleged purveyors of obscenity. The Texas obscenity laws, too, had changed. On January 1, 1974, the old article 527 was repealed, and in its place section 43.21 et seq. of the new penal code was enacted. The Texas nuisance statutes, also, were changed to specifically provide for the enjoining of the use of a premises for purposes of commercial obscenity.

In an effort to simplify the process of deciding all of these varied cases, the managing judge chose three of the cases which presented the least jurisdictional problems and also presented straightforwardly at least one of the challenges brought on by each of the remaining cases.

On November 15, 1974, the three-judge court again convened to hear oral arguments in each of the three cases. Each of the three sets of parties had earlier submitted a joint Pretrial Order, in which material and important facts had been stipulated and briefs on the points of law involved. Two of the cases have remaining factual disputes, but these are immaterial to the determination of these cases.

II. King Arts Theatre v. McCrea, CA-6-345

The King Arts case comes out of San Angelo, Tom Green County, Texas. The plaintiffs are challenging the facial constitutionality of article 4667 of Vernon's Annotated Civil Statutes which provides for the abatement of public nuisances and, specifically, the inclusion, as a nuisance, of premises for purposes of commercial obscenity. The facts, as agreed to by the parties are as follows. King Arts Theatre, Inc., was operating an adults-only, enclosed motion picture theater in San Angelo, Texas. The theater showed sexually explicit films. On October 30, 1973, the landlord from whom the theater building was rented notified King Arts Theatre, Inc., that, at the suggestion of George E. McCrea, the county attorney of San Angelo, he was terminating the lease of the building as of November 15, 1973. The notice further informed the plaintiff that McCrea had contacted the landlord and told him that he intended to bring an application for an injunction to abate the theater as a public nuisance in order to prohibit the future showing of allegedly pornographic motion pictures.

Plaintiff filed suit on November 12, 1973, requesting a declaratory judgment and injunctive relief. By agreement all parties have determined that the status quo will be maintained until the determination of this case.

The county attorney still intends to seek an injunction based on the nuisance statute and to pursue his intention to cancel the lease of the premises.

The initial hurdle which has faced this court since the inception of these suits does not face us in this suit. That is the Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), hurdle. In the instant case there is no pending criminal or civil prosecution because the county attorney determined that he should wait until the three-judge court had determined the issues before pursuing his intentions. Although the parties could not confer upon the court by agreement jurisdiction where it was lacking, the actions of the county attorney in failing to actively pursue his threatened course of action would certainly lessen the court's considerations of equity, comity, and federalism upon which Younger is based. At the same time, however, the existence of the threat of a real prosecution under the nuisance statute is enough to present an actual controversy as required by Article III of the Constitution. Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). One further question must be answered before we move to the merits of this case. The plaintiff moves for an injunction to prevent the state from utilizing the nuisance statute against it. A traditional prerequisite to injunctive relief, however, has been irreparable injury. This is true whether the injunction seeks to stop the activities of private citizens or the activities of the state, whether criminal or civil. Steffel v. Thompson, supra, has suggested that the question of whether or not injunctive relief can be granted in a threatened but not yet pending criminal case brought by the state may depend upon the status of the alleged criminal activity:

We note that, in those cases where injunctive relief has been sought to restrain an imminent, but not yet pending, prosecution for past conduct, sufficient injury has not been found to warrant injunctive relief, see Beal v. Missouri P. R. Corp., 312 U.S. 45, 61 S. Ct. 418, 85 L.Ed. 577 (1941); Spielman Motor Sales Co., Inc. v. Dodge, 295 U.S. 89, 55 S.Ct. 678, 79 L.Ed. 1322 (1935); Fenner v. Boykin, 271 U.S. 240, 46 S.Ct. 492, 70 L.Ed. 927 (1926). There is some question, however, whether a showing of irreparable injury might be made in a case where, although no prosecution is pending or impending, an individual demonstrates that he will be required to forego constitutionally protected activity in order to avoid arrest. Compare Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); Hygrade Provision Co., Inc. v. Sherman, 266 U.S. 497, 45 S.Ct. 141, 69 L.Ed. 402 (1925); and Terrace v. Thompson, 263 U.S. 197, 214, 216, 44 S.Ct. 15, 18, 68 L.Ed. 255 (1923), with Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943) . . ..

415 U.S. at 463, n. 12, 94 S.Ct. at 1218.

In the instant suit the plaintiff is being threatened with the use of a civil statute, although it would be used by the district attorney, and in a real sense the plaintiff would be "prosecuted" by the state.² Although it might be termed quasi-criminal in nature, the statute in question does not provide for the incidents of a true criminal statute such as...