Universal Amusement Co., Inc. v. Vance, 75-4312

• Decision Date: 28 September 1977
• Docket Number: No. 75-4312,75-4312
• Citation: 559 F.2d 1286
• Parties: UNIVERSAL AMUSEMENT COMPANY, INC., et al., Plaintiffs-Appellees, v. Carol VANCE et al., Defendants, State of Texas, Defendant-Appellant. Richard C. DEXTER, Plaintiff-Appellee, v. Ted BUTLER, District Attorney of Bexar County, Texas, et al., Defendants- Appellants. SOUTHLAND THEATRES, INC., et al., Plaintiffs-Appellees, v. Ted BUTLER, District Attorney of Bexar County, Texas, et al., Defendants- Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1286

559 F.2d 1286 UNIVERSAL AMUSEMENT COMPANY, INC., et al., Plaintiffs-Appellees,
v.
Carol VANCE et al., Defendants,
State of Texas, Defendant-Appellant.
Richard C. DEXTER, Plaintiff-Appellee,
v.
Ted BUTLER, District Attorney of Bexar County, Texas, et
al., Defendants- Appellants.
SOUTHLAND THEATRES, INC., et al., Plaintiffs-Appellees,
v.
Ted BUTLER, District Attorney of Bexar County, Texas, et
al., Defendants- Appellants. No. 75-4312. United States Court of Appeals,
Fifth Circuit. Sept. 28, 1977.

Page 1289

Max P. Flusche, Jr., Asst. Atty. Gen., John L. Hill, Atty. Gen., David M. Kendall, First Asst. Atty. Gen., Joe B. Dibrell, Lonny F. Zwiener, Asst. Attys. Gen., Austin, Tex., for State of Tex.

Douglas C. Young, Keith W. Burris, Asst. Crim. Dist. Attys., San Antonio, Tex., for Butler.

Edgar Pfeil, Jane Haun Macon, Asst. City Attys., San Antonio, Tex., for Peters.

Frierson M. Graves, Jr., Memphis, Tenn., Gerald Goldstein, San Antonio, Tex., for R. C. Dexter and Southland.

Appeals from the United States District Court for the Southern District of Texas.

Before THORNBERRY and GEE, Circuit Judges, and MARKEY, ^* Chief Judge.

GEE, Circuit Judge:

Presented with a number of requests for appointment of three-judge district courts to hear challenges to Texas statutes dealing with obscenity, the Chief Judge of this circuit consolidated all such cases for trial before one three-judge district court in Houston. The managing judge of that court attempted to simplify its Brobdingnagian task by choosing and setting for trial those three of the twenty consolidated cases which seemed to represent adequately the challenges of the remaining cases while presenting the fewest possible jurisdictional problems. We consider today the appeals from the district court's orders in two of these cases, 404 F.Supp. 33. ¹

I. KING ARTS THEATRE, INC. v. McCREA

The King Arts Theatre is an indoor, adults-only theater showing sexually explicit motion pictures in San Angelo, Texas. This lawsuit germinated from an apparently informal communication by the county attorney to the theater's landlord informing him that he would bring suit to enjoin future showings of pornographic films. The attorneys for the landlord then wrote to the owners of King Arts telling them of the impending suit and giving notice of termination of the theater's lease. ² Shortly thereafter King Arts filed this suit seeking injunctive and declaratory relief from any action by the county attorney under the Texas statutes. The case was transferred to the three-judge court in Houston, and all parties agreed to stay their hands until the case could be decided.

That court concluded that Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), did not preclude granting the requested relief since no prosecution, civil or criminal, was pending. It also found, however, that prosecution under the Texas nuisance statutes would not cause irreparable injury and, so finding, declined to grant injunctive relief. It determined that Texas courts would construe the phrase "obscene material" in the applicable Texas nuisance statute ³ as the phrase was defined in Tex.Penal Code Ann. § 43.21 (Supp.1976), and

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upheld that definition against a claim of unconstitutional vagueness. Finally, it found that article 4667(a)(3), considered with articles 4665 and 4666 (which the court considered to be "companion statutes"), was unconstitutional on its face because it operated as an invalid prior restraint on the distribution of materials not yet judicially determined to be obscene. King Arts has not appealed from the denial of injunctive relief or the upholding of the Texas definition of obscenity.

Our reading of the Texas nuisance statutes, articles 4664-67, dictates for us a narrower inquiry than that undertaken by the district court. Article 4666 ⁴ provides for suits in the name of the State of Texas to enjoin a nuisance, and if an establishment is adjudged a nuisance under article 4666 there follows the rather draconian mandatory remedy of closing "said house . . . for one year from the date of said judgment," unless the owner provides a one- to five-thousand-dollar penal bond against future violations of the nuisance laws. The district court found that utilizing article 4666 to close a theater for showing obscene films "prevents the dissemination of that which is presumed to be legal and protected by the first amendment," that is, nonobscene films, as a concomitant of "preventing the dissemination of the unwholesome." 404 F.Supp. at 45. We agree that closing a theater under article 4666 for all uses for one year even ameliorated by the provision for reopening under bond would pose serious first amendment questions. ⁵ Such questions are not posed here, because we find article 4666's one-year closing remedy wholly inapplicable in actions such as this, since we read article 4667(a)(3)'s injunctive remedy as the exclusive procedure for abating obscene exhibitions as nuisances.

We note first that apparently no reported Texas cases have applied or discussed the application of the one-year abatement to premises used for manufacturing, distributing or exhibiting obscene material. ⁶ We thus write on a clean slate and must determine how Texas courts would interpret

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these nuisance statutes. Both article 4667 and articles 4664-66 have been on the Texas statute books since early in this century, but it was not until the 1973 amendment of article 4667 that obscenity was brought within the purview of either statute. Article 4664 ⁷ defines three types of establishments as "common nuisances," the proprietor of which is guilty of "maintaining a nuisance": gambling houses, houses of prostitution, and places where intoxicating liquors are kept (the latter now being construed primarily as referring to places where liquor law violations take place. State v. Parker, 147 Tex. 57, 212 S.W.2d 132, 133 (1948)). The language of article 4666 appears to refer back to article 4664 to explain what constitutes a nuisance: "Such a nuisance," "such nuisance," "said nuisance," "the acts prohibited in this law." Reinforcing this construction is the fact that articles 4664-66 were enacted by one bill and as one law. Tex.Laws, 2d Called Sess. 1923, ch. 24 at 57-58, and in this original pre-compilation form the references from section 4 (now article 4666) to section 1's (now article 4664's) definition of "nuisance" were even more stark, including references to the "county where the above nuisance is alleged to exist," for example, and to a penal bond "conditioned that the acts prohibited in section 1 of this Act shall not be done . . . ." With the 1923 recompilation of the Revised Civil Statutes, article 4667 came into being, combining several previous statutes providing for injunctive relief against gaming establishments, bawdy houses and "bucket shops," but it was placed (obviously) after the rearward-looking article 4666 with its one-year abatement remedy. Article 4667 did not denominate its various injunction-worthy activities as nuisances, so that an activity within the purview of article 4667 clearly was not subject to article 4666's one-year closing unless it also was an activity (i. e., gambling or prostitution) made a "common nuisance" by article 4664.

The same 1973 amendment which brought the commercial manufacture, distribution or exhibition of obscene matter within the coverage of article 4667 also complicated the picture by inserting, for the first time, the word " nuisance" in article 4667:

(a) The habitual use . . . of any premises, place or building or part thereof, for any of the following uses shall constitute a public nuisance . . . .

(emphasis added). But merely attaching the name "nuisance" to article 4667(a)'s list of enjoinable activities was not intended, we believe, to key in the remedies of article 4666. Had the legislature intended to apply the one-year closing sanction to pornographers' establishments, it could have more clearly signalled such an intent by adding to article 4664 ⁸ appropriate language listing such obscenity-purveying establishments among the few "common nuisances" clearly subject to abatement under article 4666. Perhaps the legislature foresaw the constitutional implications of shutting a communication-oriented business to all forms of expression, and to avoid potential trenching upon the first amendment, chose to authorize only the lesser constraint of an injunction against future exhibitions of unprotected obscene matter ⁹ by making article 4667, rather than article 4666, applicable to obscenity distribution. Whatever the legislature's motive, we think that even after the 1973 amendments article 4666 still

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refers solely to the nuisances defined in article 4664 and therefore that the district court in passing on the Texas nuisance statutes unnecessarily considered the effect of a one-year shutdown not authorized by Texas law. ¹⁰

This feature aside, we think article 4667(a)(3)'s injunctive procedure basically sound in its application to establishments such as King Arts. The statute authorizes an injunction against the commercial manufacture, distribution or exhibition of obscene material only. Because the injunction follows, rather than precedes, a judicial determination that obscene material has been shown or distributed or manufactured on the premises and because its prohibitions can apply only to further dealings with obscene and unprotected material, it does not constitute a prior restraint. Were a Texas court to issue an overbroad injunction restricting nonobscene (and therefore protected) matter, it would exceed both its constitutional and its statutory authority. While we might not be willing to assume with appellants that every state trial court granting an injunction on the authority of article 4667(a)(3) will draw up a lengthy order specifically enumerating the explicit details of the conduct prohibited, neither will we...