El Paso, TEX- An El Paso man facing jail time on a charge of selling a sexual toy walked out of the County Courthouse on Monday after a judge ruled the state law prohibiting the sale of an “obscene device” is unconstitutional.
“I’m just happy. I’ve been dealing with this for the past year,” said Sergio Acosta, an adult book store manager.
Acosta, 46, was arrested and charged with obscenity Sept. 25, 2003, as part of a sweep of sexually oriented businesses by the El Paso Police Department. The charge is a Class A misdemeanor punishable by up to a year in jail and a fine of $4,000.
Roger Jon Diamond, Acosta’s attorney, said his client was charged with violating a Texas law, which makes it illegal to sell or promote obscene devices defined by statute as “a dildo or artificial vagina designed or marketed as useful primarily for the stimulation of human genital organs.”
Only Alabama, Georgia and Texas have laws banning sexual toys.
According to court documents, Acosta was accused of selling an obscene device to an undercover police officer while employed as the manager of an adult bookstore at 2230 Texas.
Criminal Court No. 1 Judge Alma Trejo on Monday dismissed the charge and ruled that the Texas statute is unconstitutional. She did not elaborate on her decision.
Her ruling will be challenged by the El Paso District Attorney’s office.
“We are going to appeal it because the statute is in the books. … It is illegal to sell or purchase them,” said Marcos Lizarraga, first assistant district attorney.
Texas Monthly magazine reported on a similar case in Fort Worth and said it is not illegal to sell an obscene device if it is sold as a “novelty.”
Diamond said he asked Trejo to drop the charge on a variety of reasons, particularly because the statute violates civil rights implied under the 14th Amendment, which guarantees privileges and immunities of citizenship, due process and equal protection.
“The principal argument is that sexual privacy is part of the liberty of the due process clause of the 14th Amendment. In other words, there are certain things you can do in private that the government has no right to impose on,” Diamond said.