Messina v. State , 1995 Tex. App. LEXIS 1841 ( 1995 )

OPINION

BAKER, Justice.

The City of Dallas charged appellant with violation of the City’s sexually oriented business ordinance. The municipal court found appellant guilty. He appealed to the county criminal court of appeals. He argued the City’s ordinance violated the Texas Equal Rights Amendment. The county criminal court of appeals affirmed the municipal court’s judgment. We affirm the county criminal court of appeals’ judgment.

THE BACKGROUND LITIGATION

A. The Municipal Court

The City charged appellant with operating a sexually oriented business in violation of the Dallas City Code section 41A-13(a)(4). This ordinance defines a sexually oriented business as an adult cabaret. See Dallas, Tex., City Code § 41A-2(3) (1993). An adult cabaret is a bar regularly featuring persons performing in a “state of nudity.” See Dallas, Tex., City Code § 41A-2(3)(A) (1993). “State of nudity” includes dress that fails to opaquely cover the areola of the female breast. See Dallas, Tex., City Code § 41A-2(15) (B) (1993).

Appellant moved the municipal court to quash the charging instrument. He alleged the ordinance violated the Texas Equal Rights Amendment. He claimed the definition of “state of nudity” violates the ERA because the definition treats females differently from males based solely on gender. The municipal court judge denied the motion.

Appellant pleaded not guilty to the charge. He waived a jury and agreed to a bench trial. The parties stipulated that the complaining witness would testify that Caligula XXI is a sexually oriented business, located at 2828 West Northwest Highway, within 1000 feet of a public park bordered by a residential area. They also stipulated the complaining witness would testify that Caligula XXI, as a sexually oriented business, was an adult cabaret. The trial judge took judicial notice of the City’s ordinance during pretrial. The parties offered no other evidence. The municipal court found appellant guilty and assessed a $350 fine.

B. The County Criminal Court of Appeals

The parties stipulated to the municipal court record as the appellate record in the county criminal court of appeals. Appellant raised one point of error. He contended the “state of nudity” definition in the sexually oriented business ordinance violated the ERA.

Based on the stipulated record, the county criminal court of appeals determined the municipal court took judicial notice of the common knowledge, common sense fact of physiological and sexual distinctions between male and female breasts. The county criminal court of appeals overruled appellant’s point of error and affirmed the municipal court’s judgment.

APPELLANT’S POINT OF ERROR IN THIS APPEAL

Appellant contends the municipal court erred in convicting and sentencing him. In his point of error, he claims the City’s sexually oriented business ordinance, as a matter of law, is a facially discriminatory ordinance. He argues the “state of nudity” definition in the ordinance is unconstitutional and void. He concludes his conviction and sentence were void because the definition is unconstitutional.

THE PARTIES’ CONTENTIONS

A. Appellant’s Contentions

Appellant argues the “state of nudity” definition does not pass constitutional muster. He contends the ordinance is facially discriminatory because it treats females differently from males based solely on gender. Appellant relies on Williams v. City of Fort Worth, 782 S.W.2d 290 (Tex.App.—Fort Worth 1989, writ denied) to support this contention.

Williams was a civil declaratory judgment action. Williams, the operator of a sexually oriented business, attacked the validity of Fort Worth’s ordinance regulating sexually oriented businesses. In particular, Williams attacked the “state of nudity” definition in Fort Worth’s ordinance.

The Williams court held it could not take judicial notice of the physiological and sexual differences between male and female breasts. In the trial court, Fort Worth did not prove the alleged difference between male and female breasts. The Williams court held, as a matter of law, that the Fort Worth ordinance treated females differently from males based solely on gender. The Williams court concluded the “state of nudity” definition was a sexually discriminatory definition. The Williams court then held Fort Worth did not meet its burden to justify the discrimination or to show it could not protect its interest without such discrimination. The Williams court held the offending part of the “state of nudity” definition was void.

B. The City’s Contention

The City argues appellant did not prove, as a matter of law, that its definition of “state of nudity” was discriminatory. The City relies on this Court’s opinion in MJR’s Fare of Dallas, Inc. v. City of Dallas, 792 S.W.2d 569 (Tex.App.—Dallas 1990, writ denied) to support its argument. MJR was a civil declaratory judgment action. MJR operated a sexually oriented business. It attacked the validity of the City’s sexually oriented business ordinance. In particular, MJR attacked the “state of nudity” definition in the City’s ordinance. In MJR, the “state of nudity” definition was essentially the same as the “state of nudity” definition in Williams.

In MJR, the City introduced undisputed expert testimony that: (1) physiological and sexual distinctions exist between male and female breasts; (2) female breasts differ both internally and externally from male breasts; and (3) the female breast, not the male breast, is a mammary gland. We held that MJR did not meet its burden of proving “the state of nudity” definition discriminated against females based solely on gender.

The City argues we should apply MJR and decide this case on the basis of stare decisis. The City argues MJR is directly on point, and Williams is not.

THE ISSUE

In this appeal, appellant contends the City’s “state of nudity” definition is unconstitutional because it violates the ERA. He argues his conviction and sentence are void for that sole reason. Appellant does not argue the stipulated testimony is insufficient to support his conviction as a matter of legal sufficiency.¹ The only issue before this Court is whether the “state of nudity” definition is facially unconstitutional. Thus, the issue is one of statutory construction.

APPLICABLE LAW

1. Review of Constitutionality of an Ordinance

Our Constitution provides that sex, race, color, creed, or national origin shall not deny or abridge equality under the law. See Tex. Const. art. I, § 3a. The Texas Equal Rights Amendment requires that courts subject sex-based classifications to strict judicial scrutiny. See In re McLean, 725 S.W.2d 696, 698 (Tex.1987). Under strict judicial scrutiny, we first determine whether the law discriminates against one sex based solely on gender. Our law allows sex-based distinctions if physical characteristics require those distinctions. See MJR, 792 S.W.2d at 575; Mercer v. Bd. of Trustees, 538 S.W.2d 201, 206 (Tex.Civ.App.—Houston [14th Dist.] 1976, writ ref'd n.r.e.).

Initially, the party challenging the law must show the law discriminates based solely on gender. The proponent of the law can rebut that premise if the proponent shows that physical characteristics require the sex-based distinctions. MJR, 792 S.W.2d at 575; Mercer, 538 S.W.2d at 206. If the proponent cannot overcome the initial premise, then the proponent of the discriminatory law must show that no other means exist to protect the state’s compelling interest. In re McLean, 725 S.W.2d at 698; MJR, 792 S.W.2d at 575; Mercer, 538 S.W.2d at 206.

2. Stare Decisis

Under the doctrine of stare decisis, a court of last resort’s determination on a question of law is a precedent governing the decision of later litigation involving the same point. See Horne v. Moody, 146 S.W.2d 505, 509 (Tex.Civ.App.—San Antonio 1940, writ dism’d judgm’t cor.). The doctrine governs only the determination of questions of law and not questions of fact. See Young v. State, 488 S.W.2d 820, 821 (Tex.Crim.App.1972); Horne, 146 S.W.2d at 509.

When the supreme court or a court of appeals, if the supreme court denies an application for writ of error, gives a particular effect to a statute or a fact situation, that determination is binding and conclusive on all later suits involving the same subject matter. This rule applies whether the parties are the same or not. Home, 146 S.W.2d at 509; see also Swilley v. McCain, 374 S.W.2d 871, 875 (Tex.1964). Stare decisis applies when the facts of the prior case are substantially the same as those in the later case. See McKenzie Constr. Co. v. City of San Antonio, 50 S.W.2d 349, 353 (Tex.Civ.App.—San Antonio 1932, writ ref'd). Stare decisis is a matter of public policy and sound legal administration.

Accordingly, when a court settles a question of law, the decision should remain the law unless the strongest reasons exist for changing it. See Benavides v. Garcia, 290 S.W. 739, 740-41 (Tex.Comm’n App.1927, holding approved). Stare decisis controls if it makes sense or follows logical reasoning. Middleton v. State, 476 S.W.2d 14, 16 (Tex.Crim.App.1972). The doctrine is a rule of precedent. The doctrine creates a strong presumption in favor of established law. The doctrine has its greatest force in the area of statutory construction. Collier v. Poe, 732 S.W.2d 332, 345 (Tex.Crim.App.1987), appeal dismissed, 484 U.S. 805, 108 S.Ct. 51, 98 L.Ed.2d 15 (1987).

APPLICATION OF LAW TO THE FACTS

This appeal is purely one of statutory construction. The operative facts of appellant’s attack on the “state of nudity” definition are the same as in MJR. The question of law, as in MJR, is whether the City’s “state of nudity” definition on its face violates the ERA.

Thus, we dispose of the issue as a question of law, and not of fact. We are bound by this Court’s prior determination in MJR that the definition does not violate the ERA

Neither the State nor its political subdivisions should face multiple attacks on their laws once a court of competent jurisdiction declares the law constitutional. The public policy basis for stare decisis compels this conclusion. We see no strong reasons to change the law MJR established. Our conclusion makes sense and follows logical reasoning. See Middleton, 476 S.W.2d at 16. Stare decisis creates a strong presumption for established law; that presumption remains unrebutted.

We conclude that MJR, not Williams, controls this appeal. Appellant has not advanced any strong reason for changing MJR, nor do we perceive any. We overrule appellant’s point of error.

We affirm the county criminal court of appeals’ judgment.

THOMAS, C.J. and KINKEADE, MALONEY, BARBER, MORRIS, WHITTINGTON and WRIGHT, JJ. join in this opinion. LAGARDE, J. concurs in result only. OVARD, J. concurring opinion in which JAMES, J. joins. WHITHAM, J. (Assigned) dissenting opinion in which CHAPMAN, J. joins. DEVANY, J. dissenting opinion.

1 . The stipulations by the parties are legally sufficient to prove all elements of the offense defined in the City's sexually oriented business ordinance. Thus, the evidence is sufficient to support the conviction on that ground.