Untitled Texas Attorney General Opinion

Honorable John R. Foster Opinion No. c-617
County Attorney
val Verde County Rer Whether the facts sub-
Del Rio, Texas mitfed are sufficient to
aupport a complaint for
indecent expoeure of the
pereon under either Ar-
ticle 474, Article 526,
Article 535~ or other
Article of the Penal
Dear Mr. Foster: Code.
You have requested our opinion relative to the cap-
tioned matter. In conneatlon therewith you have submitted
the Sollowlng factaa
“Das before yesterday, three young boya
here In Val Verde County over seventeenyears
of age, were reported to the Sheriff's OSSlce
for a rather unusual exhibition. Two Airmen
from Laughlin Air Force Base, with their dates,
were drlvang f'romDel Rio to the International
Bridge to go to Mexloo. Earlier in the even-
ing, they had noticed a car with three boys
sort of Sollowlng them.around. On the way to
Mexlco,Ythe car paseed them and one boy In the
back seat&ad his panta down and wae expoalng
hl8.rea.rend to.the~passengeraln the oar being
paeeed. Naturally, the lnoldent wae upeettlng
to the Airmen's dates and I.am sure ruined the
evening for the Airmen. The Airmen would like
to file a complaint against the boys. In try-
ing to determine what to Slle, I have had a
chance to read the Articles of the Penal Code
mentioned In the encloeure."
In the brief submitted with your request, you point
out, quite correctly we think, that there are only three
Article8 of the Penal-Code which could poeelbly have any
application to the fact8 before u8. These are Articles 474,
Vernon's Penal Code, "Disturbing the peace"; 535c, Vernon's
Penal Code, "Indecent exposure to a child"; and 526, Ver-
non's Penal Code, "Indecent publications and exposure."
-2994-
Honorable John R. Foster, Page 2 (c-617)
The court in Pendell vi State, 253 S.W.2d 426 (SX.
Crlm. 1952),~held that both of ~thedescriptiveaverments,
"privatep&s or genital organs", as ueed In Article 53$,
refer to and denote the genitals or the external genital
procreatlve'organa. It Is thereforeour opinion that Ar-
ticle 535~ would not apply to the facts submitted unless
In exposing hls buttocks, all or a Portion of his genital
organs were aleo exposed, and the exposure was made to a
person under the age of 16 years.
Inasmuch a8 the Texas court8 have not construed the
1m3w3e9 “expose his or here person", a8 used in Article
474, and since It Is our opinion that under the facts sub-
mitted, there has been a violation of Article 526, It Is
not necessary that we express 0~ 'opinionon the appllca-
blllty of said Article 474.
The Court of A peals of Texas In the case of Tucker
v. State, 13 S.W. 100tl(ISgO), in donstruingArticl&~
of the Penal -Code (now codified as A&lcle 526) stated:
"By the ternia'obsceneand Indecent
exhibition of 4iheperson,' as.Uaed'ln
article 3&.oS the Penal Code. 5.0meant.
we:'thlnk;& exposure of thos; parts of-
the person which are commonly considered
as private, and which custom and decency
require 8hoUld be covered and kept con-
cealed from public 8lp;ht."
It 18 to be noted that In the Tucker case, the Court
defines the obscene and Indecent exhl- of the person
aa the exposure of those parts of a person which are com-
monly considered as private, and which custom and decency
require should be covered and kept concealed from public
eight. A person's buttocks unquestioxiably fall8 within.
thls definition,and It la our opinion, therefore,that
under,the fact8 'a8stated, there ha8 been a violation of
Article 526.
S IJM MARY
Exposure of a person's buttocks to
another person, under the facts stated,
-2995-
Honorable John R. Foster, Page 3 (c-617)
Is a violation of Article 526, Vernon's
Penal Code.
Your8 very truly,
WAGGbNER Cm
General of Texae
Assistant Attorney General
REO/pw:dt
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Grady Chandler
Alan Minter
Loamy F.'Zwhner
Milton Richardson
-9'% '-
~'
APPROVEDFQR THE ATTORNEY GENERAL
BY T. B. Wright
-2996-