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Click here for the full text of this decision FACTS:Michelle Howard was charged for violating Dallas’ no-touch ordinance by recklessly rubbing her breasts against a customer’s head while exposing her buttocks, which were not adequately covered. Though the information charging Howard uses the term “recklessly,” the Dallas ordinance is a strict-liability offense based on touching alone, regardless of intent or culpability. Howard filed a motion to quash or dismiss the information as unconstitutional. She claimed the ordinance was faulty because it did not require proof of a culpable mental state. The state’s addition of “recklessly” to the information could not cure the ordinance’s basic flaw, Howard argued. The trial court granted the motion, and the state appeals. HOLDING:Affirmed. The court explains that Texas Government Code Chapter 243 grants municipalities the authority to regulate sexually oriented businesses and their employees. Also, Texas Penal Code 6.02(b) authorizes the dispensation of a culpable mental state in the definition of an offense. The court then examines the ordinance under U.S. Supreme Court precedent to determine if it is a content-neutral regulation. The test under Barnes v. Glen Theatre Inc., 501 U.S. 560 (1991), says that a regulation is content-neutral if: 1. it is within the constitutional power of the government; 2. it furthers an important or substantial governmental interest; 3. the asserted governmental interest is unrelated to the suppression of free expression; and 4. the incidental restrictions on alleged First Amendment freedoms are no greater than is essential to the furtherance of that interest. The court finds that because of the Government Code authority, the ordinance satisfies the first part of this test. Because the ordinance serves the substantial governmental interest in reducing prostitution, drug dealing and assault, it satisfies both the second and third parts of the test. The ordinance runs afoul of the fourth part of the test, however. Because the ordinance does not require any culpable mental stated � thereby criminalizing accidental or inadvertent touching � the ordinance is not narrowly tailored to prevent the secondary effects of adult cabarets. There is a greater restriction on free expression than necessary. “Our conclusion does not mean that a topless/exotic dancer may freely engage in touching, and we do not pass on the degree of culpability required for a constitutionally permissible prosecution of a topless/exotic dancer who touches a customer. We simply conclude that, as adopted, without a culpable mental state element, the”no touch’ provision at issue here is unconstitutional and void.” OPINION:Richter, J.; O’Neill, Richter and Francis, JJ.

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