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Click here for the full text of this decision FACTS:An information that led eventually to this appeal stated: “[T]he Defendant . . . did then and there unlawfully while performing, to-wit: DANCING, at a sexually oriented business enterprise in an unincorporated area of Harris County, Texas, namely, ADULT CABARET, intentionally and knowingly perform at a distance of less than six feet from the nearest patron, namely, K. WILLIS, and on a stage less than eighteen inches above the floor level of the enterprise.” The state later amended the information to allege “St. James Adult Cabaret” instead of “Adult Cabaret.” A Harris County ordinance proscribing this type of conduct requires any person performing at an sexually oriented business enterprise to do so more than six feet from the nearest patron and on a stage more than 18 inches above floor level. The regulation defined an “enterprise” as commercial enterprises with the primary business of the offering of a service, or the selling, renting or exhibiting of devices or any other items, intended to provide sexual stimulation or sexual gratification to the customer. This regulation further included a non-exclusive list of common sexually oriented businesses. Appellee made a motion to quash the information alleging generally it was defective in that it sought to enforce an ordinance that is unconstitutional, both on its face, and as applied to the appellee. The appellee alleged four specific grounds, including the claim the regulation was unduly vague and overly broad. The trial court granted appellee’s motion to quash the information after a hearing and held the county ordinance unconstitutional for vagueness, because it did not give fair notice to a person of ordinary intelligence of the conduct forbidden and it did not provide explicit standards to law enforcement personnel to prevent arbitrary or discriminatory enforcement. The state appealed. HOLDING:Reversed and remanded. The court began by noting that the trial court believed the ordinance was vague, because it failed to give fair notice to a dancer “as it would subject her to arbitrariness and oppression by having to defend prosecutions time after time when someone walked up behind her within 6 feet without her knowing.” The court found this reasoning faulty, however, because a culpable mental state accompanies the ordinance. Thus, the court explained, a dancer would not be subject to prosecution unless she intentionally and knowingly performed within six feet of a patron behind her or on a stage lower than 18 inches. The court then noted the trial court’s finding that the ordinance did not provide explicit standards to law enforcement personnel to prevent arbitrary or discriminatory enforcement but did not specify the deficiencies in such regard. The court disagreed. It stated that the ordinance set forth clear, objective standards (six feet and 18 inches) for the determination of whether a violation has occurred. It concluded the language of the ordinance provided guidance to law enforcement authorities to such a degree that obviated improperly motivated selective enforcement. The court also answered a question included in the trial court’s findings, which read: “Since the conjunctive”and’ joins the six foot distance requirement and stage requirement of not less than 18 [inches] above the floor, does compliance of one part and noncompliance of the other part still subject the performer to criminal penalties?” The court held that the answer to the trial court’s question was “yes.” OPINION:Amidei, S.J.; Amidei, S.J., and Hudson and Mirabal, J.J.

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