
    The STATE of Texas, Appellant, v. Linda MORALES, Tom Doyal, Patricia Cramer, Charlotte Taft, and John Thomas, Appellees.
    No. 3-91-195-CV.
    Court of Appeals of Texas, Austin.
    March 11, 1992.
    Rehearing Overruled April 15, 1992.
    Discretionary Review Dismissed May 27, 1992.
    
      Dan Morales, Atty. Gen., Harry G. Potter, III, Asst. Atty. Gen., Austin, for appellant.
    J. Patrick Wiseman, Richards, Wiseman & Durst, Austin, for appellees.
    Before CARROLL, C.J., and KIDD and DAVIS, JJ.
    
      
       Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex.Gov’t Code Ann. § 74.003(b) (1988).
    
   CARROLL, Chief Justice.

This appeal involves the limits on the government’s right to intrude into an individual’s private life, and the extent of an individual’s right to be let alone. We review a Texas statute that criminalizes private sexual relations between consenting adults of the same sex. Tex.Penal Code Ann. § 21.06 (1989).

Appellees Linda Morales, Tom Doyal, Patricia Cramer, Charlotte Taft, and John Thomas challenged the constitutionality of Penal Code § 21.06 in a declaratory-judgment action, claiming that this law violated their rights of privacy, equal protection, and due process of law. They based their challenge exclusively on rights granted by the Texas Constitution. The district court found the statute unconstitutional and enjoined its enforcement. On appeal, the State first argues that appellees lack standing to challenge the statute and, second, defends the statute’s constitutionality by asserting the State’s claimed interest in protecting public morality. We will affirm the district court’s judgment.

A. STANDING — JURISDICTION

Under the traditional rules governing relief in equity, courts do not have jurisdiction to determine in a civil action the constitutionality of a penal statute.

One well-recognized exception to this general rule arises when the criminal statute is unconstitutional and its enforcement will cause irreparable injury to vested property rights. E.g., Crouch v. Craik, 369 S.W.2d 311, 315 (Tex.1963). Citing the general rule and relying in part on Passel v. Fort Worth Independent School District, the State contends in its first point of error that a court cannot review this statute in a civil action. Passel, 440 S.W.2d 61 (Tex.1969), appeal dismissed w.o.j. and cert, denied, 402 U.S. 968, 91 S.Ct. 1667, 29 L.Ed.2d 133 (1971). Appellees respond that the State misinterprets Passel, which they say expanded a court’s equity jurisdiction to protect personal rights as well as property rights against unconstitutional criminal statutes. We agree.

The plaintiffs in Passel challenged former Penal Code article 301d that prohibited the existence of fraternities, sororities, and secret societies in public schools below the college level. 1949 Tex.Gen.Laws, ch. 429, § 1, at 803 (1925 Texas Penal Code art. 301d, since repealed and codified as Tex. Educ.Code Ann. §§ 4.20-.21 (1991)). The trial court concluded it had no jurisdiction to construe and determine the constitutionality of the criminal statute and dismissed the cause. The Texas Supreme Court reversed the trial-court judgment in an opinion that discussed the vested-property-rights argument which the State espouses in this cause. The Passel court dismissed that view as limited, however, and articulated a modern standard under which equity can protect personal rights as well as property rights. Id. at 62-64.

Appellees assert a number of violations of their personal rights that they claim deserve equitable relief and demonstrate standing. First, they argue that the existence of § 21.06 implicitly condones hate crimes against lesbians and gay men, encourages discrimination in our legal system, and raises the potential threat of arrest, fine, and pecuniary loss. Further, they assert that the statute brands lesbians and gay men as criminals and thereby legally sanctions discrimination against them in a variety of ways unrelated to the criminal law. For example, according to appel-lees, the stigma of criminality arising from the statute encourages discrimination in the context of employment, family issues, and housing. The State does not dispute appellee’s assertions that § 21.06 causes harm beyond the threat of criminal prosecution. In fact, the State in the district court stipulated to all of the evidence offered by appellees regarding these harmful consequences of the statute.

We conclude that appellees have standing to attack the constitutionality of § 21.06 because they have shown that the statute causes actual harm which goes far beyond the mere threat of prosecution. Because of these consequences to appel-lees, we cannot agree with the State that this case is hypothetical, abstract, or generalized.

The State next argues that even if appellees have standing, equity will not enjoin enforcement of a criminal law. Ap-pellees respond that § 65.011 of the Civil Practice and Remedies Code is broad enough to authorize an injunction in the present cause. See Tex.Civ.Prac. & Rem. Code Ann. § 65.011 (1986 & Supp.1992) (listing the grounds for obtaining a writ of injunction).

The Passel court relied on former Revised Statutes article 4642 to support its holding, stating that the “statute is broad enough to authorize the granting of an injunction for the protection of personal rights.” Id. at 63; 1925 Tex.Rev.Civ.Stat., § 1, art. 4642, at 1273 (since repealed). Because former article 4642 has been nonsub-stantively codified at § 65.011 of the Civil Practices and Remedies Code, we conclude that § 65.011 is also broad enough to authorize courts in a civil action to enjoin enforcement of unconstitutional criminal laws if the other Passel standards are met. 1985 Tex.Gen.Laws, ch. 959, sec. 1, § 65.-011, sec. 10, at 3292 (codification), 3322 (codification does not change substance of former law).

We also recognize that, irrespective of the nature of the right threatened, the granting of an injunction depends upon the absence of an adequate remedy at law. See Covarrubia v. Butler, 502 S.W.2d 229, 230 (Tex.Civ.App.1973, writ ref'd n.r.e.). However, even though a party may appear to have a remedy at law, if that remedy is merely illusory, it does not foreclose a right to equitable relief. See Repka v. American Nat’l Ins. Co., 143 Tex. 542, 186 S.W.2d 977, 980 (1945).

The State concedes that it rarely, if ever, enforces § 21.06. In fact, this Court has found no case directly involving a prosecution under § 21.06. The last reported appellate case involved a 1973 prosecution under a predecessor statute, former Penal Code article 524. Bishoff v. State, 531 S.W.2d 346 (Tex.Crim.App.1976) (construing 1943 Tex.Gen.Laws, ch. 112, at 194 (1925 Texas Penal Code art. 524, since repealed)). Thus, appellees are confronted with this dilemma: They suffer actual harm from the existence of § 21.06, harm that the State acknowledges, yet they are unable to attack the statute’s constitutionality because of the State’s apparent refusal to enforce the statute. Appellees, therefore, claim that they lack an adequate remedy at law. We agree.

Applying the equity standard set forth in Passel, as well as the normal equity requirements of irreparable injury and lack of an adequate remedy at law, we conclude that the district court had jurisdiction in this matter and that declaratory and injunc-tive relief were appropriate. The State’s first point of error is overruled.

B. THE CONSTITUTIONAL CHALLENGE

The State contends in its second point of error that the district court erred in declaring § 21.06 unconstitutional and enjoining its enforcement. The State argues that the United States Supreme Court effectively foreclosed federal constitutional attacks on state statutes prohibiting homosexual conduct when the Court upheld the constitutionality of a Georgia statute in Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986). The State asserts that the scope of Texas constitutional protections are no broader than those provided by the federal constitution. We disagree.

The Texas Constitution has a meaning independent of the United States Constitution and, in a number of cases, Texas courts have relied on the state constitution to find more expansive rights than those granted by the federal courts. See, e.g., Edgewood v. Kirby, 111 S.W.2d 391 (Tex.1989) (ruling that the State educational finance system violated the state constitution, although the United States Supreme Court found no violation of federal equal protection); Channel 4, KGBT v. Briggs, 759 S.W.2d 939, 944 (Tex.1988) (Gonzalez, J., concurring) (stating that the rights of free speech and free press are more extensive under the state constitution than under the federal constitution); Heitman v. State, 815 S.W.2d 681, 690 (Tex.Crim.App. 1991) (holding that Texas courts analyzing search and seizure under the state constitution are not bound by United States Supreme Court precedent analyzing the Fourth Amendment). Thus, the federal constitution provides only a floor below which the State may not fall in affording protection to individuals. See LeCroy v. Hanlon, 713 S.W.2d 335, 338 (Tex.1986); Heitman, 815 S.W.2d at 682. We conclude that the Texas Constitution accords individuals greater safeguards to their personal freedom than its federal counterpart does. We must, therefore, enforce the provisions of the state constitution, even if the federal courts have given a different interpretation to a similar provision of the federal constitution.

The controlling opinion in this cause is the Texas Supreme Court’s opinion in Texas State Employees Union v. Texas Department of Mental Health & Mental Retardation, which recognized that the Texas Bill of Rights guarantees the right of privacy. 746 S.W.2d 203 (Tex.1987) (.TSEU). In TSEU, the supreme court held that the Texas Department of Mental Health and Mental Retardation’s policy of requiring certain employees to take a mandatory polygraph test impermissibly violated privacy rights protected by the Texas Bill of Rights. Employees were required to take the test when suspected of patient abuse, criminal activity at the work place, or an activity threatening the health and safety of the employees. As a part of the polygraph test, employees were required to answer “control questions” that were not job related and which the employees found intrusive and highly offensive. Those who refused to submit to the polygraph faced “adverse personnel action.” Id. at 204-06.

The supreme court acknowledged at the outset that the Texas Constitution contains no express guarantee of a right of privacy. The court held, however, that sections 6, 8, / 9, 10, 19, and 25 of the Texas Bill of Rights each give rise to a concomitant zone of privacy and these sections collectively establish a right of privacy under the Texas Constitution. In a unanimous opinion, the supreme court then set forth a strict standard of review for governmental intrusion upon personal privacy: “[The] right to privacy should yield only when the government can demonstrate that an intrusion is reasonably warranted for the achievement of a compelling governmental objective that can be achieved by no less intrusive, more reasonable means.” Id. at 205.

Although the supreme court discussed in broad terms those sections of the Texas Bill of Rights which establish the Texas right of privacy, it did not clarify the full / scope of this privacy right. Certainly, the supreme court in TSEU did not explicitly state that the right of privacy extends to homosexual conduct. However, we can / think of nothing more fundamentally private and deserving of protection than sexual behavior between consenting adults in private. If consenting adults have a privacy right to engage in sexual behavior, then it cannot be constitutional, absent a compelling state objective, to prohibit lesbians and gay men from engaging in the same conduct in which heterosexuals may legally engage. In short, the State cannot make the same conduct criminal when done by one, and innocent when done by the other.

To evaluate the constitutionality of § 21.-06, we must review what objectives the State asserts and whether those objectives are compelling enough to override appel-lees’ right of privacy. The burden of proof rests with the State to demonstrate a compelling governmental objective. TSEU, 746 S.W.2d at 205.

The State offers the implementation of public morality as the sole compelling objective to justify § 21.06. We are mindful that homosexual conduct is abhorrent to the morals and deeply held beliefs of many people. However, the State makes no showing that criminalizing private conduct engaged in by consenting adults in any way advances public morality. Our laws against public lewdness and indecent exposure, on the other hand, properly serve to shield the public’s sensibilities from exposure to the intimacies of others. See Tex.Penal Code §§ 21.07, .08 (1989). We wish to stress that our decision does not affect those criminal statutes prohibiting sex with minors, child abuse, sexual assault, and prostitution.

Further, it is disingenuous to suggest that § 21.06 serves to protect public morality when the State readily concedes that it rarely, if ever, enforces this statute. If lesbians and gay men pose such a threat to the State, why then does the State not enforce the statute on a regular basis by investigating suspected homosexuals, obtaining search warrants, making arrests, and prosecuting offenders?

The State has not demonstrated how criminalizing sexual behavior between consenting adults in private advances or protects public morality. Further, the State has not argued that § 21.06 is justified on the basis of protecting the public’s health from the spread of sexually transmitted diseases. Even if the State were to make this argument, there is no evidence in the record that § 21.06 either protects the public’s health or that the Legislature in 1973 intended the statute as a disease-prevention measure. We note that § 21.06 does not prohibit similar heterosexual conduct that may carry a high risk of transmitting sexual diseases.

Since the State has not met its burden of showing that a compelling governmental objective justifies the intrusion § 21.06 makes into appellees’ private lives, we sustain the district court’s ruling that § 21.06 is unconstitutional because it violates ap-pellees’ right of privacy. We expressly decline to determine whether § 21.06 violates the state constitutional guarantees of due process or equal protection. Point of error two is overruled.

The judgment of the district court is affirmed.  