Public Lewdness – Texas Penal Code §21.07

Texas Criminal Law

Public Lewdness is a Texas sex crime that forbids sexually explicit activity that can be seen by non-participants.

This is the law that forbids having sex in public, but it also sometimes applies to private situations.

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The Public Lewdness law was amended in 2017 and 2023. As described more below, the 2017 amendment reclassified some behaviors under the new Bestiality offense.

The 2023 amendment enabled prosecutors to charge the offense as a felony of the third degree if the accused person was alleged to have been civilly committed as a sexually violent predator at the time of the offense. This article has been updated to reflect the current law as of the 88th Texas Legislature in 2023.

What is the current Texas law on Public Lewdness?

The current Texas law defines the offense of Public Lewdness in Penal Code Section §21.07 as follows:[1]

(a) A person commits an offense if the person knowingly engages in any of the following acts in a public place or, if not in a public place, the person is reckless about whether another is present who will be offended or alarmed by the person’s:

(1) act of sexual intercourse;

(2) act of deviate sexual intercourse; or

(3) act of sexual contact.

So, if you are in public and having sex, you can be charged with Public Lewdness. You could also be charged if you were having sex in a more private place but where there was a substantial risk that someone might see you and be alarmed or offended.

Prior to 2017, there was a fourth type of sexual activity that was prohibited, “an act involving contact between the person’s mouth or genitals and the anus or genitals of an animal or fowl.”[2] Effective as of 2017, this conduct is covered in a separate Texas offense called Bestiality.

The Court of Criminal Appeals has held that the presence of a third party is required in order for there to be a violation of the Public Lewdness law.[3]

How can I be charged with Public Lewdness?

A Public Lewdness charge requires an allegation of one of the three sexual acts listed above, plus an allegation that the act happened either in public or in a nonpublic place where you recklessly disregarded a risk that someone else might be offended or alarmed by the sexual act.

What is a public place for purposes of a Public Lewdness charge?

The term “public place” has a specific meaning in the law: a public place is “any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops.”[4] For example, while an apartment might be surrounded by a gate and restricted to residents only, the common areas and parking lot are still considered public because the residents of the apartment complex are considered a substantial group. The inside of a car, while a personal place to the owner, is still “in a public area” for purposes of the statute if the car is in a parking lot or on the side of the road.

What is the punishment for Public Lewdness?

Public Lewdness is by default a Class A misdemeanor.[5] This means that the punishment can range up to a jail sentence of one year and a $4,000 fine.

Effective September 1, 2023, the Public Lewdness offense can be punished as a third degree felony if the state can prove that the offense was committed by someone who is civilly committed as a sexually violent predator under Chapter 841, Health and Safety Code.[6]

Can I be charged with Public Lewdness if I was not in public?

Even if you are not in a public place (for example an office in a building) you may still be charged with the offense if you were reckless about whether someone else there would be offended or alarmed. For example, if two people were having consensual sexual intercourse in the back room of an office when a third party walked in during a busy inventory season, the people having intercourse might be charged because they were being reckless since if they knew that the busy inventory season was going on.

What exactly does being “reckless” mean?

The word “reckless” has a specific meaning under Texas law: reckless is defined as “disregarding a substantial and unjustifiable risk that the result will occur.”[7] This essentially means that to be reckless is to ignore the risk when you know there is a big risk. As in the previous example, it would be an unjustifiable risk to have intercourse in an office during a busy inventory season because there is a high risk of someone entering the office to conduct inventory.

What is “deviate sexual intercourse“?

“Deviate Sexual Intercourse” means any contact of one personals genitals to the mouth or anus of another person, or penetrating the anus with either the genitals or a physical object.[8] This is different from sexual intercourse, which only refers to sexual contact between a man and a woman’s genitals.

What is “sexual contact“?

Sexual contact, for the purposes of the Public Lewdness law, means “any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person.”[9]

I didn’t realize there were other people around me, can I still be charged with the offense?

You don’t need to know there were people around you who could have been offended or alarmed. If you were reckless as to the possibility, that will be enough to convict you.

^1. Texas Penal Code §21.07^2. S.B. 1232, 85th Legislature, Section 1^3. Hines v. State, 906 S.W.2d 518 (Tex. Crim. App. 1995)^4. Texas Penal Code §1.07(a)(40)^5. Texas Penal Code §21.07(b)^6. SB 1179, 88th Texas Legislature (RS), Section 2^7. Texas Penal Code §6.03^8. Texas Penal Code Section 21.01(1) – “Deviate sexual intercourse” means: (A) any contact between any part of the genitals of one person and the mouth or anus of another person; or (B) the penetration of the genitals or the anus of another person with an object.”^9. Texas Penal Code Section 21.01(2)

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