SAN ANTONIO – Photos taken under a female’s skirt or dress with a cell phone or camera are apparently legal in some parts of Texas right now, just as it was ruled legal in Massachusetts last March – until a law was passed making it a misdemeanor with a maximum sentence of 2.5 years in jail and a $5,000 fine.
Last August the Fourth Court of Appeals in San Antonio ruled that the Texas Improper Photography Statute – defined as photographing another person without their consent to arouse or gratify the sexual desire of another person – was unconstitutional.
“The statute not only restricts an individual’s right to photograph, a form of speech protected by the First Amendment … but the statute also restricts a person’s thoughts, which the U.S. Supreme Court has held is ‘wholly inconsistent with the philosophy of the First Amendment,’ ” Justice Marialyn Barnard wrote for the three-panel appeals court.
But Bexar County District Attorney Susan D. Reed said afterward her office plans to appeal the appeals court’s decision.It is not yet known if she did.
“Three other courts of appeals in Texas have held the Improper Photography statute to be constitutional,” according to the statement from the DA’s office. “The Fourth Court of Appeals is the only court to have ever held otherwise. District Attorney Reed intends to appeal the case to the Court of Criminal of Appeals, the highest court of criminal review in Texas.”
So apparently upskirt photos can be taken in the San Antonio area without the photographer being arrested or tried, and they may also get away with taking such photos across the rest of the state until the Court of Criminal Appeals rules on the law or the state legislature passes a new law in 2015.
The constitutionality of the Statute was first brought to the courts in July of 2011, when 50-year-old Ronald Thompson was arrested at Sea World of Texas for taking inappropriate photos of children ages 3 to 11 in their swimsuits showing their buttocks and breast areas.
He was charged with 26 felony counts of violating the Improper Photography Statute, which is usually applied in cases where covert cameras are involved. But Thompson hasn’t been tried yet because of the Fourth Court of Appeals ruling.
By J.J. Smith