Associatation of Club Executives of Texas, et al. v. Ken Paxton, et al.

Austin, Texas civil rights lawyers represented the Plaintiff challenging the Constitutionality of a Texas statute.



In 2021, the Texas Legislature enacted Senate Bill 315. Tex. S.B. 315,

87th Leg. R.S. (2021). Recognizing that sexually oriented businesses are

high-risk locations for human trafficking and sexual exploitation, S.B. 315

aims to "provide necessary mechanisms” to prevent the "harmful secondary

effects of sexually oriented businesses.” Senate Rsch. Ctr., Bill

Anal., Tex. S.B. 315, 87th Leg. R.S. (2021).



To do so, the bill raised the age of employment at sexually oriented

businesses ("SOBs”) from eighteen to twenty-one years old. See Tex. S.B.

315, 87th Leg. R.S. (2021). In Texas, an SOB is defined as a:

sex parlor, nude studio, modeling studio, love parlor, adult

bookstore, adult movie theater, adult video arcade, adult movie

enterprise the primary business of which is 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.



Tex. Loc. Gov't Code Ann. § 243.002. Relevant here, S.B. 315

changed Texas laws regarding minors and SOBs in three ways.

First, S.B. 315 amended § 125.0015 of Texas's Civil Practice &

Remedies Code to provide that a person maintains a "common nuisance” by

"employing or entering into a contract for the performance of work or the

provision of a service with an individual younger than 21 years of age for work

or services performed” at an SOB.2 Tex. S.B. 315, § 5, 87th Leg. R.S. (2021)

(amending Tex. Civ. Prac. & Rem. Code § 125.0015(a)(19), (22)).

Second, S.B. 315 amended § 51.016 of the Labor Code such that,

generally, "[a] sexually oriented business may not employ or enter into a

contract . . . for the performance of work or the provision of a service with an

individual younger than 21 [18] years of age.” Tex. S.B. 315, § 6, 87th Leg.

R.S. (2021) (amending Tex. Labor Code § 51.016(b)) (formatting in original).

A violation of this section now constitutes a Class A misdemeanor subject to

a one-year jail sentence, administrative penalties, or a suit for injunctive relief

brought by the Attorney General of Texas. See Tex. S.B. 315, § 7, 87th Leg.

R.S. (2021); Tex. Labor Code §§ 51.016(i)(3), 51.031(b).



Third, S.B. 315 amended Texas Penal Code Section 43.251 by

changing the definition of "child” to mean "a person younger than 21 [18]

years of age.” Tex. S.B. 315, § 8, 87th Leg. R.S. (2021) (formatting in

original) (amending Tex. Penal Code § 43.251(a)(1)). Section 43.251

criminalizes "employment harmful to children.” Tex. Penal Code

§ 43.251(a)(1). Under that provision, "[a] person commits an offense if the

person employs, authorizes, or induces a child to work: (1) in a sexually

oriented commercial activity; or (2) in any place of business permitting,

requesting, or requiring a child to work nude or topless.” Id.

§ 43.251(b)(1)–(2). Similar to an SOB, a "sexually oriented commercial

activity” means a massage establishment, nude studio, modeling studio, love

parlor, or other similar commercial enterprise the primary business of which

is the offering of a service that is intended to provide sexual stimulation or

sexual gratification to the customer. Id. § 43.251(a)(5). Thus, Section 43.251

effectively makes it a felony to "employ[], authorize[], or induce[]” someone

under the age of 21 to work in or with an SOB.



* * *



In sum, Texas has established a reasonable belief that S.B. 315 furthers

a substantial state interest and that it permits reasonable alternative avenues

of communication. Appellants have failed to establish that S.B. 315 prohibits

or chills a substantial amount of protected speech. Thus, the district court

did not err in holding that S.B. 315 is constitutional under the First

Amendment.

Affirmed