Overall Vote Recommendation

Yes

Principle Criteria

Free Enterprise

Property Rights

Personal Responsibility

Limited Government

Individual Liberty

Digest

HB 1738 repeals Section 21.06 of the Texas Penal Code, which currently criminalizes certain consensual same-sex sexual conduct. Although the U.S. Supreme Court held the statute unconstitutional and unenforceable in Lawrence v. Texas (2003), the provision remains in the Texas Penal Code.

The bill also makes conforming amendments to the Health and Safety Code by removing references to homosexual conduct being a criminal offense from state sexual education statutes. Specifically, it amends Sections 85.007(b) and 163.002 to eliminate language requiring instructional materials to state that homosexual conduct is a criminal offense, while leaving in place existing provisions emphasizing abstinence before marriage, fidelity in marriage, and other required elements of sexual health instruction.

Author (5)

Venton Jones Joseph Moody Brian Harrison Dade Phelan Ann Johnson

Co-Author (59)

Alma Allen Rafael Anchia Diego Bernal Salman Bhojani Rhetta Bowers John Bryant John Bucy III Elizabeth Campos Terry Canales Sheryl Cole Nicole Collier Philip Cortez Aicha Davis Yvonne Davis Harold Dutton Lulu Flores Erin Gamez Cassandra Garcia Hernandez Josey Garcia Linda Garcia Barbara Gervin-Hawkins Jessica Gonzalez Mary Gonzalez Vikki Goodwin Robert Guerra Ana Hernandez Gina Hinojosa Donna Howard Jolanda Jones Marc LaHood Suleman Lalani Oscar Longoria Ray Lopez Christian Manuel Armando Martinez Trey Martinez Fischer Terry Meza Penny Morales Shaw Christina Morales Eddie Morales Claudia Ordaz Mary Perez Vincent Perez Mihaela Plesa Richard Raymond Ron Reynolds Ana-Maria Ramos Ramon Romero, Jr. Toni Rose Jon Rosenthal Lauren Simmons James Talarico Senfronia Thompson Chris Turner Denise Villalobos Armando Walle Charlene Ward Johnson Eugene Wu Erin Zwiener

Contact the Author

Rep. Venton Jones

Capitol Phone:

Capitol Office:

EXT E2.208

E-Mail:

[email protected]

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Fiscal Notes

According to the Legislative Budget Board (LBB), HB 1738 is not expected to have a significant fiscal impact on the State of Texas. The LBB concludes that repealing the Class C misdemeanor offense of homosexual conduct would not result in meaningful changes to state expenditures or revenues.

The fiscal note further assumes that the repeal would have no significant effect on state correctional populations or the demand for correctional resources, reflecting the expectation that eliminating the offense would not materially alter incarceration, supervision, or criminal justice workloads at the state level.

For local governments, the LBB likewise anticipates no significant fiscal impact. Any changes related to enforcement, prosecution, community supervision, or confinement are expected to be minimal and not materially affect local government budgets.

Vote Recommendation Notes

HB 1738 repeals an unenforceable provision of the Texas Penal Code that criminalizes consensual same-sex conduct and removes corresponding obsolete references from the Health and Safety Code. As the committee bill analysis explains, the underlying offense has been unenforceable since the U.S. Supreme Court's 2003 decision in Lawrence v. Texas, and the bill updates the statutory code to reflect existing constitutional law by removing language that no longer has legal effect.

From a limited-government perspective, the bill reduces, rather than expands, the role of government. It repeals a dormant criminal offense, narrows the scope of the Penal Code, and eliminates statutory language that cannot constitutionally be enforced. The legislation does not create a new agency, program, fund, or regulatory authority, nor does it grant additional rulemaking power or impose new administrative responsibilities. Instead, it removes an obsolete criminal prohibition from Texas law, reducing the amount of unnecessary government authority retained in statute.

The bill likewise does not increase taxpayer costs or regulatory burdens. According to the LBB, the repeal is not expected to have a significant fiscal impact on either state or local governments, and any effects on enforcement, prosecution, correctional populations, or local criminal justice operations are expected to be negligible. The measure also creates no new compliance obligations, reporting requirements, licensing mandates, or civil or criminal penalties for individuals or businesses.

Although repeal is largely symbolic because the underlying offense has been unenforceable for more than two decades, removing obsolete or unconstitutional provisions from the Texas code promotes statutory clarity and eliminates the possibility that dormant laws could be cited or relied upon in the future. By shrinking the criminal code, reducing unnecessary government authority, and doing so without increasing spending, bureaucracy, or regulation, HB 1738 advances the principles of limited government and individual liberty. Accordingly, Texas Policy Research recommends that lawmakers vote YES on HB 1738.

Individual Liberty: The bill repeals an unenforceable criminal prohibition on consensual private conduct between adults. Although the offense has been unconstitutional since Lawrence v. Texas (2003), removing it from statute eliminates a dormant criminal law that could create confusion or be cited improperly in the future. By narrowing the scope of the criminal code and reducing the state's asserted authority over private, consensual conduct, the bill advances individual liberty.
Personal Responsibility: The bill neither expands nor diminishes personal responsibility. It does not alter incentives for individual decision-making, create new government benefits or obligations, or shift responsibility between individuals and the state. Its effect is limited to repealing an obsolete criminal offense.
Free Enterprise: The bill has no meaningful effect on the marketplace. It does not impose or repeal regulations affecting businesses, alter licensing or permitting requirements, create subsidies, or otherwise change the competitive environment for private enterprise.
Private Property Rights: The bill does not affect the ownership, use, transfer, or regulation of private property. It creates no new authority over land or other private assets and has no implications for eminent domain, property rights, or land-use regulation.
Limited Government: The bill reduces the scope of government by repealing an obsolete criminal statute and removing related references in state law. It does not create a new agency, program, fund, regulatory authority, or rulemaking power, nor does it increase spending or administrative responsibilities. By eliminating an unconstitutional and unenforceable criminal offense without expanding government elsewhere, the legislation is consistent with the principle of limited government.

Related Legislation

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