AUSTIN, Texas — If you were to open up the Texas Penal code, the state’s primary set of criminal laws, in 2025, you would find a provision that criminalizes “homosexual conduct” as a misdemeanor. A bipartisan group of Texas lawmakers is working to repeal that law.
House Bill 1738 from Representative Venton Jones, D-Dallas, himself a gay man, is the latest effort in a multi-year process to repeal the law, which was declared unconstitutional by the U.S. Supreme Court more than two decades ago.
“This sentiment reflects a widely held belief in personal liberty and limited government intervention,” Representative Jones said, laying out the bill before the House Criminal Jurisprudence committee on Tuesday, citing quotes from both Supreme Court Justice Clarence Thomas and Republican Senator Ted Cruz calling for the repeal of the law.
Sandwiched between provisions for sexual abuse of children and public lewdness, Section 21.06 of the state’s penal code reads, “A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex,” qualifying it as a Class C misdemeanor, punishable by a fine of up to $500. Just above it, the code reads that “Section 21.06 was declared unconstitutional by Lawrence v. Texas,” the 2003 landmark Supreme Court case effectively banning ‘sodomy laws’ in state government.
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A bipartisan group of lawmakers have also signed on to HB 1738, ranging from liberal Democrats like Senator Ann Johnson and Speaker Pro Tempore Joe Moody to conservatives like former Speaker Dade Phelan and hardline conservative Brian Harrison.
“Criminalizing homosexuality is not the role of government, and I support repealing it…” Rep. Harrison said in a statement to CBS Austin. “I will continue consistently fighting for limited government and individual liberty.”
Despite the bipartisan push behind the legislation—and the fact that the provision is effectively nullified by its unconstitutionality—enacting the bill is no guarantee. An identical push last session even made it as far as to be scheduled for debate on the House floor, but it ultimately never was, and the bill died last session.
The legislation also was not entirely without criticism, particularly from conservatives. Texas Values Policy Director Jonathan Covey said the bill could send “the wrong message to thousands of people in the state of Texas that this lifestyle or this conduct is becoming more acceptable.” Chairman John Smithee questioned Rep. Jones about whether or not the legislation was justifiable on the grounds of penalizing acts like pedophilia or non-consensual intercourse.
“Chairman Smithee: your marriage to your wife is not a crime,” Representative Jones said, addressing Republicans on the committee. “Representative [Mitch] Little: your marriage to your wife is not a crime. Representative [Brent] Money: Your marriage to your wife is not a crime. So when we have a conversation regarding my fiancé Gregory and I, why should I, a colleague of yours, be treated as a criminal under this statute?”
House Bill 1738 was left pending before the committee without a final vote.
