Sergio Acosta was arrested in September 2003 and charged with obscenity for selling sex devices at his adult bookstore, Tres Equis, in El Paso, Texas. Acosta was arrested after selling a sex toy to a female undercover police officer.
The charges were based on a much-criticized statewide ban on the sale and display of adult sex toys, including dildos and other sex devices used to stimulate the human genitals. Although it is not illegal to use a sex toy in the privacy of one's home, the law states.
"The principal argument is that sexual privacy is part of the liberty of the due process clause of the 14th Amendment," Acosta's attorney, Roger Jon Diamond, argued. "In other words, there are certain things you can do in private that the government has no right to impose on."
The sex-toy ban, which was drafted in 1979 as part of Texas' obscenity law and then upheld in 1985 by the Texas Criminal Court of Appeals, carries a maximum penalty of one year in jail and a $4,000 fine.
A similar case is currently being heard in Fort Worth, Texas, although there have been some language discrepancies over an adult sex toy being sold as a sexual aid or as a "novelty."
Alabama and Georgia also have statewide statutes on sex devices.
The judge's ruling could still be challenged by the El Paso District Attorney's office.
"We are going to appeal it because the statute is in the books," Marcos Lizarraga, first assistant district attorney, told reporters. "It is illegal to sell or purchase them."
