§ 13. OBSCENE MATTER AND PERFORMANCES PROHIBITED

A.

DEFINITIONS

For purposes of this section the following words shall have the meanings ascribed to them:

(1)

Matter means any book, magazine, newspaper, or printed, or written material or any picture, drawing, photograph, motion picture, or other pictorial representation, or any statute or other figure, or any recording, transcription, or mechanical, chemical or electrical reproduction or any other articles, equipment, machines, or materials.

(2)

Performance means any play, motion picture, dance or other exhibition or presentation, whether pictured, animated, or live, performed before an audience of one (1) or more person(s).

(3)

Any matter or performance is obscene if:

(a)

The average person, applying contemporary community standards, finds that the matter or performance, taken as a whole, appeals to the prurient interest, and

(b)

The matter or performance depicts or describes in a patently offensive way, sexual conduct; normal or perverted, actual or simulated, and

(c)

The matter or performance, taken as a whole, lacks serious literary, artistic, political, or scientific value.

(4)

Sexual Conduct means acts of masturbation, excretory functions, lewd exhibition of the genitals, sadomasochistic abuse, homosexuality, lesbianism, bestiality, sexual intercourse or physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or the breast or breasts of a female for the purpose of sexual stimulation, gratification, or perversion.

(5)

Sadomasochistic Abuse means flagellation or torture by or upon a person as an act of sexual stimulation or gratification.

(6)

Person means any individual, partnership, firm, association, corporation, or other legal entity.

(7)

Distribute means to transfer possession of, whether with or without consideration.

(8)

Knowingly means knowing or having good reason to know the character of the matter or performance.

(9)

Owner means any person who owns or has legal right to possession of any matter.

B.

PROHIBITED ACTS - MATTER

It shall be unlawful for any person who knowingly sends or causes to be sent, or brings or causes to be brought, into the City of Santa Fe, Texas, for sale or distribution, or in the City of Santa Fe, Texas, possesses, prepares, publishes, or prints, with intent to distribute or to exhibit to another, or who offers to distribute, distributes, or exhibits to another any obscene matter.

C.

PROHIBITED ACTS - PERFORMANCES

It shall be unlawful for any person who knowingly engages or participates in, manages, produces, sponsors, presents, or exhibits any obscene performance.

D.

DEFENSES

It shall be an affirmative defense to a prosecution under this section for the defendant to show:

(1)

That the distribution was made to the recipient by a bona fide school, museum, or public library or by an employee of such organization or of a retail outlet affiliated with and serving the educational purpose of such organization acting in the course of his employment; or,

(2)

That the act was done for legitimate scientific or educational purposes.

E.

ARREST AND SEIZURE

Where the subject matter is offered for distribution to the public as stock in trade of a lawful business or activity, or, as in the case of films, is exhibited at a commercial theater showing regularly scheduled performances to the general public, no person shall be arrested for a violation of any of the provisions of this section unless the arresting officer shall have first obtained an arrest warrant, and no property shall be seized as evidence unless a search warrant shall have first been obtained pursuant to the provisions of this section. Provided, however, that the quantity of matter seized shall encompass no more than is reasonable and necessary for the purpose of obtaining evidence.

F.

HEARING

At any time after arrest and seizure, and prior to trial, the state, defendant, owner, or other party in interest of any matter seized, may apply for and obtain a prompt adversary hearing for the purpose of obtaining a preliminary determination of obscenity. The defendant or owner of any matter seized may apply for and, upon a showing that other copies of the film or motion picture are not available to be exhibited, the court shall order that the applicant be permitted to copy the film or motion pictures, at his own expense, so that showing can be continued pending a judicial determination of obscenity in an adversary hearing.

G.

PENALTY

Any person who violates any of the provisions of this section shall upon conviction, be fined in any amount not less than five dollars ($5.00) nor more than two hundred dollars ($200.00).

(Ordinance 8-79 of July 12, 1979)