The Fourth Court of Appeals declared the Texas Improper Photography Statute unconstitutional on Friday.
District attorneys say Section 21.15 of the Penal Code, known as the Improper Photography statute, makes it a state jail felony to visually record or photograph another person without their consent to arouse or gratify the sexual desire of another person.
"I was very surprised this has proven to be an important statue in what I could call the digital age this is the kind of statue that prevents someone from photographing under a woman’s skirt,” said First Assistant District Criminal Attorney Clifford Herberg Jr.
Ronald Thompson, 50, was arrested in July 2011 at Sea World of Texas after authorities said concerned parents reported him swimming with and taking pictures of children ages 3 to 11.
When approached by park security, officials said Thompson attempted to delete the photographs on his camera before it was seized.
Police examination of the camera revealed 73 photos of children in swimsuits, with most of the photographs targeting the children's breast and buttocks areas, authorities said. Thompson was indicted by a grand jury on 26 felony counts of violating the Improper Photography statute.
"Mr. Thompson was charged with the statute and he hasn’t been tried. He hasn’t been convicted. There’s no evidence at all (that's been) entered. All the accusations are just that: accusations. We’re disputing that," said Thompson's attorney, Don Flanary.
District attorneys said the Improper Photography Statute protects individuals from being recorded without their consent for the sexual purposes of others.
The law is frequently applied where covert cameras are placed in bedrooms to record or broadcast sexual activity without the knowledge of a participant.
The act of photographing children in this manner is viewed by some experts as a stepping stone toward more aggressive behavior as these individuals begin to act on their fantasies.
"By holding it unconstitutional, it basically means these cases are now placed in jeopardy of either being dismissed or, in the future, not being filed by law enforcement,” said Herberg.
Three other courts of appeals in Texas have held the Improper Photography statute to be constitutional.
Attorneys said the Fourth Court of Appeals is the only court to have ever held otherwise.
District Attorney Susan Reed said she intends to appeal the case to the Court of Criminal Appeals, the highest court of criminal review in Texas.
KSAT reporter Bill Barajas contributed to this report.