Fallout from 'unconstitutional' law to impact cases in Bexar Co.

Cases against suspects charged with ‘improper photography' are 'dead in the water'


SAN ANTONIO – A ruling by the Texas Court of Criminal Appeals will force prosecutors across the state to drop charges against people accused of taking improper photographs and could also set some convicts free.

In an 8-1 ruling this week, the court declared a portion of the state's improper photography law unconstitutional.

Cliff Herberg, first assistant criminal district attorney for Bexar County, said the DA's office cannot move forward on several cases where people are accused of taking improper photographs for the purpose of sexual gratification, saying those cases are "dead in the water."

Since the law has been deemed unconstitutional, it will also affect cases where a conviction was handed down.

"We are going to look at each of those cases and see if there's anything else we can charge them with and try a different tack, but if it's only this conduct that's prohibited by this statute, it's now lawful, so there's nothing we can do," Herberg said. "It will depend on each individual case to see if they can get that conviction set aside."

Under the law, it's still illegal to take pictures and video of a person without that person's consent in a private place like a bathroom, bedroom or dressing room.

But the court ruled that anyone who appears in public surrenders protection from being the object of sexual fantasies.

That means it's legal for someone to take pictures of you and your kids in public places like parks and pools, even if they're focusing in on genital areas and using the pictures for sexual gratification.

Based on the cases his office has prosecuted, Herberg said people were using the images for sexual purposes.

"They're sexually suggestive pictures," Herberg said. "They're known as child erotica and they are really the precursor to someone who begins to either engage in viewing child pornography or even grooming children and acting out upon them."

The court overturned the law because it was considered to be too broad. Herberg said it will be up to state lawmakers to pass a new version that will pass constitutional muster.

"We're optimistic the legislature is going to fix this problem," Herberg said. "DAs across the state will be joining together in the next legislative session to work with the legislature to fix this, but until then there's no new laws on the books to stop that kind of conduct."

In the meantime, Herberg encourages people to still report cases of possible improper photography to police simply because the suspect may be involved in some other kind of criminal behavior.

"Yes, you should still call police when you have that creepy feeling about someone lurking around the kids," Herberg said. "The police often get there and when they view that camera they often find child pornography, and when they find child pornography that's still against the law and we can book them for that."

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