ROUND ROCK, TX – Williamson County Attorney Jana Duty has issued a warning to local businesses, according to the Austin American-Statesman; remove “obscene materials,” like pornographic magazines, from their shelves by Halloween or face prosecution for display and/or distribution of obscenity.“We’re not going to selectively prosecute,” said Duty according to the Statesman. “Anybody who’s selling illegal material needs to get rid of it.”

The Texas penal code provides a more expansive definition of “obscene” than does U.S. federal law, which is guided by the “Miller test” established in the landmark obscenity case Miller v. California. Although very similar language is used, the Texas state law includes certain details that increase the scope of material subject to prosecution.

The report in the Statesman also notes that none of the five convenience stores visited by the newspaper in the Round Rock area as part of researching the story were displaying adult material of any kind, although a local Barnes & Noble “did have some adult content publications with plastic covers on the top shelf of their magazine section.”

Duty claims she has personally seen “obscene material” in multiple convenience stores in the area, including in Round Rock, Georgetown, and Leander, and that investigators from her office had found such material at about a half-dozen stores that they checked.

“It might be that they’re just really quickly getting them down,” Duty said.

Duty told the Statesman that she first noticed adult magazines in convenience stores on a trip to the store with her 12-year-old son, when she spotted her son looking at a display.

“When I walk into a convenience store to go buy my son a soda or chips or a snack, I’m not expecting to see adult material,” Duty said.

While Duty appears to contend that any adult material is illegal under Texas state law restricting “obscene” materials, the law itself appears to be less definitive.

The definition of “obscenity” provided under the Texas penal code (Chapter 43 Subsection B) contains much of the same language as the Miller test, including reference to the “average person, applying contemporary community standards would find that taken as a whole appeals to the prurient interest in sex,” but also specifies a number of acts and contexts which do not appear in the language of the Miller test.

One such specification is the inclusion of “covered male genitals in a discernibly turgid state” in the list of depictions or descriptions that could constitute “obscene” material, should the work in question satisfy the rest of the Texas version of the obscenity test, which includes the usual caveats concerning “serious literary, artistic, political, and scientific value.”

Another facet of Texas obscenity law that is shared with some other state laws, but not present in federal standards, is the language concerning “obscene devices,” which the statute defines as “a device including a dildo or artificial vagina, designed or marketed as useful primarily for the stimulation of human genital organs.”

Under the Texas penal code, “obscene devices” are not only illegal to sell and advertise; possession of more than a half-dozen such devices can be a prosecutable offense, as well.

§ 43.23 (f) of the code states that “A person who possesses six or more obscene devices or identical or similar obscene articles is presumed to possess them with intent to promote the same.”

Texas law does provide a small set of circumstances that represent an “affirmative defense” against prosecution for possession of seven or more dildos, however.

§ 43.23 (g) of the code states “It is an affirmative defense to prosecution under this section that the person who possesses or promotes material or a device proscribed by this section does so for a bona fide medical, psychiatric, judicial, legislative, or law enforcement purpose.”

It remains to be seen if any of the area’s convenience stores (or the Barnes and Noble) will continue to display adult materials after the October 31st deadline set by Duty, but at least one local store clerk supports Duty’s anti-porn effort.

“It’s a good thing,” Adela Dimitris, a cashier at a Round Rock Shop-N-Go told the Statesman. “We really don’t want our kids to see that kind of stuff when they come in.”