The Texas sodomy law, Section 21.06 of the Penal Code, is unenforceable and has been since 2003, when the U.S. Supreme Court struck it down in Lawrence v. Texas.1Justia. Lawrence v. Texas The text is still printed in the code, but no one in Texas can be lawfully arrested, charged, or convicted under it. Private, consensual sexual conduct between adults carries no criminal risk under this statute, regardless of what the printed code says.
Why the Statute Is Still Printed in the Code
Section 21.06 still reads that a person commits an offense by engaging in sexual conduct with another individual of the same sex, classified as a Class C misdemeanor.2State of Texas. Texas Penal Code 21.06 – Homosexual Conduct A Class C misdemeanor normally carries a maximum fine of $500 and no jail time.3State of Texas. Texas Penal Code – PENAL 12.23 Class C Misdemeanor Those penalties cannot actually be imposed, because the statute behind them is unconstitutional.
Removing the text requires the Texas Legislature to pass a repeal bill through committee and both chambers. The Legislature meets in regular session for only 140 days every two years, and competition for floor time is heavy.4Texas Legislative Directory. About the Texas Legislature Roughly a dozen states carry similar unenforceable sodomy statutes for the same reason.
Legislators have filed repeal bills every session since 2005. The closest attempt came in the 89th Legislature in 2025, when House Bill 1738 cleared the Texas House on a 59–56 vote. That was the first time a repeal bill passed either chamber. It still needs Senate approval to take effect.
What Lawrence v. Texas Protects
The Supreme Court held that the Due Process Clause of the Fourteenth Amendment protects the right of adults to engage in private, consensual sexual conduct. The Texas statute, the majority wrote, “furthers no legitimate state interest which can justify its intrusion into the individual’s personal and private life.”1Justia. Lawrence v. Texas The opinion overruled Bowers v. Hardwick, the 1986 decision that had allowed states to criminalize sodomy.
The Court also drew explicit limits. Lawrence does not reach minors, situations involving coercion, or public conduct. It protects private acts between consenting adults, and nothing more.1Justia. Lawrence v. Texas
Can You Be Arrested Under Section 21.06?
No. An officer who arrested someone under this statute would be acting on a law the Supreme Court has declared unconstitutional. Any charges filed would be dismissed, and the person arrested would have grounds for a federal civil rights lawsuit under 42 U.S.C. § 1983, which allows individuals to sue government officials who deprive them of constitutional rights while acting in their official capacity.5Office of the Law Revision Counsel. 42 USC Ch. 21 Civil Rights The officer’s department could face substantial financial liability.
Every Texas judge, prosecutor, and law enforcement agency is bound by Lawrence. A prosecutor who filed a Section 21.06 case would be presenting charges no court is permitted to sustain.
Public Conduct Laws That Still Apply
Lawrence protects private behavior. Texas actively enforces separate statutes that criminalize sexual activity in settings where others might witness it, and those laws apply regardless of sexual orientation.
Public Lewdness
Under Section 21.07, a person commits public lewdness by knowingly engaging in sexual intercourse, oral or anal sex, or sexual contact in a public place. The same conduct in a private setting can qualify if the person is reckless about whether someone else is present who would be offended.6State of Texas. Texas Penal Code Section 21.07 – Public Lewdness Public lewdness is a Class A misdemeanor, punishable by up to a year in jail and a fine of up to $4,000.
Indecent Exposure
Section 21.08 covers exposing the genitals or anus with the intent to arouse or gratify sexual desire, when the person is reckless about whether someone else is present who would be offended. A first offense is a Class B misdemeanor. A second conviction is a Class A misdemeanor. A third or subsequent conviction is a state jail felony.7State of Texas. Texas Penal Code – PENAL 21.08 Indecent Exposure
These laws target behavior in shared spaces, not the identity of the people involved. That is the constitutional line: the state can regulate sexual conduct where others may encounter it, but not what consenting adults do in private.
Clearing a Pre-2003 Conviction
People convicted under Section 21.06 before Lawrence may still carry a criminal record tied to conduct the Supreme Court has since declared protected. Texas provides two possible paths: expunction and non-disclosure.
Expunction permanently destroys the records of an arrest and prosecution. Under Texas Code of Criminal Procedure Article 55.01, a person may be eligible if charges were dismissed, if they were acquitted, or if they received a pardon.8State of Texas. Texas Code of Criminal Procedure – CRIM P Art. 55.01 Someone who was actually convicted and completed a sentence generally cannot expunge the record without a pardon or a finding of actual innocence.
A non-disclosure order is narrower. It seals the record from public view, so most private employers and landlords would not see it, but law enforcement and certain government agencies can still access it. Filing fees vary by county, and attorney costs for a misdemeanor record clearing typically run from roughly $1,000 to $3,000. Eligibility turns on the specific facts of the original case, so anyone with an old conviction should consult a criminal defense attorney who handles record clearing.
Does Dobbs Threaten Lawrence?
When the Supreme Court overturned Roe v. Wade in Dobbs v. Jackson Women’s Health Organization in 2022, the majority wrote that “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”9Supreme Court of the United States. Dobbs v. Jackson Womens Health Organization
Justice Thomas disagreed in a concurring opinion. He wrote that the Court should “reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” calling each one “demonstrably erroneous.”9Supreme Court of the United States. Dobbs v. Jackson Womens Health Organization No other justice joined that portion of the opinion.
Lawrence remains binding law. A single concurrence does not change precedent, and five justices would need to vote to overturn it. The practical concern is that because Section 21.06 still exists in the Texas Penal Code, the state would not need to pass a new law to begin enforcement if Lawrence were ever reversed. The statute would take effect again immediately. That is the strongest argument for repealing the text outright rather than relying on judicial protection alone.