However, Texas’ public lewdness statute proscribes a wide range of conduct, including the consensual touching of breasts outside the clothing in public. Sec. 21.01. defines: (1) “Deviate sexual intercourse” means: (A) any contact between any part of the genitals of one person and the mouth or anus of another person; or (B) the penetration of the genitals or the anus of another person with an object. (2) “Sexual contact” means, except as provided by Section 21.11, any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person. (3) “Sexual intercourse” means any penetration of the female sex organ by the male sex organ.
The Fifth Circuit noted the Texas’ Attorney General decision in the Matter of Silva-Trevino, whereby Texas’ highest lawyer opined that even indecency with a child is not a per se a crime of moral turpitude, because the law proscribes any sexual contact with a child even if the actor reasonably believes the child to be 17 or older. The court then distinguished a BIA decision relying on California’s indecent exposure statute, noting that the Texas statute does not require conduct to actually be “lewd” despite its title, and that the California statute required an actor to director the victim’s attention to his genitals.
The case was remanded to determine the specific criminal acts Mr. Cisneros was convicted of performing, and for further action consistent with the opinion. Warning: do not consider this case to be an open invitation to sneak into our country and contact the anus of a waterfowl with your mouth.