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While the law technically remains in effect, in 2008 a U. District Judge released a report declaring it to be "facially unconstitutional and unenforceable".In 1973, the Texas Legislature passed Section 43.21 of the Texas Penal Code, which, in part, prohibited the sale or promotion of "obscene devices"', being defined as "a device including a dildo or artificial vagina, designed or marketed as useful primarily for the stimulation of human genital organs." The legislation was last updated in 2003, and Section 43.23 currently states "A person commits an offense if, knowing its content and character, he wholesale promotes or possesses with intent to wholesale promote any obscene material or obscene device." Prosecution under the statute is rare but has occasionally occurred.
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Reliable Consultants, Inc., who operate four retail stores in Texas that carry a stock of sexual devices, and PHE, Inc., which is also engaged in the retail distribution of sexual devices through their website and catalogs, both filed lawsuits against the legislation, claiming that the statute is unconstitutional. addressed the ruling of the federal 5th Circuit Court of Appeals.