RCI Entertainment (San Antonio), Inc. D/B/A XTC Cabaret v. City of San Antonio, 373 S.W.3d 589

In 2005, San Antonio enacted an ordinance prohibiting public nudity and semi-nudity and requiring permits for “human display establishments.”
The ordinance defines “human display establishment” and sets penalties (Class C misdemeanor) with injunctive relief available.
RCI Entertainment (XTC Cabaret) and Players Club operate nude-entertainment venues in San Antonio; police inspected in December 2009 resulting in arrests of entertainers and managers.
The two cases were consolidated; appellants sought declaratory relief and injunctive relief arguing preemption by the Penal Code/Business & Commerce Code and unconstitutional restraint on expression.
The trial court ruled for the City, issuing a broad permanent injunction prohibiting nudity at the appellants’ establishments and binding on related persons; appellants timely appealed.
The court upheld the ordinance as not preempted and not a content-based restriction, but reversed the injunction in part for overbreadth and remanded for modification.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is the ordinance preempted by state law?	RCI/Players contend Penal Code and Local Government Code preempt the ordinance.	City argues no applicable preemption; ordinance regulates conduct, not speech, and complements state law.	Not preempted; no direct conflict with Penal Code sections; ordinance addresses secondary effects and conduct.
Does the ordinance conflict with the Business & Commerce Code?	§102.052 shows the state tolerates nude entertainment via a fee; ordinance would preclude it.	Local regulation of sexually oriented businesses is permissible under Local Government Code §243.001.	Not preempted; statute does not preempt local regulation of sexually oriented businesses.
Is the ordinance unconstitutional under Texas or U.S. free-speech guarantees?	The ban on nudity suppresses expressive conduct and is a prior restraint; First Amendment protections apply to speech.	The ordinance regulates conduct (nudity) with content-neutral aims addressing secondary effects.	Content-neutral; survives intermediate scrutiny; no unconstitutional prior restraint.
Is the permanent injunction overly broad or improperly worded?	Injunction improperly bans all nudity and omits the statute’s exception for protected speech; may chill lawful expression.	Injunction reflects the court’s enforcement of the ordinance as written.	Partially overbroad; reverse/in part and remand to modify scope to align with exception and Rule 683 limits.

Erie v. Pap's A.M., 529 U.S. 277 (U.S. 2000) (content-neutral public nudity regulation; secondary effects justified)
Barnes v. Glen Theatre, Inc., 501 U.S. 560 (U.S. 1991) (nudity regulation treated as conduct not speech; intermediate scrutiny context)
United States v. O’Brien, 391 U.S. 367 (U.S. 1968) (test for content-neutral government regulation of expressive conduct (O’Brien))
Turner Broad. Sys. v. FCC, 512 U.S. 622 (U.S. 1994) (content-neutral regulation with intermediate scrutiny framework)
In re Sanchez, 81 S.W.3d 794 (Tex. 2002) (preemption and scope of home-rule city powers; construction against voiding local ordinances)
Dallas Merchant’s & Concessionaire’s Ass’n v. City of Dallas, 852 S.W.2d 489 (Tex. 1993) (preemption strong when state statute clearly occupies field; need conflict to void local ordinance)
Responsible Dog Owners of Tex. v. City of Fort Worth, 794 S.W.2d 19 (Tex. 1990s) (local ordinances addressing broad conduct may supplement criminal statutes)
2300, Inc. v. City of Arlington, 888 S.W.2d 123 (Tex. App.—Fort Worth 1994) (no overbreadth in no-text-no-guard; nudity-related regulation)
Kaczmarek v. State, 986 S.W.2d 287 (Tex. App.—Waco 1999) (permits and regulatory discretion in sexually oriented business)