(dissenting).
With due respect and concurrence in the acknowledged public policy against the exhibiting of obscene films as expressed by the Texas Legislature, I must dissent from this Court’s denial of plaintiffs’ application for a temporary injunction with regard to all pending and prospective prosecutions under Tex.Rev.Civ.Stat.Ann. art. 527 (1969).
I feel that the two criteria of Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965) have been met by the plaintiffs. However, it should first be noted that no travesty of the traditional comity lines in the federal-state relationship has occurred for in the instant case the state criminal prosecutions have “begun” only in a technical sense with the filing of an information or indictment, and this is not a case in which trial proceedings are under way. See Sheridan v. Garrison, 415 F.2d 699, 708 (5 Cir. 1969).
As to the requisites of Dombrowski, supra, the plaintiffs have shown bad faith in their attempted prosecutions in that they have done by means of a back door the very thing a federal three-judge court said they could not do by a constitutionally protected front door. See Newman v. Conover, 313 F.Supp. 623 (1970). There the court declared that Section 9 of the Texas obscenity law was unconstitutional because it allowed an ex parte search and seizure warrant to seize allegedly obscene materials without affording the affected party a prior adversary hearing on the issue of obscenity. That court made the following pertinent remarks in regard to searches and seizures in obscenity cases:
“The starting point with respect to plaintiff’s contention that the failure to afford him a prior adversary hearing renders the seizure unconstitutional, is the Supreme Court case of *1364Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964). There the seizure by the Kansas Attorney General, pursuant to a search warrant, of allegedly obscene books, was held to violate the Fourteenth Amendment. Four of the justices were of the opinion that the owners of the books were constitutionally entitled to an adversary hearing on the issue of obscenity prior to the seizure of the books, 378 U.S. at 210-211, 84 S.Ct. 1723, and two other justices concurred in the judgment without finding it necessary to consider the procedural questions. Id. at 213-214, 84 S.Ct. 1723. Although that case was concerned with the seizure of books for subsequent destruction after a finding of obscenity, the rationale of the four justices has been held by other courts to apply with equal force to the seizure of motion picture film for subsequent use as evidence in criminal obscenity prosecutions. Tyrone, Inc. v. James B. Wilkinson, 410 F.2d 639 (4th Cir. 1969), affirming 294 F.Supp. 1330 (E.D.Va.1969); Metzger v. Pearcy, 393 F.2d 202 (7th Cir. 1968); Cambist Films, Inc. v. State of Illinois, 292 F.Supp. 185 (N.D.Ill.1968); Cambist Films, Inc. v. Tribell, 293 F.Supp. 407 (E.D.Ky.1968); Sayles v. Graham, No. 69-81-Phx., (D.Ariz.1969). In view of the foregoing authorities, this Court holds that the procedures followed by defendants in obtaining the searcfi warrant, and in seizing the motion picture film after merely an ex parte judicial determination of probable cause, were constitutionally deficient.”
In the instant case the arrests were tantamount to a search for it effectively deprived the owners of the movie houses of their employees and hence, the pragmatic reality of operating their businesses. All of this was done without a prior adversary proceeding to determine if the material was in fact obscene and consequently, the presence of probable cause that a crime was being committed.
My two brothers have suggested that the Fifth Circuit case of United States v. Fragus, 428 F.2d 1211 (5th Cir. 1970) stands in direct opposition to the assertion that a prior adversary proceeding is necessary. Yet, the Fragus court itself states that a different standard may be called for if it had been dealing with subject matter such as a “movie exhibited in a public theater.” That case can also be distinquished on the fact that Fragus himself plead guilty to the issue that the material was obscene and no prior hearing was requested or objected to by his retained counsel.
My brothers would also urge that the holding of Milky Way Productions, Inc. v. Leary, 305 F.Supp. 288 (S.D.N.Y. 1969), aff’d, New York Feed Co. v. Leary, 397 U.S. 98, 90 S.Ct. 817, 25 L.Ed.2d 78 (1970) is conclusive on the issue of whether or not it is necessary to hold a prior adversary proceeding before commencing arrest in criminal prosecutions in obscenity cases. Milky Way’s holding that such a prior adversary hearing is not required was arrived, at on distinguishable facts. In Milky Way the plaintiffs had the theory of laches invoked against them for they waited months after their arrests before seeking federal relief. The plaintiffs in the ease at bar filed for federal relief within a few days after the arrest. Unlike the present case a decisive factor of pandering was involved in Milky Way.
The majority opinion herein states that the Supreme Court’s recent stay of a temporary injunction in Byrne v. Karalexis, 396 U.S. 976, 90 S.Ct. 469, 24 L.Ed.2d 447 and 486 (1969) is the death blow to any attempt to enjoin state proceedings. However suggestive that measure by the high court may be, it is not definitive on the issue at bar for the Karalexis proceedings had advanced to the appeal stage.
*1365It must be assumed that the prosecutors in the instant case were aware of the technical controversy that surrounded their action and the inferences of the unconstitutionality of the searches of § 9 that they were indirectly tracking with their arrests. Indeed, the Supreme Court of Texas in State of Texas v. Scott and Cinne Arts, Inc., 460 S.W.2d 103 (1970) by Justice Calvert, suggests that prior adversary hearings to determine obscenity are a vital part of § 13 of article 527 in the State’s obscenity prosecutions. On the same day the Texas Supreme Court in Ex parte Noland, 462 S.W.2d 572 (Tex. Supreme Court, Nov. 11, 1970), said that as a matter of law a ticket taker could not be held accountable for the production in court of an allegedly obscene film. This latter opinion suggests that the arresting of ticket takers and projectionists is not the appropriate avenue for the proper prosecution of the Texas obscenity law.
Twenty-seven people were .arrested in the cases at bar, including all types of personnel from the movie houses. The state prosecutors in public newscasts, in chambers, and in open court repeatedly asserted they would continue to arrest and prosecute until they “shut these places down.” There were threats and intimidating remarks in the newscasts that patrons would be arrested in future “raids.” All this would seem harassingly excessive to any good faith prosecution of the statutes.
The chilling effect of such action in the delicate area of First Amendment freedoms is too rudimentary to necessitate documentation.
I wish to make it clearly understood that in this dissent I voice a determined opinion that pragmatically speaking there is no difference, on these facts, between a search, as prohibited by the Newman court, and an arrest in the absence of a prior adversary proceeding where obscenity vel non would be determined. See Entertainment Ventures, Inc. v. Brewer, 306 F.Supp. 802 (N.D.Ala.1969).