dissenting.
With its interpretation of Section 21.07, V.T.C.A., the Court today destroys the clear purpose of that statute. As noted in the Practice Commentary, Section 21.07 was designed to punish lewd or indecent acts performed in public “because the conduct proscribed grossly flouts public sensibility.” Searcy and Patterson, Y.T.C.A., Section 21.-07, Practice Commentary. And as noted by another writer, “It is assumed that the acts enumerated are consensual type acts. If not, then other provisions in the chapter would apply ...” 2 Branch’s Texas Annotated Penal Statutes, 3rd ed., p. 145, Explanatory Comment.
Section 21.07 provides in pertinent part: “(a) A person commits an offense if he knowingly engages in any of the following acts in a public place or, if not in a public place, he is reckless about whether another is present who will be offended or alarmed by his act:
“(1) an act of sexual intercourse;
*394“(2) an act of deviate sexual intercourse;
“(3) an act of sexual contact;
“(4) an act involving contact between the person’s mouth or genitals and the anus or genitals of an animal or .fowl.” Section 21.01 provides in part:
“(2) ‘Sexual contact’ means 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.”
The majority’s holding that only the party who does the touching (as opposed to the recipient of the touching) can be held responsible for an offense under Section 21.07 ignores the clear language and obvious intent of the section. Further, the majority’s attempt to distinguish Jacquez v. State, 579 S.W.2d 247 (Tex.Cr.App.1979), fails miserably.
Section 21.07, supra, proscribes engaging1 in an act of sexual contact. Engage has been defined as “to take part; participate.” Webster’s New Collegiate Dictionary, 150th Anniversary Ed. It follows then that both parties to a sexual contact can be responsible if both parties participate with the requisite culpable mental state.
In the case before us, the information alleged that appellant “did unlawfully then and there knowingly engage in an act of sexual contact with Danny Burks ...” In Jacquez v. State, supra, the defendant was charged with “unlawfully engaging in sexual contact with [two named victims] ... by forcing both said minors to touch [defendant’s] exposed penis.” The defendant argued that “sexual contact was not shown because he forced the complainants to touch his genitals, and that sexual contact occurs only when the accused touches the victim’s genitals. The Court then stated:
“We agree with appellant that the statutory definition of sexual contact seems to contemplate that sexual contact occurs when the accused touches the victim’s genitals, and not vice versa. However, the statutory definition of indecency with a child provides that a person commits an offense if he ‘engages in sexual contact with the child ... ’ By grabbing the complainants and forcing them to ‘touch and scrub’ appellant’s penis, appellant engaged in sexual contact with the complainants.” (Emphasis in original.) Jac-quez, supra, at 249.
Similarly, the statute now before us requires that an accused knowingly engage in an act of sexual contact. The only difference between an offense under Section 21.-07 and 21.11 (Indecency with a child, Jac-quez v. State, supra) is that under Section 21.11 the engagement must be with a child younger than 17 years. It may be true that “the statutory definition of sexual contact seems to contemplate that sexual contact occurs when the accused touches the victim,” but it is likewise true that the statutory definition of public lewdness contemplates that both parties engaged in an act of sexual contact are guilty. Sexual contact is not a statutorily defined offense. It is merely one element of public lewdness. This the majority overlooks. The majority, in concluding as they have, have rewritten Section 21.07 to say that a person is guilty if he “commits an act of sexual contact” rather than “engages in an act of sexual contact.”
To this judicial legislation, I vigorously dissent.
W.C. DAVIS and CAMPBELL, JJ., join in this dissent.. All emphasis by writer unless otherwise noted.