In 1974, Texas adopted a revised Penal Code which included section 21.06: "A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex."

A number of gay rights organizations in Texas sought to repeal the state's sodomy law legislatively but were unsuccessful.

The Texas Human Rights Foundation (THRF), composed largely of attorneys from across the state, believed that the Doe case failed because the plaintiff was anonymous, and so conducted a search to find someone to be the named (and visible) plaintiff in a test case to challenge the law on Constitutional grounds before the federal court in Dallas, Texas.

The Texas Constitution invests the power to represent the state in civil litigation solely with the Attorney General, so withdrawing the appeal ordinarily would have ended the case.

However, district attorney Danny Hill, recently elected to represent Potter County, along with a group of physicians called "Dallas Doctors Against AIDS", petitioned the court to force the state to appeal.

[1] On January 18, 1986, Laurence Tribe filed a writ of certiorari on Baker's behalf with the United States Supreme Court.