Lyon v. State, 3-88-167-CR

• Citation: 766 S.W.2d 879
• Decision Date: 15 March 1989
• Docket Number: No. 3-88-167-CR,3-88-167-CR
• Parties: Barbara K. LYON, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas

Page 879

766 S.W.2d 879

Barbara K. LYON, Appellant, v. The STATE of Texas, Appellee.

No. 3-88-167-CR.

Court of Appeals of Texas Austin.

March 15, 1989.

Rehearing Denied April 12, 1989.

David C. Duggins, John F. Williams, L.G. Skip Smith, Clark, Thomas, Winters & Newton, Austin, for appellant.

Jonathan Davis, Acting City Atty., Dan Meador, Asst. City Atty., for appellee.

Before SHANNON, C.J., and CARROLL and JONES, JJ.

JONES, Justice.

On stipulated facts, appellant, Barbara K. Lyon, was convicted of violating the Bingo Enabling Act (the "Act"), Tex.Rev.Civ.Stat.Ann. art. 179d, § 11(q) (Supp.1989), and assessed a fine of $125. We will reverse the judgment of conviction.

Section 11(q) of the Act provides that a person may not "award or offer to award a door prize or other prize to persons present at a bingo occasion or participating in a bingo occasion in addition to the prizes awarded for winning the individual bingo games." In points of error one, two, and three, Lyon argues that the evidence shows conclusively that she did not violate section 11(q) of the Act, or that there is insufficient evidence to prove that she did violate it. She also asserts, in point of error four, that section 11(q) is unconstitutionally vague. This Court must decide (1) what constitutes a "bingo occasion," and (2) whether Lyon violated the Act by awarding a prize to someone "present at" or "participating in" a bingo occasion.

The parties agreed to the following stipulated facts:

"On the evening of Tuesday, February 16, 1988, Parents Anonymous of Texas was conducting a series of bingo games at 1700B Smith Road, Austin, Texas. The license of Parents Anonymous of Texas, issued by the State Comptroller's Office, authorized it to conduct bingo games on that day between 5:00 p.m. and 8:20 p.m. The bingo games conducted by Parents Anonymous of Texas terminated at approximately 8:20 p.m. After a one-half hour intermission, during which no bingo games of any kind were conducted or authorized to be conducted, Mental Health Association in Texas conducted a new series of bingo games. The license of the Mental Health Association in Texas authorized it to conduct bingo games on that day between 8:50 p.m. and 11:00 p.m.

"During the one-half hour intermission, between approximately 8:20 p.m. and 8:50 p.m. on February 16, 1988 the Defendant Barbara K. Lyon awarded a prize, consisting of $100.00 in cash, to Emma M. Emma M. was selected as the prize winner by means of a random drawing. Interested persons became eligible for the drawing by filling out an entry form. No entry forms were made available until the one-half hour intermission began. Interested persons filled out the entry forms and turned in the forms to Defendant during the one-half hour intermission between the conduct of the bingo games, up to the point when Defendant announced that no more forms would be accepted. The deadline to submit forms for the drawing occurred during the one-half hour intermission. Any person present on the premises was eligible to enter the drawing. There was no requirement that entrants play bingo or give any form of consideration to qualify to enter the drawing.

"During the one-half hour intermission, and after announcing that no more entry forms would be accepted, Defendant at random drew the entry form of the person entitled to the $100.00 cash prize. Defendant drew the name of Emma M., and awarded Emma M. the $100.00 cash prize. Defendant awarded the prize during the one-half hour intermission during which time no one was licensed to conduct bingo games. Defendant only offered to award the prize during this one-half hour intermission, and at no time offered to award the prize during a time when bingo games were being played or could have been legally played.

"Defendant's business does not involve the sponsoring or operation of bingo games. Defendant is not a person licensed to conduct bingo games pursuant to the Bingo Enabling Act, Tex.Rev.Civ.Stat.Ann. Art. 179d. Defendant operates concessions serving refreshments on premises where bingo games are being conducted by licensed operators."

Essentially, Lyon argues that a "bingo occasion" is equivalent to the licensed times during which bingo games may be played. The State, on the other hand, claims that "bingo occasion" includes the entire time during which people are gathered for the purpose of playing bingo, including times before, during, and after the actual licensed hours for playing bingo. Under this interpretation, the intermission period between two organizations' licensed bingo hours would generally fall within one or both organizations' "bingo occasion."

"Bingo occasion" is not defined in the Act. Accordingly, the words must, if possible, be given their plain meaning, without regard to the distinction usually made between the construction of penal laws and laws on other subjects, unless the act clearly shows that they were used in some other sense. Campos v. State, 623 S.W.2d 657, 658 (Tex.Cr.App.1981).

Several well-known dictionaries define "occasion" as follows: The American Heritage Dictionary of the English Language (1973): "An event or happening; the time at which an event or happening occurs"; Webster's Third New International Dictionary (Unabridged Ed.1961): "[A] particular occurrence: happening, incident; a particular time at which something takes place: a time marked by some happening"; The Random House Dictionary of the English Language (Unabridged Ed.1967): "[A] particular time, esp. as marked by certain circumstances or occurrences; a special or important time, event, ceremony, celebration, etc."; The Compact Edition of the Oxford English Dictionary (1971): "[T]he time, or one of the times, at which something happens; a particular time marked by some occurrence or by its special character; an event or function of some special kind."

Each of these definitions seems to emphasize that an "occasion" is characterized by a "particular time" that an event takes place, implying the existence of fixed boundaries, i.e., discernible beginning and ending points. We will attempt to apply this meaning to the phrase "bingo occasion."

It is the duty of this Court to determine the intent of the Legislature and then to construe the term "bingo occasion" in accordance therewith. See Howard v. State, 690 S.W.2d 252, 254 (Tex.Cr.App.1985); Ex parte Hayden, 152 Tex.Crim. 517, 215 S.W.2d 620, 623 (1948). In determining the intent of the Legislature and the meaning of a statute, we must look first to the provisions of the statute itself. Faulk v. State, 608 S.W.2d 625, 631 (Tex.Cr.App.1980). Further, we must presume that (1) every word of the statute is used for a purpose, and (2) language in the statute is used with a meaning and a purpose. Polk v. State, 676 S.W.2d 408, 410 (Tex.Cr.App.1984).

A chronology of the development of the relevant statutory language and its agency interpretations is, in this instance, helpful in determining the Legislature's intent:

1. November 10, 1981. The Bingo Enabling Act, 1981 Tex.Gen.Laws (1st C.S.), ch. 11, §§ 1-42, at 85-102, became effective. The original Act did not contain section 11(q), and contained only a few references to "occasion" or "bingo occasion," including the following in section 11(f): "A series of prizes on any one bingo occasion may not aggregate more than $2,500," and the following in section 13(b):

The comptroller of public accounts shall issue to an applicant a license for the conduct of bingo ... if the comptroller determines that: ... (5) ... the aggregate of all prizes offered and given in all of the games conducted on a single occasion under the license will not exceed the sum or value of $5,000.

The Comptroller was authorized and directed to receive, investigate, and rule on applications for bingo licenses; issue, amend suspend, or revoke bingo licenses; control and supervise bingo games; receive reports submitted by licensees; and administer, collect, and enforce any taxes imposed under the Act.

2. September 1, 1983. The Act was extensively amended by 1983 Tex.Gen.Laws, ch. 575, §§ 1-27, at 3443-74, including the following: Section 11(k) was added: "A game of chance other than bingo may not be conducted or allowed during an occasion when bingo is played"; section 13(b), quoted above, was amended to bring it in line with the aggregate prize limit contained in section 11(f); section 16 was amended to give the Comptroller substantial rule-making authority, including the following in section 16(f): "The comptroller shall by rule establish the number and type of bingo games which may be played during an occasion"; section 18 was amended to add the following:

Only one bingo occasion per day may be conducted under each license issued under this Act. No more than two organizations may conduct a game of bingo in one place on one day. If two organizations conduct games of bingo in one place on one day, these occasions must be announced separately, and an intermission of at least 30 minutes must occur between the games;

section 19a was added requiring each licensee to establish a special "bingo account" and providing, "Deposits must be made no later than the next business day following the day of the bingo occasion on which the receipts were obtained."

3. May 16, 1984. The Comptroller issued rules interpreting the Act. Rule 3.544, 34 Tex.Admin.Code § 3.544, defined "bingo occasion" as "[a] single gathering or session at which a series of successive bingo games are played," and defined "Operator" as follows:

The active bona fide member or members of a licensed organization designated as the person or persons in charge of and primarily responsible for each bingo occasion. The operator must supervise all activities and be responsible for the conduct of all bingo games on the occasion of which he or she is in charge. He or she must be present on the premises continually during the occasion;

Rule 3.548(q), 34 Tex.Admin.Code § 3.548(...