Tussey v. State
| Decision Date | 14 March 1973 |
| Docket Number | No. 46486,46486 |
| Citation | 494 S.W.2d 866 |
| Parties | Samuel J. TUSSEY, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Morton L. Susman and Mark W. Perrin, Houston, for appellant.
Carol S. Vance, Dist. Atty., James C. Brough and Mark Vela, Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.
The offense is establishing a lottery.
After an indictment was returned on December 20, 1971, it was transferred to County Court at Law No. 3 of Harris County since the offense involved was a misdemeanor.
On April 24, 1972, the appellant entered a plea of nolo contendere to the charge against him and punishment was assessed at a fine of $500.00.
On appeal, appellant attacks the constitutionality of Article 654, Vernon's Ann.P.C., as amended, (Acts 1971, 62nd Leg., p. 2823, ch. 922), under which he contends his conviction was obtained.
Prior to the said amendment, Article 654, Vernon's Ann.P.C., read as follows:
'If any person shall establish a lottery or dispose of any estate, real or personal, by lottery, he shall be fined not less than one hundred nor more than one thousand dollars; or if any person shall sell, offer for sale or keep for sale any ticket or part ticket in any lottery, he shall be fined not less than ten nor more than fifty dollars.'
The 1971 Amendment reads as follows:
'An Act permitting churches, religious societies, veteran's organizations, and other nonprofit charitable organizations to conduct lotteries for their benefit on property owned by the conducting agency; Article 654, Penal Code of Texas, 1925; providing for penalties; and declaring an emergency.
Be it enacted by the Legislature of the State of Texas:
Section 1. Article 654, Penal Code of Texas, 1925, is amended to read as follows:
'Section 1. (a) 'Lottery' means an enterprise wherein for a consideration the participants are given an opportunity to win a prize, the award of which is determined by chance, even though accompanied by some skill.
'(b) 'Consideration' means anything which is a financial advantage to the promoter or a disadvantage to any participant.
'Sec. 2. Except as provided in Section 3, if any person establishes a lottery or disposes of an estate, real or personal, by lottery, he shall be fined not less than $100 nor more than $1,000; or if any person shall sell, offer for sale or keep for sale any ticket or part ticket in any lottery, he shall be fined not less than $10 nor more than $50.
'Sec. 3. (a) This article does not apply to a sale or drawing of a prize at a fair held in this State for the benefit of a church, religious society, veteran's organization, or other nonprofit charitable organization when all of the proceeds of the fair are expended in this State for the benefit of the church, religious society, veteran's organization, or other nonprofit charitable organization.
'(b) The lottery is operated for the benefit of the organization or charitable purpose only when the entire proceeds of the lottery go to the organization or charitable purpose and no part of the proceeds go to an individual member or employee thereof.'
Sec. 2. The acts set out in this bill shall only apply on property owned by the operating agency.
Sec. 3. The importance of this legislation and the crowded condition of the calendars in both Houses create an emergency and an imperative public necessity that the Constitutional Rule requiring bills to be read on three several days in each House be suspended, and this Rule is hereby suspended; and that this Act take effect and be in force from and after its passage, and it is so enacted.
It is observed that § 2 of the Amendment is essential the same as the former statute although it has reference to exceptions in favor of such designated organizations set forth in § 3.
Appellant first contends the 1971 Amendment is violative of Article III § 47 of the Texas Constitution, Vernon's Ann.St., which requires the Legislature to pass laws prohibiting the establishment of lotteries. 1 He also contends the statute is rendered unconstitutional in light of Article I §§ 3 and 6 of the Texas Constitution 2 and in light of the First and Fourteenth Amendments of the United States Constitution.
Sec. 6 of the same Article reads,
Turning to appellant's first contention, it is interesting to note that the State Constitution of 1869 provides in Article XII § 36 that '(n)o lottery shall be authorized by the State; and the buying and selling of lottery tickets within this State is prohibited.' In 1873, the Legislature undertook to license a type of lottery known as a 'gift enterprise,' but the Supreme Court determined this effort to legalize this variety of lottery was prohibited by the 1869 Constitution. Randall v. State, 42 Tex. 580, 589--591 (1875).
It was against this background that Article III § 47 of the present 1876 Constitution, supra, was drafted. It is clear that these provisions of the Constitution were designed to require the passage of laws against the establishment of lotteries in various forms. And, any effort by the Legislature to authorize, license or legalize lotteries is unconstitutional in light of the constitutional provision in question. Barry v. State, 39 Tex.Cr.R. 240, 45 S.W. 571 (1898). Further, the Legislature is likewise prohibited from indirectly doing so by way of exemption from criminal prosecution. See City of Wink v. Griffith Amusement Co., 129 Tex. 40, 100 S.W.2d 695, 700--702 (1936).
It is clear that the Legislature was not authorized to exempt from the laws relating to lotteries the sale or drawing of a prize at a fair for the benefit of a church, religious society, veteran's organization, etc.
Therefore, we hold that all of § 3 of Article 654, supra, as amended, is unconstitutional by virtue of Article III § 47 of our State Constitution and note that the portion of § 2 reading '(e)xcept as provided in Section 3, . . .' is rendered meaningless by this ruling.
We need not decide whether the said § 3 is also unconstitutional on other grounds urged by the appellant.
In view of the fact, however, that the 1971 Amendment to Article 654, supra, contained no saving or severability clause, we are left with the question of whether the entire statute falls or only those portions which are unconstitutional.
The absence of a saving clause is an important factor in determining the ultimate effect on the whole act when a...
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