Untitled Texas Attorney General Opinion ( 1971 )

AUSTIN, TEXAH 78711
URAWFORJJ C. MARTIN
October4, 1971
Honorable Tom Iianna Opinion NO. M-964
Criminal District Attorney
Jefferson County Courthouse
Beaumont, Texas 77701 Re: Exemption of certain
organizations from
Dear Sir: lottery laws
This is in response to your recent request for the opin-
ion of this office concerning a possible,conflict between
Senate Bill 504, Acts 62nd Legislature, Regular Session, 1971
and Article III, Section 47, Texas Constitution.
Senate Bill 584 provides certain definitions, and in
its pertinent part further states:
“Section 1. Article 654, Penal Code of Texas, 1925,
is amended to read as follows:
I. . .
'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.'
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lion.Tom I&ma, page 2, (M-964)
*Sec. 2. The acts set out in this bill shall only
apply on property owned by the operating agency.*
Article III, Section 47, Texas Constitution provides as
follows:
*Sec. 47. The Legislature shall pass laws
prohibiting the establishment of lotteries and
gift enterprises in this State, as well as the
sale of tickets in lotteries, gift enterprises
or other evasions involving the lottery principle,
established or existing in other States."
Previous attempts by the Legislature to "license" lot-
teries have been,held unoonstitutional under this Section.
Barry v. State, 45 S.W. 571 (Tex.Crim. 1898). We perceive
no way that the Legislature may do by exception from prose-
cution that which it cannot do by express authorization.
See City of Wink v. Griffith Amusement Co., 129 Tex. 40
100 S.W.Zd 69-l .
It is the opinion of this office that Senate Bill 504
is unconstitutional. Since it contains no severability
clause and also since the removal of the objectionable por-
tions of the act will leave portions not consistent with
the caption (as required by Article III, Sections 35 and
36, Texas Constitution), it is our opinion that the entire
bill fails, leaving Article 654, Texas Penal Code, as it
existed prior to the passage of the act; and thus we do
not answer the remainder of your questions. Fletcher v.
State, 439 S.W.2d 656 (Tex.Sup. 1969).
SUMMARY
-------
Senate Bill 584, Acts 62nd Legislature,
Regular Session, 1971, concerning exemptions
from lottery laws is unconst tional.
very ply,
General of Texas
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Hon. Tom lianna,page 3, (M-964)
Prepared by Howard 14.Fender
Assistant Attorney General
APPHOVEL,:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Lonny Zwiener
Dyer 14oore
Sam Jones
John Banks
SAM MCDANIEL
Acting Staff Legal Assistant
ALFRED WUXER
Executive Assistant
NOLA WIIW
First Assistant
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