Untitled Texas Attorney General Opinion ( 1945 )

OF TE=XAS
GROVERSELLERS
Hon. W. J. Townsend opinion NO. o-6740
County Attorney Re: Disposition of money confiscated
Angelina County from defendants were arrested for
Lufkin, Texas gaming.
Dear Sir:
We have received your letters of July 25, 1945, and
Augnst 7, 1945, which state in substance that a Constable of
Angtlina County recently arrested sixteen persons who were dis-
covered gambling with cards and dice in the woods away from any
residence. Subsequently, all defendants plead guilty to the
offense of gaming. At the time of the arrest; the Constable
seized two packs of cards and $125.00 in cash, both of which
were in use by the participants for gaming purposes, The Jus-
tice of the Pea&e entered an order confiscating the cards and
money, resulting in the destruction of the cards and payment
of the money Into the County Treasury,
You submit your belief that under the aforementioned
circumstances the money taken was subject to confiscation, and
you request an opinion from this office in that connection.
Chapter Six of Title II of the Penal Code, 1925, with
amendments thereto, comprise the statutory prohibitions together
with the remedies against gaming in Texas. The pertinent stat-
utes, and the only ones this writer has been able to find, re-
garding the confiscation and disposition of property and money
lawfully seized when in use for gaming purposes, are Articles
633, 636, 637 and 638, V.A.P.C.
By Acts 1941, 47th Leg., p. 353, ch. 192, the Legls-
lature amended Article 637 of the Penal Code, 1925, and Section
3 thereof reads in part as follows:
ng of th matt r referred t
Code ofeTexasy the Justice’of
the Peace, . . . shall determine that the property
seized is a gaming table, bank or gambling parapher-
nalia and equipment per se, or . . . was la fact
used as equipment or paraphernalia for a gambling
house or was being used for gaming purposes, then
any uev or co&g seleed in or with-said equipment
or paraphernalia shall, by order of the court, be
Hon. W. J. Townsend, page 2 (o-6748)
declared confiscated, and the court shall cause
the same to be delivered to the State of Texas
or any political subdivision thereof, . . .
(Emphasis added).
Sections 1, 2 and 3 of the amended Article 637 are pre-
faced with the words YIf upon a hearln of the matter referred
to In (the preceding article) Artiale it 36, Penal Code of Texas
. 1’ and it is there words of reference we wish to emphasize.
fipin riference to Article 636, the following language is found:
“It shall be the duty of every sheriff, or
other peace officer. . o to seize and take into his
possession all gaming tables, devices and other
equipment or paraphernalia of Fambaiggbous eg, . . . II
Thus It is seen that the forefiture procedure of &ti-
cle 637 is limited by the seizure provisions of Article 636, to
which it refers, consequently only such paraphernalia and money
as may be seized in a g&&Q&g house are made subject to forfeit-
ure. A thorough search of the authorities concerning the defini-
tion and use of the term ,zamblinP house failed to indicate that
it was capable of being applied to the present limited statement
of facts as described by you. Anderson v. State, 12 S.W. 868.
Morgan v. State 60 S.W. 763; Words and Phrases, Vol. 18, p. 4b,
Gambling House; 38 C.J.S. Gaming Sec. 1.
The statutes here are clear and unambiguous and when
the intention of the Legislature is apparent from the fact of
the statute, there is no room for construction. Sutherland on
Statutory Construction, 3rd Ed., Vol. 2, QX .47. With respect
to the reference of Article 637 to ilrticld’g36, P.C., the pro-
visions of the law proposed t.o be made applicable can be ascer-
tained with reasonable certainty and the reference is not in-
definite . 59 C.J. Statutes, Sec. 165.
The holding and language used, in Davis et al. v. State
(1942), 165 S.W.2nd 757, wherein the defendants were arrested in
a hotel room for engaging in gaming, is pertinent and explicit8
“The statute invoked by appellee, &rti.cle 637,
P.C. 1925, as amended, extends to the judge trying
the case authority to forfeit the property only when
the matter referred to in Article 636, P.C., is being
considered., It seems that the Legislature sought to
make this definite and certain, because the first
section of Article 637 begins with the phrase, ‘If
upon hearing of the matter re’ferred to in the preced-
ing Article, 1 which Is titlcle 636, and Sections two
and three begin by referring specifically to Article
636. . . .I(
Han, W. J. Townsend, page 3 (o-6748)
KProm the statutes and authorities above men-
tioned, Et will be seen that Section 3 of Article
637, under which the State proceeded in this case,
has reference only to the paraphernalia, device,
and equipment that is found in a gaming house by
the officer executing the search warrant, that is
when it is found in a building, place or room which
is kept for the purpose of being used as a place to
bet or wager, or to gamble with cards, or to keep
or exhibit for the purpose of gaming, any bank,
table, alley, machine, wheel, or device what soever e
There is nothing in the record which in any way in-
dicates that Room 901 0 o o was such a place.”
“This provision of the section (referrUg to
Sec. 3 of Article 637) must be read in connection
with the entire article and, as we have already
said, it is clear that each section and provision
of the article refers to property only which con-
stitutes the subject matter of Article 636, P.C.,
namely, gaming tables, devices, equipment, and
paraphernalia of gambling houses e I1
It is, therefore, our opinion that the money seized
by the Constable under the existing statement of facts cannot
ieClegally confiscated and forfeited pursuant to Article 637,
e ., 1925, as amended.
Very truly yours
ATTORNEYGENERALOF TEXAS
By /s/ Eugene Alvis
Eugene Alvis, AssFstant
By /s/ Jack K. Ayer
Jack FL Ayer
APPROVEDAUG21, 1945
/s/ Grover Seller,s
ATTORNEYGENERALOF TEXAS
,APPBOVED:OPINION COMMITTEE
BY: GWB, CHAIRMAN
JKA: zd: wb