                               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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