                               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
