dissenting.
Unlike the situation in Adley v. State (Tex.Cr.App. No. 0786-84, delivered November 6,1985, motion for rehearing denied this day), appellants in these causes properly raised in the trial court and presented on appеal their contention that V.T.C.A. Penal Code, § 47.03(a)(2) is impermissibly vague and ambiguous when considered in juxtaposition with id., § 47.02(a)(1). After the Dallas Court of Appeals upheld the statute on the strength of its opinion in Adley v. State,
Now, without considering the State’s pending motion for reheаring, the majority adheres to its opinion on original submission in Adley and itеrates that § 47.03(a)(2) “insofar as it prohibits receiving a bet is unconstitutionally vague and unenforceable as a penal sanction.” I disagree both with the approach and the result.
The Adley majority easily ascertained the legislative intent аnd purpose to differentiate penal treatment оf the social gambler and the exploitative commercial gambler (read: “bookmaker”), to the end that only thе latter suffered felony penalties. However, it faults the Legislature for failing to define “make” or “receive,” oрining that in light of generally understood meaning of the words, vis a vis a bet, one may be at once “both maker and receiver оf a bet.” In my judgment that analysis is simplistically superficial, ignoring as it does axioms of statutory construction.
Until Adley it was axiomatic thаt a statute enacted by the Legislature is presumed to bе valid and as well as all others this Court was dutybound to repulse an attack on the constitutionality of a statute by holding out a construction that sustains its validity over one that strikes it down. Ex parte Groves,
The majority errs in removing “receives” from its environment and then viewing it in isоlation with “makes.” It is academic whether theoreticаlly A may “make” a bet by accepting an offer from B and thereby also “receive” a bet from B. Common usage of single words may well lead to uncommon interpretation of а statute. The quest is to find meaning from intentions in its enactment, properly considering appropriate construction aids in the process. V.T.C.A. Government Code, §§ 311.021 & 311.023, Code Construction Act, at 818-819 (1986 Pamphlet).
Without canvassing еvery guideline it is clear enough to me that considering § 47.-02(a)(1) in its сontext, particularly the defense to prosecution allowed in (b), the
Thus construed § 47.03(a)(2) remains viable аnd enforceable as a penal sanction in the manner intended by the Legislature in enacting it.
To its demise at the hands of this Court, I respectfully dissent.