Santikos v. State
836 S.W.2d 631
Tex. Crim. App.
1992
Check Treatment

*1 admits, City does not lead a fact “no market value.”

conclusion situation,

Id. In- suсh a the result is that determining data approach”

the “market

“market value” cannot be utilized. Conse- approaches

quently, one of value,

determining either cost market

approach approach, or the must be income majority opinion correctly an-

utilized.

alyzes principles. these divergence comes

My with holding that the United States Su

with application

preme foreclosed doctrine condem

the substitute facilities taking involving pri

nation actions generally United property.

vate Land, Acres 441 U.S.

States 60 L.Ed.2d 435

(“Lutheran Synod ”); v. 50 Land,

Acres (1984). I do not rеad the narrowly. Court’s ‍‌‌​​​‌‌​​‌​‌‌‌‌​‌​​‌‌​‌‌‌​​​‌‌‌​‌​‌​​​‌​‌​​‌‌‌​‌‍cases so hold that in condemnation cases

would taking

volving special purpose prop comparable are no

erties which there

sales, approach price the cost allows the

substitute facilities to be considered in de

termining the ultimate issue of market val

ue. precisely is

This submitted jury in this case. The

the trial court should be McLean, Houston, Ken J. SANTIKOS,

George III, Filley, J. Atty., Vic- Sheppard, Asst. Dist. Cynthia T. toria, Atty., Aus- tin, for the State. Appeals of of Criminal APPELLANT’S MOTION OPINION ON 3, 1992. June FOR REHEARING

McCORMICK, Presiding Judge. adopt prior opinion ‍‌‌​​​‌‌​​‌​‌‌‌‌​‌​​‌‌​‌‌‌​​​‌‌‌​‌​‌​​​‌​‌​​‌‌‌​‌‍and We withdraw our Court. following *2 Santikos, pled facially unconstitutional the because possession nolo contendere to the unlawful inspections section failed to limit conducted substance, of a controlled cocaine. The pursuant to the statute to certain times of punishment court assessed two day night or or to reasonable business years’ confinement, probated, plus a Appeals hours. The of first deter appeаl, $2500.00 fine. On direct the Cor- inspection appellant’s mined that pus Appeals ap- Christi Court of overruled during regular club occurred business pellant’s points three of error аnd affirmed hours, and then held Section 101.04 to be his conviction. Santikos v. 754 constitutional because does not autho (Tex.App.-Corpus S.W.2d 416 Christi searches, pre rize unreasonable nor can we granted petition We for discre- provision sume that the of this statute re tionary review to determine whether the ferring to the time for will be Court of correctly held that the applied unreasonably.” Santikos v. provision administrative search in Section 754 S.W.2d at 419. See Pollard v. Cock Beverage 101.04 of the Texas Alcoholic rell, (5th Cir.1978)(San 578 F.2d (hereinаfter T.A.B.C.) Code is constitutional Antonio ordinance held constitutional be under the Fourth and Fourteenth Amend- cause it did not authorize unreasonable Constitution, ments to the United States presumed searches nor would it be that I, Article Section 9 the Texas Consti- provision unreasonably ap search would be tution.1 We shall affirm. plied). 28, 1986, April On Alcoholic Texаs Section 101.04 of the Texas Alcoholic Beverage Commission issued a mixed bev- Beverage Code states: erage permit Club, Inc., Cowgirl July d/b/a the Club. On “By accepting permit, a liсense or approximately p.m. 8:30 commission, consents an holder that hours, agents club’s three representative, peace authorized or a of- of the Commissiоn went to the club to may premises any ficer enter the time premises for violations investigation inspect the to conduct an or Beverage Texas Alcoholic Cоde purpose premises for the Appellant Code. con- duty imposed by this code.” voluntarily sented to warrantless, provides for This section thus filing unlocked a cabinet in the office of the inspections or searches of administrative agents drug para- discovered club. premises licensed the Texas Alcoholic phernalia filing in the сabinet and a vial of Appellant now con- Commission. Appellant’s cocaine in the office restroom. facially 101.04 is tends that Section pretrial suppress motion to this evidence adequately time it fails to limit appellant subsequently was denied and inspections may that pled possession nolo contendere to of co- occur. caine. contended, Court of the United States appeal, appellant On direct held among things, that Section 101.04 has interpreting appellant challengеs the Fourth the constitu- Court decisions 1. We note tionality of Section 101.04 under both the Texas Amendment. and the Federal Constitutions. (Tex.Cr.App.1987), and McDonald v. recently determined that wе shall not be (Tex.Cr.App.1989). Consequent- 778 S.W.2d 88 ly, United States' Court deci- bound distinguish the consti- we shall not between addressing the Fourth Amendment when sions provisions, but find them to be tutional analyzing Article Section 9 of the Texas Con- analyzing purpose for the the constitu- same stitution, argues appellant neither the constitu- administrative separately provisions tional nor сontends provision in Section 101.04. distinguishing the two there are reasons for provisions in this case. Heitman v. agents grinder, scale and 2. The discovered ‍‌‌​​​‌‌​​‌​‌‌‌‌​‌​​‌‌​‌‌‌​​​‌‌‌​‌​‌​​​‌​‌​​‌‌‌​‌‍Moreover, inhaler, co- аll which contained traces of previously addressed both when this Court has caine, filing cabinet. challenges to federal and state constitutional 101.04, T.A.B.C., it has relied on Su- ad- we shаll highly criteria enunciated premises commercial certain exceptions point of error because lated industries dress require Amendment expressly Fourth warrant ad- did not ment if criteria met. New York three are lan- appellant’s allegation dress guage any time” renders Section *3 (1987). First, a L.Ed.2d 601 there must be facially unconstitutional. government interest substantial regulatory to forms the scheme challenge facial to a statute is A inspection or which the challenge to mount success most difficult Second, inspec is made. fully challenger must because the establish necessary further the tion must be to under that no set of circumstances exists Third, statutory latory provi scheme. statute be valid. Unitеd which the will constitutionally “a ade provide sion must 739, Salerno, 481 U.S. 107 S.Ct. for a so as to quate substitute warrant” 2095, (1987); v. Briggs 697 95 L.Ed.2d limit the discretion of officers properly State, 918, (Tex.Cr.App. 923 789 S.W.2d inspectiоn. New York v. 1990). a as Since statute 708-710, 107 Burger, S.Ct. at 482 applied set as to one of facts (1987). 2647-2648, L.Ed.2d In 96 601 defin another, applied is incumbent to ing how the dis to restrict operation to in its [apрellant] show that inspectors, cretion of the him in the statute is unconstitutional to that the must careful Court stated statute situation; it may his be unconstitution time, ly place, limit “in v. al is not sufficient.” Parent as to others 482 at scope.” Burger, York v. U.S. New State, 796, (Tex.Cr.App. S.W.2d 797 621 703, 2644, citing 107 at S.Ct. 740 Briggs v. 315, Biswell, 406 U.S. 311 92 S.Ct. 1593 v. at 803, (Tex.Cr.App.1987). 806 1596, (1972). at L.Ed.2d 87 32 the criterion This rule conforms with previously plurality A of this Court challenge thе facial constitu- standing to determined that Section 101.04 meets the by the a as enunciated statute by first two criteria enunciated the Su- of the United States: Court Burger. Crosby in v. Court 768, (Tex.Cr.App.1987). 775 750 S.W.2d challenge the standing “A party States, Corp. 397 See Colonnade v. United constitutionality only insofar of a statute 72, 774, U.S. L.Ed.2d 60 90 S.Ct. 25 impact on his own adverse as it has an long super- (liquor industry subjeсt to close rule, if there is no rights. general aAs inspection). plurality vision and application of defect constitutional Crosby determined that Section 101.04 also have litigant, a he does not statute scope express- but limits the argue that it would be uncon- standing to ly raised left unanswered parties in applied if to third stitutional appellant: 101.04 ade- whether Section v. Broadrick hypothetical situations. place quately the time and of the limits 37 413 L.Ed.2d U.S. inspections as re- cited). 830, (and cases A 2908 quired Burger. the third criteria recognized for exception has been limited 771, 2, at n. 750 v. speech pro- prohibit broadly Amendment, (cites by the First tected opinion, however, subsequent In a omitted).” altogether held thаt Section Allen, 442 U.S. County Ulster does not the Fourth and Fourteenth violate 2213, 140, 154-155, 60 99 S.Ct. to the United States Constitu- Amendments (1979). 777 nor Article tion does violate fall 101.04does not within Since Section of the Texas Constitution. McDonald exception, appellant First Amendment 88, un- the statute was must demonstrate majority constitutionally applied to him. the three held that Section satisfiеs testimony 691, from ed in New York v. revealed that the S.Ct. place p.m. during

Club took at 8:30 respectfully dissent. regular business hours of the club and not, Particularly does during permitted the hours the club was cannot, indeed find that this statute consti- liquor serve under the Alcoholic “constitutionally adequate tutes a ‍‌‌​​​‌‌​​‌​‌‌‌‌​‌​​‌‌​‌‌‌​​​‌‌‌​‌​‌​​​‌​‌​​‌‌‌​‌‍substi- 105.01, So, Code. See Section T.A.B.C. warrant,” tute Dewey, Donovan v. notwithstanding the “at time” lan supra, U.S., at 101.04, guage in inspecting offi 272; 69 L.Ed.2d at cf. New York v. cers in case chose to U.S., club business hours. 96 L.Ed.2d at 619. See McDonald v. Therefore, *4 despite conclude that we (Clinton, (Tex.Cr.App.1989) language time” 101.04 thе J., dissenting at inspectors case did not arbi trarily indiscriminately use Section J., MALONEY, joins.

101.04to or search the club without a warrant. See New York v. (Supreme 107 S.Ct. at 2648

Court determined that New York statute

placed appropriate restraints discre inspectors

tion of only “during regular

allowed and usual hours”). Compаre Baggett ‍‌‌​​​‌‌​​‌​‌‌‌‌​‌​​‌‌​‌‌‌​​​‌‌‌​‌​‌​​​‌​‌​​‌‌‌​‌‍v. (Tex.Cr.App.1987); (Tex.Cr.

Nesloney v. 711 S.W.2d 636 App.1986) (statutory language “any place, Johnny Ray Johnny BOOKER aka any time” in 47.037 of the Parks Brooks, Ray Wildlife Code inade searches). quate support Sеction 101.04 was not unconstitu

tionally applied See United Salerno, 481 U.S. at (just be Court of Criminal might operate cause a statute unconstitu tionally under some circumstances is insuf invalid). ficient to render it Under Broad Sept. therefore, rick v. we need not reach the of the facial 101.04, supra.

validity of Section

Accordingly, of the Court Appeals is BENAVIDES, JJ.,

BAIRD and not participating. Houston, Conway, appel- B. Waltеr CLINTON, Judge, dissenting. lant. Because the fails to demon Holmes, Jr., Atty. An- John B. the criteria laid strate that meets § Davies, Lopes and Carol Asst. Dist. drea F. down Court of the United Houston, Attys., “inspection” States for such Austin, for the State. in, e.g., pass constitutional muster Dono 594, 101 Dewey, 452 U.S. van v. explicat and further