Petition — Morris v. Texas

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Supreme vy. a

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NOV 27 1978

In the | |

Supreme Court of the United yates x. cuern |

OCTOBER TERM, 1978

NO. 78-850

GEORGE MORRIS

Petitioner

versus

STATE OF TEXAS,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE COUNTY CRIMINAL COURT OF

HUNT COUNTY, TEXAS

Joseph A. Pitner

1266 E. Ledbetter Dr.

Dallas, Texas 75216

Counsel for Petitioner

ES IRE OAR 6 ERE a RT RI RAT RC TS ATT RANEY Sn OIA SG NINE SRE, Pee EEN

A B Letter Service, Inc., 327 Chortres St., New Orleans, La. (504). 581-5555

i

INDEX

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Questions Presented ..... ee a sy we

Constitutional, Statutory and Rules

I de owas eccdsdeeees

UI Sw paw bc cbse ee csacscses

Reasons for Granting the Writ.................

Ee a Chain eepaieea eo'eces

EME Nba wercdccocnssnccccece

Appendix A (Relevant Pleadings)

State’s Complaint and Information...........

Defendant’s Motion to Quash...............

Appendix B (Statement of Facts in County

Appendix C (Former Penal Code Sunday Laws,

Articles 286, 286(a) and 287)...............

A-4

A-35

ii

CASE CITATIONS

Connally v. General Construction Co.,

269 U.S. S85... 1. eee eee

H, nes v. Mayor of Oradell, 425 U.S.610.......-

Ex Parte Wilson, 374 S.W. 2d 229

PAGE

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1978

NO.

GEORGE MORRIS,

Petitioner

vs,

THE STATE OF TEXAS

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

COUNTY CRIMINAL COURT OF HUNT COUNTY,

TEXAS

The Petitioner, GEORGE MORRIS, prays that a writ of

certiorari issue to review the final judgment of conviction of

the County Criminal Court of Hunt County, Texas, rendered

in these proceedings on August 31, 1978.

OPINIONS BELOW

This case originated as a Sunday Blue Law criminal pro-

ceeding in the Justice Court of Hunt County, Texas, and was

appealed to the County Criminal Court for a trial de novo.

Neither court below rendered a formal opinion. The state-

ment of Facts of the County Criminal Court are reproduced

in full as Appendix B to this Petition.

JURISDICTION

Petitioner waz convicted on August 31, 1978, in the Coun-

2

ty Criminal Court of Hunt County, Texas. This Petition for

Certiorari has been filed less than 90 days from the date

aforesaid. The jurisdiction of the Supreme Court to review

this decision by writ of certiorari is invoked under 28 U.S.C.

§ 1257(3) to review a final judgment by the highest state

court in which a decision could be had, and where the feder-

al question presented is substantial. Petitioner has been con-

victed of a criminal offense which does not carry a punish-

ment sufficient to meet. the jurisdictional requirements for

an appeal from the County Criminal Court to a higher state

court, which court would be the Texas Court of Criminal Ap-

peals, the highest state court of criminal jurisdiction."

QUESTIONS PRESENTED

Is Article 9001, Texas Revised Civil Statutes, when applied

as a criminal law, so vague to men of common intelligence

that the law offends the due process clause of the 14th

Amendment?

The federal question sought to be reviewed was raised for

the first time in the County Criminal Court by Petitioner’s

pre-trial motion to quash the complaint and information

filed against him. Oral argument on the motion was receiv-

ed by the County Criminal Court on the date of trial and

denied.

1. Texas Code of Criminal Procedure, Articles 4.01 and 4.03.

3

CONSTITUTIONAL, STATUTORY AND RULES

PROVISIONS INVOLVED

CONSTITUTION OF THE UNITED STATES,

AMENDMENT XIV, §1:

. . Nor shall any state deprive any person /f life, liberty,

or property without due process of law. . .”

TEXAS REVISED CIVIL STATUTES, ARTICLE 9001:

Art. 9001.

days of Saturday and Sunday

Prohibition of sales; items; misdemeanor

Section 1. Any person, on both the two (2)

consecutive days of Saturday and Sunday, who

sells or offers for sale or shall compel, force or

oblige his employees to sell any clothing; clothing

accessories; wearing apparel; footwear; headwear;

home, business, office or outdoor furniture; kitch-

enware; kitchen utensils; china; home appliances;

stoves; refrigerators; air conditioners; electric fans;

radios; television sets; washing machines; driers;

cameras; hardware; tools, excluding non-power

driven hand tools; jewelry; precious or semi-rec-

cious stones; silverware; watches; clocks; luggage;

motor vehicles; musical instruments; recordings;

toys, excluding items customarily sold as novel-

ties and souvenirs; mattresses; bed coverings;

household linens; floor coverings; lamps; draperies;

blinds; curtains; mirrors; lawn mowers or cloth

Sale of goods on both the two consecutive

4

piece goods shall be guilty of a misdemeanor. Each

separate sale shall constitute a separate offense.

Sales for charitable and funeral or burial purposes;

real property sales

Sec. 2. Nothing herein shail apply to any sale or

sales for charitable purposes or to items used for

funeral or burial purposes or to items sold as a part

of or in conjunction with the sale of real property.

First offense; subsequent convictions; penalties

Sec. 3. For the first offense under this Act, the

punishment shall be by fine of not more than One

Hundred Dollars ($100.00). If it is shown upon

the trial of a case involving a violation of this Act

that defendant has been once before convicted of

the same offense, he shall on his second conviction

and on all subsequent convictions be punished by

imprisonment in jail not exceeding six (6) months

or by a fine of not more than Five Hundred Dollars

($500.00), or both.

Purpose; public nuisances; injunctions;

application and proceedings

Sec. 4. The purpose of this Act being to pro-

mote the health, recreation and welfare of the

people of this state, the operation of any business

whether by any individual, partnership or corpora-

tion contrary to the provisions of this Act is de-

clared to be a public nuisance and any person may

5

apply to any court of competent jurisdiction for

and may obtain an injunction restraining such vio-

lation of this Act. Such proceedings shall be guid-

ed by the rules of other injunction proceedings.

Emergency purchases; certification

Sec. 4a. Repealed by Acts 1967, 60th Leg.,

p. 79, ch. 39, §1, eff. Aug. 28, 1967.

Occasional sales

Sec. 5. Occasionai sales of any item named here-

in by a person not engaged in the business of sell-

ing such item shall be exempt from this Act.

Legislative intent

Sec. 5a. It is the intent of the Legislature that

Articles 286 and 287 of the Penal Code of Texas

are not to be considered as repealed by this Act;

provided, however, that the provisions of said

Articles shall not apply to sales of items listed in

Section 1 of this Act which are forbidden to be

sold on the day or days named in this Act. Acts

1961, 57th Leg., lst C.S., p. 38, ch. 15, eff. Nov.

7, 1961.

TEXAS CODE OF CRIMINAL PROCEDURE,

ARTICLE 401:

Article 4.01, [51] [63] [64] What courts have

criminal jurisdiction

6

The following courts have jurisdiction in criminal

actions:

1. The Court of Criminal Appeals;

2. The district courts;

3. The criminal district courts;

4. Courts of domestic relations where they have

criminal jurisdiction by legislative enactment;

5. The county courts;

6. All county courts at law with criminal juris-

diction;

7. County criminal courts;

8. Justice courts; and

9. Corporation courts.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

TEXAS CODE OF CRIMINAL PROCEDURE,

ARTICLE 4.03:

Art. 4.03. [53] [68-8687] Court of Criminal

Appeals

The Court of Criminal Appeals shall have ap-

pellate jurisdiction coextensive with the limits of

the State in all criminal cazes. This Article shall

not be so construed as to embrave any case which

has been appealed from any inferior court to the

county court, the county criminal court, or county

court at law, in which the fine imposed by the

county court, the county criminal court or county

court at law shall not exceed one hundred dollars.

Acts 1965, 59th Leg., vol. 2, p. 316, ch. 722.

7

STATEMENT OF THE CASE

The facts relevant to the question presented by this pe-

tition are uncontroverted and therefore may be introduced to

the Court in a summary fashion.

The petitioner, GEORGE MORRIS, is employed as the

manager of a retail store located in the Northeast Texas com-

munity of Greenville, in Hunt County, Texas. On the Satur-

day and Sunday of July 29th and 30th, 1978, an investiga-

tor from the Hunt County Sheriff's office entered the retail

store managed by petitioner and purchased two pairs of socks

uniquely labeled as ‘‘cheer leader pom poms, team and color

co-ordinated sport socks.” One pair of the socks was pur-

chased by the investigator on a Saturday and the other pair

on a Sunday. The following Monday, petitioner was arrested

by the same sheriff's investigator; taken to the county jail;

fingerprinted; mug-shot; booked for a violation of the Texas

Blue Law, Article 9001; and jailed. Petitioner posted a

$100.00 cash bond with the sheriff and was released from jail

pending trial. Subsequently, petitioner was charged by com-

plaint and information by the county attorney for selling the

two pairs of socks on the consecutive days of Saturday and

Sunday (Appendix A, Pgs. A-1 - A-3). Before trial, petition-

er filed his motion to quash the complaint and information

for the reason that the law upon which his prosecution was

based is repugnant to the Constitution of the United States

(Appendix A, Pgs. A-4 - A8). On August 31, 1978, pe-

titioner appeared ready for trial in the Hunt County Crimi-

nal Court. Petitioner’s written motion to quash the com-

plaint andinformation was argued to the County Criminal

Court and denied (Appendix B, P. A-17). At the conclu-

sion of trial, the court found the petitioner guilty as charged

&

and assessed his punishment at a fine of $100.00, the maxi-

mum punishment allowed by §3 of Article 9001 (Appendix

B, Pgs. A-31 - A-32).

REASONS FOR GRANTING THE WRIT

1. The decision below directly conflicts with the due pro-

cess principles enunciated in this Court’s rulings in Connally

v. General Construction Company, 269 US 385 (1925), and

Hynes v. Mayor of Oradell, 425 US 610 (1975). Numerous

other cases might be cited, but this Court is familiar with

the rulings it has applied in the past and that should apply

here. The Texas Blue Law, Article 9001, is unconstitutional

on its face as a penal statute because it is so vague and am-

biguous that men of ordinary intelligence cannot discern its

meaning. In fact, criminal proceedings under the statute are

rarely brought against offenders because the state usually

proceeds with its alternative remedy for a civil injunction

under § 4 of the Article in order to avoid the constitutional

questions of due process inherent in the penal construction

of the law. Although this Article, in its present form and

designation, has been in existence since 1973, not one

single criminal case has been reviewed by the highest court

for criminal matters, the Texas Court of Criminal Appeals.

Not since 1964 in Ex Parte Wilson, 374 SW 2d 229, has the

Texas Court of Criminal Appeals had the opportunity to rule

on any criminal proceeding brought under a Texas Blue

Law.?

Today as a direct result of the state legislature's efforts

2. In Ex Parte Wilson, the Texas Court of Criminal Appeals reviewed

the ancestor of Article 9001 (Penal Code Article 286a, which is set

forth in Appendix C) but did not consider the constitutional ques-

tions raised here.

9

to be overly precise by enumerating forty-two categories of

merchandise that cannot be sold on the consecutive days of

Saturday and Sunday, the people of Texas must attempt to

navigate a statutory maze beset with confusing redundancies,

arcane colloquialisms and words that derive their meaning

from personal judgment and opinion.

As an example of confusing redundancies, the petitioner

invites the Court’s attention to the fact that although the

statutes specifically forbids clothing, it proceeds to specifi-

cally forbid items that might ordinarily be thought of as

clothing, such as footwear, headwear, and clothing access-

ories. The statute also forbids kitchenware, and then forbids

kitchen utensils, just as if kitchen utensils are not a part of

kitchenware. This law forbids appliances, and proceeds to

forbid stoves, refrigerators, air condititioners, electric fans,

washing machines, and driers as if these items are something

else besides appliances. The redundancy in the law is confus-

ing because it allows for too many distinctions without a

difference. If a refrigerator is not an appliance then exactly

what is an appliance? If clothing is not wearing apparel,

then exactly what is clothing? If kitchen utensils are not

kitchenware, then what is kitchenware? This law goes be-

yond enunciating a general category followed by specifi-

cally included items. This law purports to distinguish gen¢ral

categories that are synonymous, which is an impossible feat.

There is no difference between wearing apparel and clothing

in any accepted dictionary of the English Language.

As an example of arcane colloquialisms, the petitioner

asks the Court to consider the terms “headwear” and ‘‘foot-

wear.”’ These words are subject to a broad speculation as to

their meaning and could conceivably apply to any marketable

ao eS

10

item that could possibly be worn upon the head and foot of

man or beast.

As an example of words that derive their meaning from

personal judgment or opinion, the petitioner asks the Court

to observe that Article 9001 forbids the sale of toys, exclud-

ing items customarily sold as novelties or souvenirs. Petition-

er contends that no one can determine with any certainty

what constitutes a ‘‘toy,’”’ nor can anyone determine with

certainty what is “customarily sold.” Petitioner contends

that what is a “novelty” or ‘‘souvenir,’’ depends upon an in-

dividual’s personal judgment or opinion, where that individu-

al is from, and what might appeal to his mood or fancy at a

particular time. What a “novelty” or “souvenir” may be de-

pends as much upon the opinion and judgment of the buyer

as it does upon the seller. Furthermore, in a small Texas

community, such as the town of Greenville where petitioner

conducts his business, what is customarily sold may be diffi-

cult to determine. This law assumes that a community be

large enough for a survey to be taken among different mer-

chants as to what is customarily sold.

Petitioner also questions the vagueness of § 2 of Article

9001 wherein an exemption from the law is allowed for

“sales for charitable purposes.” The statute provides no clue

as to what are “charitable purposes,”’ which is a question

similarly considered by this Court in Hynes. Is it a ‘‘chari-

table purpose’’ to sell an overcoat to a man without on a

wintry day? Or does the exemption only apply if the money

derived from sales is donated to some worthy cause? Shall

the amount of the donation be net profit or gross receipts

from sales? What procedure must petitioner follow to avail

himself of the exemption? These questions, and others in

ll

the same vein, are left unanswered by the statute. Apparent-

ly, whether or not the exemption applies to petitioner de-

pends upon the opinion of an unnamed authority within the

law enforcement process,

2. The petitioner attacks Article 9001 as violating due

process of law by its unintelligible reference to the repealed

state’s statutes designated as Articles 286 and 287 of the

former penal code (Appendix C).

First, the state legislature states in § 5a of Article 9001

that these articles are not to be considered as repealed.

Secondly, the legislature further states in § 5a that the pro-

visions of Articles 286 and 187, shall not apply to sales of

items listed in § 1 of Article 9001. And last, the legislature

repealed Articles 286 and 287 in the same enactment that

a Article 9001 when the penal code was revised in

1973.

The petitioner is asking this Court to review his conviction

for crime under a state statute wherein the legislature has said

in effect to GEORGE MORRIS: Article 9001 is now the pre-

sent law. Please refer yourself to the former Articles 286 and

287. They are not repealed and they do not apply to§ 1 of

the present law; however, they are repealed.

No man of ordinary intelligence can cope with such un-

clear legislative pronouncements and feel secure from the risk

of arrest and conviction.

3. Articles 286 and 287 were repealed by Acts 1973, 63rd. Leg., P.

991, ch. 399, § 3(a), enacting the present Texas Penal Code.

12

CONCLUSION

This Court should grant the writ of certiorari to the Hunt

County Court because the statute is unconstitutionally vague

for the reasons stated above, and for the additional reason

that petitioner has no other available forum to take his con-

viction for review. The federal question is substantial be-

cause Article 9001 effects not only the due process rights of

all retail merchants in the state, such as petitioner, but also

the law has an indirect and substantial effect upon the

millions of Texas citizens who are retail customers.

Joseph A. Pitner

Attorney for Petitioner

1266 E. Ledbetter Dr.

Dallas, Texas 75216

214/ 371-2395

13

CERTIFICATE OF SERVICE

I, Joseph A. Pitner, do hereby certify that on this 17th

day of November, 1978, a true and correct copy of the

above petition for writ of certiorari was mailed to John L.

Hill, Attorney General of Texas, P. O. Box 12548, Capitol

Station, Austin, Texas, 78711, attorney for respondent,

State of Texas.

Joseph A. Pitner

A-1

APPENDIX A

State’s Complaint and Information

GENERAL COMPLAINT FORM - BLUE LAW

IN THE NAME AND BY THE AUTHORITY OF THE

STATE OF TEXAS

I, Jim Bobbitt, solemnly swear that I have reason to be-

lieve and do believe that George Morris, on or about the 30th

day of July, A.D. 1978, and before the filing of this Com-

plaint, in the County of Hunt, the State of Texas, did then

and there unlawfully on both two (2) consecutive days of

Saturday and Sunday, to-wit: July 29, 1978, and July 30,

1978, sell and offer for sale and compel, force and oblige his

employees to sell clothing, clothing accessories, wearing ap-

parel, footwear; headwear; home, business, office or out-

door furniture; kitchenware; kitchen utensils; china; home

appliances; stoves; refrigerators; air conditioners; electric

fans; radios; television sets; washing machines; driers; cam-

eras; hardware; tools, excluding non-power driven hand tools;

jewelry; precious and semi-precious stones, silverware;

watches; clocks; luggage; motor vehicles; musical intruments;

recordings; toys, excluding items customarily sold as novel-

ties and souvenirs; mattresses; bed coverings; household

linens; floor coverings; lamps; draperies; blinds; curtains;

mirrors; lawn mowers and cloth piece goods, to-wit: cheer

leader pom poms, team and school color co-ordinated sport

socks against the peace and dignity of the State.

s/ Jim Bobbitt

COMPLAINANT

A-2

Sworn to and subscribed before me this 3lst day of July,

A.D. 1978.

s/ F. Duncan Thomas

ASSISTANT COUNTY

ATTORNEY

HUNT COUNTY, TEXAS

A-3

GENERAL INFORMATION FORM - BLUE LAW

IN THE NAME AND BY THE AUTHORITY OF THE

STATE OF TEXAS

I, Frederick C. Shelton, Jr., County Attorney of the Coun-

ty of Hunt, State aforesaid, in behalf of said State presents

in the County Court at Law of said County, at the July

Term, A.D. 1978, of said Court, that George Morris, on or

about the 30th day of July A.D. One Thousand Nine-Hund-

red Seventy-Eight, and before the filing of this Information,

in the County of Hunt and State of Texas did then and there

unlawfully on both two (2) consecutive days of Saturday and

Sunday, to-wit: July 29, 1978, and July 30, 1978 sell and of-

fer for sale and compel, force and oblige his employees to

sell clothing, clothing accessories, wearing apparel; footwear;

kitchen utensils; china; home appliances; stoves; refrigerators;

air conditioners; electric fans; radios; television sets; washing

machines; driers; cameras; hardware; tools, excluding non-

power driven hand tools; jewelry; precious and semi-precious

stones; silverware; watches; clocks; luggage; motor vehicles;

musical instruments; recordings; toys, excluding items cus-

tomarily sold as novelties and souvenirs; mattresses; bed

coverings; household linens; floor coverings; lamps; draper-

ies; blinds; curtains; mirrors; lawn mowers and cloth piece

goods, to wit: cheer leader pom poms, team and school

color co-ordinated sport socks against the peace and dignity

of the State.

s/ Frederick C. Shelton, Jr.

COUNTY ATTORNEY

HUNT COUNTY, TEXAS

s/ F, Duncan Thomas

ASSISTANT COUNTY

ATTORNEY

HUNT COUNTY, TEXAS

AA

NO. CR 1257 - 78

THE STATE OF TEXAS IN THE COUNTY CRIMINAL

VS. COURT OF

GEORGE MORRIS HUNT COUNTY, TEXAS

Filed: Aug. 25, 1978

DEFENDANT'S MOTION TO QUASH

TO THE HONORABLE JUDGE OF SAID COURT:

Comes now George Morris, the Defendant in the above

styled and numbered cause, and by and through his attorney

of record, Joseph A. Pitner, presents this Motion to Quash

the complaint and information as filed against him in this

cause for violation of Article 9001, Texas Revised Civil

Statutes, and as grounds therefor would respectfully show

the Court the following:

be

Article 9001, Texas Revised Civil Statutes, upon which the

prosecution is based, is void and unconstitutional as repug-

nant to the Due Process Clause of the Fourteenth Amend-

ment to the Constitution of the United States in that said

Article is overbroad and contains such vague regulations of

expression that men of common intelligence cannot discern

or agree upon the area of illegal conduct prohibited by the

Article.

A-5

II,

Article 9001, Texas Revised Civil Statutes, upon which the

prosecution is based, is void and unconstitutional as repug-

nant to the Due Process Clause of the Fourteenth Amend-

ment to the Constitution of the United States in that said

Article contains regulations that are unjust, unreasonable,

and confiscatory and would deprive this Defendant of his

property and personal liberty without due process of law.

III.

Article 9001, Texas Revised Civil Statutes, upon which

the prosecution is based, is void and unconstitutional as re-

pugnant to the Ex Post Facto Clause of Article 1, § 10, to

the Constitution of the United States in that said Article

contains proscribed categories of items incapable of a cer-

tain definition by any common linguistic standard and there-

by allows the uncertainties of subsequent judicial lexico-

graphics to be retroactively applied to the conduct of this

Defendant.

IV.

Article 9001, Texas Revised Civil Statutes, upon which

the prosecution is based, is void and unconstitutional as re-

pugnant to the Due Process Clause of the Fourteenth Amend-

ment to the Constitution of the United States because it

adopts by reference the provisions of repealed state statutes,

namely Articles 286 and 287 of the former Penal Code of the

State of Texas, which Articles provide for a different punish-

ment and certain defenses denied this Defendant.

A-6

V.

Article 9001, Texas Revised Civil Statutes, upon which the

prosecution is based, is void and unconstitutional because its

general statutory scheme is repugnant to the First and Four-

teenth Amendments to the Constitution of the United States

because the Article constitutes a violation of the Establish-

ment Clause and the Free Exercise Clause pertaining to reli-

gious beliefs and is sumptuary legislation.

VI.

Article 9001, Texas Revised Civil Statutes, upon which the

prosecution is based, is void and unconstitutional as repug-

nant to the Supremacy Clause, Article 4, of the Constitution

of the United States in that said Article is an unreasonable

restraint on interstate commerce in violation of and pre-

empted by Section 1 of the Sherman Antitrust Act.

Vil.

Article 9001, Texas Revised Civil Statutes, upon which the

prosecution is based, is void and unconstitutional as repug-

nant to the Due Process Clause of the Fourteenth Amend-

ment to the Constitution of the United States in that the Ar-

ticle capriciously deprives this Defendant of his personal

right, by the imposition of penal sanctions, to freely engage

in the legitimate business of retail sales on consecutive

Saturdays and Sundays with regard to the category of items

ambiguously enumerated therein and is therefore an arbi-

trary and unjust exercise of the police power of the State

of Texas.

A-7

VIII.

Article 9001, Texas Revised Civil Statutes, upon which the

prosecution is based, is void and unconstitutional as repug-

nant to the Due Process Clause of the Fourteenth Amend-

ment to the Constitution of the United States in that the

Article determines the gravamen of the offense, a ‘‘public

nuisance”, in advance of any jury or judicial finding and

therefore unlawfully deprives this Defendant of any defense

known to the general body of criminal law which would tend

to justify, excuse or mitigate his actions which are the genesis

of the complaint and information filed against him in the

case at bar,

IX,

Article 9001, Texas Revised Civil Statutes, upon which the

prosecution is based, is void and unconstitutional on its face

as repugnant to the Due Process Clause of the Fourteenth

Amendment to the Constitution of the United States in that

the Article accords the State of Texas the unique and un-

precedented power to contemporaneously join a civil action

with a criminal action in a solitary trial against this Defen-

dant, thereby altering the burden of proof required in crimi-

nal trials, reasonable doubt, to the burden of proof required

in civil trials, preponderance of the evidence.

X.

Article 9001, Texas Revised Civil Statutes, upon which the

prosecution is based, is void and unconstitutional as repug-

nant to the Due Process Clause of the Fourteenth Amend-

ment to the Constitution of the United States because § 5

AS

of Acts 1973, 63rd Legislature, page 995, chapter 399, en-

acting the present Penal Code of the State of Texas, trans-

ferred Article 286a to Article 9001, Texas Revised Civil

Statutes, which Article 286a read thus: “Application of

article 286 to the bowling alleys. The provisions of Article

286, Penal Code of Texas, 1925, shall not be applicable to

bowling alleys.”’

WHEREFORE, PREMISES CONSIDERED, Defendant

George Morris prays that this Honorable Court grant his

Motion to Quash the information and complaint upon the

grounds that Article 9001, Texas Revised Civil Statutes, is

unconstitutional and void.

Respectfully submitted,

8/ Joseph A. Pitner

Joseph A. Pitner

Attorney for Defendant,

George Morris

1266 East Ledbetter Drive

Dallas, Texas 75216

214/371-2395

ORDER

On this the 31 day of August, 1978, came on to be heard

the Motion of Defendant George Morris to quash the com-

plaint and information filed against him in the above styled

and numbered cause, and the Court having considered the

same is of the opinion that the Motion should be overruled.

s/ Phil Fugitt

JUDGE

A-9

APPENDIX B

Statement of Facts in County Criminal Court

NO. CR 1257-78

THE STATE OF TEXAS IN THE COUNTY CRIMINAL

VERSUS COURT OF

GEORGE MORRIS HUNT COUNTY, TEXAS

STATEMENT OF FACTS

APPEARANCES:

MR. FRED SHELTON

County Attorney

Hunt County, Texas

Greenville, Texas 75401

Appearing for the State

MR, JOSEPH A, PITNER

Attorney at Law

1266 E, Ledbetter Drive

Dallas, Texas 75216

Appearing for the Defendant

BE IT REMEMBERED that on this the Slst day of August

A.D., 1978, the above entitled and numbered cause came on

for trial before said Honorable Court, HONORABLE PHIL

FUGITT, Judge presiding, and the following proceedings

were had, to-wit:

A-10

THE COURT:

The Court will call cause number CR 1257-78, The State

of Texas versus George Morris, an appeal from the Justice

Court of Hunt County, Texas.

What says the State?

MR. SHELTON:

The State is ready, Your Honor.

THE COURT:

What says the Defendant?

MR. PITNER:

The Defense is ready, Your Honor.

THE COURT:

For purposes of the record, Counselor, I think we ought

to rule on your Motion to Quash before we take testimony.

MR. PITNER:

Yes, Your Honor. I have an argument on my Motion to

Quash and I would like to present it to the Court before the

Court rules.

May it please the Court:

In the first paragraph of the Defense Motion to Quash, we

A-11

have raised the constitutional question that Article 9001 is

so vague and ambiguous that men of ordinary intelligence

cannot discern its meaning. As a direct result of the State

Legislature's efforts to be overly precise by enumerating

some forty-two forbidden categories of goods that cannot be

sold on the consecutive days of Saturday and Sunday, the

people of Texas are left helpless to interpret a law filled with

repetition, confusion and words created by literary license.

As an example of the repetition that abounds in Article

9001, the Defense invites the Court's attention to the follow-

ing synonomous categories: Clothing and wearing apparel,

as one example. Drapperies, blinds and curtains as another.

Kitchenwear and kitchen utensils as still another.

As an example of confusion, the Defense asks the Court

to notice that although the Statute specifically forbids cloth-

ing, it proceeds to specifically forbid items ordinarily thought

of as clothing such as footwear, headwear, and clothing ac-

cessories. The statute also forbids kitchenwear and then for-

_ bids kitchen utensils just as if kitchen utensils are not part of

kitchenwear. This law forbids appliances and then proceeds

to forbid stoves, refrigerators, air conditioners, electric fans,

washing machines and driers as if these items are something

else besides appliances. The law is confusing because it

makes so many distinctions without a difference. If a refrig-

erator isn’t an applicance, then exactly what is an appliance?

If clothing isn’t wearing apparel, then exactly what is cloth-

ing? If kitchen utensils aren’t kitchenwear, then what is

kitchenwear?

As an example of literary license with the English langu-

age, the Defense asks that the Court consider the word

A-12

“headwear.” Now, I could not find the word “headwear”

listed in any of the- several dictionaries at my office. Ap-

parently, the word “headwear” may not exist outside the

context of Article 9001. But I do know one thing about

headwear: No Texan ever has, or ever will, walk into any

store in this State and ask to buy some headwear.

The word ‘‘footwear” also struck me as an unusual noun.

I did have better luck with the term “footwear.” An old

edition of Webster’s that I had, a 1946 edition, defined the

term “footwear” as a colloquial term meaning wearing ap-

parel for the feet, especially boots, shoes, et cetera. The

Defense wonders whether or not your socks would be cover-

ed under the definition of et cetera.

I don’t want to burden the Court’s time any further on

the question of vagueness, except to make one further ob-

servation. That is: Article 9001 forbids the sale of toys,

excluding items customarily sold as novelties and souvenirs.

I am not sure that anyone can determine with any certainty

what constitutes a “toy.” But I am positive that no one can

determine what is ‘‘customarily sold.’’ And I would have to

hazard a guess that what a novelty or souvenir rneans to a

person depends upon where that person is from and what

might appeal to his mood or fancy at the time.

Paragraph 2 of our Motion attacks Article 9001 as con-

taining unjust, unreasonable, and confiscatory regulations

which deprive Mr. Morris of his property and liberty without

due process of law. Article 9001 bears no reasonable re-

lationship to the alleged legislative purpose for its existence

which is to promote the health, recreation and welfare of the

people of the State of Texas. Oddly enough the law forbids

SS ee

A-13

the sale of merchandise which most folks would consider

necessary to their health, recreation and welfare. Clothing

is a vital necessity that no person can be without. Everyone

needs a roof over his head, but if that roof leaks, the hard-

ware and power tools necessary to repair it cannot be pur-

chased on Sunday if the store chose to sell them on the pre-

vious Saturday. Everyone needs to eat, but it is ironic that

you can buy a can of chili seven days a week, but not the can

opener, or the pot, or the stove, or the bowl, or the spoon, or

even the napkin.

Not only is the Blue Law unreasonable, it is also confis-

catory. Mr. Morris is unconstitutionally deprived of his

property, that property being his profits from sales. Further-

more, the law has deprived him of his personal liberty, that

liberty being freedom from arrest. Mr. Morris’ liberty is in

further jeopardy if he is convicted and chose not to pay the

fine imposed. In that event, he would be jailed under a

capias pro fine.

Paragraph 3 of our Motion addresses the ex post facto ap-

plication of the law that contains so many indefinite words

and phrases that a man of ordinary intelligence cannot pos-

sibly decide in advance what conduct the law intends to pro-

hibit. If Mr. Morris sells on consecutive Saturdays and Sun-

days for instance, a pair of sunglasses, or a wig, or a wooden

ladder, is he guilty of selling hardware or headwear? The

only way Mr. Morris or anyone else is going to find out the

answer to that question is to be arrested, charged, and

brought to trial to await an ex cathedra definition of those

items. The Court’s definition of headwear and hardware

will then be retroactively applied to the conduct of the De-

fendant. The best example of this principle that I can think

A-14

of at this time is of a baseball player trying to argue with an

umpire as to whether or not a hit ball is fair or foul. I was in

this position at one time and was having an argument with

the umpire on this very point. He squinted one eye at me

and said, ‘Son, it ain’t nothing, ‘til I call it.” The point is:

Is a wig headwear or a cosmetic item? Or is it nothing until

the Court calls it?

In paragraph 4 of the Motion, the Defense attacks Article

9001 as violating due process of law by its confusing refer-

ence to the repealed State Statutes designated as Articles 286

and 286 of the former Penal Code. First, the Legislature

states in the last section of Article 9001 that these Articles

are not to be considered as repealed. Secondly, the Legis-

lature goes on to say that the provisions of Articles 286 and

287 shall not apply to sales of items listed in Section 1 of

the Act. And last, the Legislature repeals Articles 286 and

287 in the same breath that creates Article 9001, when it re-

vised the Penal Code in 1973. In court today we have the

situation where Mr. Morris is charged with a crime under a

statute wherein the Legislature has said, in effect, to Mr.

Morris: Refer yourself to Articles 286 and 287. They are

not repealed; but they do not fully apply; however, they are

repealed. I defy any man of ordinary intelligence to figure

that one out.

Paragraph 5 of our Motion brings up the delicate question

of separation of church and state as guaranteed by the First

Amendment. Article 9001 has not lost its religious charac-

ter because of a little legislative cosmetic surgery. Article

9001 used to be a Sunday closing law. It is now a Saturday

or Sunday closing law. But Article 9001 still remains a Sab-

bath day law, but as the Court knows, whether or not Satur-

A-15

day or Sunday is a Sabbath day depends upon what religious

belief a person would happen to follow. But the Legislature

has stated in Article 9001 that the purpose of this law is to

promote social good, that is the health, recreation and wel-

fare of the people. The Defense contends that the State

Legislature has tried deliberately to evade the mandate of the

First Amendment of the Constitution. All Blue Laws are so

called because the Puritans bound their Sunday observance

laws with blue paper. There is no doubt that Article 9001

is such a Blue Law. Even the complaint and information

filed in this case are headed ‘‘Violation of the Blue Law.”

But no matter what the stated purpose of Article 9001 may

be, the fact remains that the law has the effect of imposing

the Fourth Commandment of the Lord upon the people

of the State of Texas. Article 9001 then serves to protect a

religious conviction with the threat of a criminal conviction.

In paragraph 6, the Defense contends that Article 9001 is

preempted by the Sherman Antitrust Act. The bottom line

of the Texas Blue Law is to foster anti-competitive behavior.

Section 4 of Article 9001 is an open invitation to merchants

to join together in combination to prohibit by civil injunc-

tion any competitor from selling the prohibited items on con-

secutive Saturdays and Sundays. Additionally, Article 9001

contains a criminal penalty. Seldom in the face of existing

antitrust laws have one group of merchants had such an in-

strument of control over competitors who wish to profit by

weekend sales.

In paragraph 7, the Defense questions Article 9001 as an

arbitrary and unjust exercise of the police power of the

State. The Blue Law denies George Morris his personal right

to make his living by the retail sale of the forty-two forbid-

den items on consecutive Saturdays and Sundays. The law

A-16

makes George Morris a criminal for a day if he sells socks on

Sunday that he offered or sold on the previous Saturday.

This kind of oppressive and arbitrary police power may be

acceptable in a dictatorial country, but it certainly is not

acceptable in the State of Texas. :

In paragraph 8, the Defense complains that Article 9001

deprives George Morris of any defense known to the general

body of criminal law. Article 9001 imposes a strict criminal

liability, one which is usually reserved for business entities

rather than flesh and blood human beings. Under Article

9001, no justification, excuse or mitigation (in other words,

no defense) can be interposed to protect George Morris. But

the fact is George Morris is no business entity subject to a

strict liability regulatory law. He is a flesh and blood human

being who can be arrested, fined and even sent to jail.

In paragraph 9, the Defense contends that Article 9001 is

written in such a manner as to allow the State of Texas to

bring one single action against the defendant and charge him

with both the tort of public nuisance and the crime of pub-

lic nuisance as defined in Article 9001. The State could ask

the County Court for injunctive relief and a criminal penalty

both in the same lawsuit. A reading of the Article contains

nothing that would prohibit such a procedure. Article 9001

is therefore void on its face as repugnant to due process of

law.

In paragraph 10, the Defense would note to the Court that

under the former Penal Code two Articles designated as 286a

existed. In 1973 the Legislature transferred one of these

Articles 286a to the Civil Statutes as Article 9001. However,

both Articles 286a covered the same subject matter, the Sun-

A-17

day Blue Laws. Because both Articles were void at that time

because of the fatal identical designations as Article 286a, the

Defense contends that a void Article was therefore transferr-

ed as Article 9001 into the Revised Civil Statutes.

Your Honor, this concludes the Defense’s argument on the

Motion to Quash.

THE COURT:

What says the State?

MR. SHELTON:

Your Honor, the State believes that the Statute is plain on

its face and would ask the Defendant’s Motion be overruled.

THE COURT:

I'll overrule your Motion.

You may proceed.

MR. SHELTON:

The State would call Jim Bobbitt to the stand.

JAMES BOBBITT,

having been first duly sworn by the Court'to testify the truth

the whole truth and nothing but the truth, testified on his

oath as follows:

A-18

DIRECT EXAMINATION

BY MR. SHELTON:

Q Would you state your name?

A Jim Bobbitt.

Q And your employment?

A investigator, Hunt County Sheriff’s Department.

Q How long haveyou held that position?

A Let’s see, approximately twenty months.

Q At the request of the County Attorney’s Office, did you

investigate the alleged violation of Section 9001, commonly

referred to as the Blue Law Statute?

A Yes, sir, I did.

Q I will now ask the Court Reporter to mark for identifica-

tion a sack with a cash register tag showing the date 7-29-78

for identification purposes.

(Whereupon an instrument was

handed to the Court Reporter

to be marked for identification

as State's Exhibit No. 1.)

Q (By Mr. Shelton) During your investigation did you pro-

ceed to the Gibson’s Discount Store in Greenville, Texas,

and make this purchase, that is contained in the sack that has

A-19

just been marked for identification purposes?

A Yes.

Q Is this your handwriting?

A Yes, sir.

Q After making this purchase of this item, it was in your

care, custody and control until you turned it over to the

County Attorney’s Office?

A Yes, sir.

MR. SHELTON:

I'l show it to the Defendant.

MR. PITNER:

Your Honor, we object to the item that has just been

shown to us, that no foundation of relevancy has been es-

tablished for its introduction into evidence. We don’t know

what forbidden item that may be, if any.

MR. SHELTON:

Just a minute, Your Honor. I will take care of that ques-

tion.

Q (By Mr. Shelton) Would you state the item that you did

purchase at that time?

A-20

A It’s Sports Socks, Team and School Colored Sports Socks.

Q “Cheerleader Pompoms Team and School Color Coordinat-

ed Sport Socks,” is the title?

A Yes, sir, common known to me as “‘booties."’

MR. SHELTON:

I would ask at this time, Your Honor, that this be admitt-

ed into evidence.

MR, PITNER:

Your Honor, we object to it being admitted into evidence

because it still hasn’t been shown to be relevant to this case,

as to which forbidden category, if any, that those Cheer-

leader Pompom Team and Sport Coordinated Sports Socks

(sic) falls into.

THE COURT:

I will let him develop it if he wants to.

I'll overrule your objection.

MR. SHELTON:

Your Honor, we believe that this item specifically is foot-

wear, which Section 9001 specifically forbids for sale on two

consecutive days, Saturday and Sunday.

THE COURT:

A-21

Admitted.

MR. SHELTON:

I will ask the Court Reporter to mark for identification--

MR. PITNER:

I would like for the Court to note my exception to the

item being incorporated.

MR, SHELTON:

I will ask the Court Reporter to mark for identification

another sack containing an identical item, ‘Cheerleader Pom-

pom Team and School Coordinated Colored Sports Socks,”

contained in a sack, tag dated 7-30-78.

(Whereupon an instrument was

handed to the Court Reporter

to be marked for identification

as State's Exhibit No. 2.)

Q (By Mr. Shelton) Now, July 29th was a Saturday and you

went in on the following Sunday; is that correct, Mr. Bob-

bitt?

A Yes, sir, the next day.

Q And you did make this purchase?

A Yes, sir, I did.

Q And this was in your care, custody and control until you

A-22

turned it over to the Hunt County Attorney's Office; is that

correct?

A Yes, sir.

Q This would be your initials on the sack?

A Yes, sir.

Q Again, you did purchase “Cheerleaders Pompoms, Team

and School Color Coordinated Sport Socks’’?

A I did, sir.

MR. SHELTON:

We will give this to the Defendant and his attorney.

MR. PITNER:

Your Honor, we would make the same objection to this

item being admitted into evidence as heing identified as

falling into any one of forty-two forbidden categories under

Article 9001.

MR, SHELTON:

At this time, Your Honor, we would ask that it be admitt-

ed into evidence.

THE COURT:

Admitted.

A-23

MR. SHELTON:

Pass the witness.

CROSS-EXAMINATION

BY MR. PITNER:

Q Captain Bobbitt, where did you obtain the money to make

your purchases at the Gibson’s store?

A Out of my pocket.

Q Do you know what connection or what job title that the

Defendant, George Morris, has with the Gibson Discount

Store?

Al only understand. I don’t know for a fact, but I under-

stand he is the manager of the store.

Q Captain Bobbitt, do you remember who sold these socks

to you?

A One of the sale clerks.

Q At the Gibson store?

A Yes, sir.

Q These purchases did occur in Hunt County, Texas?

A Yes, sir.

Q Do you remember what time of the day on Sunday, July

A-24

30th, you bought these Cheerleader, et cetera socks?

A Yes, sir. It would have been approximately 4:00 o’clock.

Q In the afternoon?

A Yes, sir, in the afternoon.

Q Would you know of any private persons or organizations

that have demanded stricter enforcement of the Blue Laws

here in Hunt County, Texas?

A That I know of?

Q Yes, sir.

A No, sir.

Q Do you know who, if anyone, complained to the Hunt

County Attorney’s Office about stricter enforcement of the

Blue Laws in this particular case?

A No, sir, I don’t know.

Q Have you ever been in the Gibson’s store on a regular

weekday, a Monday through Friday?

A Yes, sir.

Q Well, did you observe anything out of the ordinary at the

Gibson’s store when you shopped there on Saturday, July

29th, and Sunday, July the 30th, for these Pompom Socks?

A-25

A Anthing out of the ordinary?

Q Yes, sir.

A I remember two things that seemed sort of out of the or-

dinary to me.

Q Would you please tell me what those are?

A On both days I noticed that there was a tremendous a-

mount of tags on everything and reduced sales, I hadn’t

noticed that before. I noticed on Sunday quite a volume of

traffic there. That impressed me. Those were the only

things.

Q Other than that, those two weekend days of Saturday and

Sunday were no different from any other shopping day on

any other day of the week that you had been in that store?

A I didn’t notice anything different.

Q What, if anything, did you observe on July the 29th or

July the 30th that took place at the Gibson’s store that

might have injured the health, recreation or welfare of the

people of the State of Texas?

MR. SHELTON:

Your Honor, I object. I don’t think he is qualified to

answer that.

MR. PINTER:

Your Honor, I would say that he is a sworn police officer

A-26

and has sworn to uphold the law, and he could offer an opin-

ion on that.

THE COURT:

I'll sustain the objection on the account of the fact that

it’s the dominion of the Court to decide whether or not --

to decide the facts as to whether or not that is such an of-

fense.

You may proceed.

Q (By Mr. Pitner) Captain, did anyone tell you what to buy

as evidence in this case?

A No, sir.

( Well, did anyone explain to you why you may have to buy

certain items and not other items?

A I read the Articles, sir.

Q You actually read this Article 9001?

A Yes, sir, I did. I refer to it as the Blue Law.

Q As the Blue Law?

A Uh-huh.

Q Did you find this law clear and precise reading, under-

standable?

A I found it understandable, yes, sir.

A-27

Q These socks that you bought, would you say that they are

ordinary or unusual socks?

A I have to answer that question as to the way I see them,

Counselor. I find them quite ordinary.

Q These socks would be, in your opinion, socks that a per-

son would use for everyday wear?

A Yes, sir.

Q I notice the bags on those socks haven’t been opened. Are

you fully aware of what those socks look like?

A Uh-huh.

Q Is that the type of item that you would see a lady wear to

the office, for instance?

A No.

Q Where would these items ordinarily be worn, if you know?

Al have three kids that wear them everyday.

Q So you wouldn’t say that these socks are unusual enough

to be costume items?

A No.

Q They would not be part of a cheerlgader’s --

hy =

A Noas far as - you keowry gee asking me?

A-28

Q Yes, sir.

A No, sir.

Q They wouldn’t be part of a cheerleader’s costume?

A I don’t know. I don’t have any relation to that, you know,

particular profession or extracurricular activity.

Q Captain, was George Morris arrested subsequent to a

search warrant?

A Yes, sir.

Q Were you one of the arresting officers?

A I was the arresting officer.

Q Was the arrest of George Morris handled like any other

misdemeanor arrest?

A Yes, sir.

Q Was he taken to jail and fingerprinted and mug shot and

booked into the Hunt County jail?

A I would have to presume that is so because I booked him

in. Of course, I don’t handle the fingerprinting and so forth.

I filled out the arrest report.

Q As far as you know, routine procedure was followed?

A Yes, sir.

A-29

Q You stated previously that you had read the Texas Blue

Law. Would you arrest Mr. Morris if he sold wigs on consecu-

tive days of Saturday and Sunday?

A Well, now you're asking me to try to in my mind go back

and reread that law. I can’t do it. I would have to check the

law to see if it was a violation.

Q Would your answer be the same for wooden ladders?

A Yes, sir.

Q Could you tell the Court how far the Gibson’s store is

from Interstate 30?

A It’s approximately half a mile.

Q Approvimately how far is Greenville from the Oklahoma

border?

A Oklahoma state line?

Q Yes, sir.

A Again, it would have to be approximate. According to

the direction you're going, one way, fifty miles.

Q Do folks from Oklahoma usually shop in Greenville?

A Ihave no idea.

Q Being a police officer, do you see Oklahoma license plates

parked outside the stores here in Greenville?

A-30

A I don’t believe I have ever seen one parked outside of a

store in Greenville.

MR. PITNER:

I have no further questions.

MR. SHELTON:

No questions.

THE COURT:

May this officer be excused to return to his duties?

MR. SHELTON:

Yes, Your Honor.

MR. PITNER:

Yes, Your Honor.

THE COURT:

Thank you.

MR. SHELTON:

The State rests, Your Honor.

MR. PITNER:

Your Honor, the Defense would call no witnesses, offer

A-31

no evidence in this case.

THE COURT:

Both sides rest?

MR. SHELTON:

Yes, Your Honor.

MR. PITNER:

Yes, Your Honor.

THE COURT:

Arguments?

MR. SHELTON:

Your Honor, the State would just say in closing, we feel

the items that were bought on two consecutive days, the

State maintains that they fit under the Statute under foot-

wear. We would ask that the Court so find.

The State closes.

MR. PITNER:

Close.

THE COURT:

I will find the Defendant guilty and assess a fine of one

A-32

hundred dollars.

MR. PITNER:

Your Honor, at this time the Defense would like to give

notice to the Court of its intended appeal to the Supreme

Court of the United States by virtue of 28 United States

Code, Section 1257.

Thank you.

KRKKKKkKEK SE

STATE OF TEXAS

COUNTY OF DALLAS

I, David M. Ivy, Jr., a Certified Shorthand Reporter in

and for the State of Texas, do hereby certify that the above

and foregoing contains a true and correct transcription of

all the proceedings (or all proceedings directed by counsel

to be included in the statement of facts, as the case may be),

in the above styled and numbered cause, all of which occurr-

ed in open court or in chambers and were reported by me.

I further certify that this transcription of the record of the

proceedings truly and correctly reflects the exhibits, if any,

offered by the respective parties.

WITNESS my hand this the day of , 1978.

David M. Ivy, Jr.

Certified Shorthand Reporter

In and for the State of Texas

A-33

ATTORNEYS’ APPROVAL

We, the undersigned attorneys of record for the respective

parties, do hereby agree that the foregoing pages constitute a

true and correct transcription (or, a true and correct partial

transcription as requested, as the case may be) of the state-

ment of facts, and other proceedings in the above styled and

numbered cause, all of which occurred in open court or in

chambers and were reported by the Certified Shorthand

Reporter.

SIGNED this _ day of , 1978.

Mr. Fred Shelton,

Attorney for the State

SIGNED this _ day of , 1978.

Mr. Joseph A. Pitner,

Attorney for the Defendant

A-34

COURT’S APPROVAL

The within and foregoing pages, including this page, having

been examined by the Court, (counsel for the parties having

failed to agree) are found to be a true and correct transcrip-

tion (or, a true and correct partial transcription as requested,

as the case may be) of the statement of facts and other pro-

ceedings, all of which occurred in open court or in chambers

and were reported by the Certified Shorthand Reporter.

SIGNED this day of , 1978,

PHIL FUGITT,

Judge Presiding

A-35

APPENDIX C

Former Penal Code Sunday Laws, Articles 286, 286(a )

and 287)

FORMER PENAL CODE - REPEALED BY ACTS 1973,

63rd LEGISLATURE, P. 991, CH. 399, § 3(a) ENACTING

THE PRESENT TEXAS PENAL CODE.

Art. 286. [302] [199] [186} Selling goods on Sunday

Any merchant, grocer, or dealer in wares or merchandise,

or trader in any business whatsoever, or the proprietor of

any place of public amusement, or the agent or employe of

any such person, who shall sell, barter, or permit his place

of business or place of public amusement to be open for the

purpose of traffic or public amusement on Sunday, shall be

fined not less than twenty nor more than fifty dollars. The

term place of public amusement, shall be construed to mean

circuses, theaters, variety theaters and such other amuse-

ments as are exhibited and for which an admission fee is

charged; and shall also include dances at disorderly houses,

low dives and places of like character, with or without fees

for admission.

Art. 286a, including the caption, reads:

“An Act to prohibit the sale or offer of sale, on both the

two

(2) consecutive days of Saturday and Sunday, or

the compelling, forcing, or obliging of employees

to sell certain named items; providing exemptions;

A-36

declaring violation to be a nuisance and authoriz-

ing persons to apply and obtain injunctions re-

straining violations of this Act; and declaring an

emergency.

“Be it enacted by the Legislature of the State of

Texas:

“Section 1. Any person, on both the two (2) con-

secutive days of Saturday and Sunday, who sells or

offers for sale or shall compel, force or oblige his

employees to sell any clothing; clothing accesso-

ries; wearing apparel; footwear; headwear; home,

business, office or outdoor furniture; kitchenware;

kitchen utensils; china; home appliances; stoves;

refrigerators; air conditioners; electric fans; radios;

television sets; washing machines; driers; cameras;

hardware; tools, excluding non-power driven hand

tools; jewelry; precious or semi-precious stones;

silverware; watches; clocks; luggage; motor vehic-

les; musical instruments; recordings; toys, exclud-

ing items customarily sold as novelties and sou-

venirs; mattresses; bed covering; household linens;

floor coverings; lamps; draperies; blinds; curtains;

mirrors; lawn mowers or cloth piece goods shall

be guilty of a misdemeanor. Each separate sale

shall constitute a separate offense.

“Sec. 2. Nothing herein shall apply to any sale or

sales for charitable purposes or to items used for

funeral or burial purposes or to items sold as a

part of or in conjunction with the sale of real

property.

A-37

“Sec. 3. For the first offense under this Act, the

punishment shall be by fine of not more than One

Hundred Dollars ($100.00). If it is shown upon

the trial of a case involving a violation of this Act

that defendant has been once before convicted of

the same offense, he shall on his second convic-

tion and on all subsequent convictions be punished

by imprisonment in jail not exceeding six (6)

months or by a fine of not more than Five Hun-

dred Dollars ($500.00), or both.

“Sec. 4. The purpose of this Act being to promote

the health, recreation and welfare of the people of

this state, the operation of any business whether

by any individual, partnership or corporation con-

trary to the provisions of this Act is declared to be

a public nuisance and any person may apply to any

court of competent jurisdiction for and may ob-

tain an injunction restraining such violation of this

Act. Such proceedings shall be guided by the rules

of other injunction proceedings.

“Sec. 4a. When a purchaser will certify in writing

that a purchase of an item of personal property is

needed as an emergency for the welfare, health or

safety of human or animal life and such purchase

is an emergency purchase to protect the health,

welfare or safety of human or animal life, then this

Act shall not apply; provided such certification

signed by the purchaser is retained by the mer-

chant for proper inspection for a period of one (1)

year.

A-38

“Sec. 5. Occasional sales of any item named herein

by a person not engaged in the business of selling

such item shall be exempt from this Act.

“Sec. 5a. It is the intent of the Legislature that

Articie 286 and 287 of the Penal Code of Texas are

not to be considered as repealed by this Act; pro-

vided, however, that the provisions of said Articles

shall not apply to sales of items listed in Section 1

of this Act which are forbidden to be sold on the

day or days named in this Act.

“Sec. 6. The fact that there are not now adequate

laws to prevent the selling of certain articles seven

(7) consecutive days and the further fact that legis-

lation is needed to prevent and punish such offense

creates an emergency and an imperative public

necessity that the Constitutional Rule requiring

bills to be read on three several days in each House

be suspended, and said Rule is hereby suspended;

and that this Act shall take effect and be in force

from and after its passage, and it is so enacted.”

Art. 287. Permitting sale of certain articles on Sunday;

regulations as to motion picture shows

The preceding Article shall not apply to markets or dealers

in provisions as to sales of provisions made by them before

nine o'clock A.M., nor to the sales of burial or shrouding

material, newspapers, ice, ice cream, milk, nor to any sending

of telegraph or telephone messages at any hour of the day or

night, nor to keepers of drug stores, hotels, boarding houses,

restaurants, livery stables, bath houses, or ice dealers, nor to

— ASD

telegraph or telephone offices, nor to sales of gasoline, or

other motor fuel, nor to vehicle lubricants nor to motion

picture shows, or theatres operated in any incorporated city

or town, after one o’clock P.M.

Amended by Acts 1931, 42nd Leg., p. 195, ch. 116 § 1.