Petition for A Writ of Certiorari — Santikos v. Texas

Supreme Court af the United States

OCTOBER TERM, 1992

GEORGE JAMES SANTIKOS,

Petitioner,

THE STATE OF TEXAS,

Respondent.

Petition For Writ Of Certiorari To

The Texas Court Of Criminal Appeals

PETITION FOR WRIT OF CERTIORARI

KEN J. McLEAN

Federal Adm. No. 2008

1900 North Loop West, Suite 500

Houston, Texas 77018

(713) 680-9922 (Telephone)

(713) 680-0804 (Facsimile)

Attorney for Petitioner

GEORGE JAMES SANTTKOS

Alpha Law Brief Co.* 6113 Aletha Lane* Houston, Texas 77081 (713)981-9000

i

QUESTIONS PRESENTED

Whether the Texas Alcoholic Beverage Code, § 101.04,

which provides for warrantless inspections of premises

licensed to sell alcoholic beverages “at any time," is immune

from a facial invalidity claim under the "time, place, and

scope" criteria of New York v. Burger, 482 U.S. 691 (1987),

because of the reasoning in Broadrick v. Oklahoma, 413

U.S. 601 (1973), that the "overbreadth" doctrine is not

recognized outside the limited context of the First

Amendment.

aac ti hel

ll

TABLE OF CONTENTS

Page

QUESTIONS PRESENTEO ..4 sis ence caw een i

TABLE OF COUEGNSS Scan aes seer eas il

TABLE OF AUTEURS ile (oo ss ye wk ee ill

THE OPINION BELAPS .. 6-5 e ee ee ee ee |

STATEMENT OF JURISDIC TRIN 6. 44464445 4% l

CONSTITUTIONAL PROVISION AND

STATUTE INVGL Vie oe oe ee ae 2

STATEMENT OF THE CABS . 64 ib wae ee ees 3

REASONS FOR GRANTING THE WRIT ........ 5

CONCLUSION . «i540 eee 8

APPENIAA A... . iin eee la

APPENIAA B ... veh es eee 9a

OOOO

ill

TABLE OF AUTHORITIES

CASES:

Broadrick v. Oklahoma, 413 U.S. 601 (1973) ... i, 5, 6

Camara v. Municipal Court, 387 U.S. 541,

87 S.Ct. 1737, 18 L.Ed.2d 930

OG ei ee ee a ee 8

Elkins v. United States, 364 U.S. 206, 222,

4 L.Ed.2d 1669, 80 S.Ct. 1437

Ie eRe els eee x ew a 8 ek ee 7

Lee v. Florida, 392 U.S. 378, 20 L.Ed.2d 1166,

ee CUD oc ke ee ee 7

Mapp v. Ohio, 367 U.S. 643, 6 L.Ed.2d 681,

8 ee Be 8 |) i ee ae 7

Michigan v. Tucker, 417 U.S. 433, 41 L.Ed.2d 182,

i he Mee vee. | 7

New York v. Burger, 482 U.S. 691 (1987) ..... ee

Santikos v. State, 754 S.W.2d 416

(Tex. App. -- Corpus Christi 1988,

| a a a 4

Ulster County Court v. Allen, 442 U.S. 140,

155-156, 99 S.Ct. 2213, 60 L.Ed.2d 777

a a ae a re a oe 6, 8

United States v. Biswell, 406 U.S. 311, 315,

92 S.Ct. 1593, 32 L.Ed.2d 87

a ag SN uw sew A 8 Oe ee ee 5

iV

United States v. Calandra, 414 U.S. 338,

38 L.Ed.2d 561, 94 S.Ct. 613 (1974) .......... 7

United States v. Peltier, 422 U.S. 531, 536,

45 L.Ed.2d 374, 380, 95 §.Ct. 2313

Cg Ae Er Re Tala ing ey ae aan me 7

United States v. Rains, 362 U.S. 17, 22-23,

fee me, gm &. Boe, || re 6

United States v. Salerno, 41 U.S. 739, 745,

107 S.Ct. 2095, 95 L.Ed.2d 697

RT eh oe en ae ar ar eT eLearn aeee er 2 6

CONSTITUTIONS:

ce OL Mir | 88g Deca) So ye Re ea 2

STATUTES AND RULES:

ee ss Oe I Ses eo rats 4 Sa en ae, Rint eee 2

vem. KK. App. Proc., Reale GONE) ke ee 4

Texas Alcoholic Beverage Code, § 101.04 ..... ay

OTHER SOURCES;

OAKS, STUDYING THE EXCLUSIONARY RULE IN

SEARCH AND SEIZURE, 37 U Chi L Rev 665,

Pe CED ec aa ee ee ee ee 7

NO.

IN THE

Supreme Court of the United States

GEORGE JAMES SANTIKOS,

Petitioner,

V.

THE STATE OF TEXAS,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE TEXAS COURT OF CRIMINAL APPEALS

THE OPINION BELOW

The opinion of the Texas Court of Criminal Appeals,

yet to be published, which affirmed Petitioner’s conviction

by holding that he lacked standing to attack the

constitutionality of the Texas statute authorizing the

warrantless inspection of premises licensed to sell alcoholic

beverages, is reproduced as Appendix A. Santikos v. State,

___ §.W.2d __, No. 923-88 (Tex.Cr. App. 1992).

STATEMENT OF JURISDICTION

Based on Petitioner’s Motion for Rehearing, the

Texas Court of Criminal Appeals rendered its decision

affirming his conviction on June 3, 1992.

>

-_

Petitioner asserted in his Petition for Discretionary

Review to the Texas Court of Criminal Appeals that §

101.04 of the Texas Alcoholic Beverage Code, which

authorizes warrantless inspections “at anytime,” was in

violation of the Fourth Amendment to the United States

Constitution.

This Court therefore has jurisdiction pursuant to 28

U.S.C. § 1257(a).

CONSTITUTIONAL PROVISION AND

STATUTE INVOLVED

The question presented herein involves the Fourth

Amendment to the United States Constitution, which reads in

its entirety as follows:

"The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not

be violated, and no warrants shall issue, but

upon probable cause, supported by Oath or

affirmation, and particularly describing the

place to be searched, and the persons or

things to be seized.”

Also involved is the Texas statute that authorizes

warrantless inspections, namely, Texas Alcoholic Beverage

Code, § 101.04, which reads in its entirety, emphasis

supplied, as follows:

"By accepting a license or permit, the holder

consents that the commission, an authorized

representative of the commission, or a peace

officer may enter the licensed premises af

anytime to conduct an investigation or inspect

————-_-

3

the premises for the purpose of performing

any duty imposed by this code."

STATEMENT OF THE CASE

Petitioner was charged with intentionally and

knowingly possessing a controlled substance, namely,

cocaine, which was found in his night club during a

warrantless inspection pursuant to the Texas Alcoholic

Beverage Code, § 101.04.

Gus Martinez and other agents of the Texas Alcoholic

Beverage Commission went to the Cowgirl Club, in Victoria,

Texas on the night of July 18, 1986, to conduct a routine

inspection of the licensed premises. One agent inspected the

bar area while Martinez and another agent went to the office

of Petitioner who was the proprietor of the club. Petitioner

was on the phone in the office when the agents entered.

According to Martinez, he was there to inspect for

unauthorized alcoholic beverages, stamps, paraphernalia,

false records, or anything pertaining to the Alcoholic

Beverage Code. After Martinez attempted to open a locked

filing cabinet in the office, Petitioner reached into his pocket,

pulled out some keys, and unlocked the cabinet. Martinez

ultimately opened the bottom drawer o1 the cabinet and saw

a paper sack agape. He observed therein what appeared to

be narcotics’ paraphernalia. Martinez pulled the paper sack

out of the cabinet and asked Petitioner whether cocaine was

contained in the sack. Petitioner responded by stating that he

found the sack in the parking lot. Martinez and another

agent then searched the private bathroom immediately after

the inspection of the office area. An agent found a vial of

cocaine inside of a roll of toilet paper.

Petitioner filed a Motion to Suppress the cocaine

seized during the warrantless inspection. After a hearing on

4

the Motion Petitioner was allowed to file a brief wherein he

argued inter alia the issue presented herein. Petitioner’s

Motion was subsequently denied. (Tr. 19, ef seq.)

Petitioner thereafter entered a plea of no contest to the

indictment and, pursuant to a plea bargain agreement, was

assessed a penalty of two years confinement, probated, and

a $2,500.00 fine.

Judgment of conviction was imposed on September

18, 1987. A timely written notice of appeal pursuant to the

provisions of Tex. R. App. Proc., Rule 40(b)(1) was

immediately filed. Direct appeal was taken to the Thirteenth

Court of Appeals, at Corpus Christi, Texas, No. 13-87-393-

CR. The question presented herein was raised in the Court

of Appeals. That Court affirmed Petitioner’s conviction on

June 30, 1988. Santikos v. State, 754 S.W.2d 416

(Tex.App. -- Corpus Christi 1988, pet. granted).

On August 25, 1988, a Petition for Discretionary

Review was filed with the Texas Court of Criminal Appeals.

On April 5, 1989, the Texas Court of Criminal Appeals

granted the Petition for Discretionary Review and ordered

the respective parties to file supporting briefs. Based on

Petitioner’s Motion for Rehearing, the Court of Criminal

Appeals rendered its decision affirming his conviction on

June 3, 1992. On June 30, 1992, the Court of Criminal

Appeals denied Petitioner’s second request for a rehearing.

See Appendix B.

This Petition for Writ of Certiorari is being filed with

the Clerk of this Court within ninety (90) days after entry of

the Texas Court of Criminal Appeals’ judgment and is

timely. Supreme Court Rules 13.1 and 13.4.

5

REASONS FOR GRANTING THE WRIT

On direct appeal and on discretionary review,

Petitioner contended that § 101.04 was unconstitutional

because it failed to limit warrantless inspections to certain

times of the day or night or to reasonable business hours.

Petitioner argued that this Court held that warrantless

inspections of commercial premises in certain highly

regulated industries may be valid exceptions to the Fourth

Amendment warrant requirement only if certain criteria are

met. New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636,

96 L.Ed.2d 601 (1987). Among those criteria is the

requirement that the statutory provision must provide "a

constitutionally adequate substitute for a warrant" so as to

properly limit the discretion of the officers performing the

inspection. New York v. Burger, 482 U.S. at 708-710. In

defining how to constitutionally restrict the discretion of the

inspectors, this Court stated that the statute must carefully

limit the inspection "in time, place, and scope." New York

y. Burger, 482 U.S. at 703, citing United States v. Biswell,

406 U.S. 311, 315, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972).

Although the Texas Court of Criminal Appeals agreed with

this proposition, it declined to address the merits of

Petitioner’s claim by holding that since the warrantless

inspection at the Cowgirl club took place during regular

business hours Petitioner failed to demonstrate that the statute

was unconstitutionally applied to him and that Petitioner

therefore lacked standing to assert the issue, relying on and

citing Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908,

37 L.Ed.2d 830 (1973).

By its decision, the Texas Court of Criminal Appeals

has decided an important question of federal constitutional

law which has not been, but should be, settled by this Court,

namely, whether a criminal defendant is invariably precluded

from challenging a statute which is facially repugnant to the

6

Fourth Amendment, but which was not unconstitutional in its

application. Further, the Texas Court of Criminal Appeals’

opinion is in conflict with the spirit of applicable decisions of

this Court upholding the sanctity of the Fourth Amendment.

Supreme Court Rule 10.1(c).

Embedded in the traditional rules governing

constitutional adjudication is the principle that a person to

whom a statute is constitutionally applied may not be heard

to challenge that statute on the ground that it may

conceivably be applied unconstitutionally to others in other

Situations. Broadrick v. Oklahoma, 413 U.S. 601, 610.

Stated in different terms, a party has standing to challenge

the constitutionality of a statute only insofar as it has an

adverse impact on its own rights. Ulster County Court v.

Allen, 442 U.S. 140, 155-156, 99 S.Ct. 2213, 60 L.Ed.2d

777 (1979). Asa general rule, if there was no constitutional

defect in the application of a statute to a litigant, he does not

have standing to argue that it would be unconstitutional if

applied to third parties in hypothetical situations. Ulster

County Court v. Allen, 442 U.S. at 155, citing Broadrick v.

Oklahoma, 413 U.S. at 610.

In the past, this Court has recognized some limited

exceptions to this principie, but only because of the most

"weighty countervailing policies." Broadrick v. Oklahoma,

413 U.S. at 611, citing United States v. Rains, 362 U.S. 17,

22-23, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960). A limited

exception has been recognized for statutes that prohibit

speech protected by the First Amendment. Ulster County

Court v. Allen, 442 U.S. at 155, citing Broadrick v.

Oklahoma, 413 U.S. at 611-616. In United States v.

Salerno, 41 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697

(1987), this Court stated, "A facial challenge to a legislative

act 1s, of course, the most difficult challenge to mount

successfully, since the challenger must establish that no set

—e |

7

of circumstances exists under which the act would be valid."

481 U.S. at 745. This Court in Salerno cautioned that the

fact that the Bail Reform Act might operate unconstitutionally

under some conceivable set of circumstances 1s insufficient

to render it wholly invalid, since it has not recognized an

“overbreadth” doctrine outside the limited context of the First

Amendment. 7d.

Petitioner contends that because of the substantial

counterbalancing policies inherent in preserving the nght of

persons to be free from unreasonable warrantless searches,

the Fourth Amendment, like the First Amendment, warrants

exception to the general rule prohibiting facial challenges.

Unarguably, the history of Fourth Amendment

jurisprudence reveals the deeply rooted concern of upholding

the core principles of the exclusionary rule, viz,

Decisions of this Court applying the exclusionary rule

to unconstitutionally seized evidence have referred to

"the imperative of judicial integrity," Elkins v. United

States, 364 U.S. 206, 222, 4 L.Ed.2d 1669, 80 S.Ct.

1437 (1960), although the Court has relied principally

upon the deterrent purpose served by the exclusionary

rule. See Mapp v. Ohio, 367 U.S. 643, 6 L.Ed.2d

681, 81 S.Ct. 1684 (1961), Lee v. Florida, 392 U.S.

378, 20 L.Ed.2d 1166, 88 S.Ct. 2096 (1968); see

also United States v. Calandra, 414 U.S. 338, 38

L.Ed.2d 561, 94 S.Ct. 613 (1974); Michigan v.

Tucker, 417 U.S. 433, 41 L.Ed.2d 182, 94 S.Ct.

2357 (1974). And see also OAKS, STUDYING THE

EXCLUSIONARY RULE IN SEARCH AND

SEIZURE, 37 U Chi L Rev 665, 668-672 (1970).

United States v. Peltier, 422 U.S. 531, 536, 45 L.Ed.2d

374, 380, 95 S.Ct. 2313 (1975).

8

Fourth Amendment interests at stake in inspection

cases have never been held to be "peripheral." Camara v.

Municipal Court, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d

930 (1967). From Camera to Burger the ultimate elixir

became an inspection that provided an adequate substitute for

a warrant.

The proposition that Fourth Amendment concerns are

not on the same plateau as those of the First Amendment is

absurd. This Court in Ulster County Court v. Allen, supra,

after noting the First Amendment exception, stressed that this

exception has been justified by the overriding interest in

removing illegal deterrents to the exercise of the right of free

speech. 442 U.S. at 155. Likewise, the exclusionary rule

was necessarily woven into the Fourth Amendment to give it

meaningful effect and to deter potentially overzealous, and

perhaps unscrupulous, police conduct.

CONCLUSION

For the foregoing reasons, Petitioner, George James

Santikos, respectfully suggests that his Petition for Writ of

Certiorari should be granted.

Respectfully submitted,

KEN J. McLEAN

State Bar No. 13747700

Federal Admn. No. 2008

1900 North Loop West, Suite 500

Houston, Texas 77018

(713) 680-9922 (Telephone No.)

(713) 680-0804 (Facsimile No.)

Attorney for Petitioner

GEORGE JAMES SANTIKOS

la

APPENDIX A

GEORGE JAMES SANTIKOS, Petition for Discretionary

Appellant Review from the Thirteenth

--- Court of Appeals

NO. 923-88, v.

THE STATE OF TEXAS, (Victoria County)

Appellee

OPINION ON APPELLANT’S MOTION

FOR REHEARING

We withdraw our prior opinion and adopt the

following as the opinion of the Court.

Appellant, George James Santikos, pled nolo

contendere to the unlawful possession of a controlled

substance, cocaine. The trial court assessed punishment at

two years’ confinement, probated, plus a $2500.00 fine. On

direct appeal, the Corpus Christi Court of Appeals overruled

appellant’s three points of error and affirmed his conviction.

Santikos v. State, 754 S.W.2d 416 (Tex. App.-Corpus Christi

1988). We granted appellant’s petition for discretionary

review to determine whether the Court of Appeals correctly

held that the administrative search provision in Section

101.04 of the Texas Alcoholic Beverage Code (hereinafter

T.A.B.C.) is constitutional under the Fourth and Fourteenth

Amendments to the United States Constitution, and Article I,

Section 9 of the Texas Constitution.' We shall affirm.

' We note that appellant challenges the constitutionality of Section

101.04 under both the Texas and the Federal Constitutions. Although

this Court recently determined that we shall not be bound by United

States’ Supreme Court decisions addressing the Fourth Amendment when

analyzing Article I, Section 9 of the Texas Constitution, appellant neither

argues the constitutional provisions separately nor contends that there are

reasons for distinguishing the two provisions in this case. Heitman v.

2a

On April 28, 1986, the Texas Alcoholic Beverage

Commission issued a mixed beverage permit to the Cowgirl

Club, Inc., d/b/a the Cowgirl Club. On July 18, 1986, at

approximately 8:30 p.m. during the club’s regular business

hours, three agents of the Commission went to the club to

inspect the premises for violations of the Texas Alcoholic

Beverage Code pursuant to Section 101.04 of the Code.

Appellant consented to the inspection and voluntarily

unlocked a filing cabinet in the office of the club. The

agents discovered drug paraphernalia’ in the filing cabinet

and a vial of cocaine in the office restroom. Appellant’s

pretrial motion to suppress this evidence was denied and

appellant subsequently pled nolo contendere to possession of

cocaine.

On direct appeal, appellant contended, among other

things, that Section 101.04 was facially unconstitutional

because the section failed to limit inspections conducted

pursuant to the statute to certain times of the day or night or

to reasonable business hours. The Court of Appeals first

determined that the inspection of appellant’s club occurred

during regular business hours, and then held Section 101.04

to be constitutional because "it does not authorize

unreasonable searches, nor can we presume that the provision

State, 815 S.W.2d 681, 690 (Tex.Cr.App. 1991). Moreover, when this

Court has previously addressed both federal and state constitutional

challenges to Section 101.04, T.A.B.C., it has relied on Supreme Court

decisions interpreting the Fourth Amendment. See Crosby v. State, 750

S.W.2d 768 (Tex.Cr.App. 1987), and McDonald v. State, 778 S.W.2d

88 (Tex.Cr.App. 1989). Consequently, we shall not distinguish between

the constitutional provisions, but find them to be the same for the purpose

of analyzing the constitutionality of the warrantless administrative search

provision in Section 101.04.

? The agents discovered a grinder, scale and inhaler, all of which

contained traces of cocaine, in the filing cabinet.

_ Ee |

3a

of this statute referring to the time for inspection will be

applied unreasonably." Santikos v. State, 754 S.W.2d at

419. See Pollard v. Cockrell, 578 F.2d 1002, 1014 (Sth Cir.

1978) (San Antonio ordinance held constitutional because it

did not authorize unreasonable searches nor would it be

presumed that search provision would be unreasonably

applied).

Section 101.04 of the Texas Alcoholic Beverage Code

States:

"By accepting a license or permit, the holder

consents that the commission, an authorized

representative, or a peace officer may enter

the premises at any time to conduct an

investigation or inspect the premises for the

purpose of performing any duty imposed by

this code."

This section thus provides for warrantless, administrative

inspections or searches of premises licensed by the Texas

Alcoholic Beverage Commission. Appellant now contends

that Section 101.04 is facially invalid because it fails to limit

adequately the time that statutory warrantless inspections may

occur.

The Supreme Court of the United States has held that

warrantless inspections of commercial premises in certain

highly regulated industries may be valid exceptions to the

Fourth Amendment warrant requirement if three criteria are

met. New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636,

96 L.Ed.2d 601 (1987). First, there must be a substantial

government interest that informs the regulatory scheme

pursuant to which the inspection or warrantless search is

made. Second, the warrantless inspection must be necessary

to further the regulatory scheme. Third, the Statutory

4a

provision must provide "a constitutionally adequate substitute

for a warrant" so as to limit properly the discretion of the

officers performing the inspection. New York v. Burger,

482 U.S. at 708-710, 107 S.Ct. at 2647-2648, 96 L.Ed.2d

601 (1987). In defining how to restrict constitutionally the

discretion of the inspectors, the Supreme Court stated that

the statute must carefully limit the inspection "in time, place,

and scope." New York v. Burger, 482 U.S. at 703, 107

S.Ct. at 2644, citing United States v. Biswell, 406 U.S. 311

at 315, 92 S.Ct. 1593 at 1596, 32 L.Ed.2d 87 (1972).

A plurality of this Court has previously determined

that Section 101.04 meets the first two criteria enunciated by

the Supreme Court in Burger. Crosby v. State, 750 S.W.2d

768, 775 (Tex.Cr.App. 1987). See Colonnade Corp. v.

United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60

(1970) (liquor industry long subject to close supervision and

inspection). The plurality in Crosby also determined that

Section 101.04 limits the scope of inspections but expressly

left unanswered the question raised by appellant: whether

Section 101.04 adequately limits the time and place of the

statutory warrantless inspections as required by the third

criteria in Burger. Crosby v. State, 750 S.W.2d at 771, n.

y eg iB

In a subsequent opinion, however, this Court held that

Section 101.04 altogether does not violate the Fourth and

Fourteenth Amendments to the United States Constitution nor

does it violate Article I, Section 9 of the Texas Constitution.

McDonald v. State, 778 S.W.2d 88, 91 (Tex.Cr.App. 1989).

Although the majority in McDonald clearly held that Section

101.04 satisfies the three criteria enunciated in Burger, we

shall address appellant’s point of error because the opinion

in McDonald did not expressly address appellant’s allegation

that the language “at any time" renders Section 101.04

facially unconstitutional.

Sa

A facial challenge to a statute is the most difficult

challenge to mount successfully because the challenger must

establish that no set of circumstances exists under which the

Statute will be valid. United States v. Salerno, 481 U.S.

739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987); Briggs v.

State, 789 S.W.2d 918, 923 (Tex.Cr.App. 1990). Since a

statute may be valid as applied to one set of facts and invalid

as applied to another, "it is incumbent upon the [appellant]

to show that in its operation the statute is unconstitutional as

to him in his situation; that it may be unconstitutional as to

others is not sufficient." Parent v. State, 621 S.W.2d 797

(Tex.Cr.App. 1981). See Briggs v. State, 740 S.W.2d 803,

806 (Tex.Cr.App. 1987).

This rule conforms with the criterion for Standing to

challenge the facial constitutionality of a statute as enunciated

by the Supreme Court of the United States:

"A party has Standing to challenge the

constitutionality of a statute Only insofar as it

has an adverse impact on his own rights. As

a general rule, if there is no constitutional

defect in the application of the statute to a

litigant, he does not have Standing to argue

that it would be unconstitutional if applied to

third parties in hypothetical _ situations.

Broadrick v. Oklahoma, 413 U.S. 601, 610,

37 L.Ed.2d 830, 93 S.Ct. 2908 (and cases

cited). A limited exception has been

recognized for statutes that broadly prohibit

speech protected by the First Amendment.

(cites omitted)."

Ulster County Court v. Allen, 442 U.S. 140,

154-155, 99 $.Ct. 2213, 60 L.Ed.2d 777 (1979).

6a

Since Section 101.04 does not fall within the First

Amendment exception, appellant must demonstrate that the

Statute was unconstitutionally applied to him.

The testimony from appellant’s trial revealed that the

inspection of the Cowgirl Club took place at 8:30 p.m.

during the regular business hours of the club and during the

hours the club was permitted to serve liquor under the

Alcoholic Beverage Code. See Section 105.01, T.A.B.C.

So, notwithstanding the "at any time" language in Section

101.04, the inspecting officers in appellant’s case chose to

inspect the club during its regular business hours. Therefore,

we conclude that despite the “at any time" language in

Section 101.04 the inspectors in appellant’s case did not

arbitrarily and indiscriminately use Section 101.04 to inspect

or search the club without a warrant. See New York v.

Burger, 482 U.S. at 711, 107 S.Ct. at 2648 (Supreme Court

determined that New York statute placed appropriate

restraints upon discretion of inspectors because inspection

was allowed only "during regular and usual business hours").

Compare Baggett v. State, 722 S.W.2d 700 (Tex.Cr.App.

1987); Nesloney v. State, 711 S.W.2d 636 (Tex.Cr.App.

1986) (statutory language "any place, any time” in Section

47.037 of the Parks and Wildlife Code constitutionally

inadequate to support warrantless searches). Section 101.04

was Clearly not unconstitutionally applied to appellant. See

United States v. Salerno, 481 U.S. at 745, 107 S.Ct. at

2100, 95 L.Ed.2d at 707 (just because a statute might operate

unconstitutionally under some circumstances is insufficient to

render it invalid). Under Broadrick v. Oklahoma, supra,

therefore, we need not reach the question of the facial

validity of Section 101.04, supra.

Accordingly, the judgment of the Court of Appeals is

affirmed.

Ta

McCormick, Presiding Judge

(Delivered June 3, 1992)

En Banc

Publish

Baird and Benavides, JJ., not participating

8a

GEORGE JAMES SANTIKOS, Petition for Discretionary

Appellant Review from the Thirteenth

--- Court of Appeals

NO. 923-88, v.

THE STATE OF TEXAS, (Victoria County)

Appellee

DISSENTING OPINION ON APPELLANT'S

MOTION FOR REHEARING

Because the majority fails to demonstrate that §101.04

meets the criteria laid down by the Supreme Court of the

United States for such "inspection" statutes to pass

constitutional muster in, e.g., Donovan v. Dewey, 452 U.S.

594, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981), and further

explicated in New York v. Burger, 482 U.S. 691, 107 S.Ct.

2636, 96 L.Ed.2d 601 (1987), I respectfully dissent.

Particularly the majority does not, and indeed cannot,

find that this statute constitutes a "constitutionally adequate

substitute for a warrant," Donovan v. Dewey, supra, at 603,

S.Ct., at 2540, L.Ed.2d, at 272; cf. New York v. Burger,

supra, at 710, S.Ct., at 2648, L.Ed.2d, at 619. See

McDonald v. State, 778 S.W.2d 88 (Tex.Cr.App. 1989)

(Clinton, J., dissenting at 91).

CLINTON, Judge

(Delivered: June 3, 1992)

EN BANC

PUBLISH

Maloney, J., joins.

OO

9a

APPENDIX B

OFFICIAL NOTICE June 30, 1992

COURT OF CRIMINAL APPEALS COA # 13-87-00

RE: Case No. 0923-88 393-CR

STYLE: Santikos, George James

the Appellant’s Motion for Rehearing was received

and presented to the Court. Leave to file has been denied.

Thomas Lowe, Clerk

RECEIVED JUL 06 1992

COURT OF CRIMINAL APPEALS

P.O. BOX 12308, CAPITAL STATION

AUSTIN, TEXAS 78711

KEN J MCLEAN

MAIL TQ: 1900 N LOOP WEST SUITE 500

HOUSTON TX 77018