# Petition for A Writ of Certiorari — Santikos v. Texas

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for A Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 999

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1393%3A1. Public record. Not legal advice.