State ex rel. Shook v. All Texas Racing Ass'n

GERMAN, Commissioner. In motion for rehearing we are called upon by plaintiff in error to hold that the clause in article 4664 of the Revised Statutes 1925 reading as follows, “or where persons resort for the purpose of gambling,” should be construed to include any place where persons resort for betting or wagering upon “anything whatever,” whether expressly prohibited by provisions of the Penal Code or not. In other words, we are called upon to say that the word “gambling” in said article should be given a general and comprehensive meaning, such as it sometimes had at common law, and be made to include betting or wagering upon any matter or event involving an element of chance, and should not confine the meaning to betting upon some game or event “prohibited by law.” We think the reasoning of the Court of Criminal Appeals in the case of Thomas v. State, 91 S. W.(2d) 716, construing almost identical language in article 625 of the Penal Code, leads to a contrary view. We therefore hold that the premises sought to be declared to be a nuisance in this action was not constituted a nuisance because people resorted thereto for betting on dog races, in view of the fact that the Legislature has not defined betting on dog races as “gambling” and affixed a penalty for doing so. The motion of the relator for rehearing is overruled. Opinion adopted by the Supreme Court.