Untitled Texas Attorney General Opinion ( 1959 )

Honorable J. E. Wlnfree, Chairman
Committee on Criminal Juriaprudenoe
House of Representatives
Austin, Texas
Opinion No. WW-611
Re: Conetitutionallty of
Senate B111'444, 56th
Dear Mr. Winfree: Legislature.
You have asked us to expedite our o inion upon
the constitutionality of Senate Bill No. 4E4 which la
now pending before the Committee on Criminal Jurlspru-
denoe of the House of Representatives.
Section 1 of the Act provides as follows:
"Any person who partlolpatea In
or organizes a 'nudist colony' or
'nudist camp' or any person who dls-
plays himself or herself to other
persons In the nude as a member of a
group of persons engaged In such ac-
tivity, commonly called 'nudist camps'
shall upon conviction, be punished by
a fine of not more than Five Hundred
Dollars ($500.00) or by confinement in
the county jail for not mo??ethan one
year, or both such fine and confinement."
Section 1 speaks of "nudist colony" and "nudist
camp". We under&and these to be synonymous terms, ac-
cording to popular usage and understanding, and we
assume that they were 80 used In the Bill.
The terms "nudist colony" and "nudist camp' are not
defined by the Bill and hence, under well established rules
of statutory construction, the ordinary signification must
be applied thereto. Texas Bank & Trust Co. v. Austin, 280
s.w:i61, 115 Tex. 201; Spears v. City of San Antonio, 223
S.W. 166. 110 Tex. 618: Texas & P. S C0. v. a ilroad Com-
mission,-150 S.W. 878,.17.F rex. 366. The terms, according
Honorable J. E. Winfree, page 2 (~~-611)
to their natural, ordinary and popular meaning, denote a
place where the cult or practice of nudism is observed.
(See Webster's new International Dictionary)
In the emergency clause of the Bill the Leglsla-
ture expressly declares that the several nudist camps, al-
leged to be operating in Texas at the present time are having
a damaging effect on the morals of the youth and the State
as a whole.
We believe that the general tenor &the Bill repre-
sents a valid exercise of the police power vested In the
Legislature. Police power Is the power Inherent in a
government to enact laws, within constitutional limits, to
promote the order, safety, health, morals, and general wel-
fare of soclets. Ex Parte White. 198 S.W. 583, 82 Tex.Cr.
85; Marrs V. City o? vxforu, 286U.S. 573; 16-C.J.S., Con-
stitutional Law, Section 174. It comprehends reasonable
preventive measures no less than the punishment of perpe-
trated offenses; and it may act to prevent apprehended
dangers to the safety, morals or well being of ;;eCp;b;ic
as well as to control those already existing.
Constitutional Law, Section 175 and cases cited. Ih the'
object to be accomplished is conduci.reto the public lnter-
eat, a Legislature may exercise a large liberty of choice
in the means emoloved to enforce and exercise its police
powers. Lawton‘v."Steele, 152 U.S. 133; City of B&mingham
v. Monks,'v~T. 2d 859, certiorari denied, 341 U.S. 940.
Ken the subject of legislation falls under the police
powers of the State, activities may be prohibited altogeth-
er. limited as to place and location, or, where operation
is'permltted, may be regulated by rules of conduct. Kelly
v. State, 138 S.W.2d 1075, 139 Tex.Cr. 156; Statg. Bnery,
189 N.W. 564, 178 Wis. 147.
Indecent exposure of the person is a crime denounced
by the common law. 93 A.L.R. 997. The Penal Codes of many
states contain provisions, condemning in varying terms, the
offense. (See Articles 474 and 535~ of the Texas Penal
Code)
In the early case of State v. Rooer, 18 N.C. (1 Dev.
& B.L.) 208 it is said:
"A public exposure of the naked person
is among the most offenselve of those out-
rages on decency and public morality. It
Honorable J. E. Winfree, page 3 (~~-611)
is not necessary to the constitution of
the Criminal Act that the disgusting
exhibition should have been actually
seen by the public; It is enough If the
circumstances under which it was obtruded
were such as to render it probable that
It would be publicly seen, thereby en-
dangering a shock to modest feeling, and
manifesting a contempt for the laws of
decency."
In the early English case of Rex v. Cruden, 2
Compb. 89, 170 Ehg. Reprint 1091, the Court held that
since the necessary tendency of the Act is to outrage
decency and corrupt the public morals, one who commits
it is guilty whatever his intentions may have been.
The consent of the witnesses has been held not to take
away the criminal character of the Act. State v. Martin,
125 Iowa 715, 101 N.W. 637 (1904).
The Courts have displayed a strong tendency to
uphold and enforce the offense as defined by statute,
however, strict or lenient the Legislature might have
been in defining the elements of the offense. This is
aptly Illustrated by the annotation of cases reported
in 93 A.L.R. 996. This constitutes compelling evidence
that the judiciary has recognized, and continues to
recognize, that the offense is a matter affecting the
public morals and that the Legislature Is vested with a
high degree of discretion in le islating upon the subject.
People v. Ring, 255 N.W. 373, 227 Mich. 657, is the first
case, and the only one insofar as we pm ascertain, to
present the question whether the group beliefs or prac-
tices of the offenders will affect the criminal nature of
the Act of exposure prohibited by a statute providing that
any person who shall designedly make any open or indecent
exposure of his or her person, or the person of another,
shall be guilty of a misdemeanor. In that case the opera-
tor of a nudist camp who went about privately without
clothing among both male and female members of the camp on
his own property was held guilty of a violation of the stat-
ute, although the sense of decency, propriety, and morality
of those persons were not offended. The Court said:
"It is clearly shown that the appellant
designedly made an open exposure of his person
and that of others in a manner that Is offen-
sive to the people of the State of Michigan.
.
Honorable J. E Winfree, page 4 (~~-611)
Such exposure Is both open and indecent.
"It Is not necessary that the crime
be particularly well defined. The average
jury, composed of members of the community,
has an instinctive realization of what con-
stitutes a violation of the Act. Instinc-
tive modesty, human decency and natural
self-respect require that the private parts
of persons be customarily kept covered In
the presence of others. People v. Kratz,
230 Mlch. 334, 203 N.W. 114."
The evidence used against the Defendant In the
Rln case, supra, was obtained when officers visited a
nu ist colony operated by the Defendant In what the
-+
Court described as a "more or less secluded location in
the country." The officers visited the camp without a
search warrant, which the Court held to be unnecessary,
and found about fifteen or twenty naked men and women
and children, described by a neighboring property owner
as "cavorting around", some on the bank of a creek and
others engaged in harmless amusements such as volley
ball. The group consisted of the Defendant, his wife,
and two children, six other couples who were married,
three unattached men, and two other children.
The Court held that the acts of the Defendnat fell
within the prohibition of the statute, since the people of
Michigan had decreed that it shall be Illegal for anyone to
designedly make any open or Indecent or obscene exposure of
his or her person or the person of another. The exposure
was still Illegal even though it occurred in a nudist colony
in the presence of only those who belonged to the cult and
who were also nude.
The basic dootrine of the Rin case was reaffirmed
by the Supreme Court of Michigan,-9 y a divided Court, as
late as September, 1958. People v. Hildabrldle, 92 N.W.2d
6. See also People v. Burke, 276 N.Y.S. 402 (1934) wherein
the Supreme Court of New York gives apparent recognition to
the authority of the Legislature to enact laws prohibiting
nudist camps.
We believe that the reasoning of the Supreme
Court of Michigan in the Rin_gcase together with the 2x-
pressions from cases of other jurisdictions which we have
cited sustain the constitutional validity of Senate Bill
Honorable J. E. Winfree, page 5 (~-611)
444. The Bill prohibits that conduct which the Legislature
of Texas in the exercise of its police power for the pro-
tection of the morals and well being of the people of Texas,
is authorized to either regulate or prohibit.
The Attorney General's office will upon request make
available to both the committee and the author of the Bill
suggestions which may clarify the Bill. Such suggestions
are the result of our examination of the statutes of other
states.
SUMMARY
Senate Bill 444 constitutes
a legitimate exercise of the
police powers of the State
and hence is constitutional.
Yours very truly,
WILL WILSON
Attorney General of Texas
Leonard Passmore
Assistant
LP:rm
APPROVED:
OPINION COMMITTEE
Geo. P. Blackburn, Chairman
Paul W. Floyd, Jr.
Dean Davis
James Daniel McKeithan
REVIEWED FOR THE ATTORNEY GENERAL
BY: W. V. Geppert