Honorable J. E. Wlnfree, Chairman

Committeeon Criminal Juriaprudenoe House of Representatives Austin, Texas OpinionNo. WW-611
Re: Conetitutionalltyof Senate B111'444, 56th Dear Mr. Winfree: Legislature.

You have asked us to expedite our o inionupon the constitutionalityof Senate Bill No. 4 4 which la E now pendingbefore the Committeeon Criminal Jurlsprudenoe of the House of Representatives.

Section 1 of the Act provides as follows: "Anyperson who partlolpatea In or organizes a 'nudistcolony' or 'nudistcamp' or any person who dlsplays himself or herself to other persons In the nude as a member of a group of persons engaged In such activity, commonly called 'nudistcamps' shallupon conviction,be punishedby 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 "nudistcolony" and "nudist camp". We under&and these to be synonymousterms, according 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 definedby the Bill and hence, under well establishedrules of statutory construction,the ordinary significationmust 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. ailroad Comrex. 366. The terms, according mission,-150 S.W. 878,.17.FHonorable J. E. Winfree, page 2 (~~-611)

to their natural, ordinary and popularmeaning, denote a place where the cult or practice of nudism is observed. (SeeWebster's new InternationalDictionary)
In the emergency clause of the Bill the Leglslature expressly declares that the severalnudist camps, alleged to be operating in Texas at the present time are having a damaging effect on themorals of the youth and the State as a whole.

We believe that the general tenor &the Bill represents a valid exercise of the police power vested In the Legislature. Policepower Is the power Inherent in a government to enact laws,within constitutionallimits, to promote the order, safety,health,morals, and general welfare of soclets. Ex ParteWhite. 198 S.W. 583, 82 Tex.Cr. 85; Marrs V. City o? vxforu, 286U.S. 573; 16-C.J.S., ConstitutionalLaw, Section 174. It comprehendsreasonable preventivemeasures no less than the punishment of perpetrated offenses;and itmay act to prevent apprehended dangers to the safety,morals or well being of ;;eCp;b;ic as well as to control those already existing. ConstitutionalLaw, Section 175 and cases cited. Ih the' object to be accomplished is conduci.re to the public lntereat, a Legislature may exercise a large liberty of choice in themeans 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, certioraridenied, 341 U.S. 940. Ken the subject of legislationfalls under the police powers of the State, activitiesmay be prohibitedaltogether. limited as to place and location, or, where operation is'permltted,may be regulatedby rules of conduct. v. State, 138 S.W.2d 1075, 139 Tex.Cr. 156; Kelly Bnery, 189 N.W. 564, 178 Wis. 147. Statg.

Indecent exposure of the person is a crime denounced by the common law. 93 A.L.R. 997. The Penal Codes of many states containprovisions, condemning in varying terms, the offense. Code) (SeeArticles 474 and 535~ of the Texas Penal

In the early case of State v. Rooer, 18 N.C. (1Dev. & B.L.) 208 it is said:

"Apublic exposure of the naked person is among the most offenselve of those outrages on decency and publicmorality. ItHonorable J. E. Winfree, page 

### 3 (~~-611)

is not necessary to the constitution of the CriminalAct that the disgusting exhibition shouldhave been actually seenby the public; It is enough If the circumstancesunder which it was obtruded were such as to render it probable that It would be publicly seen, thereby endangering 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 Courtheld that since the necessary tendency of the Act is to outrage decency and corrupt the publicmorals, one who commits it is guilty whatever his intentionsmay have been. The consent of the witnesseshas been held not to take away the criminal character of the Act. Statev. Martin, 125 Iowa 

### 715, 101 N.W. 637 

### (1904). The Courtshave displayed a strong tendency to uphold and enforce the offense as definedby statute, however, strict or lenient the Legislaturemight have been in defining the elements of the offense. This is aptly Illustratedby the annotation of cases reported in 93 A.L.R. 

### 996. This constitutes compelling evidence that the judiciaryhas recognized,and continues to recognize, that the offense is a matter affecting the publicmorals and that the Legislature Is vested with a high degree of discretion in le islatingupon the subject. People v. Ring, 255 N.W. 373, 2 

### 7 Mich. 

### 657, is the first 2 case, and the only one insofar as we **pm** ascertain, to present the questionwhether the group beliefs or practices of the offenderswill affect the criminalnature of the Act of exposureprohibitedby a statuteproviding that any person who shall designedlymake any open or indecent exposure of his or her person, or the person of another, shallbe guilty of a misdemeanor. In that case the operator of a nudist camp who went about privatelywithout clothing among both male and femalemembers of the camp on his own propertywas held guilty of a **violation** of the **stat** ute, although the sense of decency,propriety, and morality of those personswere not offended. The Court said:

"It is clearly shown that the appellant designedlymade 

### an open exposure of his person and that of others in a manner that Is offensive to the people of the State of Michigan..

Honorable J. E Winfree, page 4 

### (~~-611)

Such exposure Isboth open and indecent.
"It Is not necessary that the crime be particularlywell defined. The average jury, composed ofmembers of the community, has an instinctiverealization of what constitutesa violation of the Act. Instinctive modesty,human decency and natural self-respectrequire that the private parts of personsbe customarilykept covered In the presence of others. Peoplev. Kratz, 230 Mlch. 

### 334,203 N.W. 

### 114." The evidenceused against the Defendant In the

-+ Rln case, supra,was obtainedwhen officers visited a nu ist colony operatedby the Defendant In what the Court described as a "more or less secluded location in the country." The officersvisited the campwithout a searchwarrant, which the Courtheld to be unnecessary, and found about fifteen or twenty nakedmen and women and children,describedby a neighboringproperty owner as "cavortingaround", 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 coupleswho were married, three unattachedmen, and two other children. The Courtheld that the acts of the Defendnat fell within the prohibition of the statute, since the people of Michigan had decreed that it shallbe Illegal for anyone to designedlymake 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 thosewho belonged to the cult and who were also nude.

The basic dootrine of the Rin casewas reaffirmed by the Supreme Court of Michigan, -9 late as September, 

### 1958. y a divided Court, as Peoplev. Hildabrldle, 92 N.W.2d 

### 6. See also Peoplev. Burke, 

### 276N.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 togetherwith the 2xpressions from cases of other jurisdictionswhich we have cited sustain the constitutionalvalidity of Senate BillHonorable J. E. Winfree, page 

### 5 (~-611)

444. The Bill prohibits that conductwhich the Legislature of Texas in the exercise of its police power for the protection of themorals and well being of the people of Texas, is authorized to either regulate or prohibit.

The AttorneyGeneral's officewill upon requestmake available to both the committee and the author of the Bill suggestionswhich 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 AttorneyGeneral of Texas

Leonard Passmore Assistant
LP:rm
APPROVED:
OPINION COMMITTEE Geo. P. Blackburn, Chairman PaulW. Floyd, Jr. Dean Davis James Daniel McKeithan
REVIEWED FOR THE ATTORNEY GENERAL BY: W. V. Geppert