Baumgart v. State
2017 Tex. Crim. App. LEXIS 223
| Tex. Crim. App. | 2017Background
- Appellant worked as an unlicensed security guard and was indicted under Occupations Code § 1702.388 for acting as a guard company without a license.
- Appellant moved to quash/dismiss, arguing the indictments failed to negate statutory "exceptions" (primarily that he was a law enforcement officer) found in the Private Security Act’s Subchapter titled "Exceptions."
- Trial court denied relief; appellant was convicted and appealed. The court of appeals affirmed, applying the pre-Penal-Code common-law rule (as stated in American Plant Food Corp.) that an exception need not be alleged if it is in a separate section and a prima facie case can be made without negating it.
- Appellant argued Penal Code § 2.02(b) requires the State to negate exceptions in indictments and that § 2.02 supersedes the common law; the State argued § 2.02 codified the common law or that the Private Security Act’s wording did not meet § 2.02(a)’s labeling requirement.
- The Court of Criminal Appeals analyzed statutory construction, the common-law rule on exceptions, Penal Code §§ 2.02 and 2.03(e), and the structure and wording of the Occupations Code provisions at issue.
- The Court held the Private Security Act non-applicability provisions (Subchapter N) are defenses—not exceptions—because they are not plainly labeled as exceptions under Penal Code § 2.02(a), and § 2.03(e) treats unlabeled defensive matters in penal laws as defenses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether statutory non-applicability provisions in the Private Security Act are "exceptions" that the State must negate in the indictment | Appellant: § 2.02(b) requires prosecution to negate exceptions; the Act’s "does not apply" provisions are exceptions that must be pled | State: § 2.02 codified common law or the Private Security Act provisions are not exceptions because they do not use § 2.02(a)’s labeling phrase | Held: The Subchapter N "does not apply" provisions are defenses, not exceptions, because they do not use the § 2.02(a) labeling and § 2.03(e) treats unlabeled defensive matters as defenses |
| Whether Penal Code § 2.02 supersedes the older common-law rule on pleading exceptions | Appellant: § 2.02 changed law and requires negation of exceptions in indictments | State: § 2.02 merely codifies the common law (or does not apply to these provisions) | Held: § 2.02 and § 2.03(e) govern; unlabeled defensive matters are defenses; common-law outcome would also have been unfavorable to appellant |
| Whether § 2.02(a)’s phrase requirement applies outside the Penal Code to other ‘‘penal laws’’ | Appellant: labeling requirement limited to "this code" so Private Security Act defenses should remain exceptions under common law | State: § 2.03(e) and § 1.03(b) bring Chapter 2 rules to offenses outside the Penal Code | Held: § 2.03(e) applies to penal laws outside the Penal Code; unlabeled matters outside the Penal Code are defenses under § 2.03(e) |
| Whether the State had to allege the defendant was not within any Subchapter N category to make a prima facie case | Appellant: prima facie case requires negating those categories | State: elements alleged in §§ 1702.102, 1702.108, and 1702.388 suffice; Subchapter N concerns matters within defendant’s knowledge | Held: Prima facie case can be made without negating Subchapter N; those matters are typically within defendant’s knowledge and thus are defensive |
Key Cases Cited
- American Plant Food Corp. v. State, 508 S.W.2d 598 (Tex. Crim. App. 1974) (articulated the common-law rule that an exception in a separate section need not be negatived when a prima facie case can be made)
- Blasdell v. State, 5 Tex. App. 263 (Tex. Ct. App. 1878) (early authority treating statutory provisos/exceptions as matters of defense not required to be alleged)
- Baker v. State, 106 S.W.2d 308 (Tex. Crim. App. 1937) (explained exception must be negatived if the offense cannot be proved without negating the exception)
- McKnight v. State, 278 S.W.2d 150 (Tex. Crim. App. 1955) (held exceptions in separate articles need not be negated in the indictment)
- Salazar v. State, 423 S.W.2d 297 (Tex. Crim. App. 1968) (held exemptions to firearm-possession statute were defenses, not elements to be negated in the indictment)