Aguirre v. State

AGUIRRE, Appellant, D. Teresa of Texas.

The STATE

No. 0580-98. Texas,

Court of Criminal

En Banc.

Sept. Rehearing

As on Denial of Modified 8, 1999.

Dec. Paso, Medrano, appel- El for

Enrique N. lant. Paso, Atty., M. El Fleming, City

H. Austin, Paul, Atty., Matthew State’s State.

I. City A 1987 ordinance of El of the Paso J., WOMACK, delivered the opinion “own, it a offense made misdemeanor Court, McCORMICK, P.J., in which operate or in any conduct business KELLER, HOLLAND, bookstore, adult motion picture adult the- JJ., KEASLER, joined, and in I and Parts ater or nude live club” entertainment with- PRICE, J., II of joined. which thousand certain one feet of kinds of property.1 The issue in this case is a culpa- whether ble required evidence, mental state is in an ordi- According to stipulated nance, businesses, regulates city inspectors which adult Lounge two entered Aldo’s and that is about August silent whether a and found that it was required. mental conducting state is that it We hold business as a “nude live enter- is. club tainment that was located within one 1. “Adult Supervises manages Businesses "e. per- or other own, performance person any sons of the operate “A. No shall or con- fore- bookstore, any duct in an going premises. business adult adult activities on the business picture motion theater or nude entertain- live "2. Entertainment. ment club within one thousand of the feet "Any performance, act or play, such as a following: skit, revue, scene, reading, pantomime, song, church; "1. A dance, tease, strip musical rendition or private public elementary "2. A or or performed by employees, agents, whether school; secondary or contractors customers. term enter- school, nursery kindergarten, “3. A bartenders, waiters, tainment shall also mean center, day nursery day child care center; care or employees exposing speci- waitresses or other engaging specified fied anatomical areas or university, college, "4. A vocational or presence sexual activities in the of customers. school; business boundary any "5. A dis- residential bookstore, Any pic- "D. adult adult motion trict; ture theater or nude live entertainment club park public adjacent "6. A to a residen- lawfully February in existence on district; tial compliance zoning provi- and not property "7. The line of a lot devoted to Code, use; City of the sions shall be deemed a any residential bookstore, nonconforming comply use and with all shall "8. Another adult mo- adult picture provisions zoning tion regulat- theater or nude live entertain- of the of the code ment club. ing by February such uses 1988. In the section, purposes "B. For of this the fol- any being such case of uses located within lowing apply; shall definitions other, one thousand feet of the use each first ‘ Any T. Conduct Business. continually operating established and shall be "Any person any who does one or more location, operate allowed at its following shall be to be con- deemed complies provisions other such use with all ducting business: zoning code. Operates register, “a. a cash cash draw- depository er or other on the business adult regulations zoning "F. in this code of premises where cash funds or records of bookstores, picture adult adult motion the- gen- credit card other credit or transactions and nude live clubs are aters entertainment by any operation erated in manner to be land controls meant to intended use conduct- establishment or the activities secondary regulate the harmful effects kept; ed therein are only, being uses and shall not be construed as Displays any "b. or takes orders sexually intended to limit adults to access merchandise, any goods, customer for en- material, expression, activity pro- or oriented tertainment or other services offered on the by tected First Amendment of United premises; adult business States Constitution.” El Paso provides any "c. Delivers customer § 20.08.080. merchandise, goods, entertainment or punishable A violation of the ordinance other services offered on the adult business $2,000. fine not to exceed Id. premises; regulate "d. a door Acts as attendant to 20.68.010. entry persons of customers or other into premises; business appoint pros- a state appeals shall ... [S]everal thousand feet of a school. all the state exposing attorney ... were employees ecuting female of their buttocks. their breasts most the court.” We proceedings all before in a employees persons “all,” All known lit- emphasized the word managerial were capacity cited” attorney prosecuting erally gives the state inspectors.2 complaint The in the munici- every in authority to the State represent alleged appellant: pal court that authority could case in this Court. That ... in unlawfully did conduct business law. only by specific some more be limited at 3802 establishment situated by Judge infers such a limitation Johnson known the name of by PERSHING est unius “expressio the maxim applying club) (a nude live entertainment ALDOS if 42.005. But alterius” to Section exclusio that within thousand was located one understood, the correctly 42.005 is Section school, feet A to wit: ST. JOSEPH’S of: against maxim conclusion. cuts SCHOOL; Said defen- PAROCHIAL 42.005 is a 1981 source of Section The on said dant entertainment a constitutional implemented act which exposing adult premises by business appeals the courts of gave amendment that area”, “specified anatomical as that term 1981 jurisdiction in cases.4 The in of the El criminal is defined Section 20.02.764 prosecuting attor- Paso Code. act the state [Punctuation sic.] continued in represent the State ney’s authority to munici- Conviction and a fine in the $500 of proceedings all before the Court Crimi- by to the pal appeal court were followed which is now authority nal an Appeals, municipal appeals, court of which af- of in first sentence Govern- codified Appeals firmed.3 The Eighth Court of 42.001(a). act The ment Code Section dis- complaint reversed ordered au- attorney gave prosecuting the state allege missed because did State, assistance to district thority provide Aguirre mental v. 978 state. 1998). representing in the State county attorneys (TexApp. S.W.2d 605 Paso We —El granted discretionary appeals request- when review. before the courts county district or attor- ed to do so II. ney; codified in Gov- authority now a dissenting opinion says the Since 42.005(a). act ernment Code Section discretionary should be petition for review prosecuting the state made it clear that prosecuting dismissed because state authority appear in the attorney’s (see file it attorney “standing” lacks appeals dependent is not courts of clarify authority of post), pause we county attorney: request from a district prosecuting attorney petition the state Prosecuting Attorney may also “The State discretionary in review a case such as stage in of a crimi- represent the State this. nal before the Courts case when, judgment, in his the interests As the first sentence Government now states, require.” That sentence is “The court of State so 42.001 Section citations, group Aguirre in v. the federal courts See other another inspectors (Tex.App. which the issued at Aldo’s citations Paso 606 n. — El 6, 1988, appeals Paso, on companion led to in fourteen October 1998), (citing City El Woodall Ap- cert, cases which Court of denied, (5th Cir.), 516 U.S. F.3d peals of the com- also ordered dismissal (1995)). 133 L.Ed.2d 116 S.Ct. discretionary plaints. granted We have re- cases, disposed view of those which will be 8, 1981, R.S., Leg., ch. of June 67th 4.See Act judgment this case. with the accordance Tex. Gen. Laws Act, municipal appeals 3. The from the court to the Government Code repealed the Title municipal appeals court abated for were chapter 69th nearly years businesses five while affected Tex. Gen. Laws 1921-22. unsuccessfully prosecuted civil-rights actions codified as the second sentence of appeals Govern- convictions 42.001(a). ment Code Section prosecuted court of record must appellate appeals, the court of or the said, The 1981 act also “District and court of appeals city attor- county attorneys may provide assistance to ney or an city attorney.” assistant the state prosecuting attorney in repre- dissent would hold this section de- senting the State before the Court of prives the state prosecuting attorney of Appeals.” Criminal That sentence is now authority codified in Government Code Section appeals courts of in this Court. We 42.005(b). gives Since the act district and think proper construction this sec- county attorneys, but not attorneys, tion requires history appreciation authority to assist the state prosecuting jurisdiction. of the municipal court’s attorney in representing the State before context, the historical Section 30.00145 Court, “expressio the maxim unius est another in a series of statutes which divide exclusio suggest alterius” would city the prosecutorial authority of the State attorneys are not authorized even to assist between municipal attorney the and the the state prosecuting attorney in this county attorney or attorney. district Court, much usurp less prose- the state cuting attorney’s general authority to rep- of required Texas Constitution resent the State in all cases in this Court. having population cities and towns specific

There is a of ten statute which must thousand or less could be be chartered Act,5 only considered: the El Paso by general By implication, Courts law.7 cit- 30, which is Chapter be, now as ies with larger populations codified Sub- could and chapter were, D of the special Government Code. The by leg- chartered acts of the Act created municipal courts of record legislative and islature. The charters (or municipal court of appeals City the of courts or mayors recorders who El Paso. The of purpose the Act acted judges). city’s was to Each had court change appeal jurisdiction the method against of from convic- city of offenses ordi- tion in the court. municipal The normal nances. gave city Some charters also for trial de appeal to the court county jurisdiction courts of certain offenses replaced novo6 was by appeal against law, concurrently state with the justice record to a court municipal appeal. of county courts or even with the Act says Section 30.00145 of the that “all court.8 gave Some charters also city 1983, 19, R.S., Act Leg., 5. of June 68th example, ch. 8.For City the charter of the of 685, 4290, repealed by 1983 Tex. Gen. Laws gave police city Waco court "the of the 2, Act, the Title Leg., Government 69th jurisdiction Waco ... only a criminal as fol- R.S., 480, 26, § ch. Gen. Laws lows: 1720, 2048, id., 480, 1, by chap- § ch. codified jurisdiction "... To have concurrent 30, B, subchapter ter 1985 Tex. Gen. Laws justice county courts over all 1720, mis- arising under the demeanors criminal laws county appellate jur- 6. "The courts shall limits, within which justice isdiction in criminal cases which punishment only, fine or fine or original courts and other inferior courts have both; theft, imprisonment, except or jurisdiction." Tex.Code Crim. Proc. art. 4.08. embezzlement, swindling, and those involv- appeals county “In all jus- to a court from misconduct; ing mayor official and the tice courts and courts other than judge of said court shall in addition also be record, municipal courts the trial shall be peace possess ex-officio Justice of de county novo in the trial in cases, city, execute in the prosecution same as if the had been originally powers all the and duties of a Justice of the Id., commenced in that art. court.” 44.17. peace.” Leg., Act of March 22d XI, R.S., 12, 1, (amended 15(15), § 7. See Tex ch. art. sec. 1891 Tex. Const, 1920). & Spec. The 1909 amendment reduced the population maximum five thousand. See R.S., Leg., 31st S.J.R. cases? prosecute the brought? of- Who would jurisdiction of certain courts exclusive last persisted through all provi- These issues against law.9 These fenses state They century. consti- of the nineteenth questions” “vexed decade sions created only after the constitution create were resolved law.10 tutional Could amended, enacted, and a statutes were have con- was the courts such courts? Could was of this Court overruled jurisdiction against decision current offenses the state’s a conflict between jurisdiction? eliminate state laws? Exclusive courts.11 prosecution highest whose name would giv- justice an ex constitute the recorder example, City the Dallas Court was 9. For officio Knox, (Tex. peace. parte Ex S.W. 670 disorderly jurisdiction en "exclusive over Cr.App.1897). vagrants.” of March houses and female Act R.S., 1, Supreme opposite Court reached the Leg., ch. 1889 Tex. 21st Stewart, County 91 Tex. conclusion. Hams Spec. Fort Court Laws 31. The Worth 137-47, over, 41 S.W. 653-57 given jurisdiction was "exclusive that, Supreme of its Court said because Sunday between violation of laws [sic ] Towles, lawyers holding in the "courts and night Saturday hours of 12 o’clock jurisdiction trouble as to were constant morning Sunday o’clock and between courts, greatly the ad- embarrassed p.m. Sunday and 12 o’clock hours o’clock justice,” and that the constitu- ministration April 22d Sunday night.” Act of pur- been in 1891 "for the tion had amended Spec. sec. 1891 Tex. ridding the which pose of the state of incubus 9, Laws 9-10. [holding upon of had saddled it.” ] the Towles 246, 141-42, 242, Supreme Swayne, 41 S.W. at 655. The 10. See Jackson v. 92 Tex. Id. at Coombs, 711, (1898); the 1891 parte 47 Ex 38 concluded that amendment S.W. 712 Court 655, 648, 854, jurisdiction placed subject "at the Tex.Crim. 44 S.W. 857 had the of Davidson, J.). disposal (opinion complete of the as far as of - 142, 41 courts concerned.” Id. at inferior are way, origin In a of was the the confusion 655. Therefore the recorder of the S.W. at Towles, (1877), parte Ex 48 Tex. 413 in which jurisdiction City of Houston had of offenses Supreme the an Court held unconstitutional against state law. county- giving any in an act voter election for 1891 to which the Su- amendment right appeal the an seat to election contest para- added a second preme Court referred the the district commissioner’s court to V, 1 of graph to Article Section the Constitu- judicial system court. The Court said that the may' Legislature "The establish such tion: 1876 was established in the Constitution of may necessary deem and courts it other as “complete” "permanent, subject and and not prescribe thereof, jurisdiction organization the change Legislature, action of the the jurisdiction the of conform except change may provided as a have been inferior thereto.” the district and other courts appeal for.” Id. Since from the at 439. Appeals promptly Court of Criminal the court was commissioner’s court to district the Su- reconsidered the amendment and Constitution, act not for in the it, held preme Court's construction of creating appeal was such an therefore uncon- permit again the did not the that Constitution stitutional. jurisdiction give city court of legislature to v. applied reasoning against law. Coombs the an offense state The Court of State, (opinion City 44 S.W. legislative the 38 Tex.Crim. 854 of Towlesto the charter for Davidson, Worth, J.), (opinion gave city ex- 47 S.W. of Fort the court Henderson, J.) (1898); parte Fagg, Ex jurisdiction the state clusive of violations of (1898). "Sunday April S.W. 294 laws.” See Act of Crim. provision comprehensive statute was enact- supra Court the In 1899 note held give municipal create courts and to diminish ed to unconstitutional because would procedures. justice jurisdictions uniform jurisdiction the them the constitutional April 26th peace way provided for in Act of the courts in a not State, emergency 40. In the 30 Tex. Tex. Gen. Laws the Constitution. Ginnochio v. act, (1891). Legislature of the the found App. the Court clause 18 S.W. Then great con- exists doubt and confusion Appeals held char- "there of Criminal that the same city cerning jurisdiction of courts constitutionally give the ter could the Id., § Gen. 1899 Tex. jurisdiction con- now established.” of state law violations court gave municipal courts justice at 44. The act peace courts. current with the the (It against state law. jurisdiction S.W. 471 of offenses 36 Tex.Crim. Leach Likewise, authority duty and prescribed the the also the Court held text, below.) in the prosecute, as is discussed charter could of the Galveston court, The statute are considering prosecutions that we ad- That all in said questions dresses one of the in- was whether ordinance under an or under volved the nineteenth-century dispute: provisions the of the Penal Code ... who prosecute city should In court? shall city attorney conducted 1897 the confusion law was such that of such or city, village, town his County attorney Tarrant and the deputy; county attorney but the of the attorney Forth city ap- Worth were both county city, village in which said town or court, pearing corporation vying for desires, may, situated if he so also the right prosecute against offenses represent of Texas in State city state law.12 In attorney Houston prosecutions, but in all such cases the appeared, county but the refused to pay said county attorney shall not be entitled him for such cases prosecuting when stat- receive or other compensa- fees required payments utes of fees for like whatever, services, tion for said and in justice services in In ensuing courts.13 county no case shall said attorney litigation, highest courts the state power any prosecu- to dismiss opposite jur- reached conclusions about the tion pending in said unless for isdiction of courts.14 approved by reasons filed and the re- The next legislature prob- addressed the corder of court. said create, lem. A statute enacted to was provision, The substance of this like that of town, city, each village, corporation act, many provisions other jurisdiction court. addition of crimi- still in effect.16 ordinances, nal arising cases under togeth When this statute is read corporation jurisdiction, given courts were gives er with the statute that county concurrent with justice peace, arising attorney duty under cases state law.15 Section 8 of all provided: grade the act criminal cases in below the courts Procedure, constitutionality The of the act was of the in doubt Code of Criminal and which says complaint

until this Court that the the decided Constitution court in which the is first permitted jurisdiction jurisdiction. of state filed retain offenses to be shall given municipal parte to in courts the act. Ex (Tex. Swayne, 12. See Jaclcson v. 45 S.W. 619 514, Wilbarger, 41 Tex.Crim. 55 S.W. 968 dism’d, Worth), Civ.App. rev’d and Accord, Hart, (1900). parte Ex 41 Tex.Crim. — Fort 242, (1898). Tex. 47 S.W. 711 581, (1900). 56 S.W. 341 This decision was contrary to the Court’s decision in earlier Stewart, 13. County See Harris 91 Tex. supra, Leach v. and later the Court (1897). 41 S.W. 650 expressly parte overruled Leach. See Ex Abrams, 56 Tex.Crim. 120 S.W. 883 (1908). supra 14. See note 11. Wilbarger reserved the of Court issue constitutionality the that section of of the act April 15. Act of 26th ch. county attorneys prosecute that authorized to §§ Gen. 1 & 1899 Tex. 40-41. municipal in further that courts and they nothing their take for services. See 41 municipal prosecutions 16. All court shall Tex.Crim. at S.W. at 971. But the by city attorney be conducted the of such attorney authority county appear of to in a city, deputy. village, town or or his municipal prosecute court to under state law county attorney county of the in which said ibid; Greer, seems clear. See Howth v. city, desires, village may, town is situated if he or so (1905, Tex.Civ.App. S.W. writ represent the State in such also ref'd) (also constitutionality cases, upholding prosecutions. In such the said coun- provision). the no-fee ty attorney be entitled to receive shall not upheld Court compensation 1899 act which this ad- any fees or other whatever questions but county attorney dressed all the one: which for said shall services. The complaints jurisdiction power any prosecution court has when are to dismiss no municipal justice pending filed in both court and unless for in said court reasons judge. approved by in 1903 filed and court? This was resolved enact- 45.03. ment of the statute which is now Article 4.16 Crim. Proc. art. Tex.Code we court,17 torney this Court. Therefore con- responsibility and district attorney prosecuting clude that state municipal court authority prosecutions for for municipal city petition is In the court has to Court authority clear: right appeal and review of an from a attorney duty prose- discretionary has the to cute, county attorney municipal has the of record. court right, duty, prosecute. not a In the but history also We that this refutes observe county attorney has the county argument prosecutions the dissent’s right duty duty prosecute, and this affect out- municipal “do not areas courts duty prosecute appeals includes and so municipality do not side municipal from court.18 ” Post impact ‘the interest of the state.’ of the Section 30.00145 Government as this ordinance creates a 481. Insofar Code, when Munici- which was enacted offense, only has an El was pal Court of Paso made a court interest; paramount. interest its Paso, record, attorney El city gives was in 1899. Before that county attorney, rather the au- This settled than time, prosecute attempted create thority duty appeals and the judicial power, cities with own vested municipal court record. This their judicial is a of the departure general part from the division of courts that were not responsibilities authority branch of government.19 that was es- state Prosecu- courts years a hundred we tions were ago, tablished some change purpose brought, authority think this is the “In the name and Section city,” in the name light history process 30.00145. of the of the issued law, city.20 do think was of the This held we Section 30.00145 Court to, to, should be unconstitutional usurp provisions intended read were the authority prosecuting prosecutions of the state at- violations of state laws.21 attorney Spec. county 1891 Tex. "The shall attend the sec. Laws 9 county ("The grade terms of court in his judicial power below the of Fort Worth cotut, of district and shall the State hereby vested in a shall and the same in all criminal cases under examination or City Court to Court”). as the Fort Worth be known prosecution county in said ...." Tex.Code Crim. Proc. art. 2.02. Dallas, e.g., Incorporating Act Op. Att'y No. Gen. WW-1302 R.S., 1, 27, Leg., § Spec. 1889 Tex. 21st ch. 1987, legislature act of the an amended 1, ("All process Laws of said court shall run the Article 45.03 of Code of Criminal Proce- Dallas”); Act city the of Incor- name of that, "With the dure to allow of the consent Worth, R.S., Leg., porating City 21st of Fort county attorney, appeals municipal from 64, 5, 26, ("All court, Spec. law, § Laws ch. 1889 Tex. county county a court to court at city prosecutions the prosecuted for violation of ordi- any appellate by or be court by name city attorney deputy.” the 20, nances carried on in the and or his Act of June shall be R.S., 1987, 923, 1, Worth,’ Leg., authority city § ch. 70th 'The of Fort and of This permits, dignity Tex. Gen. Laws 3113. act but ‘Against peace the of the conclude require, city attorney ”); 3, 1891, R.S., does not to assume Leg., city’ April 22d Act of attorney’s duty county prosecute ap- 8, 1, 28, 9, Spec. § ch. 1891Tex. Laws sec. peals municipal court. from the ("All process court shall run in the of said City authority by name and of of Fort See, e.g., Leg., Act of March 21st against peace Worth and shall conclude R.S., ("The Spec. ch. 1889 Tex. Laws 31 dignity city”). of the be, judicial power city of the of Dallas shall hereby same is vested a to be in court State, 253-54, 21. Leach v. 36 Tex.Crim. Court”); as the Dallas Act of known require- The S.W. 473-74 R.S., Leg., 22d March prosecutions be carried in ment that all on 15(15), Spec. 1891 Tex. sec. of Texas was deleted the name of the State ("The powers city judicial of the of Waco shall V., § in from 12 of the Constitution article hereby be vested in a court to and the same of It in 1.23 the Code police remains article court known as 3, 1891, Waco”); April of Criminal Act of 22d Procedure. (b) purposes of the constitutional amend- does If definition of offense state, prescribe ment a legislation culpable of 1891 and the of 1899 mental a culpable mental state is nevertheless re- corporation created courts were to quired plainly unless the dis- make it clear that municipal courts were definition penses any with [Em- mental element. creatures of the and that prosecutors State phasis added.] authority those courts acted with the (c) If the Accordingly the State.22 definition of an offense does legislature state, prescribe culpable mental municipal prosecutions decided that all but one is nevertheless under required “In by authority would be the name and (b), intent, Subsection knowledge, or the State of It Texas.”23 continues to be that, recklessness suffices to establish crimi- the law “All prosecutions shall be responsibility. nal carried ‘in by authority the name and (d) Texas’, conclude, ‘against Culpable mental states are classi- ” State,’ peace according degrees, fied to relative dignity (1) lowest, highest every as follows: inten- specifically including munici- (3) (4) tional; reckless; knowing; pal courts and the municipal court of rec- negligence. criminal El ord of Paso.24 (e) higher degree culpa- Proof of a by To enforce an ordinance means other bility than that charged constitutes than prosecution, criminal a home-rule mu- proof of culpability charged. nicipality may bring civil action.25 But a 6.02, Section which is in Title 2 of the brought criminal action is to enforce the Code, Penal is made to munici- applicable interest. State’s 1.03(b): pal by ordinances Section “The provisions of Titles and 3 apply III. laws, offenses defined other unless the issue this case is resolved statute defining provides the offense other- ” application of Section 6.02 of the Penal .... Honeycutt wise Code: 417, 422 (Tex.Cr.App.1982). (a)Except provided in Subsection Therefore a mental re- state is

(b). person ordinance, does not commit an offense El quired for the Paso even he intentionally, knowingly, one, unless reck- though prescribe it does not unless lessly, negligence en- plainly the definition of the offense dis- gages conduct as the definition of the penses with mental element. See Pe- 6.02(b).26 requires. nal offense Code 30.00133(a) very why ("Proceedings [El 22. This is the reason this Court upheld constitutionality municipal courts of record must be Paso's] question, "In the we take complaint begins: courts. view of this commenced 'In ], the the in the exercise of its by authority [sic name and of the State Texas,' concludes; powers, properly constitutional created cor ‘Against peace cities, [sic], poration ”), courts for town repealed by dignity of the State of Texas’ state, villages 18, 1999, R.S., 691, in this and authorized such Leg., Act of June 76th ch. cities, villages adopt 3263, 139(3), towns and such § 1999 Tex. Gen. 3290. act, This was creative courts. done requirement pleadings for 1.23 article merely by attempting jurisdic not to confer applicable is now to all courts of upon municipal parte 18, 1999, tion courts." Ex Wil See Act June 76th record. 514, 520, 968, barger, 691, 41 Tex.Crim. 55 S.W. 1, 30.000126, sec. 1999 (1900). 971 Gen. Laws 1, 1899, April supra 23. Act of note 54.012(8). 25. See Tex. Local Gov’t Code 1899 Tex. Gen. Laws at 42. State, Honeycutt v. 627 S.W.2d at 423- (punctuation art. Tex.Code Crim. Proc. 1.23 id., sic). power (same we to define offenses See held that requirement art. 45.03 court); abrogation and 3 Penal of Titles complaints municipal Tex. Gov’t

471 said, in Texas Penal Code: The drafters in Penal Section The statement Code 1970) (Final Draft 40 Proposed A Revision 6.02(b), is a mental state culpable added): (emphasis dis- plainly the definition required unless (a), Penal restating element, Subsection typical any mental is penses with the new code preserves for art. Code modern codes [which] the “[s]everal requirement mens rea the traditional to be that a statute is not Moreover, Subsection law. the criminal unless it liability strict statute treated as a (b) with requirement imbues ‘plainly appears’ ‘clearly indicates’ or because, as the presumption of a force legisla- a was intended result phrased Appeals aptly Court of Criminal 6.02(b) serves to define ture.”27 Section it, an of- of one for punishment “The the definition of the issue: Whether that the he is able to show fense when with mental plainly dispenses offense knowledge guilty done without act was resolving that issue element. The task of general prin- to the contrary or intent considering a accomplished by be ” Vaughn v. criminal law .... ciples of number of features of the statute. State, 219 S.W. 86 Tex.Crim. be an affir- The conclusive feature would (1919); omitted]. citations [other 208 course, (b), mative statement statute Despite Subsection though dispense done without with the legislature conduct is crime is free culpable mental requirement A could make such a fault. creating the so- state —as it has done statement, rarely but it if ever does so.28 Neill liability offenses, e.g., called strict typical liability “emp- strict statute is State, (Tex.Crim.App. v. S.W.2d says ty” simply nothing about mental —it (adulterated 1949) food); Goodwin state.29 State, 138 S.W. 63 Tex.Crim. 6.02(b) legislative history of Section to elim- its intent (speeding)—but makes it that that feature of a stat- clear [Em- rea must be inate mens manifest. ute—the mere omission of a mental ele- Stalling v. phasis added.] plainly dis- ment —cannot be construed to (1921) (al- [ 234 S.W. 914 Tex.Crim. pense with a mental element. There is auto- requiring driver of though statute point discussion of this in the com- explicit aid did not stop and render mobile ments of the Penal Revision Commit- knowledge, lack of include element 6.02. tee which drafted Section Since defense)]; cf. would be a knowledge concerned, with which we are subsections Pharmacy, Texas State Bd. of Bloom v. (a), (b), (c), (Tex.1965) were enacted subsections [(although change, phar- without the drafters’ authorizing suspension substantive statute important expres- are the most for misconduct did comments macist’s license dispense did history knowledge, of those sub- mention legislative sion of the scienter) ]. with sections.30 Code, empty typical "The torneys draft statutes. culpable mental state which include the requirements, legislature. liability provision illus- way is reserved to the to draft a strict comply municipality must Safety Therefore a by section 368 of the Public trated prescribes, dispenses reads, 6.02 when it Section Act, ‘Any Health U.S.C. with, state in an offense. mental regula- any (quarantine) person violates who punished tion ... shall Donald W. 27. Wayne Scott, Jr., R. LaFave & Austin Drafting Law 18 Hirsch, Federal (2d Law 343 n. Substantive Criminal ed.1986). Foreword, III, 30. See Seth S. Searcy, 1 Ver 28. See id. at 342. xix, Annotated — Penal Code Texas Codes non's xxiv The Assistant General 29. See id. Department of the United States Counsel of instructed at- Health & Human Services has

If the definition of an offense is impose penalty silent which a but that are not about whether a mental state is crimes. Some commentators insist (b) offense, an element of the Subsection liability place, strict has no or should have (c) presumes that one is and Subsection place, no in the law of crimes.31 Such requires that it amount at least to reck- views influenced the Insti- American Law lessness. Code, in drafting tute the Model Penal liability which a strict must be offense Accordingly we hold that a court “violation,” classified as a see Model Penal must look for a dispense manifest intent to 2.05, violation does not “[a] requirement with the of a culpable mental 1.04(5). crime,” constitute a id. state, and that the silence of a statute about whether a culpable mental state is penal Texas law has not decriminal an element of the a pre offense leaves ized strict liability Many offenses. are sumption that one is. misdemeanors, Class C a conviction for In the of an express absence intent to impose any legal disability which does not dispense requirement culpa- with the of a disadvantage.32 But the are offenses state, ble mental we next ask whether such crimes, still and “the fact per is that the an intent is manifested other features charged son can be arrested on warrant of the statute. criminal, any ordinary like forced to travel long a distance to attend the re

Justice Jackson’s remark Morissette custody imprisoned manded in in de States, v. United 342 U.S. fault payment of the fine.”33 The (1952),regrettably, S.Ct. 96 L.Ed. 288 legislative choice of the executive nor, applies: still “Neither this Court so classify branches of our all government to aware, far as we are any other has under- crimes, subject offenses as and to offend taken to precise delineate a line or set procedural consequences, sup ers forth comprehensive criteria for distin- ports general presumption against guishing between that require crimes liability. strict mental element and crimes do not. definition, attempt

We no closed for the is, course, language of the statute subject law on the is neither settled nor particularly signif- to be considered. “It is static.” ‘knowingly’ icant when word some such obvious, feature One of statute is but it is used one section of a statute and example should not be overlooked: whether omitted from another.”34 An strict-liability makes a Inspection offense crime. Meat Law of 1945.35 liability frequently Strict associated with act defined criminal offenses in four con- torts, regulations, “civil offenses” secutive sections. The first three sections conduct, supra 31. “In view of the nature of criminal note at 259. See Williams, avoiding 14.01(b) there is no the conclusion that strict (peace Code Crim. Proc. art. officer liability brought scope cannot within any arrest offense committed within for widely recog- criminal law. This has been view); 15.03(a) (magistrate may art. his id. distinguish ... nized those who wish to against issue warrant of arrest for offense 'public ‘real’ criminal law from that of wel- State); the laws of the Williams v. ” fare offenses.’ Hall, Jerome General Princi- (custo- (Tex.Cr.App.1986) 100-01 (1960). "The of Criminal Law whole ples parking dial arrest is authorized for offense of problem using .. . arises from the criminal street). wrong side of process purpose for which it is not suited.” Law Glanville Criminal Williams. supra n. 34. Perkins & note at 882 Boyce, (2d ed.1961). See Rollin M. Perkins & Ronald (3d ed.1982) (due N. Criminal Law Boyce, process lia- is denied conviction based on Law, Inspection 49th 35. The Meat fault). bility without replaced by 1945 Tex. Gen. 12.03(c). Code ch. 433. 32. See Tex. Penal Code Safety & Tex. Health

473 is that lum in se.40 implication meat knowingly it unlawful “to sell” made pro- must be malum animals,36 liability offense knowingly “to strict from diseased dis- recent decisions hibitum. animals,37 The more and “to slaughter” diseased offense as classification of an count from or offer to sell” meat knowingly sell remark prohibitum.41 malum As we shall slaugh- than animals that died other below, however, of- relationship of the made it unlawful The fourth section ter.38 is a mores and resentment public fense such as “to sell” meat from animals simply factor.42 men- culpable The omission of a horses.39 only one of the four sections tal state from in the more important factor The most legislature’s implication a clear of the

was subject the statute. is the recent cases in dispense with a mental element intent to traditionally associated liability is Strict difficulty that section. This Court had no health, safety, protection public concluding mental state in or welfare. in that part was not of the offense defined depend involved The crimes there Neill v. section. See 154 Tex. Crim. only but consist no mental element 549, 552, 229 S.W.2d ... This forbidden acts or omissions. factor could be the classification of a centu- Another made clear examination as malum se or malum discer- in accelerating tendency, ry-old of an offense but prohibitum. Some courts have found England, in to call nible both here and and crimes require- new duties historical correlation between the into existence of intent. ma- disregard any ingredient which being ment of fault and an offense’s See, States, id., 36. e.g., Morissette v. United 15. 41. 259-60, 72 S.Ct. 240: U.S. at Id., § 37. 16. recently that the Court took It was not until explicitly more to relate abandon- occasion Id.,% 38. intent, ingredient merely ment of the expediency in obtain- with considerations of convictions, Id., prohibi- ing nor with the malum crime, but with tum classification peculiar quality the offense. nature and Balint, example, 40. For in United States v. type "... a now familiar We referred to 258 U.S. 42 S.Ct. 66 L.Ed. 604 penalties legislation whereby serve as effec- (1922), the Court said: continued, regulation,” means of tive objected punishment It has been of a dispenses legislation with the conven- "such person for an act in violation of law when requirement for criminal conduct— tional so, making ignorant of is an the facts wrongdoing. In the inter- of some awareness process due of law. But that absence of puts larger good it the burden of est of the objection is considered and overruled in acting upon person otherwise at hazard Minnesota, Shevlin-Carpenter Co. v. standing responsible relation innocent but 57, 69, 70, L.Ed. U.S. 30 S.Ct. public danger.” But we warned: “Hard- to a prohibition it was held may ship doubtless be under a statute there acts, punishment particular the State though penalizes the which thus transaction public policy in the maintenance of a wrongdoing totally want- consciousness provide do them shall do "that he who shall Dotterweich, U.S. ing.” 277, 280-281, 284, United States peril not be heard to them at his and will 134, 88 L.Ed. 48. 64 S.Ct. plead good ignorance.” in defense faith or insisted, liability strict Professor Hall "If Many found in instances of this are to be ground, it must be rational rests on " regulatory of what measures the exercise prohibita.’ sought than in 'mala elsewhere police power where the em- is called the supra note at 342. Hall, evidently upon phasis "[Tjhe statute is important differences of- [between achievement of some social betterment prohibita ... ] in se and mala fenses mala punishment of the crimes as rather than irresistibly just one conclusion: point of mala in se. prohibitum cases is not "An offense malum 337-38; supra supra note at note crime.” Perkins Perkins Hall, Boyce, & seq.; supra original). note at 880 et (emphasis Boyce, & Law Charles A. (15th Torcía, Wharton’s Criminal ed.1993). accompanying 42. See text note infra. son, Many multiplied property, public or morals. The industrial revolution exposed injury number to of workmen are not in the nature of these offenses increasingly powerful complex invasions, from and positive aggressions or mechanisms, by freshly driven discover- with which the common law so often energy, requiring higher ed sources dealt, neglect but are in the nature of by employers. Traffic of precautions care, requires where the law or inaction velocities, volumes and varieties unheard imposes duty. Many where it viola- subject wayfarer came to to intol- regulations result no tions casualty if erable risks owners driv- injury person immediate or direct or ers were not to observe new cares and danger but create the property merely Congestion uniformities of conduct. probability or of it which the law seeks called crowding quarters cities and such offenses do to minimize. While regulations for health and welfare un- of the state in security not threaten the simpler dreamed of in times. Wide dis- treason, they may manner of be re- an instrument goods tribution of became authority, garded against offenses its as when those of wide distribution of harm impairs for their occurrence the effi- drink, food, drugs, and dispersed who ciency of controls deemed essential securities, comply even did not with rea- presently the social order as constitut- quality,- integrity, sonable standards of in- respect, ed. In this whatever the dangers have disclosure care. Such violator, injury tent of is the engendered increasingly numerous and same, injuri- are consequences and the heighten detailed regulations according fortuity. ous or not particular duties of those control Hence, of- legislation applicable to such industries, trades, properties or activi- fenses, policy, as a matter of does not health, safety or public ties affect necessary intent as a element. specify welfare. accused, if he not will the does duties are sanc- many While these violation, usually position pre- is liability, a more civil tioned strict society it with no more care than vent lawmakers, not, wisely whether reasonably no more might expect and regulations more sought to make such might reasonably than it exact exertion by invoking criminal sanctions effective responsibili- one his who assumed applied by technique to be the familiar Also, penalties commonly are rel- ties. prosecutions of criminal and convictions. small, and conviction does no atively This has confronted the courts with reputa- to an offender’s grave damage based on prosecutions, multitude of considerations, courts tion. Under such regulations, administrative statutes or construing have turned to statutes “public called aptly for what have been make no mention of regulations which cases do not welfare offenses.” These holding as with it and dispensing intent accepted of such neatly fit into offenses, act alone makes out guilty that the classifications of common-law state, per- crime.43 against such as those States, likely terms is to be construed 342 U.S. absolute 43. Morissette v. United 252-54, liability where the statute 72 S.Ct. 96 L.Ed. 288 one of strict drugs, poi- regulate Legislative Drafting concerned food G.C. Thornton, Cf. fertilizers, sons, foods, (2d ed.1979): weights and animal measures, marks, public merchandise customary in certain fields It has become health, building requirements. Never- liability of strict to be created. for offences theless, dealing although the statute subject-matter in these is because the This evil, liability is not grave social strict with a justifiable it is considered areas is such that where its likely to be construed as intended high positive care demand a standard improve imposition the observ- society would not as a in the interests of and control Thus, phrased ance of the law. penal provision whole. by the strongly supported are not recognizing liability that strict While forms, it is occurrence does not “in such various mores. Their imposed it,” generalize to about one directed at impossible arouse the resentment certain “possible found it to hazard writer traditional crimes.45 perpetrators significant generalizations regarding more recently, writer observed Another public welfare offenses.” include, only liability offenses “Strict First, many apply of the enactments welfare, public regulatory, that are those only to general public not to the but nature, also those but prohibita or mala traders, particularly suppliers certain designed protect that are example for drugs of food or and vendors of alcohol- children.”46 Others, more beverages. having ic reflect these tradi- application potential as to of- own decisions general Our fenders, very impose restricted to few ac- strict by finding are statutes tions automobiles, operation affecting pub- tivities —the liability as to entire offenses fishing, safety highways, hunting, and as to the ele- safety,47 lic health and Next, and various health measures. pro- in statutes that age ment of a child’s and the con- many regulations these tect children.48 conforming presup- ditions of to them “a number of Professor LaFave collects pose activity, as car- continuous such may impor- be considered of [that] factors rying implies business.!44] on a This deciding legislature tance in whether general regarding standards such or, liability without fault impose meant to than iso- important conduct are rather hand, really require the other meant to Third, welfare public lated acts. it out clear- though spell fault it failed to relatively They enactments are new. already of these factors we ly.”49 One relatively adaptations recent guidance given have considered: economy, including to an intricate 6.02(b). The others are: Penal Code Although market. analo- impersonal (1) history of the statute legislative gous control dates at least from the may throw some title or context its guilds, violations under conditions (2) severity of on the matter. light prevailing primary groups trade are punishment provided for the crime readily recognized more as immoral. Thus, fourth, things being regulations importance. the modern Other food); "(a) 1949) (adulterated activity special (Tex.Cr.App. Good- In such an skill and 44. demanded, State, may reasonably 138 S.W. 399 attention be win v. 63 Tex.Crim. (b) suspi- (1911) (speeding). if the law is broken there will be due to cion it was a deliberate breach supra self-interest.” note at 235 State, (Tex.Cr. Williams, 226 Zubia v. 998 S.W.2d Measure, III, "Oh, (and quoting Measure i: child, 1999) (in injury cul- App. offense of fie, fie, accidental, Thy fie! sin’s not but apply age pable does not mental state trade”). child, implying is true for of- that same younger capital than fense of six); murder of child (footnote supra at note 330-31 Hall, State, (Tex. v. 967 S.W.2d Johnson omitted). (same indecency Cr.App.1998) for offense of State, child); v. Roof supra 46. See Perkins & Boyce, note at 884- 1984) (same). (Tex.Cr.App. supra Williams, 85; Torcía, 127; note at it will be seen that we cases] "[From supra note 239-44. exclusively classify into crimes cannot crimes State, requiring responsibility and crimes Corp. Plant v. of strict See American Food (water may (Tex.Cr.App.1979) pollu- crime be of strict liabili- S.W.2d 679 fault. The same State, (Tex.Cr. tion); require ty respect Owen 525 S.W.2d 164 of one element and fault intoxicated); supra App.1975) (driving State, respect Neill v. note while of another.” Williams, 229 S.W.2d Tex.Crim. at 244. (sale (1949) for human of horsemeat supra at 342. Scott, & note consumption); 225 S.W.2d 829 49. See 1 LaFave Neill v. It makes it equal, greater possible punish- effects such businesses.52 ment, own, likely operate, fault is re- an offense to or conduct the more some bookstore, and, in an adult mo- quired; conversely, lighter business adult theater, likely or nude live entertain- possible punishment, picture more tion feet of an- impose liability meant ment club within one thousand other such or a church or a school fault.[50] without business seriousness adjacent or a to a public expect- park harm to the or a residence appellant was ed to follow from the forbidden conduct residential district.53 The business, conducting for rather things being prosecuted is another factor. Other equal, owning operating the more serious the conse- than a business. likely quences public, more to a culpable The ordinance is silent as legislature impose liability meant to is, therefore, a pre- mental state. There fault, regard without and vice versa. required. is sumption that one (4) opportunity The defendant’s to ascer- legislative We are not facts, yet tain factor the true is another history of the ordinance. determining important which be features of the ordinance are con- Some legislature really whether the meant to liability. strict imposing sistent with its impose liability on one who was without only a fine. The ordi- punishment The is knowledge fault he lacked because in a applies only persons nance certain (5) difficulty prosecut- these facts. The trade, carrying and to their on business. proving have in officials would ing Prosecuting officials would have some diffi- The type mental state for this crime. of such a culty proving employee it greater difficulty, likely the more in-rela- was aware of its location business legislature that the intended to relieve is is, in tion to It some properties. other prosecution of that burden so sense, protect public safe- an ordinance effectively the law could be enforced. welfare,54 ty or prosecutions The to be number hardly public- im- But it is in the class of expected is another factor of some im- we have found to expected pros- safety The statutes that portance. fewer the ecutions, liability, such as those likely legislature pose the more strict speed- punish dangerous offi- such activities require prosecuting meant to fault; food, in- driving while ing, issue of adulteration of go cials to into the toxicated, pollution of water. prosecutions, greater number of to im- likely more meant feature is that important Another liability regard to fault.51 pose without was “conduct- offense before us particular (if are) authorities, sought to ing” by .dancing business we these Guided — —the A defendant such as question. regulated. we turn to the ordinance difficulty in would have some appellant is a land-use Adult Businesses Ordinance harmful, determining place whether regulate secondary control to small, clubs generally that is aters and nude live entertainment penalty 50. “The but are ordinances, meant to to be land use controls violation of countless intended also true for statutes, secondary effects of such regulate the harmful regulations which are not sub- ” jected Hall, liability.” supra only El Paso note uses .... to strict 20.08.080(F). at 330. Scott, supra note supra note at 342-44 53. See 51. 1 LaFave & (factor guidance, statutory omitted because above; subsequent separately fac- writes, discussed these “To use 54. As Glanville Williams omitted). renumbered) (footnotes tors exactly say what expressions than to is easier sense, are, public in a they mean. All crimes Williams, supra note offences.” regulations zoning code of welfare 52. "The in this bookstores, picture the- adult motion adult of the Court of judgment conducting was business was within she affirmed. spec- distance from one of the specified to ascer- Her incentive properties. ified very slight,

tain facts would seem such MEYERS, J., dissenting opinion. filed a the incentive of the owner of compared to MANSFIELD, J., dissenting filed responsible the business who was PRICE, J., dissenting filed a opinion. difficulty in choosing its location. We have JOHNSON, J., dissenting filed a opinion. saying employee that an a business opinion, in which MEYERS position prevent violation] in a [the “is MANSFIELD, J.J., joined. society might with no care than rea- more MEYERS, J., dissenting delivered than sonably expect and no more exertion opinion. reasonably one who might exact from responsibilities.”55 assumed his opinion. I join Judge Johnson’s (SPA) Prosecuting Attorney does dancing Nude is not a new creation of this discretion- standing prosecute have to revolution. The common industrial an El Paso ary appeal concerning review public nudity as an offense law classified city ordinance. be Presumably, malum in se.56 so would conducting public-nudity the offense of that the have parties It doesn’t matter school, business within thousand feet of a Standing the issue. should not addressed church, residence, park, or another such be as a threshold matter: assessed And, although business. it is difficult to most fundamental tenants One judge the extent to which the ordinance is ... appellate requirement law is the mores, supported by public extent and the standing that to raise an party to which it the offense defines arouses court. When appellate issue before an public resentment that would be associated constitutionality of a challenging crimes, probably with traditional it is safe statute, upon party it incumbent say significantly that the moral factor is that it is un- raising the issue to show stronger than for the “public usual wel- situation; as to him constitutional his fare” offenses. conceivably applied it be un- may that prosecutions the number of And under signifi- constitutionally others is this ordinance not be expected would standing, party cant. To establish great. his injured, show that he is or that must rights abrogated application are consideration, say After that we cannot alleged unconstitutional statute. the ordinance manifests an intent to dis- State, Thus, in 739 pense culpable with a mental state suffi- Meshell v. S.W.2d before dis- (Tex.Cr.App.1987), cient to overcome the 246 presumption conclude, required. separation pow- one was must cussion was had as to We therefore, ers, properly that a mental state was this Court determined County required by Penal 1.03 and issue of the Freestone Code Sections threshold complain.... attorney’s standing 6.02. States, 1664). indecency v. 342 Public statutes such as the 55. Morissette United U.S. (1952). 72 disapproval S.Ct 96 L.Ed. 288 us reflect moral one before among strang- people appearing in the nude indecency, including nudity, 56. “Public was a Theatre, public places.” v. ers in Barnes Glen law, criminal offense at common and this Inc., 2456, 115 501 U.S. 111 S.Ct. recognized Court the common-law roots of Rehnquist, (opinion L.Ed.2d 504 C.J.). open indecency’ 'gross the offense of public indecency including “Public — York, v. 333 U.S. Winters New nudity long an offense at common been —has nudity S.Ct. 92 L.Ed. 840 Public Scalia, J.). (opinion law.” Id. at Roy an act v. was considered malum in se. Le (K.B. Sidley, Eng. Rep. 1 Sid. (Tex. State, appellant’s stand- right challenge Rose v. 752 S.W.2d (McCormick, J., Crim.App.1987) ing complain.... dissent (citations omitted). ing) (Tex. Angel v. Nearly the cases in criminal law all of Crim.App.1987). jurisprudence involving standing are quite here is differ- standing issue seizure in which the de- search and cases typical ent Fourth Amendment subjective privacy fendant’s interests de- standing cases where the issue of the place searched or the items seized are standing should be raised before fendant’s context, question question. initially by the Court of and addressed standing per- is so intertwined with the complaining Appeals. par- The SPA is the rights sonal nature of Fourth Amendment ty question this Court. The before it is considered an element of not addressed standing SPA’s was claim, defendant’s Fourth Amendment because the SPA was Court may by the therefore its absence be raised Thus, before that court. party appeal. for the time on first State standing issue did not arise until SPA (Tex.Crim.

Klima, 109, 111 934 S.W.2d petition filed with this Since its Court. recognized: further App.1996). We have by the could not have been addressed sus- reviewing properly [t]he court are not constrained Appeals, Court of we tain the trial court’s denial on jurisdiction. may ad- our review We that the failed to estab- ground evidence authority we dress the issue with the same law, standing lish as a matter of even jurisdiction. have to address our own not reflect that though the record does comments, join Judge I these With the issue was ever considered opinion. Johnson’s parties or the trial court. (Tex. Wilson v. J„ delivered MANSFIELD Crim.App.1984) (opinion rehearing). on dissenting opinion. However, the allowed to raise State not Court, I agree opinion with the (in standing a of the defendant’s question affirming judgment of the court context) the Fourth Amendment for mental state appeals. Clearly, culpable a discretionary first time on review. municipal in a ordinance that required ad being reason that this Court does not regulate to adult businesses purports dress, review, any discretionary on issues a of said ordinance as treats violations not addressed and decided the Court of Code, Tex. Penal offense. See Appeals: however, troubled, §§ 1.03 6.02. I am cáse, In instant the State did not of- creating criminal concept with the standing the issue of to present are, heart, through laws that fenses Appeals independent Court of as an i.e., property, on the use of regulations trial court’s ground upholding trou- especially ordinances. It is zoning suppress. Con- ruling on the motion dangerousness and potentially blesome Appeals did not sequently, Court motivation behind such laws is where the standing had appellant decide whether “politically criminalize activities deemed any search or seizure complain incorrect,” dancing.1 topless such as by the violation. Without a decision However, issue, agree I with the dissent also Court §§ 42.001 that Texas Government Code nothing accept for review Court has Prose- allow the State and 42.005 do not appellant’s standing. There- regarding municipali- Attorney a fore, cuting that the has waived we find civil, criminal, statutes. my opinion, regulation of activities like left to adult entertainment businesses is best Court, “un- phrase, ty immediately before this either on his own or followed municipality’s attorney. on behalf of the pro- defining less the statute offense I Accordingly, petition would dismiss the then, Arguably, vides otherwise.” Prosecuting Attorney of the State on the phrase “other laws” refers not to join ground standing that he lacks ordinances, defining but rather statutes Judge dissenting opinion. Johnson’s pe- that are found outside of offenses e.g. nal Tex. Pahks & Wildlife code. See PRICE, J., dissenting delivered a 47.0183(b), 66.019(c), §§ ANN. Code opinion. 153.404(a), 66.021(c); § Tex. Tax Code Ann. I respectfully dissent. This case should 7.147(b). Ann. Water Code as improvidently granted dismissed be- Second, thorough reading Honey- cause it a compli- raises related issue that my cates this prevents any case and view us little if cutt reveals that has rele- reaching grounds the merits of the present vance to issues in this case. originally granted. for review we Honeycutt ordinance at issue of a culpable defined the offense terms granted petition We the state’s for dis- negligence, culpability mental state of cretionary following review on the distinct from each of the four established grounds: §in Penal complaint 6.02 of the Code. The analysis is the proper What for de- terms, offense in the same alleged the termining whether an plainly ordinance any omitting culpable mental state re- dispenses any with mental with- element quired by 6.02. We reasoned that be- meaning Penal Texas 6.02(b) plain language where the of cause the ordinance did not include one of the ordinance does not require culpa- culpable the four mental states the defi- ble mental state. negligent nition of collision because Is an ordinance that does not re- negligent definition of collision also did quire culpable mental state and plainly dispense control, prohibits, as a land use op- state, attempting mental it was in fact eration aof nude live entertainment club cre- apply culpable new mental state not 1,000 within feet of certain establish- by ated the the penal code. We held that ments, schools), (e.g.churches, a malum 1.03(b) term in “statute” as used section prohibitum provision imposing strict lia- penal the code refers to enactments of the bility? legislature, and was intended to reserve to Unfortunately, ground power as the the to define of- one formulat- 6.02(b) ed, presumes § applies that to mu- in abrogation provisions fenses of the nicipal The par- Code, ordinances. briefs of the which in- Titles and 3 ties make presumption. also the same culpable require- clude the mental state Consequently, we do not have benefit § ments of reached conclu- 6.02. We this scholarly by party discussion either re- by noting sion that to hold otherwise garding this majority issue. The avers municipal would mean that a ordinance § applies municipal 6.02 ordinances could create an offense crimi- establishing Honeycutt based our in holding on liability irrespective nal of the existence of (Tx.Crim.App.1982) 627 S.W.2d 417 legislatively general codified phrase and the “other laws” found in sec- justifica- culpability, rules of defenses and 1.03(b) Ante, tion Penal Code. tions. Id. 470. I am not convinced that question this present case also involves a While First, easily majority’s is so settled. ordinance, this sim- municipal is where the laws” is interpretation phrase “other 1.03(b) cul- creating § ilarities end. Rather than by in supported reading of “ code, entirety. pable penal its The other mental state outside the phrase, laws” However, dis- Fleming. petition here the El Paso ordinance is silent as culpable Consequently, to a mental state. was filed with this Court cretionary review glean can only guidance Attorney; we from Ho- Prosecuting solely by State least, neycutt, very is that at the a munici- city prosecutor the El Paso the office of pal ordinance must contain one of the cul- appeal no to this Court. played part pable mental states authorized Prosecuting At- The office of 6.02(a). however, § This case raises and therefore torney is created statute1 question of whether the drafters of 6.02 and stand- only specific authority has en- municipalities could have intended ing granted Legislature. to it majority’s liability act strict offenses. The statutory grant are set out limits of that analysis question inadequate. of this pro- chapter Tex. Gov’t Code Honeycutt it is that the Court While true vides: the fact rely partially did at least Office; Qualifications § 42.001. did not negligent collision ordinance (a) with a mental plainly dispense appeals court of criminal shall void, state order to hold ordinance attorney appoint prosecuting a state aspect appears of that decision to have proceed- the state in all represent (one only cursory attention sen- given been ings pros- before the court. state tence). Therefore, rely before we on Ho- ecuting attorney may also authority allowing neycutt precedential as any stage of a criminal the state liability to draft strict of- municipalities if appeals a state court of case before fenses, thorough look at the issue more necessary for the in- he considers would be wise. terest the state. grounds

Because the for review in this case do parties

briefs of the filed the actual issue adequately encompass Oath; Term 42.002. raised, I petition would dismiss the Tex.R.App. P. granted. See improvidently 69.8. Prosecuting 42.003. Assistant State Attorneys

JOHNSON, J., dissenting filed a opinion, which MEYERS

MANSFIELD, J.J., joined. was respectfully Appellant I dissent. 42.004. Removal

convicted, El Paso Tex., violating Paso, El § to the El Paso appealed 20.08.080. She § with Other Cooperation 42.005. which af Municipal Appeals, Court of Prosecuting Attorneys appealed then firmed the conviction. She (a) attorney prosecuting The state Paso, in El to the 8th Court of attor- county a district or a may assist v. Aguirre the conviction. which reversed the state before a ney representing State, (Tex.App. Paso 978 S.W.2d — El if to do so appeals requested court of 1998,pet. granted). attorney, county or by the district that at all times dur- The record shows (b) county attorney A district of the case and of the ing prosecution the at- prosecuting the state assist El proceedings the the appeal, through the state be- torney representing case was han- Appeals, Paso Court appeals. of criminal fore the court of the El exclusively by the office dled § Provision 42.006. Sunset represented by Herb city prosecutor, Paso Supp.1999). & (Vernon 1. See Tex. Gov’t Code Ann. chap. El

sion of the Paso Courts Act which “all requires appeals that from convictions added.) (Emphases court of record must be Thus, § specifically provides 42.005 for a court, prosecuted appellate relationship representation between the appeals, court of and the court Prosecuting Attorney State and district appeals by city attorney or an assis- county attorneys, city but excludes city tant attorney.” Gov’t Code attorneys. our approach Under to statuto- added). (emphasis 30.00145 The Act ry interpretation, we look to the literal text Prosecuting therefore bars the At- State of the statute for its meaning, and we torney prosecuting this case before ordinarily give plain effect to that mean- Court, it specifically requires this that ing, application unless plain statute’s city attorney, not the State Prosecut- language would lead to absurd conse- ing Attorney, prosecute appeals in all this quences Legislature that could Prosecuting Attorney’s court. The State intended, possibly plain have or if the lan- authority represent to the state before this guage ambiguous. Boykin limitations that authori- 785 (Tex.Crim.App.1991). ty, solely by legisla- are determined Pursuant to in- approach statutory this Therefore, ture. it cannot be that said maxim, terpretation and to the “Ex- legal passed by legislature other statutes (the pressio unius est exclusio alterius” which limit it. authority “usurp” expression thing of one is the exclusion legislature What the gives, may take another), § 42.005 interpreted must be away or limit. mean legislature did not intend for the State Prosecuting Attorney rep- majority attempts to rationalize its city attorney resent a in the Court of Prosecuting assertion that the State Attor- Appeals. Criminal interpretation This of ney standing bring appeal by has 42.001, 42.005 is consistent with which engaging in a lengthy historical discourse. - provides part in relevant court “[t]he Ante, at 466 471. “ap- Such an historical appeals of criminal shall appoint a state however, preciation,” conflicts ap- with our prosecuting attorney state proach statutory interpretation. As (Em- proceedings all before the court.” above, noted the literal text of the statutes added.) phasis The plain language of ambiguous is not and does not lead to an § 42.005 unambiguous. Applying the absurd result that the could not plain language city to exclude prosecutors intended; legislative history is there- results; does not to lead to “absurd” Boykin, fore irrelevant. 818 S.W.2d prosecuted kinds of offenses only at the Furthermore, legislative history municipal level do not affect areas outside majority, cited which dates back to of that municipality and so not impact do 1800s, the late is less relevant and the “the interest of the state” as stated in literal contemporary text of the statutes is § 42.001. relevant, (1) more given following: Prosecuting Attorney, instant case involves an El Paso office it, zoning 1923;3 ordinance.2 The contention that as we know did not until exist Attorney the State Prosecuting lacks texts of the various statutes con- standing supported by provi- is further cerning Prosecuting Attorney State Appeals 2. This offense is neither found in the Penal and "an of Texas” assistant to the legislature, Code nor created and does attorney for the State before the Court of regulate subject the same matter as a Texas”). Appeals Criminal These sections state law. replaced appoint- laws which for the n payment Attorney ment and of an Assistant 30, 1923, R.S., Leg., 3. See Act of March 38 65, 5, General. See tit. ch. Tex.Rev.Civ. 156, 2, 335, Stats., §§ ch. 1 & 1923 Tex. Gen. Laws 120, 3, art. 4432 & tit. ch. art. 7060 (providing appointment 335 "an attor- ney for the State before the Court of Criminal 482 changed considerably years, over the MORENO, Appellant, major occur- Ricardo change

the last substance 1981;4 and' current version ring El Paso Act came into exis- Courts 1983,5 two the current years tence after The STATE of Texas. Attorney’s Prosecuting

form the State No. 0710-97. authority was delineated.6 Texas, Court of Criminal that, pursuant I Therefore conclude En Banc. statutory grant of legislature’s limited authority and the further limitations of 27, Oct. 1999. Act, Prosecuting El Paso Courts the State Attorney authorized to 8, Rehearing Denied Dec. El Paso this Court City of before This be dis- petition

instant case. should At- Prosecuting

missed because appeal,

torney bring lacks standing only City Attorney, because the El representative

authorized

Paso, not to to this Court. appeal chose Tex.R.App. P. 69.3.

See I should not

Because believe that we but should appeal

reach the merits of this standing, I petition for lack of

dismiss

dissent. 4290, ("El 42.001-42.006; Act Gen. Laws 4290-4316 §§ 1983 Tex.

4. See Tex. Gov’t n 291, 31, 1981, R.S., Leg., Act”). ch. May 67 Courts Paso 30, 761, 776; Act of § 1981 Tex. Gen. Laws n 256, 1, 1977, R.S., 12, § Leg., May 65 ch. th 20, R.S., 1983, Leg., ch. May 68 6. See Act of 675, 675; May Act of Tex. Gen. Laws 1977 4290, 685, 1-4, §§ 1983 Tex. Gen. Laws R.S., 498, 1, 25, 1973, Leg., § ch. 4290-4316; 31, 1981, Leg., May 67‘h Act of 1328-1329; 1328, May Laws Act Tex. Gen. 761, 291, 30, R.S., Laws ch. 1981 Tex. Gen. nd 1, 18, 1931, R.S., Leg., ch. 234, 234-235; Act of March Gen. Laws Tex. n R.S., Leg., ch. 1923 Tex. subsequently Although has Gen. provisions granting changes au made Attorney, thority Prosecuting to the State passed then initial version was 5. The form, changes are of rather than substance. replaced with the current repealed (Act §§ 42.001-42.006 See Tex Gov’t Code May in 1983. Act of statute th n R.S., Leg., ch. May 1-32, 410, §§ 1921-1922); Act Laws 1985 Tex. Gen. ("City El Paso Laws Gen. 893-900 n R.S., Leg., ch. May Courts”), May Municipal repealed by Act of 1-4, §§ Gen. 1981 Tex. 68»

Case Details

Case Name: Aguirre v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Dec 8, 1999

Citation: 22 S.W.3d 463

Docket Number: 0580-98

Court Abbreviation: Tex. Crim. App.