Ex parte Bernard Eugene CRISP, Jerry Michael Miles, Joe Lee Sewell. Ex parte Bruce Dudley CARTER.
Nos. 1044-82, 1045-82
Court of Criminal Appeals of Texas, En Banc
Sept. 14, 1983
661 S.W.2d 944
Charles O. Grigson, Austin, Dick DeGuerin, Houston, for Carter.
Charles D. Houston, Dist. Atty., Bellville, Robert Huttash, State‘s Atty. and Alfred Walker, Asst. State‘s Atty., Austin, for the State.
MILLER, Judge.
Appellants were charged with the offense of “aggravated possession of marihuana,” pursuant to indictments issued alleging that each of them possessed more than 2,000 pounds of marihuana. Appellants filed a pretrial writ of habeas corpus attacking the constitutionality of House Bill 730,1 which was passed by the Legislature in 1981 and purported to amend the Texas Controlled Substances Act,
The Court of Appeals held that the caption to H.B. 730 violated
“No bill, (except general appropriation bills, which may embrace the various subjects and accounts, for and on account of which monies are appropriated) shall contain more than one subject, which shall be expressed in its title. But if any subject shall be embraced in an act, which shall not be expressed in the title, such act shall be void only as to so much thereof, as shall not be expressed.
This constitutional provision requires that a bill‘s caption be specific enough to give a reasonable reader fair notice of the subject and contents of the bill. Bates v. State, 587 S.W.2d 121 (Tex.Cr.App.1979); Castellano v. State, 458 S.W.2d 73 (Tex.Cr.App.1970); White v. State, 440 S.W.2d 660 (Tex.Cr.App. 1969), and cases cited at 664.
When a statute is attacked under
The question before us is, given the constitutional provision relating to captions, does the caption of H.B. 730 which states: “AN ACT relating to offenses and criminal penalties under the Texas Controlled Substances Act,” give readers fair notice of the subject matter contained in the bill. In order to resolve this question and ultimately the constitutionality of the statute, we must examine the contents of the bill vis-a-vis its caption.
Initially, the bill modified several areas of the Controlled Substances Act. The bill created two levels of offenses for possession of marihuana, one of which proscribes possession of more than 50 pounds of marihuana and is termed “aggravated” possession of marihuana. This new offense of aggravated possession of marihuana was then further divided into three additional levels of punishment. Overall, ten new sections of the Controlled Substances Act were added and at least one section was repealed.
Moreover, there were several statutes in addition to the Controlled Substances Act which were modified by the bill.
Given the bill‘s effect upon the Code of Criminal Procedure and the Penal Code, in addition to the changes made in the Controlled Substances Act, we must next determine whether the caption provides fair notice as to the subject and contents of the bill. A brief discussion of a similar case involving this issue is helpful. In White, supra, the caption to the 1967 act amending the Dangerous Drug Act,
“An act to include lysergic acid diethylamide and other hallucinogens in the list defining ‘dangerous drugs,’ and specifying its possession to be an unlawful act; providing that the illegal sale, manufacture, or furnishing of any dangerous drug is unlawful; amending Subsection (a) of § 2, Subsection (d) of § 3 and § 15,
Chapter 425, Acts of the 56th Legislature, Regular Session, 1959, as amended (Art. 726d, Penal Code); and declaring an emergency.” White, supra, at 662-3.
We noted that although the act did include hallucinogens within the definition of dangerous drugs and made their possession an unlawful act, the act also made substantial changes in the penalty provisions of the Dangerous Drug Act. Since the language of the act clearly referenced particular changes and since no fair notice was given of any intent to change penalty provisions, we held that the caption was violative of
The caption to the bill before us refers, at best, to changes in penalties and offenses relating to the Controlled Substances Act (at worst, the bill doesn‘t even give notice of those changes—see concurring opinion by Judge Clinton). No mention is made of changes made in the Code of Criminal Procedure or the Penal Code. Since the caption refers to one act and has the effect of modifying at least two other separate statutes not mentioned in the caption, it does not give readers fair notice of the subject matter contained within the bill.2 Even the most liberal construction of this caption and bill would not permit us to find that the caption fulfills Texas Constitutional requirements.
The State concedes that the purpose of
First, we decline to interpret the “fair notice” standard to simply require that a caption not be fraudulent. The cases cited by the State in support of its position largely deal with captions referring to two subjects. Courts have consistently held that a caption may refer to two subjects if those subjects are related. Tabor v. State, 34 Tex.Cr.R. 631, 31 S.W. 662 (1895) (caption referred to changes in two particular sections of the Penal Code); McMeans v. Finley, 88 Tex. 515, 32 S.W. 524 (1895) (caption referred to tax on prize fighting and fighting between man and animal). We hold that the “fair notice” standard with which
Second, the State‘s argument that the caption in the instant case must be given a liberal construction so as to uphold the constitutionality of the act does not alter the position taken by this court. Granted, captions should be construed liberally so that the law may be upheld. See discussion, supra. A liberal construction requirement, however, should not be used to the extent that the Legislature is permitted to circumvent the Constitution. See White, supra at 665. As we have already stated, even the most liberal construction of the caption involved would not provide sufficient notice concerning the changes in statutes other than the Controlled Substances Act.
Last, the State‘s argument that the term “relating to” saves the bill from a fate of unconstitutionality because both the Code of Criminal Procedure and the Penal Code “relate” to the Texas Controlled Substances Act is totally without merit. In the broad sense of the term, all statutes relate to one another as legislative enactments of social policy. Moreover, all statutes pertaining to criminal matters relate to one another. If we were to validate the caption in this case because all criminal statutes are related, we would effectively eviscerate an entire section of our constitution. This we will not do.
Accordingly, our holding that the caption in the instant case is defective, thereby rendering the act unconstitutional, is unchanged by the State‘s arguments. We now turn to the issue of what effect our holding has on the provisions of the Controlled Substances Act which the Legislature sought to amend through H.B. 730.
If an amendment to an act is declared unconstitutional and invalid, the original act remains in full force and effect, even if the amendment has no savings clause. White, supra at 667, citing Doucette v. State, 166 Tex.Cr.R. 596, 317 S.W.2d 200 (1958). We therefore hold that the Controlled Substances Act stands as though H.B. 730 had never been enacted.
Accordingly, given that the indictments in the instant case allege possession of a quantity of marihuana of more than four ounces, which was an offense under the law as it existed before H.B. 730 was passed, the judgment of the Court of Appeals is affirmed. See Ex parte Heartstill, 118 Tex.Cr.R. 157, 38 S.W.2d 803 (1931). Appellants shall remain in the custody of the Fayette County Sheriff to stand trial under the proper law.
ON STATE‘S PETITIONS FOR DISCRETIONARY REVIEW
CLINTON, Judge, concurring.
At issue here is sufficiency of a caption to an act of the Legislature, tested against the first sentence of
“No bill ... shall contain more than one subject, which shall be expressed in its title.”1
We are not directly concerned with the second sentence.2 It assumes that some subject has been expressed in the title. Thus, unless they touch on the meaning of the first sentence, decisions of the courts construing the second sentence are not too helpful in determining when a single subject has been sufficiently expressed.3
Reproduced in
“An act relating to offenses and criminal penalties under the Texas Controlled Substances Act.”
As the majority reads it, that phrase “refers to changes in penalties and offenses ...,” P. 947. On the other hand, the dissent says the caption “puts a reader on notice of the treatment of one subject and alerts him to [ascertain] the details of that subject,” characterizing it as a “signal.” P. 953. In my view “relating to” does not mean “changes in” nor is it enough under the first sentence of § 35 that a caption gives a signal.4
Each constitution from 1845 through 1869 contained an identical general provision: “Every law enacted by the Legislature shall embrace but one object, and that shall be expressed in the title.” The convention that drafted what became § 35 in the Constitution of 1876 revised the provision by changing “object” to “subject” and added the second sentence. When called upon to fathom that change, courts “presumed that the convention had some reason,” and opined that “the word ‘subject’ may have been thus substituted as less restrictive than ‘object.‘” Stone v. Brown, 54 Tex. 330, 341 (1881); see Day Land & Cattle Co. v. State, 68 Tex. 526, 4 S.W. 865 (1887).
The metamorphosis of judicial understanding in this regard transformed “the subject-matter of the projected law,” Adams & Wickes v. San Angelo Water Works Co., 86 Tex. 485, 25 S.W. 605, 606 (1894) into “the nature of each particular bill,” Consolidated Underwriters v. Kirby Lumber Co., 267 S.W. 703, 705 (Tex.Comm.App.1924), see Gulf Ins. Co. v. James, 185 S.W.2d 966, 9705 (1945), to “the general purpose,” State v. Rodriguez, 213 S.W.2d 877, 879 (Tex.Civ.App.--San Antonio 1948, no writ history); State v. Rope, 419 S.W.2d 890, 899 (Tex.Civ.App.--Austin 1967, writ ref‘d n.r.e.).
The instant caption says only that the bill is an act relating to something else. It does not even tell the reader that the act is to amend any part of the Texas Controlled Substances Act. As stated it gives no hint of what is its “general purpose“—its proposed content. Facially abstract and ambiguous, the caption fails to convey to the reader that character and quality of information the first sentence of § 35 requires for fair notice to “legislator, lawyer or ‘man on the street,‘” Schlichting v. Texas State Board of Medical Examiners, supra, 310 S.W.2d at 561.
Accordingly, I concur in the judgment of the Court.
ODOM, J., joins.
CAMPBELL, Judge, dissenting.
To the majority‘s noble and majestic but quixotic voyage through the uncharted waters of statute captions, with its sails purportedly cut from the very parchment of the Texas Constitution, I dissent.
These cases come to this Court on petitions for discretionary review filed by the State‘s Attorney from adverse rulings by the Third Court of Appeals sitting in Austin. That court granted habeas corpus relief to respondents/relators, hereinafter referred to as respondents. A majority of this Court would affirm the judgments of the Third Court of Appeals, and in doing so, declare House Bill 7301 unconstitutional, viz: “We hold that the ‘fair notice’ standard with which
The majority identifies the sole issue thusly:
“The question before us is, given the constitutional provision relating to captions, does the caption in H.B. 730, which states: An act relating to offenses and criminal penalties under the Texas Controlled Substances Act, give readers fair notice2 of the subject matter contained in the bill?
I believe that the issue, more properly framed is: does the caption of the bill give a legislator or other reader notice of the contents of the bill, to the end that surprise or fraud in legislation may be prevented? The difference between the “fair notice to the average reader” standard and the “fair
Historically, the impetus for the adoption of a statute caption provision was furnished by the famous “Yazoo Act” of 1798, in which a Georgia legislature, under the guise of an act for the payment of “late state troops,” made large land grants to private persons. See Giddings v. San Antonio, 47 Tex. 548 at 556 (1877) and Jones, Statute Law Making (1926), pp. 65-68. Speaking to the purpose of
“It would be burdensome, if not intolerable, to require that the title should be as full as the act itself. The word title implies that no such requirement exists. The purpose of the constitutional provision is merely to reasonably apprise the legislators of the contents of the bill, to the end that surprise and fraud in legislation may be prevented.” Gaines, C.J., in Doeppenschmidt v. International & G.N. Railroad, 100 Tex. 532, 101 S.W. 1080 (1907). See also Stone v. Brown, 54 Tex. 330 at 344 (1881).
In Albrecht v. State, 8 Tex.App. 216 (1880) and in Consolidated Underwriters v. Kirby Lumber Co., 267 S.W. 703 (Tex.Comm.App. 1924), the appellate courts of Texas referred to the purpose of
“The reason underlying the constitutional requirement is to advise the legislature and the people of the nature of each particular bill so as to prevent the insertion of obnoxious clauses which might otherwise be engrafted on it and become law. Fraud and deception are rendered less likely if the caption or title of an act, which is often the only part of the bill read by the busy members of the legislature, fully apprises the members of the contents of the bill itself. (citations omitted)”
In adopting a “fair notice to the average reader” standard, the majority apparently borrowed language directly from the Texarkana Court of Appeals in City of Brownsville v. Public Utility Commission, 616 S.W.2d 402 (Tex.Civ.App.1981). In City of Brownsville, supra, the then Texarkana Court of Civil Appeals dealt with the caption of the Utility Regulatory Act, although the caption itself is not set out word for word in the case. The majority in the instant case fails to point out that the Texarkana Court in City of Brownsville, supra, found the caption of the Utility Regulatory Act to be constitutional and stated:
“The average legislator or interested citizen would not likely draw a distinction between public utilities and municipally owned public utilities. It is only by reading beyond the caption into the body of the Act that the reader learns that municipal utilities are defined out of the term ‘public utilities’ for most of the purposes of the Act. That the body of the Act must be studied to interpret the caption, as appellants would require, then
Texas Constitution Art. III, Sec. 35 becomes meaningless.”
An Act defining public utilities and providing for their regulation; providing for the creation of the Texas Public Utility Commission, and the reappointment of commissioners and the fixing of their qualifications and compensation; prescribing the duties and the powers of the commissioners and the commission and Railroad Commission and the manner in which the jurisdiction and power conferred herein should be exercised; providing for employees and the salaries, duties and authority of employees; providing for reporting by public utilities; providing for territories and services; providing for regulation of public utility services and rates; providing for regulation of rates and division of revenue; providing for hearings and other procedures for regulation; defining certain offenses and providing penalties; providing procedures for public utility regulation by municipalities; providing for appeals and other procedures in the courts; providing for financing of commission operations ....” See
Art. 1446(c), V.A.T.S.
As previously stated, the Texarkana Court upheld this caption, and in doing so opined:
“A reading of the caption itself provides reasonable notice that the Act relates to the regulation of public utilities.”
The significance of this statement of the Texarkana Court is that the Utility Regulatory Act has but one subject, i.e., the regulation of public utilities. However, as any reader can plainly see, the caption of the Utility Regulatory Act contains many provisions as opposed to “subjects.”
In Phillips v. Daniel, 94 S.W.2d 1193 (Tex.Civ.App.1936), the Texas Court of Civil Appeals in Austin held that any number of provisions may be contained in the same act, and, even though they may be diverse, there is no violation of
In Day Land and Cattle Co., supra, Judge Stayton opined:
“Former constitutions of this state used the word “object” in the same connection as the word “subject” is used in Art. III, Sec. 35 of the constitution now in force; but the latter word perhaps expresses more accurately the meaning and intent of the constitutional provision. As used in the constitution, the word “subject” is that which is to be dominated or controlled by the particular law. Thus considered, there can be no doubt that the subject of the act was single, and consisted of all the public land in Greer County unappropriated at the time the Act was passed; and that this subject may have been appropriated to more than one purpose or end does not affect the question.
“As said in Tadlock v. Eccles, 20 Tex. [782] 793: ‘the intention doubtless was to prevent embracing in an act having an ostensible object, provisions having no relevancy to that object, but really designed to effectuate other and wholly different objects, and thus to conceal and
disguise the real object proposed by the provisions of an act under a false or deceptive title. A title or act essentially single in subject, which does not thus conceal or disguise the real purpose, is not subject to constitutional objection, although the ends intended to be reached through the one subject may be many. The decisions made under former constitutions, in which the word “object,” in its ordinary signification means more nearly the same as “end” or “purpose” as does the word “subject,” was used, are conclusive of this question.’ (citations omitted)”
The majority finds fault with the fact that the body of H.B. 730 added ten new sections to the Controlled Substances Act and modified or amended portions of the Texas Penal Code and Code of Criminal Procedure. The naming of the article or act to be amended directs attention to all provisions therein, as the subject of the amending act. See Katz v. State, 122 Tex. Cr.R. 231, 54 S.W.2d 130; State v. McCracken, 42 Tex. 383; and Schlichting v. Texas State Board of Medical Examiners, 158 Tex. 279, 310 S.W.2d 557, reh. den. Thus, necessarily the caption would draw the reader‘s attention, not only to the provisions of the Controlled Substances Act itself, but also to the necessarily entertwined provisions of the Penal Code and Code of Criminal Procedure, which are embodied in the original Controlled Substances Act. See Day Land and Cattle Co., supra. The majority also erroneously concerns itself with the fact that “at least one section was repealed.” This fact is of no moment, because the failure to incorporate a provision for the repeal of a conflicting law in a caption of an act is not violative of
Having traced the origins and historical background of
Turning to the caption in the instant case in H.B. 730, the issue thus becomes whether or not the caption gives a legislator or other reader notice of the content of the bill to the end that surprise or fraud in legislation may be prevented. Expressed in another way, does the caption conceal or disguise the real purpose of H.B. 730 and does it contain more than one subject matter? The subject matter under consideration in the caption of H.B. 730 is obviously the Texas Controlled Substances Act. There is no other subject matter expressed in the caption, just as there was no other subject matter expressed in the Utility Regulatory Act in City of Brownsville, supra, other than the regulation of public utilities, though there were many provisions expressed in the bill. Secondly, does the caption of H.B. 730 conceal or disguise its real purpose? The caption says that it is an act relating to offenses and criminal penalties under the Texas Controlled Substances Act. It is difficult for this writer to understand how the caption in H.B. 730 would conceal or disguise anything at all. It puts a reader on notice of the treatment of one subject and alerts him to study, explore, and investigate the details of that subject. The caption actually affords a signal that is entirely conducive to informative and “above-board” legislative results. Additionally, this court need not operate in a vacuum in determining the question before it. This court can take judicial notice of the fact that H.B. 730, sometimes known as the “War on Drugs” legislation, was freely and liberally debated by both houses of the Texas Legislature in 1981 and freely and liberally debated by every form of news media in the state. It is certainly fair to say that the public debate over the question of the passage of H.B. 730 was as extensive as any
If the majority opinion in this case is allowed to stand, three consequences will result therefrom: (1) a new standard for the interpretation of statute captions pursuant to
It is to these consequences that I respectfully dissent.
TOM G. DAVIS, W.C. DAVIS and MCCORMICK, JJ., join in this dissent.
Meddie Leon BASS, Jr., Appellant, v. The STATE of Texas, Appellee.
No. 1049-82.
Court of Criminal Appeals of Texas, En Banc.
Sept. 14, 1983.
Notes
AN ACT
relating to the revision, recodification, and reenactment of substantive and procedural laws (including, but not limited to, administrative and enforcement provisions) concerning the manufacture, distribution, dispensing, possession, and delivery of marihuana, controlled substances, and drug paraphernalia; providing penalties, amending, recodifying, and reenacting Sections 1.02, 3.08, 4.01, 4.011, 4.012, 4.03, 4.031, 4.032, 4.04, 4.041, 4.042, 4.043, 4.05, 4.051, 4.052, 4.12, 5.03, 5.05, 5.06, 5.07, 5.08, and 5.081 of the Texas Controlled Substances Act, as amended (Article 4476-15, Vernon‘s Texas Civil Statutes); adding a new Section 4.053 to Subchapter 4 of the Texas Controlled Substances Act, as amended (Article 4476-15, Vernon‘s Texas Civil Statutes); amending and reenacting Section 3f(c), Article 42.12, Code of Criminal Procedure, 1965, as amended; amending and reenacting Articles 44.04(b) and (c), Code of Criminal Procedure, 1965, as amended; repealing Sections 4.01(c) and (d), Texas Controlled Substances Act, as amended (Article 4476-15, Vernon‘s Texas Civil Statutes); including a saving clause; providing for expiration of certain provisions of the Texas Controlled Substances Act if not reenacted on or before December 31, 1985; and declaring an emergency.
Although the issue of the validity of this caption is not before us, we note that it more elaborately discusses the subject matter of the original bill.
“But if any subject shall be embraced in an act, which shall not be expressed in the title, such act shall be void only as to so much thereof, as shall not be expressed.” All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.Indeed, until fairly recently in drafting captions accepted legislative technique described a bill as “An act to ...” However, turning a verb into a participle sufficed in some instances. Thus, in City of Brownsville v. Public Utility Commission, 616 S.W.2d 402 (Tex.Civ.App.--Texarkana 1981, writ ref‘d n.r.e.), mentioned in both opinions, the caption stated at the outset that it was an act “defining public utilities and providing for their regulation ...” That is a clear expression of the subject of the bill.