Ex parte James W. ELLIS; Ex parte John Dominick Colyandro
Nоs. 03-05-00585-CR, 03-05-00586-CR, 03-05-00589-CR, 03-05-00590-CR, 03-05-00591-CR, 03-05-00592-CR, 03-05-00593-CR, 03-05-00594-CR, 03-05-00595-CR, 03-05-00596-CR, 03-05-00597-CR, 03-05-00598-CR, 03-05-00599-CR, 03-05-00600-CR, 03-05-00601-CR, 03-05-00602-CR, 03-05-00603-CR
Court of Appeals of Texas, Austin
Aug. 22, 2008
Order Denying Rehearing En Banc Aug. 29, 2008
Supplemental Opinion on Denial of Rehearing March 17, 2009.
Ronald Earle, Dist. Atty., Holly Taylor, Asst. Dist. Atty., Austin, for appellee.
Before Chief Justice LAW, Justices PEMBERTON and WALDROP.
OPINION
G. ALAN WALDROP, Justice.
In these pretrial proceedings, James W. Ellis and John Dominick Colyandro seek the dismissal of indictments accusing them of accepting unlawful campaign contributions and money laundering. They argue that the election code provisions under which they have been indicted are unconstitutionally vague and overbroad, and that the money laundering statute in effect at the time of the alleged offense is unconstitutionally vague. The trial court denied relief and these appeals followed. We affirm the orders of the district court.
The Indictments
Ellis and Colyandro were first indicted in September 2004 on charges of unlawful acceptance of corporate political contributions (Colyandro only) and money laundering (Ellis and Colyandro). Collectively, the indictments accuse Ellis and Colyandro of participating in a scheme to channel unlawful corporate political contributions to candidates for the Texas House of Representatives in 2002 in violation of the Texas Election Code. Thirteen of the indictments pending against Colyandro allege that on various dates throughout 2002, Colyandro knowingly accepted political contributions from certain business corporations to a political committee called Texans for a Republican Majority PAC (TRMPAC) that Colyandro knew to have been made in violation of the election code. See
Ellis and Colyandro were reindicted in July 2005. The new indictments alleged that Ellis and Colyandro knowingly facilitated a transaction involving the proceeds of activity violating sections 253.003 and 253.094 of the election code, and that the value of the funds was $100,000 or morе. See
Ellis and Colyandro petitioned the district court for a writ of habeas corpus, seeking dismissal of the original prosecutions on the basis that election code section 253.094 is unconstitutionally vague and overbroad. See Ex parte Weise, 55 S.W.3d 617, 620 (Tex. Crim. App. 2001) (criminal defendant may use pretrial habeas corpus to challenge facial constitutionality of statute he is accused of violating); Ex parte Mattox, 683 S.W.2d 93, 96 (Tex. App.—Austin 1984), aff‘d, 685 S.W.2d 53 (Tex. Crim. App. 1985) (same). After they were reindicted, Ellis and Colyandro filed additional habeas corpus petitions, seeking dismissal of the new prosecutions on the basis that election code sections 253.003 and 253.094 are unconstitutionally vague and overbroad, and that the money laundering statute under which they were indicted is unconstitutionally vague. The district court denied relief.
Election Code Provisions
Ellis and Colyandro seek dismissal of both sets of indictments arguing that sections 253.003 and 253.094 of the election code are unconstitutionally vague and overbroad on their face.2 They argue that these sections are vague and overbroad because the statutory definition of “campaign contribution” is “insufficiently tailored and precise to avoid criminalizing protected conduct or chilling the exercise of First Amendment rights.” More specifically, Ellis and Colyandro point to the portion of the definition of “campaign contribution” providing that the contribution be “offered or given with the intent that it be used in connection with a campaign” as too imprecise to give constitutionally adequate notice of what conduct is prohibited as well as criminalizing conduct that comes within the protections of the First Amendment right to free speech.
It is a fundamental constitutional principle that an enactment is void for vagueness if its prohibitions are not clearly defined. Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). A criminal law must be sufficiently clear in at least three respects: (1) a person of ordinary intelligence must be given a reasonable opportunity to know what is prohibited; (2) the law must establish determinate guidelines for law enforcement; and (3) where First Amendment freedoms are implicated, the law must be sufficiently definite to avoid chilling protected expression. Id. at 108-09; Long v. State, 931 S.W.2d 285, 287 (Tex. Crim. App. 1996). When a vagueness challenge involves First Amendment considerations, a criminal law may be held facially invalid even though it may not be unconstitutional as applied to the defendant‘s conduct. Long, 931 S.W.2d at 288. Ellis and Colyandro argue that the election code provisions relating to corporate campaign contributions run afoul of all three requirements because of the indefiniteness inherent in the prohibition of contributions that are “given with the intent” that they be used “in connection with a campaign.”
Subchapter D of chapter 253 governs political contributions and expenditures by corporations and labor organizations. “A corporation or labor organization may not make a political contribution or political expenditure that is not authorized by this subchapter.”
Ellis and Colyandro‘s argument that section 253.094—and by extension, section 253.003—is unconstitutionally vague and overbroad focuses on the definitions of
A “contribution,” in turn, is defined as “a direct or indirect transfer of money, goods, services, or any other thing of value and includes an agreement made or other obligation incurred, whether legally enforceable or not, to make a transfer.”
As these myriad definitions suggest, whether a payment or transfer of anything of value falls within the prohibitions of the election code turns largely on the meaning of the phrase “in connection with a campaign for elective office.” An expenditure that is made “in connection with” a campaign is a regulated “campaign expenditure;” otherwise, it is not regulated. Similarly, if an expenditure can be construed as a direct or indirect transfer of a thing of value to a candidate or political committee with the intent that it be used “in connection with” a campaign, it is a regulated “campaign contribution.” Conversely, as the State acknowledges, a payment or transfer to a candidate or political committee is not a “political contribution“—and therefore, not regulated by the election code at all—if it is not “offered or given with the intent that it be used in connection with a campaign for elective office or on a measure.” This statutory demarcation of what constitutes acceptable as opposed to criminal conduct with respect to giving money to organizations that engage in the political process—relying as it does on a contributor‘s intent and on the troublesome phrase “in connection with” a campaign—is the primary focus of Ellis and Colyandro‘s overbreadth and vagueness challenges.
As Ellis and Colyandro observe, a “political committee” is defined as “a group of persons that has as a principal purpose accepting political contributions or making political expenditures.”
Emphasizing this aspect of the statutory scheme, Ellis and Colyandro argue that where an entity or association constituting a political committee also engages in lobbying, grassroots advocacy, or expressing its views on general issues of policy or public concern, such activities could easily be characterized as “in connection with” a campaign whenever they bear some resemblance to issues arising in a candidate‘s campaign—whether the resemblance is intentional or purely coincidental. In such a context, Ellis and Colyandro argue, the line between an unregulated payment to a political committee and a regulated “contribution . . . that is offered or given with the intent that it be used in connection with a campaign for elective office” fails to give potential contributors and potential “acceptors” constitutionally adequate notice of the conduct prohibited and gives law enforcement officers no clear guidelines for enforcing the election laws. This potential difficulty with knowing whether specific conduct will have criminal implications under the election code, Ellis and Colyandro maintain, chills constitutionally protected expression and necessarily brings within the coverage of the election code‘s criminal provisions a substantial amount of expressive activity protected by the First Amendment.
Buckley v. Valeo and Progeny
In support of their facial challenge to the Texas restriction on corporate campaign contributions, Ellis and Colyandro point to parallels in First Amendment jurisprudence regarding regulation of campaign expenditures. In Buckley v. Valeo, 424 U.S. 1 (1976), the United States Supreme Court considered constitutional challenges to various provisions of the Federal Election Campaign Act of 1971 (FECA), including a ceiling on campaign expenditures by individuals and groups “relative to a clearly identified candidate.” Id. at 39.9 Although recognizing various government interests in regulating campaign finance, the Court emphasized that “[c]lose examination of the specificity of the statutory language is required where, as here, the legislation imposes criminal penalties in an area permeated by First Amendment interests.” Id. at 40-41. Concluding that “[t]he use of so indefinite a phrase as ‘relative to’ a candidate fails to clearly mark the boundary between permissible and impermissible speech,” the Court construed the phrase in context with other provisions to “permit, if indeed not require, [it] to be read to mean ‘advocating the election or defeat of a candidate.‘” Id. at 41-42. However, the Court reasoned, merely tying “relative to” to “advocating the election or defeat of a candidate” did not eliminate the vagueness problem:
For the distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application. Candidates, especially incumbents, are intimately tied to public issues involving legislative proposals and governmental actions. Not only do candidates campaign on the basis of their positions on various public issues, but campaigns themselves generate issues of public interest. In an analogous context, this Court in Thomas v. Collins, 323 U.S. 516 (1945), observed:
“Whether words intended and designed to fall short of invitation would miss that mark is a question both of intent and of effect. No speaker, in such circumstances, safely could assume that anything he might say upon the general subject would not be understood by some as an invitation. In short, the supposedly clear-cut distinction between discussion, laudation, general advocacy, and solicitation puts the speaker in these circumstances wholly at the mercy of the varied understanding of his hearers and consequently of whatever inference may be drawn as to his intent and meaning.
“Such a distinction offers no security for free discussion. In these conditions it blankets with uncertainty whatever may be said. It compels the speaker to hedge and trim.”
Buckley, 424 U.S. at 42-43. To address constitutional vagueness concerns, the Court held that the statute “must be construed to apply only to expenditures for communicatiоns that in express terms advocate the election or defeat of a clearly identified candidate.” Id. at 43-44. Such “express terms” would include, the court suggested, those such as “‘vote for,’ ‘elect,’ ‘support,’ ‘cast your ballot for,’ ‘Smith for Congress,’ ‘vote against,’ ‘defeat,’ ‘reject.‘” Id. at 44 n. 52.10
The United States Supreme Court has continued to adhere to this “express advocacy” doctrine, construing similar regulations of campaign expenditures to apply only to the types of “explicit terms” noted in Buckley in an effort to articulate a discernible and enforceable line between permissible regulation of speech versus protected issue advocacy unrelated to (or only tangentially related to) the election or defeat of a specific candidate. The Court reaffirmed the “express advocacy” doctrine in its latest pronouncement on the subject of First Amendment protection of political speech in Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449, 127 S.Ct. 2652, 2665, 168 L.Ed.2d 329 (2007).
Ellis and Colyandro assert that the phrase “in connection with a campaign for elective office” in the election code‘s definition of “campaign contribution” is even less precise than the phrase “relative to a clearly identified candidate” found wanting in Buckley with respect to political expenditures, and equally as problematic as the exact same language found wanting in Osterberg with respect to campaign expenditures. Ellis and Colyandro argue that, at a minimum, we must apply the “express advocacy” limiting construction of Buckley and Osterberg to the elеction code‘s definition of “campaign contribution” to address the potential chilling of pure issue advocacy, lobbying, or other protected speech unrelated to candidates that is expressed by contributing to entities that participate in the political process and either are or may constitute political committees. In other words, Ellis and Colyandro argue that “campaign contribution” under the election code must be construed, at least with regard to contributions to political committees, as a contribution that is offered or given with the intent that it be used for communications that in express terms advocate the election or defeat of a clearly identified candidate (e.g., “vote for,” “elect,” “support,” etc.). As a necessary corollary, the limitation would also define the scope of what is prohibited as a corporate campaign contribution under section 253.094.
Ellis and Colyandro then posit that, while the reporting requirements upheld in Osterberg could be saved with the overlay of an “express advocacy” limiting construction, the campaign contribution prohibition of section 253.094 cannot be saved in a similar way because it involves criminal penalties that strike at core First Amendment rights. Even with an “express advocacy” limiting construction applied to the statute, Ellis and Colyandro argue, it is too vague to avoid chilling a substantial amount of constitutionally protected speech because of the severity of the consequences if it turns out the contributor is wrong in his calculation of whether a fact finder will conclude that the contribution was made with the intention that it be used to expressly advocate the election or defeat of a candidate.
Corporate First Amendment Rights
The State counters that the election code‘s restrictions on corporate campaign
[T]here is practically universal agreement that a major purpose of the First Amendment was to protect the free discussion of governmental affairs. If the speakers here were not corporations, no one would suggest that the State could silence their proposed speech. It is the type of speech indispensable to decision-making in a democracy, and this is no less true because the speech comes from a corporation rather than an individual. The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.
Bellotti, 435 U.S. at 776-77 (internal citations and quotations omitted); see Citizens Against Rent Control/Coal. For Fair Housing v. City of Berkeley, 454 U.S. 290, 296-97 (1981) (invalidating limits on corporate contributions to political committee established to oppose ballot measures); see also California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510-11 (1972) (acknowledging corporations’ First Amendment right to petition legislative and administrative bodies); Eastern R.R. Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127, 137-38 (1961) (same). In addition, to prevent potential chilling of protected expressive activity, the court has applied the express advocacy limiting construction of Buckley to statutes regulating direct campaign expenditures by corporations. See Wisconsin Right to Life, 127 S.Ct. at 2666-67; Federal Election Comm‘n v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 248-49 (1986) (applying express advocacy doctrine to regulation of corporate independent expenditures “in connection with” any federal election). This same analysis has been applied by the Texas Ethics Commission to the prohibition against corporate political expenditures in section 253.094. Op. Tex. Ethics Comm‘n No. 198 (1994); see Osterberg, 12 S.W.3d at 51 (placing “great weight” on
Contributions v. Expenditures
The State also asserts that even if corporations possess First Amendment rights, the election code‘s prohibitions against corporate campaign contributions are nonetheless justified by legitimate, if not compelling, state interests and are neither unconstitutionally vague nor overbroad. The State correctly observes that the United States Supreme Court has viewed statutes regulating campaign contributions to implicate lesser First Amendment interests than those of campaign expenditures. The Court has viewed limitations on expenditures as tantamount to a direct restraint on speech11 and as endangering the ability of groups “from effectively amplifying the voice of their adherents, the original basis for the recognition of First Amendment protection of the freedom of association.” Buckley, 424 U.S. at 19-22. Therefore, the Court has analyzed restrictions on expenditures under strict scrutiny. Id. at 44-45 (“[T]he constitutionality of [a restriction on expenditures] turns on whether the governmental interests advanced in support satisfy the exacting scrutiny applicable to the limitations on core First Amendment rights of political expression.“). In contrast, the Court has viewed limitations on contributions as lesser impositions on speech and associational rights, and has applied a lower level of scrutiny to statutes implementing limitations on contributions. Id. at 20-27.
In Buckley, the United States Supreme Court held that the phrase “relative to a clearly identified candidate” was unconstitutionally vague with respect to expenditures.12 The Buckley court‘s discussion of First Amendment free speech issues with regard to campaign expenditures is instructive as to why the vagueness argument does not apply—under the Court‘s currently accepted jurisprudence—with equal force to campaign contributions. According to the Court, the language at issue—“relative to a clearly identified candidate“—was vague because there was nothing else in the statute clarifying what expenditures are “relative to” a candidate and the use of such an “indefinite” phrase
By contrast with a limitation upon expenditures for political expression, a limitation upon the amount that any one person or group may contribute to a candidate or political committee entails only a marginal restriction upon the contributor‘s ability to engage in free communication. A contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support. The quantity of communication by the contributor does not increase perceptibly with the size of his contribution, since the expression rests solely on the undifferentiated, symbolic act of contributing. At most, the size of the contribution provides a very rough index of the intensity of the contributor‘s support for the candidate. A limitation on the amount of money a person may give to a candidate or campaign organization thus involves little direct restraint on his political communication, for it permits the symbolic expression of support evidenced by a contribution but does not in any way infringe the contributor‘s freedom to discuss candidates and issues. While contributions may result in political expression if spent by a candidate or an association to present views to the voters, the transformation of contributions into political debate involves speech by someone other than the contributor.
Id. at 20-21. Therefore, under the Court‘s current rationale, a potential campaign contributor need not determine whether the manner in which his funds are spent is constitutionally permissible. The contributor need not determine, for example, whether an expenditure on an advertisement expressly advocates the election or defeat of a candidate. The contributor gives funds, and the funds are transformed into political expression by someone else. It is the person making the expenditures or transforming the contributed funds into speech, not the contributor, who must be concerned with the vagueness of restrictions on the use of the funds. The concerns of the Court set out in Thomas v. Collins, 323 U.S. 516, 535 (1945), and quoted in Buckley as to speakers “hedging and trimming” their speech due to potential and unknown liability do not—under the Court‘s precedent—apply with the same force to the contributor, who is not directly involved in transforming funds into political speech.13
In cases that more directly address limitations on campaign contributions as opposed to campaign expenditures, the Court has consistently deferred to congressional enactments limiting political campaign contributions. The Court has recently stated that its treatment of restrictions on contributions reflects “the limited burdens they impose on First Amendment freedoms . . . [and] the importance of the interests that underlie contribution limits—interests in preventing ‘both the actual corruption threatened by large financial contributions and the eroding of public confidence in the electoral process through the appearance of corruption.‘” McConnell v. Federal Election Comm‘n, 540 U.S. 93, 136 (2003) (quoting Federal Election Comm‘n v. National Right to Work Comm., 459 U.S. 197, 208 (1982)); accord Wisconsin Right to Life, Inc., 127 S.Ct. at 2665. The McConnell court added:
[W]hen reviewing Congress’ decision to enact contribution limits, there is no place for a strong presumption against constitutionality, of the sort often thought to accompany the words “strict scrutiny.” The less rigorous standard of review we have applied to contribution limits (Buckley‘s “closely drawn” scrutiny) shows proper deference to Congress’ ability to weigh competing constitutional interests in an area in which it enjoys particular expertise. It also provides Congress with sufficient room to anticipate and respond to concerns about circumvention of regulations designed to protect the integrity of the political process.
The United States Supreme Court‘s deference to Congress with regard to limits on political contributions is even greater with respect to corporate political contributions, and is manifest in its treatment of federal laws governing corporate political activity. It is a federal offense for “any corporation whatever, or any labor organization to make a contribution or expenditure in connection with” certain federal elections, and for “any candidate, political committee, or other person knowingly to accept or receive any contribution prohibited by this section.”
As these excerpts from recent opinions show, not only has the original ban on direct corporate contributions endured, but so have the original rationales for the law. In barring corporate earnings from conversion into political “war chests,” the ban was and is intended to “prevent corruption or the appearance of corruption.” But the ban has always done further duty in protecting “the individuals who have paid money into a corporation or union for purposes other than the support of candidates from having that money used to support political candidates to whom they may be opposed.”
Quite aside from war-chest corruption and the interests of contributors and owners, however, another reason for regulating corporate electoral involvement has emerged with restrictions on individual contributions, and recent cases have recognized that restricting contributions by various organizations hedges against their use as conduits for “circumvention of [valid] contribution
limits.” To the degree that a corporation could contribute to political candidates, the individuals “who created it, who own it, or whom it employs,” could exceed the bounds imposed on their own contributions by diverting money through the corporation. As we said on the subject of limiting coordinated expenditures by political parties, experience “demonstrates how candidates, donors, and parties test the limits of the current law, and it shows beyond serious doubt how contribution limits would be eroded if inducement to circumvent them were enhanced.”
In sum, our cases on campaign finance regulation represent respect for the “legislative judgment that the special characteristics of the corporate structure require particularly careful regulation.” And we have understood that such deference to legislative choice is warranted particularly when Congress regulates campaign contributions, carrying as they do a plain threat to political integrity and a plain warrant to counter the appearance and reality of corruption and the misuse of corporate advantages. As we said in [Federal Election Comm‘n v. Colorado Republican Federal Campaign Committee, 533 U.S. 431 (2001)], “limits on contributions are more clearly justified by a link to political corruption than limits on other kinds of political spending are (corruption being understood not only as quid pro quo agreements, but also as undue influence on an officeholder‘s judgment, and the appearance of such influence).”
Id. at 154-55 (citations omitted). The Beaumont Court held that apрlying the federal prohibition on direct corporate contributions to nonprofit advocacy corporations did not violate the First Amendment. Id. at 149.15
The United States Supreme Court has also affirmed the constitutionality of a state law prohibiting corporate political contributions and expenditures. Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990). The Michigan Campaign Finance Act prohibits corporations from making contributions and independent expenditures in connection with state candidate elections, but exempts from this general prohibition expenditures made from a segregated fund created specifically for this purpose. Id. at 655-56. The issue before the Court was the act‘s ban on independent expenditures “in assistance of, or in opposition to, the nomination or election of a candidate.” Id. at 658. The Court upheld the restrictions in the statute, holding that “[c]orporate wealth can unfairly influence elections when it is deployed in the form of independent expenditures, just as it can when it assumes the guise of political contributions.” Id. at 660. Reaffirming its view of restrictions on corporate political activity, the Court found that the Michigan statute is “targeted to eliminate the distortion caused by corporate spending while also allowing corporations to express their political views” through the use of separate, segregated funds. Id. The Court rejected the Chamber‘s argument that the act was overbroad because it applied to closely held corporations that do not possess vast reservoirs of capital, holding that “the potential for distorting the political process” justified the general application of the statute to all corporations. Id. at 661.15
Level of Constitutional Review
As to whether the election code‘s restrictions on corporate campaign contributions are subject to strict scrutiny or must only satisfy a lеss rigorous test such as being “closely drawn” to meet a “sufficiently important interest” or being “carefully tailored to meet reasonable legislative objectives in curtailing corruption in the political process,” we are guided by the decisions of the United States Supreme Court. The Court has regularly and consistently deferred to legislative judgment on restrictions of corporate campaign contributions, explaining that “the special characteristics of the corporate structure require particularly careful regulation.” Beaumont, 539 U.S. at 155. The Court has also regularly upheld such restrictions if they are “closely drawn” to meet a “sufficiently important interest.” Id. at 162. In light of binding United States Supreme Court precedent noted above and the currently applicable rationale of Buckley v. Valeo regarding the constitutional distinction between political expenditures and political contributions, we hold that the Texas Election Code‘s broad restrictions on the making and accepting of corporate campaign contributions—that is, contributions of corporate funds to candidates and political committees intended for use in connection with campaigns for elective office—is not subject to a strict scrutiny analysis, but a less rigorous standard as articulated in Buckley, Beaumont, and McConnell that the restrictions be “closely drawn” or “narrowly tailored” to meet a “sufficiently important interest.”
Overbreadth
In determining whether the challenged election code provisions are unconstitutional, we start with the presumption that the statute is valid and that the legislature acted in a constitutionally sound fashion. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002). We will uphold the statute if it can be reasonably construed in a manner that will render it constitutional and carry out legislative intent. Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App. 1979).
Ellis and Colyandro‘s overbreadth argument is straightforward. They start from the proposition that Buckley prohibits the legislature from restricting issue advocacy,17 and then argue that, since the statutory phrase “in connection with a campaign for elective office” as used in the election code with respect to corporate contributions is broad enough to encompass issue advocacy, it is unconstitutionally overbroad. However, as we have noted, controlling United States Supreme Court precedent has not drawn the express advocacy/issue advocacy distinction for corporate political contributions, nor has the Court applied strict scrutiny to statutory restrictions on corporate political contributions. The Court has consistently upheld restrictions on corporate political contributions and even outright bans on certain types of corporate contributions as long as the restrictions were “closely drawn“—under the Buckley rationale—to meet important governmental interests such as “combating the appearance or perception of corruption engendered by large campaign contributions” like those that could come from corporate contributors. McConnell, 540 U.S. at 143-44. In fact, as noted above, the Court has upheld restrictions that are similar to the restrictions at issue here at both the federal and state levels. Consequently, we are of the view that there is no basis in the current jurisprudence to apply an express advocacy limiting construction to the corporate contribution restrictions in the Texas election code.
We also emphasize that to prevail on their facial challenge to the overbreadth of the relevant election code provisions, Ellis and Colyandro must demonstrate that the restrictions, in fact, reach a substantial amount of protected conduct. City of Houston v. Hill, 482 U.S. 451, 458 (1987). A statute will not be invalidated for overbreadth merely because it is possible to imagine some unconstitutional applications. Commission for Lawyer Discipline v. Benton, 980 S.W.2d 425, 436 (Tex. 1998). The overbreadth doctrine is “strong medicine” and should be employed “only as a last resort.” New York v. Ferber, 458 U.S. 747, 769 (1982) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973)). There must be a realistic danger that the statute will significantly compromise recognized First Amendment protections of parties not before the court. Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 801 (1984).
Ellis and Colyandro have not met this burden. In light of the United States Supreme Court precedent expressly allowing the type of regulation of corporate campaign contributions about which Ellis and Colyandro complain, we are not convinced that the Texas Election Code provi-
Vagueness
Turning to Ellis and Colyandro‘s vagueness challenge, Ellis and Colyandro complain that “[a] person of ordinary intelligence is not given a reasonable opportunity to know what is prohibited by laws providing that a corporation cannot make, and a person cannot accept, a contribution with the intent that it be used “in connection with a campaign for elective office.“” They punctuate this point with the statement: “If one wishes to make a donation to a group to advocate in favor of an issue that is the cornerstone of a particular candidate‘s campaign, is one making a donation ‘in connection with’ that candidate‘s campaign? Who knows?”
We recognize that the phrase “in connection with a campaign” is broad. We presume the legislature intended it to be broad. We also recognize that the elaborate structure for regulating political contributions in the election code is complicated and a challenge for “a person of ordinary intelligence” to understand and navigate. We further recognize that in some instances there may well be considerable challenges for prosecutors and fact finders in dealing with evidentiary issues relating to a contributor‘s intent or distinguishing between authorized or unauthorized contributions, and therefore, criminal and innocent behavior. However, complexity is not synonymous with unconstitutional vagueness. In crafting the challenged election code provisions, the legislature followed the constitutional guidelines articulated by the United States Supreme Court in Buckley and its progeny. Viewed in light of the controlling United States Supreme Court precedent, the challenged election code provisions are not so indefinite that they fail to give reasonable notice of what is prohibited with respect to corporate contributions, fail to provide law enforcement with sufficiently determinate guidelines for enforcement, or unconstitutionally chill protected expression.
Statutes are to be read as a whole and interpreted to give effect to every part. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 26 (Tex. 2003). Although Ellis and Colyandro argue that contributions to support measures or other permitted purposes could be criminalized—as a practical matter—if the statute were applied improperly or the finder of fact misjudges the evidence, their argument goes to the possibility of erroneous application of the statute rather than the propriety of the language of the statute on its face. The statute plainly allows corporations to make contributions to support or oppose a measure and to cover administrative expenses. Contributions to political committees to support advocacy on such “measures” in elections are specifically authorized by the election code.
We believe that a person of ordinary intelligence is capable of properly designating whether his or her contribution is intended to support or oppose a measure (lawful), be used solely for administrative expenses (lawful), be used for unregulated expenditures (lawful), or be used to “in connection with” a candidate‘s campaign (unlawful). To the extent Ellis and Colyandro complain that this statutory structure could subject a person to penalty simply for being mistaken about what a contributor intends, the statute places burdens on those making and accepting corporate contributions to designate and to ascertain the purpose of a contribution before giving it or using it in a campaign for elective office. In light of the United States Supreme Court‘s pronouncements in this area, we cannot find this burden unconstitutional, and we defer to the legislature‘s judgment on this point.
Ellis and Colyandro also complain that the election code permits corporations to finance the establishment and administration of general-purpose political committees, but it does not define “establishment” or “administration.” They argue that, as a result, the distinction between a lawful corporate expenditure or contribution to establish or administer a general-purpose committee and an unlawful corporate campaign contribution to such a committee is unconstitutionally vague.
A statute is not unconstitutionally vague merely because it fails to define words or terms used. Anderson, 902 S.W.2d at 699. When words are not defined, they are ordinarily given their plain meaning unless the statute shows that they were used in some other sense. Id. In the absence of special definitions, statutory language can be measured by common understanding and practices or construed in the sense generally understood. Id.
The Texas Ethics Commission has held that the guide for determining whether a particular expense is “administrative” under section 253.100 is whether the expense is one that would be incurred in the normal course of business by any active organization, whether or not it engaged in political activity. Op. Tex. Ethics Comm‘n No. 132 (1993). Similarly, a permissible “establishment” expense is one that would be incurred by any organization, political or non-political. Examples of administrative expenses include expenditures on office rent, utilities, and office supplies. Id. By contrast, expenses that are tied directly to a political committee‘s support for or opposition to candidates or measures are not аdministrative expenses. Examples of such non-administrative expenses include expenses to host a public reception for an identified candidate and expenses for meetings of members of the general-purpose committee with candidates for elective office. Id. “Even though the requestor specifies that no public communication or endorsement of any candidate would be made at such a meeting, the activity described represents an initial phase of the committee‘s political activity.” Id. Other categories of expenses, including, for example, expenses for postage, printing and stationery, travel, staff salaries, and legal fees, may be classified as part administrative expenses and part political activity expenses, depending on the circumstances of each case. Id. Such expenses are generally considered administrative; however, to the extent that the expenses encompass political activity, they are not administrative. Id. For example, if an employee of the general-purpose committee is compensated for his activities that support or oppose a political candi
Additional clarification of what is and is not permitted can be found in the election code‘s definitions of general-purpose committee and specific-purpose committee. These definitions state that a “political committee” has “a principal purpose” of either (1) accepting contributions made with the intent to support or oppose one or more candidates, officeholders, or measures, or (2) making expenditures for such purposes. See
In our view, a reasonable person of ordinary intelligence is capable of distinguishing between making contributions for the purpose of being used to defray unregulated expenses that are unrelated to any kind of political campaign and those that are campaign-related and, therefore, regulated. While reasonable minds might differ as to the utility and effectiveness of a regulatory structure such as that currently applicable to corporate political contributions in the election code, the current structure does not run afoul of constitutional protections. We hold that section 253.094 of the Texas Election Code is not unconstitutionally vague on its face.
We have found that the election code‘s prohibition on corporate political contributions is not unconstitutionally vague or overbroad. It follows that section 253.003 is not vague or overbroad insofar as it criminalizes the acceptance of an unlawful corporate political contribution that is known to be unlawful by the person accepting it.
Money Laundering Statute
A person commits the offense of money laundering if he “conducts, supervises, or facilitates a transaction involving the proceeds of criminal activity.”
(A) coin or paper money of the United States or any other country that is designated as legal tender and that circulates and is customarily used and ac
cepted as a medium of exchange in the country of issue; (B) United States silver certificates, United States Treasury notes, Federal Reserve System notes; and
(C) official foreign bank notes that are customarily used and accepted as a medium of exchange in a foreign country and foreign bank drafts.
(D) currency or its equivalent, including an electronic fund, personal check, bank check, traveler‘s check, money order, bearer negotiable instrument, bearer investment security, bearer security, or certificate of stock in a form that allows title to pass on delivery.
Ellis and Colyandro are charged under the 2004 set of indictments with money laundering by delivering a personal check to the Republican National State Elections Committee. They assert that, if the term “funds” in the pre-2005 version of the money laundering statute is interpreted to include checks and the other items added by the 2005 amendment to the statute, the pre-2005 version of the statute is unconstitutionally vague on its face because it fails to give constitutionally adequate notice that a person could be convicted of money laundering based solely on handling checks, money orders, or other negotiable instruments. The essence of their argument is that, if the pre-2005 version of the money laundering statute is read to criminalize transactions in which the “proceeds of criminal activity” were something other than funds in the form of cash or cash equivalent, the statute is unconstitutionally vague on its face because a reasonable person of ordinary intelligence would not know from reading the statute that a check, money order, or other negotiable instrument (items added by the 2005 amendment to the statute) fall within the ambit of the term “funds.” Ellis and Colyandro concede that if the pre-2005 version of the statute does not criminalize transactions involving forms of payment other than cash or cash equivalents, it passes constitutional muster, and their vagueness argument fails.19
According to the applicable version of section 34.01, the term “funds” includes United States currency, the currency of any other country, United States silver certificates, United States Treasury notes, Federal Reserve System notes, official foreign bank notes that are customarily used and accepted as a medium of exchange in a foreign country, and foreign bank drafts. “Includes” is a term of enlargement and not of limitation or exclusive enumeration and does not create a presumption that components not expressed are excluded.
The term “funds” is described in the applicable version of the statute as including “coin or paper money of the United States or any other country that is designated as legal tender and that circulates and is customarily used and accepted as a medium of exchange in the country of issue,” as well as United States silver certificates, United States Treasury notes, Federal Reserve System notes, official foreign bank notes that are customarily used and accepted as a medium of exchange in a foreign country, and foreign bank drafts.
Coin, currency, cash, or items that function as cash equivalents are, themselves, payment. By contrast, a check is a promise or commitment to make payment when the check is later presented for payment. Accordingly, payment by check that is not guaranteed in some way, such as a cashier‘s check or teller‘s check, is not payment in the same sense as payment by cash or cash equivalent. A check is “a written message to the drawee to pay money in accordance with the order, and thus its primary function is to facilitate payment of an obligation.” Fred H. Miller & Alvin C. Harrell, The Law of Modern Payment Systems and Notes § 1.01(4)(a) (2002). The recipient of the check does not receive actual payment until he negotiates the check and some third party, such as a bank, makes payment to the recipient in exchange for the check. If the check is presented for payment at a bank, but the account from which payment is to be drawn contains insufficient funds, the drawer of the check has stopped payment, the signature on the check turns out to be forged, or any of a number of other complications arise, the presenter of the check may not receive payment.
Considering these fundamental differences between cash (or a cash equivalent such as a U.S. Treasury note) and non-guaranteed checks and other negotiable instruments, and applying the rule of ejusdem generis, which allows a term to be enlarged only as to items of the same kind, class, or nature as the other items on the list, we are of the view that checks and other negotiable instruments are not comparable to or appropriately classified with the items included in the pre-2005 definition of “funds” in section 34.01, which included only mediums of exchange that function as cash or true cash equivalents. The 2002 version of the statute lists items that can be categorized as currency or some form of fungible, “customarily used and accepted” medium of exchange—items that are, by themselves, a form of payment. The listed items do not include non-cash personal promises or commitments to pay such as checks, promissory notes, IOUs, contracts, negotiable instruments, or any other form of promise to pay that falls short of actual payment or something that is, without more, accepted as a medium of exchange.
It is too much of a leap for us to conclude that a reasonable person of ordinary intelligence would look at the pre-2005 version of section 34.01 and be aware that it intended to criminalize the “laundering” of checks, negotiable instruments, promissory notes, and other contractual orders or promises to pay in addition to the well-known concept of criminalizing the handling of fungible cash or cash equivalent items such as those expressly listed in the statute. If section 34.01 were intended to apply to items such as checks, negotiable instruments, and other such commitments to pay that are not in themselves payment,
The legislative history of the original statute indicates that when the Texas money laundering statute was adopted in 1993, the legislature anticipated that the statute would primarily apply to the cash proceeds of drug crimes and other criminal activity. According to the House of Representatives’ Committee on Criminal Jurisprudence: “H.B. 354 recommends a distinctive strategy that shifts the emphasis on following the drugs to one that follows the money.” This shift was recommended because of the “[a]pproximately $150 billion from illegal drug sales that is laundered each year—all of it cash.” House Comm. on Criminal Jurisprudence, Bill Analysis, Tex. H.B. 354, 73d Leg., R.S. (1993). The analysis continues: “By taking a few money launderers out of circulation, H.B. 354 would effectively paralyze drug ring operations and create bottlenecks in the flow of illegal funds.” Id. According to this bill analysis, the legislature‘s intent in adopting the original money laundering statute was to combat illicit drug trade by focusing on the cash involved in the transactions. The list of examples of what constitutes “funds” in the original statute is consistent with the bill analysis‘s statement that the legislature intended that it include only items that functioned as cash or true cash equivalents.
The primary rule in statutory interpretation is that a court must give effect to legislative intent. Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 383 (Tex. 2000). When determining legislative intent, we look to the language of the statute, as well as its legislative history, the objective sought, and the consequences that would flow from alternate constructions. Id. The fact that the legislature contemplated the statute would apply to the cash proceeds of illicit drug activity supports Ellis and Colyandro‘s argument that the statute in effect in 2002 did not intend to tacitly include checks, negotiable instruments, or other forms of contractual commitments to pay in the future.
As further support for their position, Ellis and Colyandro cite the 2005 amendment to section 34.01(2), which added the category of checks and other non-cash monetary instruments to the definition of the term “funds.” They argue that the legislature‘s addition of checks and other negotiable instruments by amendment indicates that these items were not included in the earlier version of the statute. We agree that, in this instance, construing the amendments as a change to the original statute is consistent with an appropriate construction of that statute. While one legislature‘s interpretation of a prior legislature‘s enactment may be persuasive, it is not dispositive of the interpre
Courts have upheld the presumption of change, for example, where terms are redefined or where additional items are specifically added to existing definitions. See Williamson Pointe Venture, 912 S.W.2d at 345 (recognizing that the amendment changed rather than clarified the statute where the definition of “regulatory agency” was amended to specifically include governing bodies of cities when issuing a permit, “project” was redefined, and a section of exclusions was added). The presumption of change is not overcome where the amendment merely recites how courts have already interpreted the statute. See Adams, 744 S.W.2d at 656 (holding that the presumption that the legislature intended to change rather than amend a law is not overcome where the amendment merely recites courts’ prior interpretations of the statute and where another section of the statute already contained similar language).
When determining whether an amendment such as that in question here was a change or clarification, we may review the legislative history and former statutory provisions.
Research Organization bill analysis went on to state that supporters of the bill offered this rationale for its adoption to the committee:
Under current law [the pre-2005 version of section 34.01], prosecutors may not prosecute offenders for money-laundering if the offender received a form of money other than cash, such as checks or money orders. This is inadequate as it prevents prosecution under this statute in an array of cases. CSHB 3376 [the bill that amended the statute in 2005] would fix this problem by covering monеy received in a variety of forms other than cash.
Id. Thus, there is unequivocal legislative history indicating that the 2005 amendments were intended to change the statute and change it to include non-cash negotiable instruments such as checks. There is no legislative history or indication in the text of the statute to the contrary. The legislative history, the text of the statute, the category of items included in the pre-2005 definition of “funds” in the statute, and the category of items added to the definition of “funds” in 2005 are all consistent with the conclusion that the legislature did not intend for the term “funds” to include non-cash type items such as those added to the statute in 2005 when it originally passed the statute in 1993.
As noted above, we will uphold a statute if it is reasonably construed in a manner that will render it constitutional and carry out legislative intent. Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App. 1979). Based on accepted principles of statutory interpretation—presuming a change when an amendment alters a statute rather than a clarification—and an examination of statutory text as well as the legislative history, we find that checks and other negotiable instruments were added to the description of the term “funds” in section 34.01 in 2005 precisely because they were not included in the prior version of the statute. We find that the term “funds” in the pre-2005 money laundering statute did not include checks or other negotiable instruments that are not the functional equivalent of cash.24 Since we hold that checks and other negotiable instruments such as those added by the amendments to section 34.01 in 2005 were not included within the definition of the term “funds” as it was defined in the statute at the time of the acts at issue here,
Conclusion
The election code‘s prohibitions on the making and accepting of corporate political contributions are not unconstitutionally vague or overbroad. The challenged statutes give constitutionally adequate notice of the conduct prohibited and sufficiently determinate guidelines for law enforcement. The pre-2005 version of the money laundering statute is not unconstitutionally vague on its face. Consequently, we affirm the district court‘s orders denying habeas corpus relief.
Before Chief Justice LAW, Justices PATTERSON, PURYEAR, PEMBERTON, WALDROP and HENSON.
ORDER
PER CURIAM.
On August 14, 2008, Justice Henson requested that these cases be heard en banc. The court is of the view that the prerequisites for en banc review are not met. See
Dissenting opinion by Justice HENSON.
Justice PATTERSON, dissenting with opinion to follow.
DIANE M. HENSON, Justice, dissenting.
Given the troubling procedural history of this case, I dissent from this Court‘s decision not to hear the case en banc. The Texas Rules of Appellate Procedure allow a justice of the court of appeals to request a vote to determine whether a case will be heard en banc. See
In a case where the panel has been unable to resolve pretrial proceedings in this accelerated case in even a remotely reasonable period of time, effectively tying the hands of the prosecution for several years and delaying the resolution of charges of public corruption that undermine the very core of our political system, the need for en banc review is evident. The panel has ignored the clear mandate of Texas Rule of Appellate Procedure 31.2, which states, “An appeal in a habeas corpus or bail proceeding will be heard at the earliest practicable time.”
Even more troubling than the delay in resolving these pretrial proceedings is the fact that the opinion is overbroad and rife with dicta. By stating, “We are of the opinion that the term ‘funds’ in the 2002 versiоn of the money laundering statute cannot be fairly read to have tacitly included checks,” the panel reaches the merits of an issue that is not properly before this Court—Ellis and Colyandro‘s “as applied” challenge to the money laundering statutes. See, e.g., Ex parte Howard, 191 S.W.3d 201, 203 (Tex. App.—San Antonio 2005, no pet.) (“A pretrial writ of habeas corpus ... may not be used to address an ‘as applied’ challenge to a statute.“). Granted, the panel claims to “express no opinion with respect to the viability or resolution of an ‘as applied’ challenge” to the money laundering statute. However, they proceed to do exactly that, addressing the merits of Ellis and Colyandro‘s argument, which, no matter how it is labeled, remains an “as applied” challenge.2 In rejecting the State‘s contention that Ellis and Colyandro are making an “as-applied” challenge that may not be addressed in this pretrial habeas corpus proceeding, the panel states, “The State‘s characterization of the Appellants’ argument presupposes a particular answer to it—i.e., that the statute should be construed in the manner the State contends and if it is, Ellis and Colyandro‘s attack can only be mounted as an ‘as applied’ challenge.” What the panel opinion fails to recognize, however, is that Ellis and Colyandro also presuppose this particular answer to their vagueness argument, as they concede that the statute is not vague if the State‘s interpretation of the statute is incorrect. According to Ellis and Colyandro, the State‘s interpretation of the statute must be correct in order for their vagueness challenge to succeed. Therefore, Ellis and Colyandro‘s vagueness argument remains an “as applied” challenge, albeit in sheep‘s clothing.
In order to sustain a facial constitutionality challenge, Ellis and Colyandro must show that there is no set of circumstances under which the statute would be valid, United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), by demonstrating that the statute is vague in all of its applications, Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). “A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” Salerno, 481 U.S. at 745.
Ellis and Colyandro concede that “funds” as used in the 2002 version of the statute plainly includes cash or currency and that therefore the money laundering statute could constitutionally be applied to a person who engages in a transaction involving the cash or cash equivalent proceeds of criminal activity. Because any facial constitutionality challenge to the statute necessarily fails on this basis, the inquiry should end there. The panel, however, proceeds to address the merits of Ellis and Colyandro‘s claim that the money laundering statute does not include checks, despite the fact that this issue is not only improper in a pretrial proceeding, but wholly irrelevant in light of the fact that Ellis and Colyandro are unable to sustain a proper facial challenge to the statute. Given the panel‘s refusal to limit itself to the appropriate issues, en banc review is necessary to assist this Court in issuing an opinion that complies with the requirements of appellate review.
Because Ellis and Colyandro‘s “as applied” challenge is not ripe at this stage of the proceedings, the panel‘s extensive discussion of whether the 2002 money laundering statute included checks in the definition of “funds” is dicta, at best, and oversteps the boundaries of this Court‘s authority to review pretrial matters. See Ex parte Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005) (stating that appellate courts are “careful to ensure that a pretrial writ is not misused ‘to secure pretrial appellate review of matters that in actual fact should not be put before appellate courts at the pretrial stage‘“) (citations omitted). The panel, however, has chosen to issue an advisory opinion on the meaning of the word “funds“—a question that this Court need not and should not address at this time. See Brown v. De La Cruz, 156 S.W.3d 560, 566 (Tex. 2004) (stating that the separation-of-powers provision,
Unfortunately, the problems do not stop there, since not only has the panel included a staggering amount of dicta in its opinion, but in doing so has applied the reasonable-person standard in a manner that renders this important legal standard devoid of meaning and subject to the whims of the judiciary. For example, the opinion states, “We find that the term ‘funds’ in the 2002 money laundering statute did not include checks.” In Lee v. State, 29 S.W.3d 570, 575 (Tex. App.—Dallas 2000, no pet.), however, our sister court found the evidence sufficient to uphold a conviction for money laundering based on a transaction involving a fraudulently obtained check. Therefore, I disagree with the panel‘s statement that “[i]t is too much of a leap for us to conclude that a reasonable person of ordinary intelligence would look at the 2002 version of section 34.01 and be aware that it intended to criminalize the ‘laundering’ of checks,” because the Dallas Court of Appeals did exactly that in Lee. See id.; see also Davis v. State, 68 S.W.3d 273, 277 (Tex. App.—Dallas 2002, pet. ref‘d) (finding that evidence was factually sufficient to uphold conviction where “five checks form[ed] the basis of the money laundering offenses“). En banc review is necessary in this case, if only to clarify that this Court does not consider the Dallas Court of Appeals to fall short of the reasonable-person-of-ordinary-intelligence standard. See O‘Connor, 837 S.W.2d at 95 (“Unless a court of appeals chooses to hear a case en banc, the decision of a panel constitutes the decision of the whole court.“).
While the panel notes that the precise issue of whether checks were considered “funds” under the money laundering statute was not before the court in Lee or Davis (just as it is not before this Court in the present case), the fact remains that the existence of two published cases by a Texas appellate court, upholding money laundering convictions based on checks, might cause a reasonable person of ordinary intelligence to expect the Texas money laundering statute to criminalize the laundering of checks.3 To survive a void for vagueness challenge, a statutory provision “need only give fair warning in light of common understanding and practices.” State v. Wofford, 34 S.W.3d 671, 679 (Tex. App.—Austin 2000, no pet.).
Similarly, the federal money laundering statute, which clearly criminalizes the laundering of checks, further calls into question the panel‘s conclusion that no reasonable person of ordinary intelligence would interpret former section 34.01 to include checks in the definition of “funds.” See
The panel also ignores the plain meaning of the statute in coming to its conclusion that no reasonable person would expect checks to be considered “funds.” A statute “must be read in context and construed according to the rules of grammar and common usage.” Ex parte Morales, 212 S.W.3d 483, 499 (Tex. App.—Austin 2007, pet. ref‘d). Section 34.01(2) of the penal code, as it existed in 2002, stated that the term “funds” includes the forms of money described in subsections (A), (B), and (C). As the panel acknowledges, we are bound to interpret the word “includes” as a term of enlargement, rather than limitation or exclusive enumeration. See
The panel cites treatises and legislative history at length in an attempt to interpret former section 34.01(2) to exclude checks from the definition of “funds.” But when attempting to discern legislative intent, we are bound by the literal text of the statute because it is the only definitive evidence of what legislators had in mind when the statute was enacted. Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).5
We may look beyond the statutory text only if it is ambiguous or if the application of the statute‘s plain language would lead to an absurd result that the legislature could not possibly have intended. Id. “As jurists, we are obliged to implement the expressed will of our legislature, not the will it keeps to itself.” Garcia v. State, 829 S.W.2d 796, 799 (Tex. Crim. App. 1992). Therefore, “the plain language of a statute, not the legislative history behind it, dictates our interpretation of that statute.” State v. Johnson, 939 S.W.2d 586, 587 (Tex. Crim. App. 1996).
There is no ambiguity in the legislature‘s use of “includes” in the definition of “funds.” By defining “funds” to “include” cash, the legislature plainly did not define “funds” to mean only cash, and neither the statute nor the context compels a different understanding of the definition. See State v. Vasilas, 187 S.W.3d 486, 490 (Tex. Crim. App. 2006) (holding that by defining “governmental record” to “includ[e] a court record,” legislature plainly did not exclude other documents). Texas appellate courts have repeatedly construed “includes” and “including” as terms of enlargement, as required by
Furthermore, the panel applies the ejusdem generis canon of construction, stating that a term may “be enlarged only as to items of the same kind, class, or nature as the other items on the list,” in concluding (unnecessarily) that the term “funds” in
The panel also argues that the legislature‘s 2005 amendment to section 34.01(2), which added subsection (D), demonstrates that the original definition of “funds” did not include checks. Subsection (D) adds to the list of items included in the meaning of “funds“: “currency or its equivalent, including an electronic fund, personal check, bank check, traveler‘s check, money order, bearer negotiable instrument, bearer security, or certificate of stock in a form that allows title to pass on delivery.”
In discussing the 2005 amendment to the statute, the panel relies on the general presumption that a legislative amendment signifies a change, rather than a clarification, of the existing statute. “However, the time and circumstances surrounding the enactment of the amendment may indicate that the change wrought by the amendment was formal only—that the legislature intended merely to interpret the original act.” 1A Norman J. Singer, Sutherland Statutory Construction § 22.30 (6th ed. 2002). If an amendment “was enacted soon after controversies arose as to the interpretation of the original act, it is logical to regard the amendment as a legislative interpretation of the original act.” Id. § 22.31. As noted in the panel opinion, Ellis and Colyandro were initially indicted in September 2004, and the
While I strongly disagree with the panel‘s reading of section 34.01(2), their discussion of whether checks are considered “funds” under the statute remains pure dicta, as Ellis and Colyandro hаve failed to establish that the statute is unconstitutionally vague on its face. I would have affirmed the trial court‘s order denying habeas corpus relief without issuing an advisory opinion that not only reaches the merits of an issue that is not properly before this Court, but ignores the plain meaning of the statute in doing so. In light of these issues, I respectfully dissent from the Court‘s decision not to afford this case the en banc review that it requires.
SUPPLEMENTAL OPINION
G. ALAN WALDROP, Justice.
We write this supplemental opinion to address issues raised by the State‘s motion for rehearing. We do not withdraw the original opinion.
In its motion for rehearing, the State contends that this Court erred by considering appellants’ challenge to the money-laundering statute as a facial challenge to the constitutionality of the statute, arguing that appellants instead raise an as-applied challenge that should not be addressed in a pretrial habeas proceeding. The State‘s contention is inconsistent with the application for writ of habeas corpus filed by appellants and our obligations under United States Supreme Court precedent establishing the procedure for examining a facial challenge.
The State contends that we erred by characterizing appellants’ challenge as a facial challenge to the constitutionality of the statute. We agree that we may consider only facial challenges on pretrial habeas. See Ex parte Weise, 55 S.W.3d 617, 620 (Tex. Crim. App. 2001). The State‘s argument is based in large part on the fact that appellants specify that the statute is vague if the definition of funds includes checks.1 Whether checks are within the definition of funds in the applicable version of the statute is plainly raised by appellants. The question is whether appellants have raised this issue as a purely as-applied challenge that would be inappropriate for review on pretrial habeas, or whether they have raised a challenge to the facial constitutionality of the statute.
Appellants’ attack on the statute is not limited to whether the definition of “funds” includes checks, although that is the application that concerns them directly. Appellants assert that “the money laundering statute is unconstitutionally vague.”2 They cite the definition of “funds” in the applicable version of the statute3 and as
Even if an appellant raises some issues that are not cognizable on pretrial habeas, we must address those issues that are raised and are necessary to the resolution of the appeal. See
The State contends that because appellants do not dispute that the statute applies to cash transactions, we need not and must not address the appellants’ facial challenge. The State‘s contention is contrary to United States Supreme Court precedent. The Supreme Court has held that if a statute is constitutional in one application, it is not facially invalid. Hoffman Estates, 455 U.S. at 494-95. The Supreme Court set out the process a court considering a facial challenge must follow:
In a facial challenge to the overbreadth and vagueness of a law, a court‘s first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail. The court should then examine the facial vagueness challenge and, assuming the enactment implicates no constitutionally protected conduct, should uphold the challenge only if the enactment is impermissibly vague in all of its applications. A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. A court should therefore examine the complainant‘s conduct before analyzing other hypothetical applications of the law.
Id. (emphasis added) (footnotes omitted). In a footnote, the Supreme Court explained further:
“[Vagueness] challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand.” United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975). See United States v. Powell, 423 U.S. 87, 92-93, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975); United States v. National Dairy Products Corp., 372 U.S. 29, 32-33, 36, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963). “One to whose conduct a statute clearly applies may not suсcessfully challenge it for
vagueness.” Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974).
Id. at 495 n. 7; see also 181 South Inc. v. Fischer, 454 F.3d 228, 235 (3d Cir. 2006). The Supreme Court later wrote that a facial challenge is difficult to win because “the challenger must establish that no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987) (quoted in Combs v. STP Nuclear Operating Co., 239 S.W.3d 264, 272 n. 8 (Tex. App.—Austin 2007, pet. denied)).
While the Supreme Court could have, either in Salerno or in a subsequent case, overruled or amended Hoffman Estates and announced a process by which courts must begin their analysis of a facial challenge by examining hypothetical applications in search of any possible scenario under which a statute could be valid, it did not. The State attempts to distinguish Hoffman Estates as a First Amendment overbreadth case. It is that, but the relevant language quoted above concerned the process for assessing a vagueness challenge. Hoffman Estates, 455 U.S. at 495. The Supreme Court does not authorize skipping the threshold analysis of examining the complainant‘s conduct before analyzing other hypothetical applications of the law. Harmonizing these pronouncements, we conclude that a party making a facial vagueness challenge must demonstrate that there is no set of circumstances under which the statute would be valid, starting with the complainant‘s conduct. Salerno, 481 U.S. at 745; Hoffman Estates, 455 U.S. at 494-95. Contrary to the State‘s contention, not only is our examination of whether the term “funds” included checks permitted in the course of our evaluation of appellants’ facial challenge to the statute, it is required by controlling Supreme Court precedent.
In its second ground for rehearing, the State contends that this Court failed to apply the correct principles of statutory construction when looking beyond the plain language of the money-laundering statute. The State contends that the statute gave a person of ordinary intelligence fair warning that it criminalized the use of checks as a means of money laundering prior to 2005. The State quotes the following language as the standard:
Only where the “plain language of a statute would lead to absurd results, or if the language is not plain but rather ambiguous, then and only then, out of absolute necessity, is it constitutionally permissible for a court to consider, in arriving at a sensible interpretation, such extra textual factors as executive or administrative interpretations of the statute or legislative history.” [Boykin v. State, 818 S.W.2d 782, 785-86 (Tex. Crim. App. 1991)].
In our original opinion, citing to a 1995 opinion written by former Presiding Judge of the Court of Criminal Appeals, John Onion, we stated and followed these precepts in our discussion of statutory interpretation.4 Although the State may disagree with the manner in which these principles of statutory construction were applied, this Court applied them here.
The issue of whether the money-laundering statute is facially unconstitutionally vague because of ambiguity in the use of the term “funds” was raised by appellants and is before this Court. Our examination of whether “funds” included “checks” was required based on the facts of this case by Supreme Court precedent as part of a facial challenge. See Hoffman Estates, 455 U.S. at 494-95. Our examination of legislative history is particularly appropriate given the ambiguity of the definition of the word “funds.” See Boykin, 818 S.W.2d at 785-86. The appellants’ constitutional challenge was based on an erroneous interpretation of the statute. The correct interpretation of the statute resolves this case without the need to delve into constitutional analysis. The issue is not whether checks are the same as cash—they are not—or whether checks can be used as a means of exchange—they can. The issue is whether the Legislature criminalized the use of checks as a means of money laundering in 1993. The plain language of the statute does not include checks and the legislative history is very clear—the Legislature did not criminalize the use of checks as a means of money laundering in 1993, but did amend the statute to criminalize it in 2005. We re
The State‘s motion for rehearing is denied.
Chief Justice LAW Not Participating.
Before Chief Justice JONES, Justices PATTERSON, PURYEAR, PEMBERTON, WALDROP and HENSON.
ORDER
PER CURIAM.
The State has filed a motion for reconsideration en banc. The motion is denied.
It is ordered March 17, 2009.
Chief Justice JONES not participating.
Dissenting Opinion by Justice PATTERSON.
Dissenting Opinion by Justice HENSON.
DIANE M. HENSON, Justice, dissenting.
For the reasons expressed in my dissenting opinion to the denial of en banc consideration in this case, issued August 29, 2008, I respectfully dissent from the denial of the State‘s motion for en banc reconsideration.
JAN P. PATTERSON, Justice, dissenting.
I dissent to the overruling of the State‘s motion for reconsideration en banc. I agree with a portion of the original panel opinion dated August 22, 2008, explaining why the pertinent election code provisions are not unconstitutionally vague or overbroad. I also agree with that opinion‘s conclusion that the money laundering statute is not unconstitutionally vague. I do not, however, agree with that opinion‘s discussion of the money laundering issue. I believe that the Court should grant the State‘s motion for reconsideration en banc to revisit that issue.
1. The contention that the money laundering statute is unconstitutionally vague as applied is not properly before us.
In their briefs to this Court, Ellis and Colyandro contend that the money laundering statute fails to give constitutionally adequate notice of what it prohibits “if money laundering could be committed by check prior to the 2005 amendment.” As this quote demonstrates, Ellis and Colyandro do not distinguish between the alleged criminal proceeds and the transaction involving those proceeds that constitutes the alleged money laundering. The definition of “funds” in penal code section 34.01(2) applies only to the criminal proceeds, that is, to the “dirty” money allegedly “laundered.” See
Ellis and Colyandro‘s real contention is that the 2002 version of the money laundering statute cannot constitutionally be applied to them if the contributions to TRMPAC that they allegedly laundered were made by check. In other words, they ask this Court to assume the existence of certain hypothetical and limited facts—namely, that the alleged unlawful corporate contributions to TRMPAC, the “proceeds of criminal activity” they allegedly laundered, were made by check—and to issue an advisory opinion on the constitutionality of applying the money laundering statute to those facts. In essence, Ellis and Colyandro make an “as applied” vagueness challenge to the money laundering statute before the statute has been applied.
Whatever the meaning of the word “funds” in 2002—a question that we need not and should not address at this time—the constitutionality of applying the money laundering statute to Ellis and Colyandro‘s activities cannot be determined in advance of trial before all the evidence concerning those activities has been adduced. There is no evidentiary basis for this “as applied” challenge because these are pretrial proceedings and the facts have not been developed. Contrary to statements made in the panel‘s supplemental opinion announced today overruling the State‘s motion for rehearing, there is no evidence in the record that the corporate campaign contributions to TRMPAC that Ellis and Colyandro are accused of laundering were made by check. An accused may not seek the dismissal of a prosecution prior to trial on a ground that can be resolved only by evidence adduced at trial. Flores v. State, 245 S.W.3d 432, 437 (Tex. Crim. App. 2008); see Ex parte Smith, 185 S.W.3d 887, 893 (Tex. Crim. App. 2006) (declining to decide in pari materia claim in advance of trial, without complete factual record).
The supplemental opinion emphasizes the Supreme Court‘s statement in Hoffman Estates that we are to “examine the complainant‘s conduct.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982). But in these cases we have no evidence of what the relevant “complainant‘s conduct” was, so there is nothing to examine.
2. The money laundering statute is not unconstitutionally vague on its face.
Insofar as Ellis and Colyandro make a facial vagueness challenge to the money laundering statute, it fails. It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). If First Amendment rights are not implicated, a vagueness challenge will be sustained only if the statute is vague in all its applications. Hoffman Estates, 455 U.S. at 495.1
Ellis and Colyandro do not contend that the money laundering statute implicates First Amendment freedoms, and therefore they must show that there is no set of circumstances under which the statute would be valid. United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). In their briefs, Ellis
3. It is unnecessary to determine the meaning of “funds.”
As the discussion above demonstrates, it is unnecessary and erroneous to construe the 2002 definition of “funds” in order to properly dispose of Ellis and Colyandro‘s challenges to the money laundering statute. In its original opinion, the panel erred in its strained discussion of an irrelevant issue.
The Court should grant the State‘s motion for reconsideration en banc, withdraw the original opinion‘s discussion of Ellis and Colyandro‘s vagueness challenge to the money laundering statute, and overrule that challenge on the grounds outlined above. Because the Court does not do this, I must dissent.