*1 of Texas The STATE
v. COLYANDRO, James John Dominick Ellis, and Thomas Dale Walter Delay, Appellees. PD-826-06 to PD-833-06. Nos. of Texas. Appeals Court of Criminal June Turner, Austin, Appellant. for A.
Joseph Travis, Reed, Atty., Asst. District Rick Austin, Paul, Atty., Matthew State’s State.
OPINION
KEASLER, J., opinion of delivered the P.J., KELLER, and the Court which HERYEY, JJ., WOMACK, PRICE, joined. cer- conspiracy to violate
Charged with Election John tain Ellis, James Walter Colyandro, Dominick quash Delay moved Thomas Dale They contended charges. based on allege an offense State failed holding that implicitly prior our decisions in Title 4 of the defined the offenses conspir- the criminal which includes statute, offenses de- acy do The trial Penal Code. outside the fined charges. quashed judge agreed and the Third Court appealed, The State holdings, prior our Appeals, bound *2 affirmed. The D petitioned Subchapter State then 15.02 of the Penal Code and review, arguing Chapter that 253 of the Election “on or the lower court erred Code day Sep- about and the sixth prior our can between because decisions be distin- tember, A.D., 2002, day and the fourth guished or should be overruled. We hold October, A.D., 2002[J” prior subject that our decisions are not and, examining Legis- distinction after Ellis, Colyandro, Delay moved to and decisions, following lature’s actions those they quash charges, contending these that we adhere to our affirm precedent and allege did not an offense under Texas law. of Appeals’s judgment. Court in Relying on our decisions Moore v. State1 State,2 Ellis, Colyandro, and Baker v. and Background
I. Procedural Delay argued that Section 15.02 of the 2005, In criminal County grand juries two Travis Penal Code—the stat- ute contained in Title 4 of presented charging Colyan- indictments the Penal dro, Ellis, Delay with, apply and Code—did not to Election Code vio- among other lations in 2002. things, conspiracy to violate the Election Code. In the thud count of an indictment Moore, appellant convicted in grand jury returned to the 147th newly-enacted 1975 under the 1974 Penal 13, Judicial District September Court on “attempting Code of to obtain a controlled 2005, Colyandro and charged Ellis were appeal, ap- substance fraud.”3 On with to make an politi- unlawful pellant claimed that the indictment was cal contribution violation of Texas Penal fatally defective because the Penal Code’s Section 15.02 Sections attempt provision, 253.003(a), 253.094(a), and 253.104 of the 15.01(a), apply located Title did not Election September 13, Code on or about Finding the Controlled Substances Act.4 2002. An Septem- indictment returned on that Section of the Penal Code ber to the 147th Judicial District specified only Titles and 3 of the charged Colyandro, Ellis, Court Delay Penal applicable Code were to offenses with conspiracy to make an politi- unlawful Code, defined outside the Penal held we cal contribution violation of Section attempt apply that the statute did not Penal and Election Code Sec- Respond- Controlled Substances Act.5 253.003, 253.094, tions and 253.104 on or ing argument to the “that Leg- State’s September Finally, about 2002. a two- islature intended for the criminal count indictment was returned on October ... provision apply to the Controlled 3, 2005, to the 403rd Judicial District Act[,]”6 Substances we noted that indictment, Court. The first count of the Legislature any attempt provision omitted presented charges, alleged which two it when enacted the Controlled Substances Ellis, part Colyandro, Delay con- shortly Act enacting before the new Penal spired illegal political to make an contribu- though Code even had retained such a tion to a candidate for the of provision Dangerous Drug Texas House in the Act.7 We Representatives in violation of Section stated: (Tex.Crim.App.1976).
1.
we cannot that the Section 4.011 to the Controlled Substances enacted, enacting the Controlled Substances Act inAct 1981.16 When ... such omission with the knowl- made provided 4.011 “[t]he (effective edge that the new Title to Section *3 four after the Controlled months Sub- designated aggravated as of- offenses Act) necessary make stances would the 4 Subchapter fenses under this making any to 2003, Legislature Act....”17 the added any provisions violate the Controlled Code, provision to the Election a similar a criminal Substances Act offense.8 1.018, “Applicability Section titled Penal Baker, later, than months Less five “In Code.”18 1.018 states: addition we that the Penal criminal held Code’s Code, and to to Section Penal other apply statute did not to the apply titles of the Penal Code Following Act.9 Controlled Substances code, Code, 4, applies Penal Title Moore, we concluded: “Since the criminal prescribed by this code.”19 Code, ... conspiracy provisions of Colyandro, arguments of Countering the 4 Sec. 15.02 are also contained in Title Ellis, argued Delay, the State Code, general provi- the new Penal the distinguishable Moore and Baker are be- ... sions of ... Penal Sec. they cause the Controlled Sub- addressed result, do not As a 15.02[.]”10 Sec. Act, and, stances the Election judgment we the trial court’s re- reversed alternative, wrongly decided. Af- were probation for the voking appellant’s filed by ter documents reviewing the marijuana, sell offense of judge quashed the Elec- parties, the trial case, and prose- remanded the ordered the conspiracy charges. tion The Code-based cution dismissed.11 28, September indictment on returned We reaffirmed Moore Baker sub 2005, then was The State filed dismissed. sequent parte Lopez,12 parte Ex cases: Ex challenging trial interlocutory appeals Russell,14 Barnes,13 parte Ex and Brown v. judge’s decision.20 State.15 Appeals affirmed Austin Court Shortly line of after Moore-Baker issued, trial The court is- judge’s cases added decision.21 was 2003) (Vernon (stating 8. 481.108 Id. Code Ann. 4, Code, applies to an "Title offense 9. at 628. 547 S.W.2d chapter.")); Woods v. 801 under this 1990, 932, (Tex.App.-Austin pet. S.W.2d 942 10. Id. at 629. ref’d). 11. Id. 4476-15, 17. Tex.Rev.Civ. Ann. art. Stat. § 4.011. 401, (Tex.Crim.App.1977). 12. S.W.2d 402 549 (Vernon Supp. § 1.018 18. Tex. Elec.Code Ann. 631, (Tex.Crim.App.1977). 632 13. S.W.2d 547 393, 2003, 2004), Leg., 78th ch. added Acts 2, 1, Sept. eff. 2003. 844, (Tex.Crim.App. S.W.2d 844-45 561 1978). 137, 1978). (Tex.Crim.App. S.W.2d 44.01(a)(1). art. TexCode Crim. Proc. 4476-15, art. Stat. Tex.Rev.Civ. (Vernon DeLay, 21. State 208 S.W.3d 607-08 Supp.1981), added Acts v. 2006); Colyandro, (Tex.App.-Austin State v. Leg., Sept. ch. 67th eff. 03-05-00811-CR, 03-05-00812-CR, (current Nos. 03- at Tex. Health & Safety version styled published opinion generally applicable conspiracy sued State v. DeLay22 unpublished opinions ninety and two that had on the books for been styled Colyandro23 State v. and State v. years.”29 The court also stated Bak- Ellis,24 reasoning which cited the court’s holding er’s was not consistent “with the DeLay controlling.25 as In the court of state bar committee on the revision 15.02(a) appeals, argu- State reasserted comment that section penal code’s presented ments that it had to the trial ‘clarify present intended to law with- ”30 judge Moore and Baker can be dis- alteration.’ at Looking out substantial —that and, tinguished alternatively, incor- were and the conspiracy statute rectly decided.26 “felony” provided definition of *4 1.07(23) Code, of the Penal the court added appeals
The court of first considered the together, nothing that when read in these that State’s claim Moore and Baker were provisions “suggests legislative intent to It an wrongly decided. concluded that as conspiracy limit found within offenses court, appellate intermediate it was with penal code.”31 The court then noted authority out prec to overrule this Court’s necessarily that Section “does not edent and was therefore bound to follow limit applicability provi- of other Moore and Baker.27 But the court did 32 Last, the court that sions.” observed Baker, suggest stating that we revisit that has codified numerous fel- “Baker appears questiona to be based on ony offenses outside the Penal Code and reasoning arguably ble and is in conflict “unlikely legislature it is that history with the conspiracy of the criminal would have intended to eliminate criminal offense in Texas as growing well as the liability for panoply such legislative trend to of propagate felony offenses.”33 throughout statutory fenses the various codes.”28 The court then considered whether Bak-
Focusing
history
on the
crimi-
distinguishable
Texas’s
er is
and “should be limited
law,
nal
in application
the court stated that
to the controlled substances
“Baker was a marked departure
Rejecting
argument
from the
act.”34
the State’s
05-00813-CR,
3195,
604,
Tex.App.
DeLay,
2006
LEXIS
at
26.
36. Id. Id. at 607-08. S.W.2dat 142. 41. 545 399, § Leg., 63rd eff. 38. Acts ch. (current Jan. version at Tex. at 42. 547 S.W.2d 1.03(b) (Vernon 2003)). of criminal offenses contained in Title 4 do not fines the offense states, part: to offenses defined outside the Penal Code. relevant Therefore, appeals the court of did not err (a) conspira- A commits criminal person extending Moore and Baker to criminal if, felony com- cy with intent that a be in the Election defined mitted: we decline the invitation to limit State’s (1) per- agrees he with one or more holdings our in those cases. more of them they sons that or one or that would consti-
engage conduct B. offense; tute the (2) per- he or one or more of them pursuance forms an overt act in of the We next consider the contention State’s agreement.45 that Moore and Baker should be overruled. 253.003 of the Election Code Relying Boykin on our decision in v. “Unlawfully Making defines the offense of which established our principal rules Accepting Contribution.”46 Under Sub statutory interpretation,43 argues the State (a) person section of Section “[a] plain language that under the of Section knowingly political not make a contri 15.02 of the Penal Code and the definition of’ Chapter bution violation 253 of 1.07(a)(28) “felony” in Section (b) Election Code.47Subsection states that the offense of criminal con- person may knowingly accept “[a] spiracy applies to all offenses de- political person contribution knows fined under Texas Continuing, law. Chapter of’ have been made violation plain State claims that when the language *6 (a) (b) 253.48 “A violation of or Subsection 1.07(a)(23) of Sections and 15.02 of the felony degree is a of the third if the contri Penal Code are considered in combination Subchapter bution is made in violation of plain language with the of Sections » 49 p) 258.008, 253.094, and 253.104 of the Elec- Code, tion conspira- D, offense of criminal Subchapter Located in Section cy applies felony 253.094, to the offense of unlaw- Expen- titled “Contributions and fully making political a Prohibited,” contribution. ditures states: (a) A corporation organization or labor put
To argument the State’s in perspec- may political not make a contribution or tive, a by review the statutes cited political expenditure that is not author- point. “Felony,” State is beneficial at this by subchapter. ized this as defined in Penal Code Section 1.07(a)(23), (b) designat- corporation organization “means an offense so A or labor by punishable by ed law or death political or con- not make a contribution penitentiary.”44 finement in a a political expenditure Section connection with 15.02, election, Penal located in including Title de- recall the circulation (Vernon (Tex.Crim.App. § 43. 818 S.W.2d 785-86 46. Tex. Elec.Code Ann. 253.003 1991). Supp.2002). 253.003(a). § 47. Tex Elec.Code Ann. 1.07(a)(23) (Vernon 44. Tex. Penal Code Ann. Supp.2002). 253.003(b). 48. Tex Elec.Code Ann. (Vernon Ann. Tex. Penal 253.003(e). Supp.2002). Tex Elec.Code Legisla- an which petition submission of a call added Section 1.018. ture, could they argue, have amended Sec- election. 1.03(b) tion to include Title but did not. (c) this person A violates section who an An commits offense. offense under argument, sought clarifi- During oral we felony is this section a third de- position cation from the State about its on gree.50 the various Penal Code at issue. 1.03(b) has the We asked whether Section located in also Sub- only effect and 3 of exporting Titles D, chapter is Po- labeled “Contribution to the Penal Code to offenses defined outside Party.”51 (b), litical Under Subsection unless the extra-Penal corporation organization may “[a] or labor defining an provides Code statute knowingly make a contribution author- agreed otherwise. The State with (a) period during ized a be- Subsection characterization of effect of Section day on the ginning 60th before the date of 1.03(b). questioned And when about general county election for state and of- “felony” whether the definition of continuing through day ficers importing Code has effect (a) permits the election.”52 Subsection felony defined the Penal outside corporation organization” to “[a] or labor in the Code into certain offenses defined its own proper- “make contribution from particular, and in the criminal ty political to a to be used party pro- as stat- conspiracy statute virtue of the A by Chapter vided 257.”53 violation of commit requirement person ute’s (b) third-degree-felony Subsection is a of- intent be offense “with that a fense.54 committed[,]”55 agreed again State Ellis, opposition, Colyandro, and De- with this characterization of the combined collectively plain that the lay argue lan- felony and the effect of the definition of 1.03(b) guage of establishes criminal statute. statute does not outside offenses defined the Penal provision interpreting an years unless extra-Penal Code Over fourteen after Baker, *7 And, result, in we provides they otherwise. as Section Moore and There, that in in we Boykin.56 contend 15.02 did not issued our decision Section to interpreting to of the Election said that when a statute apply violations Code. in They give legislative further Moore to the “collective claim that and Baker effect the correctly fault or we concentrate “on purpose,” were decided and the tent State and failing acknowledge question to the literal text of the statute Legisla- fair, objective attempt and the response ture’s to Moore Baker —the to discern that text at the time of its meaning addition of 4.011 to the Controlled Section the Legislature’s give the enactment.”57 We will effect to Substances Act—and if, Code, using the plain meaning Election “when read 2003 amendment to the (Vernon § 253.094 253.104(c). 54. Tex. Elec.Code Ann. 50. Tex. Elec.Code Ann. Supp.2002). 55. 15.02(a). Ann. Tex. Penal Code (Vernon § 253.104 51. Tex Elec.Code Supp.2002). 782. 56. 818 S.W.2d 253.104(b). 52. Tex. Elec.Code Ann. Id. at 253.104(a). Tex. Elec.Code Ann. relating established canons of construction Act.64This determi- Controlled Substances text,” meaning to such the of the text subsequent nation is our deci- bolstered plain legislators “should have been to the As the court correct- sion Baker. below apply observed, who voted on will not holding it[.]”58 We ly Baker’s was based (1) however, plain language, “ap if exclusively “interpretation on our of sec- plication plain language 1.03(b) of a statute’s penal code to limit the tion would lead to absurd that consequences applicability conspiracy provi- of title 4’s Legislature possibly could not have penal found within the sion (2) intended,” language ambiguo or is code.”65 instances, In us.59 those we will consult here, But given arguments State’s extratextual sources to reach a rational we must consider whether we reached the interpretation.60 Baker, specifi- correct result Moore and Although Boykin’s we did not invoke 1.03(b) cally, whether Section is determina- statutory
rules for construction when dis- precludes applica- tive and therefore 1.03(b) cerning meaning of Section conspiracy tion of the criminal statute to Baker, and approach Moore our neverthe- felony offenses defined outside the Penal Boykin’s less conformed to mandate. so, doing Code. In we must ask: we Were Baker, Moore and we focused on literal 1.03(b), considering only remiss in Section 1.03(b) text of Section found Sec- thereby failing to take into consideration 1.03(b) tion apply does not to the criminal statute, conspiracy the criminal Section statutes.61 Be- 15.02, and the definition of 1.03(b) only cause Section references Titles 1.07(a)(23) “felony” in and 3 of the Penal we concluded Compelling legislative Baker? that the criminal attempt prior interpretation ratification of our statutes in Title 4 of the Penal Code did leads us not apply to offenses defined in the Con- conclude that the answer is no. trolled Substances Act.62Our review of the predecessor statutes to the challenge Controlled When faced with a to a ancillary statute, Substances Act in Moore prior judicial construction of we holding.63 our Those statutes re- long recognized prolonged legis were have solely viewed argu- judi address the State’s following lative silence inaction ment the interpretation intended the cial implies Legisla that the criminal attempt statute to to the approved interpretation.66 ture has 607; Baker, DeLay, 208 S.W.3d at see also at 628-29. S.W.2d *8 original). (emphasis 59. Id. State, 787, (Tex. 66. Moore v. S.W.2d 790 868
60.
Id. at
State,
785-86.
Crim.App.1993)
(citing Watson v.
532
619,
(Tex.Crim.App.1976);
S.W.2d
622
kh
Loc
Moore,
142; Baker,
State,
61.
“[W]e ju- knowledge of the Legislature with to to to continue same construction thereof a court would construction dicial with- Legislature meets when the statute overruling such deci- justified not be overturning that construction.”67 out 71 sion.” occasion, this, have, on we recognition ' judicial construc- reaffirming prior following when actions Legislature’s The statute, prior stated dem- progeny tion of a Baker and their Moore and when, interpreta- over the was correct it has ratified our interpretation onstrate that 1.03(b). those deci- it had not been Since many years, tion of Section course carefully sions, has crafted Legislature legislatively overruled.68 in Title 4 offenses defined to make statutes however, recently, we stated More directly applicable to the Penal Code not neces inaction does “legislative outside the Penal Code. defined approval.”69 equate legislative sarily also retained extra- Legislature has ratification, we legislative implying When incorporating statutes Penal Code criminal is a distinction be there observed In other attempt or both. conspiracy or judicial inaction after legislative tween or instances, Legislature has amended Legislature’s reenact and the construction Code criminal statutes enacted extra-Penal judicial con following ment of a statute or to include either struction: time, Legislature At the same both. reenacts a legislature Certainly when amending Section from has abstained terms that have been using law the same include Title of the man- particular in a judicially construed ner, that the may reasonably infer one line of Shortly after the Moore-Baker judicial inter- of the legislature approved cases, 1981, added the 67th considerably less There is pretation. the Controlled Substances 4.011 to some) argu- (though force still Act, applicable Title 4 Sec- which made agree not legislature if a does ment that illegal invest- the offense of tion judicial interpretation
with the aggra- ment,72 designated as and offenses statute, legis- meaning of a words or Act.73The Subchapter 4 of the under vated immediately surely have lature would therefore, provide did Legislature, changed the statute.70 4 to of- of Title application the unlimited Act. statement, Substances in the Controlled Therefore, following fenses designated an offense was Punishment for from a case originated which substance of pre- punishment “the same as 1946, today: to be remains true us in before 721, original). State, (emphasis in Id. at 902 S.W.2d v. 974 67. Awadelkariem (Tex.Crim.App.1998) (citing State v. Har 725 516, 332, (Tex. (Tex.Crim.App. Poe, dy, 963 S.W.2d 523 345 732 S.W.2d 71. Collier v. Lewis, 1997)); State, Tex.Crim. at also see (citing Crim.App.1987) Brown v. at 812. 127 S.W. 196 S.W.2d Tex.Crim. (1946)). Connolly v. 983 S.W.2d Hall, 1999); *9 S.W.2d at (Tex.Crim.App. 829 4476-15, § 4.052 art. 72. Stat. TexRev.Civ. 673, State, 187; 5 S.W.3d v. see also Smith (Vernon Supp.1981). (Tex.Crim.App.1999). 678 268, 1981, Leg., ch. 892, 67th (Tex. by Acts Medrano, 73. Added 67 S.W.3d State v. 69. 1, 2, Sept. § eff. 1981. Crim.App.2002). of a object Notably, despite provision scribed for the offense that was the addition of- making applicable specific Title preparatory offense.”74 The 68th Act in the Controlled Substances fenses Legislature, during Regular the 1983 Ses- provi- subsequent and amendments to sion, amended Section 4.011 to include the sion, during all were made a nine- of which identical text that was added the 67th year period, Legislature never amend- 4.011 first Legislature when Section ed of the Penal Code to Section Accordingly, qualifi- enacted.75 the same include Title 4. placed application cations on the of Title 4 both Legislature The 73rd amended Sec- Legislature the 67th remained intact Safety tion 481.108 of the Health and Legislature when the next amended Sec- 1.03(b) of the Penal Code78 and Section tion 4.011. Code 1993.79Both statutes were consid- 1989, In the 71st Legislature moved Bill pursuant ered and amended to Senate Controlled Substances Act from the Re- 1067. vised the Health and Civil Statutes to 481.108, amending Legis- Section Safety Code.76 Section 481.108 of the applicability lature further restricted the Safety Health and Code is the successor 4, making applicable only to the Title Legislature statute to Section 4.011. The expenditure or invest- illegal again provided similar limitations on the Safety ment as defined in Health and applicability of Title 4 to offenses defined amended, As Section 481.126. in the Controlled Substances Act. Section 481.108read as follows: 481.108 stated: 4, Code, applies Title to Section 4, 481.126, applies except punishment
Title that the 481.126[, preparatory offense under Section which defines the offense of punishment for a first 481.126 is Investment,] Illegal Expenditure degree felony.80 designated aggravated as offenses under subchapter, except deleted the reference to that the punishment preparatory for a aggravated as offenses identified Sec- punishment offense is the same as the desig- tion 481.10881and also deleted the prescribed for the offense that was the from vari- “aggravated nation of offense” object of preparatory Chapter offense.77 ous offenses defined 481.82 1993, 900, 1.01, § Leg., 74. Id. 73rd ch. eff. 79. Acts 1, Sept. 1994. 1983, 425, 4, Leg., § 75. Acts 68th ch. eff. 29, 1983; 425, Aug. Leg., see also 68th ch. § 481.108 Tex Health & Safety Code Ann. (noting H.B. 1191 at 2361-62 reenactment of (Vernon Supp.1994). revise, larger Section 4.011 and effort to reco- dify, procedural and reenact substantive 1993, 900, 2.02, Leg., eff. 81. Acts 73rd ch. Act). laws in the Controlled Substances 1, Sept. 678, 1, Leg., 76. Acts 71st ch. eff. 1, 1989; Sept. see also Marks v. (amending Tex Safety Health & (Tex.Crim.App.1992). S.W.2d 114 n. 1 481.114(c), 481.112(c), 481.113(c), §§ 481.116(c), 481.117(c), 481.115(c), Safety Tex & Health Code Ann. 481.121(c), 481.118(c), 481.120(c), (Vernon 1990). 481.122(a)). Leg., 78. Acts 73rd ch. eff. Sept. *10 Session, Legislature’s During Regular 1993 amend- the 1995 Before 1.03(b) 1.03(b), Legislature ment 74th amended Section 481.108 of Section Section of the Controlled Act to apply Substances stated: in Chapter to all offenses 481.86 As enact- 1, 2, and 3 of Titles ed, 4, the text 481.108 stated: “Title by to this code offenses defined Code, applies Penal to an offense under laws, defining other unless the statute chapter.”87 this Since the 1995 amend- otherwise; provides the offense howev- ment, Section, the text of 481.108 has re- er, punishment affixed to an offense unchanged.88 mained appli- this defined outside code shall be time, to pursuant At same Senate punishment cable unless the is classified 15, Legislature provi- Bill also added in accordance with this code.83 to the sions Simulated Controlled Sub- Legislature The 73rd deleted the words Act, Act, the Dangerous Drugs stances “of this code” from that It also Section.84 Act, and the Volatile Chemicals Abusable (c) to added Subsection 1.05 of Section Act to make Volatile Chemicals Penal Code, Penal the “Construction of Code” 482.005, 4 applicable. Title Section provision statute. That stated: which was added 'to the Simulated Con- (c) In this code: Act, trolled made Title of the Substances n (1) title, or chapter, a reference applicable to offenses under Code without further identification section Chapter 482.89 was ’Section 483.053 added title, chapter, is a reference to a Dangerous Drugs to the Act.90 Section code;.... section of this made Title applica- 483.053 (c)(1) With the addition Subsection C, Subchapter ble to an offense under 1.05, “of Section the deletion of the text titled Penalties.”91 “Criminal 1.03(b) from indicates code” 484.008, applicable which Title 4 made the deleted 484, deemed Chapter offenses under was added to though text superfluous. to be Even Finally, Chemicals Act.92 Sec- Volatile Safety 481.108 Health Code Section tion 485.039 added to the Abusable 1.03(b) and Penal Code Section were re- provided: Act and “Ti- Volatile Chemicals 4, Legisla- and amended an together, applies viewed tle C, ture to in- [Subchapter did not amend Section under Criminal Penal- 93 Despite 4. these combined 1995 ties].” clude Title 900, 1995, 318, 39, 1993, § Leg., Leg., Sept. § eff. 74th eff. 83. Acts 73rd ch. Acts ch. 1, 1, Sept. 1995. 1994. 84. Id. § 90. Tex Health 483.053 Safety & Ann. Code 2003), (Vernon Supp.1996; by Vernon added 85. Id. 40, 1995, 318, § Leg., Sept. 74th eff. Acts ch. 1, 1995. 1995, 36, 318, Leg., ,§ 86. eff. Acts 74th ch. 1, Sept. 1995. 91. § 481.108 Safety Health & Ann. Tex. § 92. Tex Health 484.008 Safety & (Vernon Supp.1996). 1995, (Vernon by Supp.1996), Acts added 74th § Leg., Sept. ch. eff. Tex Health & 481.108 Safety Code Ann. 2003; (Vernon Supp.2006). Vernon 485.039 Safety & Tex Health Code Ann. (Vernon Supp.1996), & added Acts 74th Safety Tex Health Code Ann. 1995, (cur- (Vernon 2003), Supp.1996; Leg., Sept. Vernon added ch. eff.
881
interpreta-
our
acts,
Legislature was aware of
no amendment was made to Section
1.03(b) to include Title 4.
statute when it later
particular
tion of a
after we
reenacts that statute
amends or
2001,
Legislature repealed
the
Sec-
construction,96
judicial
have rendered a
tion 484.004 from the Volatile Chemicals
instance,
actual knowl-
impute
we can
along
Act
with numerous other statutes
is in
edge. Significantly, each of these acts
finally,
contained
that Act.94 And
2003,
Legislature
amended the Elec-
in Baker and
accord with our decisions
tion
to make Title 4 of the Penal Moore,
Code
collectively,
considered
and when
applicable
to offenses defined
legis-
continued
they overwhelmingly show
did
Again,
Legislature
Election Code.95
interpretation
of our
of Pe-
approval
lative
1.03(b)
not amend
to include Title
1.03(b).
nal Code Section
approach
Consistent with
Legislature
clearly
has
delineated
4
making
has taken when
Title
4
exactly when Title of the Penal Code will
applicable to offenses defined outside
apply to offenses defined outside of the
Legislature has main-
thirty years
In the
since
Code.
proscribing
statutes
tained
enacted
decided,
Legis-
Moore and Baker were
specific felony
involving conspira-
lature has not amended
cy in criminal statutes located outside
Instead,
include Title 4.
it has taken an
Examples of those statutes
Penal Code.
piecemeal approach
unmistakable
when it
Beverage
can be found in the Alcoholic
making
comes
the offenses contained
Code,97
Enterprise
the Texas Free
4
applicable
Title
of the Penal Code
1983,98
Lottery
Antitrust Act of
the State
Al-
extra-Penal Code criminal offenses.
Code,100
though
Act,99
as
generally presume
Transportation
we
and the
(Vernon
rently
§
at
codified
15.05
98. Tex Bus.
Safety
&
Tex. Health &
Com.Code Ann.
1983,
2001,
(Vernon 2003),
2002) (unlawful acts),
by
§
amended Acts
485.038
Acts
2,
519,
29, 1983,
1463,
1, 2001).
1,
Leg.,
Sept.
Leg.,
Aug.
§
§
77th
ch.
eff.
68th
ch.
eff.
(previously codified at Tex. Bus. & Com.Code
2001,
1463,
4,
Leg.,
§
94. Acts
77th
ch.
eff.
1967,
15.04(a) (Vernon Supp.1968),
§
Acts
1, 2001;
2001,
Sept.
Leg.,
see also Acts
77th
785,
1,
1, 1967);
Leg.,
Sept.
§
60th
ch.
eff.
459, 2,
1,
Sept.
§
ch.
eff.
(Vernon
§
15.22
Tex Bus. & Com.Code Ann.
1983,
2002) (criminal suits),
by
amended Acts
(Vernon
§
Supp.
1.018
95. Tex Elec.Code Ann.
519,
3,
29, 1983)
Leg.,
Aug.
§
68th
ch.
eff.
2003,
393,
2006),
by
Leg.,
added Acts
78th
ch.
(previously
&
codified at Tex. Bus.
Com.Code
2,
1,
Sept.
§
eff.
1967,
(Vernon Supp.1968),
§ 15.33
Acts
60th
785,
1,
1, 1967).
Leg.,
§
Sept.
ch.
eff.
State,
787,
(Tex.
96. Moore v.
868 S.W.2d
Crim.App.1993);
v.
Grunsfeld
(Vernon
§
466.313
99. Tex Gov’t Code Ann.
521,
(Tex.Crim.App.1992).
S.W.2d
1993,
2004) (conspiracy),
by
added Acts
73rd
107,
30, 1993;
4.03(b),
Leg.,
Aug.
§
(Vernon
ch.
eff.
§
104.03
Tex. Alco. Bev.Code Ann.
2004)
(Vernon
§
1995)
466.303
(conspiracy; accepting unlawful bene-
Tex. Gov’t Code Ann.
(sale
1977,
194,
1,
person),
fit),
by
added
§
of ticket
unauthorized
Leg., ch.
eff.
Acts
65th
107,
1993,
4.03(b),
1, 1977,
by
Leg.,
§
73rd
ch.
Sept.
(previously
Acts
codified at Tex Pe-
1993;
30,
(Vernon 1974)
666-17(26)
Aug.
eff.
nal Aux. Laws art.
Tex Gov’t Code Ann.
1949,
543,
7,
(Vernon 2004)
(Acts
(group purchase
§
Leg.,
§
eff.
466.3054
51st
ch.
Oct.
4,
1995,
1949));
Leg.,
arrangements),
§
added
74th
206.06
Acts
Tex Alco. Bev.Code Ann.
1, 1995;
76,
(Vernon 1995)
counterfeiting),
Sept.
§
(forgery
ch.
eff.
Gov’t
Tex
1,
(Vernon 2004)
194,
(forgery;
Leg.,
Sept.
§ 466.306
Acts
65th
ch.
eff.
Code Ann.
1, 1977,
ticket),
(previously
added Acts
73rd
codified at Tex Penal
alteration
Aux.
30, 1993;
4.03(b),
(Vernon 1974) (Acts
Leg.,
Aug.
ch.
eff.
Laws art. 666-28
2004)
1937)).
(Vernon
Aug.
Leg.,
45th
ch.
eff.
Tex Gov’t Code Ann.
*12
monetary or
any payment
or
defining the offense of
“the value
as the statute
well
provided
in-kind
under the Medic-
Addi-
benefit
in the Government Code.101
sedition
indirectly, as a
directly
aid
or
2005,
program,
Chapter
1997 to
36 of
tionally, from
Code,
act[.]”103
result of
unlawful
Human Resources
titled Medic-
Prevention,
provi-
Fraud
contained
aid
survey of criminal statutes
located
A
felony
Sub-
prohibiting
conspiracy.
sion
also reveals that
of the Penal Code
outside
(9)
36.002,
defines
which
section
Section
enacted
Legislature has retained and
acts,
that it is unlawful
unlawful
states
of-
proscribing
specific felony
statutes
intentionally
“knowingly or
person
to
or amended exist-
involving attempt
fenses
combination, or
agreement,
an
enter[
into
]
attempt.
have
ing statutes to include
We
by
the state
obtain-
conspiracy to defraud
already cited to three of those statutes.
person
obtaining
ing
aiding
or
another
15.05(b) of the Business and Com-
from
payment or benefit
an unauthorized
person
for a
makes it unlawful
merce Code
or
fiscal
program
the Medicaid
monopolize” “any part of
“attempt
to
to
2005,
agent[.]”102
repealed
Until it was
is
commerce.”104 This offense
trade or
offense,
36.131,
pro-
felony.105
titled criminal
And the
designated
as a
sedition,
36.002
found in Section
that an offense under Section
offense of
vided
557.001(a)
in-
first-, second-, and third-
of the Government
subject
attempt among
types
of conduct
on
cludes
degree-felony-level punishments based
winner),
second-degree-felony
by
ject to either a third- or
(influencing
added
selection
2003,
107,
1993,
4.03(b),
Leg.,
by
78th
punishment),
§
added Acts
Leg., ch.
eff.
Acts
73rd
1,
1, 2003,
535,
30, 1993;
(previously codi-
Sept.
§
§ 466.308
ch.
Aug.
Tex. Gov't Code Ann.
6701(d), §
(Vernon 2004)
art.
185
lottery prize by
fied at TexRev.Civ. Stat.
(claiming
1971,
(Vernon
1995,
by
Supp.1972), added
Acts
fraud),
Leg.,
by
ch.
Acts
74th
amended
94,
30, 1971).
83,
Aug.
1995,
Leg.,
§
76,
6.39,
1,
ch.
eff.
by
62nd
Sept.
Acts
§
added
eff.
1993,
107, 4.03(b),
Aug.
§
Leg.,
eff.
73rd
ch.
(Vernon
§
1993;
30,
557.001
§
101. Tex Gov’t
466.309
Code Ann.
Tex. Gov’t Code Ann.
268,
1,
1993,
2004),
Leg.,
§
ch.
eff.
(Vernon 2004)
lottery equip-
Acts
73rd
(tampering with
1, 1993,
107,
1993,
at TexRev.
ment),
Sept.
(previously codified
Leg.,
by
ch.
added Acts
73rd
6889-3A,
5(3) (unlawful
30, 1993;
§§
4.03(b),
art.
Aug.
§
eff.
Civ. Stat.
Tex. Gov’t Code
(Vernon
violations)
acts),
(Vernon 2004) (certain
(punishment for
§
trans-
Ann.
C.S.,
1954,
Leg.,
1993,
1st
claims),
Supp.1956), Acts
53rd
Leg.,
by Acts
73rd
fers of
added
15, 1954).
3,
30,
107,
Apr.
4.03(b),
ch.
eff.
Aug.
§
eff.
ch.
36.002(9) (Ver-
§ Ann.
102. Tex Hum. Res.Code
542.303(a) (Ver-
§
100. Tex.
Transp.
Code Ann.
acts),
2001) (unlawful
by
added
Acts
non
1999) (inchoate
applicable
non
824,
1,
1,
1995,
Sept.
Leg.,
§
74th
ch.
eff.
C,
chapters
which includes
offenses in subtitle
1997,
1995,
Leg., ch.
by
75th
amended Acts
165,
1,
1995,
541-53),
§
Leg.,
74th
ch.
Acts
1997;
1999,
4.03,
1,
1153,
Sept.
§
Acts
eff.
1, 1995, (previously
at
Sept.
codified
eff.
1,
233,
4,
Sept.
§
Leg.,
eff.
ch.
76th
(Vernon 1948) (parties
§
TexRev.Civ. Stat.
421,
1947,
crime),
Leg.,
art.
50th
ch.
to a
Acts
36.13l(b)(5)-(7)
§ Ann.
103. Tex Hum. Res.Code
XVII,
4, 1947);
Sept.
Transp.
eff.
Tex
(criminal offense),
(Vernon 2001)
by
added
1999) (ficti-
548.603(b), (d) (Vernon
§
Ann.
1997,
1153, §
Leg., ch.
eff.
75th
Acts
inspection
or
certificate
tious or counterfeit
2005,
1, 1997,
repealed
79th
Sept.
Acts
document) (offense defined in sub-
insurance
1,
Sept.
§
Leg.,
eff.
ch.
(d)
(b)
designat-
and text of subsection
section
(b)
a third-
ing
as either
offense in subsection
15.05(b);
see
Tex Bus. Com.Code
felony),
by Acts
second-degree
added
or
&
1997;
supra.
accompanying note 98
text
also
Leg.,
eff. June
75th
ch.
545.420(a),
(g)-(h)
Transp.
Tex
Code Ann.
15.22(a);
see
(Vernon
(racing
highway)
Supp.2006)
on
Tex Bus. & Com.Code Ann.
supra.
(h)
accompanying note 98
(subsections
text
making
sub-
also
(g) and
of a con-
prohibited
acquire
possession
statute.106 Section
or obtain
by misrepresentation,
trolled substance
Transportation
542.303 of the
which
fraud,
subter-
forgery,
deception,
offenses,
defines inchoate
it is
states
fuge[.]”112
before the
an offense to
to commit an offense
certain
directly applicable
made Title
examples
defined in Subtitle C.107Two
Act
offenses in the Controlled Substances
subject
*13
felony punish-
offenses that are
to
1981,113
Legislature
66th
added “at-
(b)
ment in
include
Subtitle C
Subsection
acquire
to
or obtain” to Section
tempt
Section
548.603108 and
Section
4.09(a)(3).114
clearly
This amendment was
545.420.109
though
response
a direct
Moore. Even
481.129(a)(5)
Section
of the Controlled
provision
subsequently
was
amended
Substances Act contains the most histori-
Legislature expand-
and moved115 and the
Moore,
cally-noteworthy
example.110
scope
ed the
of offenses that Penal Code
applies
Title 4
the Controlled Sub-
appellant
charged
attempting
with
1995,116
stances Act in
the current version
4.09(a)(3)
to violate Section
of the Con-
attempt.117
of the statute still includes
Act,111
trolled Substances
the forerunner
481.129(a)(5).
time,
Section
At that
Sec-
prohibiting
examples
Other
statutes
4.09(a)(3)
tion
stated that
is unlawful
“[i]t
criminal
are located in the Elec-
Code,118
Act,119
any person knowingly
intentionally
Lottery
tion
the State
557.001(a)-(b);
4476-15,
§
106. Tex. Gov't Code Ann.
see
114.
art.
Tex.Rev.Civ.
Stat.
accompanying
4.09(a)(3) (Vernon
supra.
also text
Supp.1979),
by
§
note 101
amended
1979,
90, 6,
2,
Leg.,
May
§
Acts
66th
ch.
eff.
542.303(a);
§
107. Tex
see
Transp.
Holbrook,
1979;
Code Ann.
parte
also Ex
609 S.W.2d
see
accompanying
supra.
also text
note 100
541,
(observing
(Tex.Crim.App.1980)
"4.09(a)(3)
of the Act was amended in
548.603(b), (d);
§
108. Tex
Transp.
Code Ann.
specifically
‘attempt
1979 to
include the
accompanying
supra.
see
text
also
note 100
acquire
possession
or obtain
of a controlled
description
substance’ in the
of offenses under
545.420(a), (g)-
§
109. Tex
Transp.
Code Ann.
section.”).
(h);
accompanying
see
text
also
note 100 su-
pra.
1985,
10,
227,
Leg.,
§
115. Acts
69th
ch.
eff.
1, 1985;
1989,
678,
Sept.
Leg.,
Acts
71st
ch.
110. Tex
Safety
Health
&
Code
Ann.
1,
1, 1989;
2001,
481.129(a)(5), (d) (Vernon
(offense:
Leg.,
§
2003)
Sept.
§
eff.
Acts
77th
251,
1,
fraud),
2001,
23,
Sept.
§
ch.
by
Leg.,
eff.
2001.
amended Acts
77th
ch.
251,
1,
23,
2001,
§
Sept.
(previously
eff.
co-
36,
dified at Tex
1995,
318,
Health &
Leg.,
§
Safety
116.
74th
ch.
eff.
Acts
481.129(a)(4) (Vernon 1990),
by
§
added Acts
1,
Sept.
1995.
1989,
678,
1,
1,
Leg.,
Sept.
§
71st
ch.
eff.
1989);
4476-15,
art.
TexRev.Civ.
Stat.
117. Tex
Safety
Health
&
Ann.
4.09(a)(3) (Vernon Supp.1986),
by
§
amended
481.129(a)(5) (Vernon 2003).
§
1985,
11,
1, 1985;
Leg., §
Sept.
Acts
69th
eff.
4476-15,
4.09(a)(3),
§
Stat. art.
TexRev.Civ.
118. Tex
(Vernon
§
Elec.Code
Ann.
2.054
(b) (Vernon Supp.1979),
by
amended
Acts
2003) (coercion against candidacy prohibit-
1978,
90,
6,
2,
Leg.,
May
§
66th
ch.
eff.
667,
1995,
ed),
by
Leg.,
added Acts
74th
ch.
1,
1,
Sept.
§
eff.
S.W.2d at 141.
(Vernon
119. Tex Gov’t Code
winner),
2004) (influencing
added
selection of
4476-15,
TexRev.Civ.
art.
Stat.
1993,
107,
4.03(b),
Leg., ch.
Acts
73rd
(Vernon
4.09(a)(3)
1974).
30, 1993, (previously
Aug.
codified at
eff.
2,
4.03(a)(2), (b)
179g, §
Leg.,
art.
113. Acts
67th
ch.
eff.
TexRev.Civ.
Stat.
(Vernon
Sept.
Supp.1992), added
Acts
disturbing the
super-legislators,
the role of
Code,120
Chapter 195
Title
Government
laws.
legislatively-established penal
State’s
Code,121
Safety
of the Health and
Occupations Code.122
decisions, we hold
Adhering
prior
to our
1.03(b)
applica-
controls the
that Section
legislative acts es-
together,
Taken
these
provisions to
tion of Penal Code
that,
past
of the
over the course
tablish
the Penal Code. It
defined outside
offenses
repeated-
has
thirty years,
con-
export
of the
directs the
of Sec-
ly approved
interpretation
of our
only in Titles
and 3
tained
1.03(b)
that was
tion
of the Penal Code
to criminal offenses defined
From this
in Moore and Baker.
rendered
contemporane-
outside the Penal Code
prior
that our
construction
we conclude
of extra-Penal Code
ously
import
bars the
Overruling that
is correct.
in Titles
to offenses defined
*14
unjustified; we
now would be
11
Penal Code. The of-
through
construction
of the
4
in Title
of the
into
fenses defined
launch ourselves
impermissibly
would
1, 1989,
5,
1,
by
C.S.,
6,
2,
Sept.
§
amended
Acts
§
eff.
Leg.,
eff. Nov.
72nd
1st
ch.
15,
5.15,
(Ver-
C.S.,
1991);
1991,
§
§
Leg.,
466.308
ch.
eff.
72nd
1st
Tex. Gov’t Code Ann.
fraud)
2004) (claiming lottery prize by
1, 1991, (previously
non
codified at TexRev.
Sept.
(2),
(subsections
(b)
(c)(1),
by
(Vernon
amended
4477c,
2(a)(3), (b)
and
§
Civ. Stat. art.
76,
6.39,
1995,
§
Leg.,
eff.
146,
Acts
74th
ch.
1979,
Leg., ch.
Supp.1979), Acts
66th
1993,
1, 1995),
Leg.,
Sept.
by
added Acts
73rd
1989,
1,
11, 1979, repealed by Acts
May
§
eff.
30, 1993,
107,
4.03(b),
(previ-
Aug.
§
ch.
eff.
678,
13;
§
Leg.,
Tex.Rev.Civ. Stat. art.
71st
ch.
179g,
ously
at Tex.Rev.Civ. Stat. art.
codified
1973,
(Vernon 1974),
Leg.,
Acts
63rd
4477c
4.03(c), (d) (Vernon
by
Supp.1992),
§
added
12, 1973;
2,
367, §
ch.
eff. June
Tex Penal
2,
1991,
C.S.,
6, §
Leg.,
ch.
eff.
Acts
72nd
1st
(Vernon 1936)).
781(a)
Code art.
5, 1991).
Nov.
(Vernon
§
2153.357
122. Tex Occ.Code
Ann.
(Vernon
§
557.011
120. Tex. Gov’t Code
Ann.
offense;
2004) (criminal
by
obtaining license
1993,
2004) (sabotage),
by Acts
73rd
added
388,
1999,
fraud),
Leg.,
by
ch.
Acts
76th
1993,
added
1,
1,
268,
(previ-
Leg.,
Sept.
§
ch.
eff.
1, 1999,
1,
at
6889-3,
Sept.
(previously codified
§
eff.
ously
Stat. art.
codified at Tex.Rev.Civ.
8817,
8(2) (Vernon
1951,
§
(Vernon
art.
Supp.1952),
52nd
§
Acts
5
TexRev.Civ.
Stat.
486,
27,
1993,
8,
1951);
Leg., ch.
Supp.1993),
73rd
Leg.,
eff. Feb.
Acts
ch.
Tex. Gov’t
2004)
1993;
(Vernon
1.15,
1,
(capital
§
Sept.
§
557.012
eff.
Stat.
Code Ann.
Tex.Rev.Civ.
1993,
by
Leg., ch.
sabotage),
8817,
8(2) (Vernon
(adding
Acts
73rd
added
Supp.1990)
§
art.
1, 1993,
268,
1,
(previously
1096,
codi-
Sept.
14,
§
1989,
eff.
§
Leg., ch.
attempt),
71st
Acts
6889-3,
(Ver-
§ fied at Tex.Rev.Civ. Stat. art.
1989;
1,
art.
Sept.
eff.
Stat.
TexRev.Civ.
8,
1951,
Leg., ch.
Supp.1952),
52nd
non
Acts
1981,
1984),
8817,
(Vernon
8(2)
67th
§
Acts
27, 1951);
eff. Feb.
1, 1982;
33, 39,
Code Ann.
389, §§
Tex. Gov’t
eff. Jan.
Leg., ch.
2004) (conversion
(Vernon
§
122A,
Taxation —Gen-
Title
Stat.,
TexRev.Civ.
1989,
funds;
fraud),
by
71st
amended
Acts
13.17,
(Vernon
eral,
8(6)
Supp.1970),
§
art.
1, 1989,
1,
179,
(previ-
Sept.
§
Leg., ch.
eff.
497,
1,
1969,
Sept.
§
Leg.,
eff.
ch.
Acts
61st
110B,
tit.
ously
at Tex.Rev.Civ.
codified
Stat.
2153.359(a)(2),
1, 1969);
§
Ann.
Tex Occ.Code
1981,
(Vernon Supp.1984),
§
Acts
31.101
offense;
2004) (criminal
prohibit-
(b) (Vernon
1, 1981;
453,
1,
Sept.
Leg.,
§
ch.
eff.
67th
1999,
transactions),
76th
Acts
added
ed
(Vernon
art. 2922-1.06
Stat.
Tex.Rev.Civ.
388,
1,
Sept.
(previ-
§
Leg.,
eff.
ch.
41,
1,
1969,
Leg.,
§
ch.
Supp.1970), Acts
61st
8817,
Stat. art.
ously
at TexRev.Civ.
codified
31, 1969).
eff. Mar.
But see TexRev.Civ.
Stat.
1981,
(Vernon 1984),
26(l)-(3)
67th
§
Acts
2922-1,
(Vernon Supp.1950), Acts
§
art.
1, 1982,
389, §§
Leg.,
eff. Jan.
ch.
139,
IX,
1949,
May
Leg.,
eff.
ch.
art.
51st
770,
7,
1981,
Sept.
Leg.,
eff.
67th
ch.
Acts
10, 1949.
122A,
1981;
1,
Taxa-
Title
Stat.,
Tex.Rev.Civ.
27(4) (Vernon
General,
art.
tion —
Safety
Tex
Code
Health
&
497,
Leg., ch.
61st
2001) (false
Supp.1970), Acts
(f)
195.003(d),
(Vernon
rec-
1, 1969).
Sept.
ords),
Leg.,
eff.
ch.
Acts
71st
added
judi-
are
But Moore and Baker
the Penal
v. State.2
to offenses defined outside
apply
involving
of statutes
interpretations
cial
only
has des-
where
un-
law. The interests
penal
substantive
applicable
legis-
Title 4 is
via
ignated that
are at
derlying the doctrine of stare decisis
like the amendments made to
lative action
be-
interpretations
such
height
their
for
Act,
Substances
the Sim-
the Controlled
guidance
parties rely upon them
cause
Act,
Substances
ulated Controlled
obey the law.3
attempting
Act,
Drugs
the Abusable and
Dangerous
meticulously details
opinion
Court’s
Act,
the Election
Chemicals
Volatile
in-
response to the
legislature’s piecemeal
Code. Because Title
announced in Baker
terpretive gloss
and therefore the Penal Code’s
the Penal
altering
Moore.
Instead
statute,
of-
did not
the Title 4 inchoate offense
to extend
prior
Election Code
fenses defined
to offenses outside
provisions generally
of Section 1.018 to the
inclusion
to amend
legislature has chosen
appeals
court of
Election Code
on an
various non-Penal Code
judge’s
trial
affirming
did not err in
applica-
to allow for Title 4’s
ad hoc basis
quash
the Election Code-based
decision
out,
legisla-
points
tion. As the dissent
Colyandro, El-
conspiracy charges against
amend Penal
ture could have chosen to
lis,
Delay.
*15
to Baker and
response
1.03 in
Moore,
legislature
it did not. Or the
but
III. Conclusion
make it
amended Title
could have
Having
holdings
determined that our
of-
to all criminal
expressly applicable
and Baker cannot be restricted to
Moore
Again,
the Penal Code.
fenses outside
offenses defined in the
Sub-
Controlled
that neither
suggests
did not. The dissent
interpretation
Act and that our
stances
per-
what it
of these actions would solve
in those
of the Penal Code
created
problems
ceives to be other
correct,
judgment
cases was
we affirm the
not,
Perhaps
construction.
Baker/Moore
Appeals upholding
of the Third Court of
1 or Title 4 of
an amendment to Title
but
judge’s
quash
trial
decision to
effectively ex-
Code would have
the Penal
conspiracy charges
Election Code-based
inchoate offense
tended the
Ellis,
Delay.
against Colyandro,
and
outside the
all criminal offenses
legislature
if that is indeed what
KELLER, P.J.,
concurring
filed a
wanted.
J.,
PRICE,
joined.
opinion in which
suggests
legisla-
also
that a
The dissent
PRICE, J.,
concurring
opinion.
filed
fix
have unintended conse-
might
tive
a reason for this
quences. But that
is
J.,
COCHRAN,
dissenting
filed a
“judicial
creating
from
to refrain
Court
MEYERS, JOHNSON,
opinion in which
ex-
legal interpretation
change
fix” to
HOLCOMB, JJ., joined.
It is not
in Baker and Moore.
pounded
KELLER, P.J., concurring in which
to conclude
the least bit absurd
PRICE, J., joined.
to limit the
may have intended
legislature
provi-
of the inchoate offense
dissenting opinion
application
The
contends that we
opposed to
certain felonies as
and Baker
sions to
should overrule Moore v. State1
(Tex.
Busby
S.W.2d
(Tex.Crim.App.1976)
v.
1.
887 Yes, felony is any be obvious. overruling questionable of Sometimes “two-stage pro- conspiracy pro- a ... involves to the Penal Code precedent subject Thus, prosecuted cess.” be person vision. felony of- any commit conspiring to comments, join I additional With these in the fense, felony is defined whether opinion. the Court’s law. elsewhere Texas Penal Code or COCHRAN, J., dissenting, which stat- plain language The HOLCOMB, MEYERS, JOHNSON and structure, requires this result. ute JJ., joined. intent, history the 1974 legislative require this result. Com- Code all dissent. respectfully
I Public requires this result. mon sense if and all any In this case we are asked Only poor- two requires this result. policy offenses, in the whether defined 1970s, mid opinions from the ly reasoned stat- or in some other Texas State,2 Baker v. stand Moore v. State1 and ute, may form the basis of a way reaching right result. in the of the Penal charge under Section 15.02 Appeals, opinion its The Third Court wayward it not for two Code. Were cases, re-visit present invited us by opinions and 1977 written Commission- sug- cases and reasoning of those two Judge strong er Davis over the dissent of I overrule them.3 Douglas, question gested would that we should the answer dictum, Annotation, holding that the earlier Prospective or Retroactive rather than as See Thus, Decision, by using a two- Operation Overruling overruled. 10 A.L.R.3d decision is [b], (1966) overruling process, consisting stage §§ first of & at 1393 & 1396 7[a] ("[I]t generally recognized warning of a dictum and second- is now that a court in the form necessary, holding overruling an power purely ly, of a has the ... a case if overrule decision, prospectively give overruling the court can achieve a desir- decision earlier whatsoever, is, changing a bad rule without no retroactive effect able effect interests.”). strong defeating any hold that the rule established the overrul- reliance ing operate only upon decision will future even be transactions or events and will not (Tex.Crim.App.1976). 1. 545 S.W.2d overruling operative upon parties to the case.”) ("It appears judicial true that a state- (Tex.Crim.App.1977). 2. 547 S.W.2d wholly purporting to ment ‘overrule’ case *17 prospectively is in fact no more than a dic- (Tex. DeLay, v. 208 S.W.3d State tum, is, by hypothesis, inapplicable since it 2006). appeals App.-Austin The court of stat parties controversy the the or the before ed: However, especially court. where there has court, appellate we lack As an intermediate decision, strong reliance on an earlier been opinion authority an of the the to overrule equitable way overturning the most of the prerog- appeals. It is the court of criminal may par- earlier decision be to hold that the appeals of alone ative of the court criminal particular ties to a case are to have their interpretation a decision, overrule its of statute. rights governed by the earlier but to questionable appears to be on warn, dictum, Baker based anyone by of that who means arguably reasoning and is in conflict with subsequently upon deci- relies the earlier conspiracy history the criminal of- the opinion date the or sion—after the court’s growing legis- well the fense in Texas as as specified date the court— after some other * * * felony propagate lative trend to doing peril. person will be so at his If statutory throughout codes. the various subsequently attempts rely an earlier on appeals want to warning against The court of criminal despite fur- decision such reliance, court, opinion But until that deciding per- its in Baker. the that revisit time, ther case, law and we are not free to after Baker is the son’s can conclude that reliance disregard warning unjusti- it. specified date in the the omitted). fied, declare, (citations as a and the court can then absolutely nothing plain in the and overrule There is accept would that invitation sug- language of this statute that states or they only and Baker. Not are Moore Legislature really that meant “a gests reasoned, they carry poten- but poorly felony defined in the Penal Code” when it many tial to cause untold mischief to other felony” defining “a the offense of said provisions in the Penal Code. conspiracy. English usage, In normal felony” “any felony.” means phrase “a Language The Plain of the Penal A. analysis Boykin, statutory Under our Conspiracy Statute. right end there. should any construing meaning In stat- in the anything Is there else ute, language of plain we look first to the “a suggests phrase that states or interpretation that statute.4 This Court’s really felony” in the statute to effectuate the of statutes must “seek felony “a defined in the Penal means purpose legisla- intent ‘collective’ or No, quite the reverse. Section Code”? legislation.”5 who enacted the tors Code, provision 1.07 of the Penal that if literal Boykin, we established of words that are sets out the definitions unambigu- clear and text of the statute is used in the Penal states: ous, ordinarily give effect to that we must (a) In this Code: meaning.6 statutory The first rule of plain (23) “Felony” means an offense so presume legisla- is to that the construction punishable or designated law meant what it said and said what it ture pen- in a by death or confinement face, meant.7 On its statute itentiary.9 felony plainly applies to all offenses. English construc- Under normal rules Section 15.02 of the Penal Code defines tion, any “felony” time the word is used conspiracy: criminal offense of any offense that the Penal means (a) conspira- A person commits a “felony” regardless is titled or listed as if, felony cy with the intent that be in the of whether that is defined committed: Once or some other statute. (1) agrees per- he with one or more analy- statutory our again, Boykin, under they one or more of them sons right there. sis should end engage in conduct that would consti- provisions dealing The Election Code offense; and tute the that Messieurs illegal contributions with (2) charged and Ellis are per- DeLay, Colyandro, he or one or more of them are all having conspired to violate pursuance an act in with forms overt It would seem third-degree felonies.10 agreement.8 (Tex.Crim.App.2005) 155 S.W.3d Boykin v. 818 S.W.2d 785-86 *18 (stating Boykin "instructs us to first ‘fo- (Tex.Crim.App.1991). text of the our attention on the literal cus at 785. question' Id. because ‘the text of the statute in ”). statute is law.’ 6. Id. 15.02(a). § 8. Tex Penal Code ("Where is clear and unam- Id. the statute biguous, must be understood 1.07(a)(23). expressed, and it is not to mean what it has 253.003(e) (third-degree Tex. Elec.Code add or subtract from such for the courts to statute.”); State, political accept make or an unlawful 187 S.W.3d see also Seals v. Subchapter D in violation of contribution (Tex.Crim.App.2005); Getts v. Thus, 6; are two obvious, then, and so forth. there they may pros- be Title quite conspiracy for the offense of of the Penal entirely portions ecuted different third-degree felony violating titles, commit the in the first three generalities Code: provisions contributions of the illegal in specific offenses the rest. Election That should be the end Code. cap- is 1.03 of the Penal Code the matter. (b) Subsection tioned “Effect Code.” reads: Intent, Structure, Legislative B. The History and of the Penal Code Con- apply and 3 provisions The of Titles spiracy Statute. laws, unless defined other to offenses Delay, Colyandro, Messieurs and Ellis provides defining statute the offense (as did Davis argue Commissioner otherwise; however, af- punishment Baker) follow
Moore and that we cannot fixed to an offense defined outside this language conspiracy of the stat- plain pun- unless the applicable code shall be felony” ute or the definition of “a in section with ishment is classified accordance 1.03(b) I.07 section of the Penal because this code.13 using us from felonies de- Code forbids general ensures that the This subsection the Penal as the fined outside basis statutory provisions of the Penal for a offense. Section justifications as the defenses to or such says thing. imply any no such Nor does (self-de- responsibility But criminal thing. argument excluding such to counter that duress, etc.), fense, one must examine the basic structure of insanity, necessity, (accom- the Penal Code. criminal party liability for liability), responsibility and criminal plice The Penal Code is divided into eleven only to the corporation, apply of a gen- titles.11 The first set out three titles defined within the Penal criminal offenses any and all eral which criminal offenses defined Code but to all criminal the ti- offenses.12 rest of “export” It is an other Texas statutes. through spe- tles—Title 4 Title 11—define paste can cut and these provision: one cific criminal offenses. For example, every criminal 4; three titles onto each offense of is defined Title in offense defined outside the capital the offense of murder is defined 5; crime statute bigamy Title the offense of is defined unless the extra-Penal Code (Offenses Against prohibits Public Order and De which certain contributions cor- tie 9 (Offenses unions); cency); Against Public porations Title 10 or labor Tex Elec.Code Health, Morals); 253.094(c) (Orga Safety, and Title 11 (third-degree felony corpo- for a Crime). nized ration or labor union to make an unautho- contribution); political rized Tex Elec.Code (third-degree felony corpora- chapters example, for a Title 1 contains 12. For knowingly dealing general provisions make an tion or labor union with the code, political proof, multiple prose- otherwise authorized contribution in the burden rule). 60-days chapters dealing before election 2 contains violation cutions. Title generally, responsi- culpability criminal with another, general bility de- Provisions); for the conduct of (Introductory 11. Title 1 Title justifica- responsibility, to criminal (General fenses Responsibili Principles of Criminal excluding responsibility. Title (Inchoate (Punishments); tions ty); Title 4 Title 3 *19 apply punishments to crim- 3 sets out the that Offenses); (Offenses Against the Per Title 5 inal offenses. (Offenses son); Family); Against Title (Offenses Against Property); Title 8 Title 7 1.03(b). Administration); (Offenses Against Ti- 13. Tex Penal Public firmly an- burglary, kidnaping, and is says There is no specifically otherwise.14 general princi- all of repeat need to these in the Penal Code. One cannot “ex- chored a every and code that defines ples each it to other crimes. port” overlay export and criminal offense. Just conspiracy explicit- statute But what the provisions. these three titles onto those any ly requires “import” one to do is felo- and Delay, Colyandro, Messieurs Ellis felony a inside or ny defined as —whether 1.03(b) does not argue that because section the crime of outside the Penal Code—into of mention Title in which the crime a crime defined conspiracy. When defined, crime of con- conspiracy is has, basis, its “a part as of applied spiracy “exported” cannot be then, felony,” explicit under the definition outside the Penal to other crimes defined 1.07(a)(23), “felony” a section one of under Well, The crime of Code. of course not. any felony crime de- paste cut and conspiracy specific a distinct and crimi- is any specific Texas statute into that fined offense, murder, just burglary, like nal That is what section Penal Code offense. theft, It not a kidnaping, and so forth. is 1.07(a)(23) example, For requires. part general provisions of the of the Penal per- that the conspiracy requires crime of crimes; it a applicable specif- to all is felony be com- act intent that a son “with ic crime itself. mitted,” with at least one agrees that he say, in section It would make no sense that one of them will commit person other 1.03(b), Ti- general provisions that the of offense, of them felony and that one 4-11 tles as well as Titles of an act in furtherance performs overt crimes, to offenses defining specific example, another agreement.16 their As by other laws. Commissioner defined felony-murder requires the the crime of griev- a Davis back in 1976 and 1977 made person to commit commit ous, understandable, In Bak- but mistake. manslaugh- felony (any felony other than er, specific apparently thought he ter) and in further- and in the course of conspiracy really general crime of an committing that commit ance of could, Leg- if the principle provision15 life that clearly dangerous to human act desired, so float around and islature had Another person.17 the death of a causes defined out- attach itself to other crimes entering the crime of example: burglary is the Penal Code. It cannot. The crime side of murder, the consent of another’s home without conspiracy, of like the crimes is, course, 7.02(b)). liability Conspiratorial Commentary to Section 1.03 14. The Practice within Title and it is one of those Penal Code states: contained that, general provisions of the Penal Code law, general principles penal for 1.03(b), explicit wording under the of section part compre- time and for the most first offenses, regardless of applies all criminal code, hensively treated and codified are in the whether those offenses contained provide designed are a framework for law. But there Penal Code or another Texas every interpretation application law criminal an enormous difference between is employs enacted that now in effect or later un- responsibility the conduct of another sanction, penal locat- whether or not it is liability principles and the general party der ed in this code. conspira- commission of the distinct crime Commentary. Practice Tex. Penal Code be, are, frequently cy. They but should confused. Baker, may have Commissioner Davis (de- crime of confused the distinct 15.02(a). §Code 16. Tex Penal 15.02) concept with the fined in section responsibility upon based 19.02(b)(3). (which 17. Tex Penal Code complicity is set out in section *20 conspiracy? No. for the crime of with the intent to commit basis homeowner and theft, to the Final (any felony), or assault.18 Comment felony a The Committee kidnaping example:19 aggravated One last Texas Penal Code Proposed Draft of the 15.02, with the abducting person is the crime of of section purpose that the explained of a intent to “facilitate the commission conspiracy, was to defining the crime of felony after the or com- flight existing against law criminal clarify the felony.”20 of a mission It stated: conspiracy. Baker, it Following logic the of would a common-law conspiracy, Criminal person a crime to abduct a with the not be crime, firmly as has become established commission of a
intent
to facilitate the
that serves dual roles
an offense
the Penal
felony is defined outside
Func-
jurisprudence.
criminal
modern
(which
Title 5
contains the
Code because
offense, criminal
tioning as an inchoate
aggravated kid-
definition of the crime of
legal inter-
point
fixes the
1.08(b)
naping) is not mentioned
section
to commit a crime
agreement
vention at
defined out-
being applicable
as
offenses
Thus,
it
act.
coupled with an overt
absurd
side the Penal Code. This is an
preparatory
further back into
reaches
surely
result and
not one intended
the
attempt,
than criminal
Section
conduct
it
Penal
Legislature when enacted the 1974
15.01,
far back as criminal
but not as
examples,
Legis-
In all of these
Code.
solicitation,
In its second
Section 15.03.
obviously
“any felony”
lature
meant
when
provides
role criminal
phrase
felony.” Especially
“a
used
striking against
special
means of
“felony”
since the definition of a
in section
activi-
danger
group
incident to
criminal
1.07(a)(23)
much
says exactly that. How
of the
ty
prosecution
and facilitates
clearer can or should the
be?
extraordinary evi-
group by providing
any
does not reference
procedural advantages.
dentiary and
of-
the Penal Code titles
which these
essentially
15.02 is
clarifica-
applying
are defined as
fenses
outside
con-
present
Texas law
tion
do
Penal Code
indeed these offenses
1622-1629,
Penal Code arts.
spiracy,
outside the Penal Code. But
aspect
the inchoate
emphasizing
felony
are defined outside
interfering
pro-
with the
offense without
surely may
imported
Penal Code
be
into
advantages of
evidentiary
cedural
Penal
crimes that re-
specific
Code
the of-
aspect of
group prosecution
quire
felony”
part
the commission of “a
as
fense.21
of that crime’s definition.
law, the crime of con-
the common
Under
history of
Penal Code
Does the
the 1974
offense,
any
spiracy applied to
only
notion that
those felonies
support the
Indeed,
gen-
the Penal
be the
or misdemeanor.22
defined within
Code
30.02(a)(1).
38.06(c)(1));
(Tex
§
jumping
§
bail
Penal Code
Tex. Penal Code
38.10(f)).
§
provisions that refer to
19. Other Penal Code
20.04(a)(3).
§
20. Tex
Penal Code
felony”
part
definition of the
"a
as
enticing a child
(Tex
crime include
Penal
Proposed
A
Final
Texas Penal
Revision.
25.04(b)); burglary
§
of a motor vehicle
Draft,
committee
October
30.04(a));
of a
coercion
(Tex
Penal Code
added).
(emphasis
comment
36.03(b));
public
(Tex
servant
Penal Code
Bubany,
hindering
apprehension
P.
The Texas
(Tex
22. See Charles
38.05(c));
327 & n.
escape
28 Sw. LJ.
(Tex
Code of
*21
wipe
that
intended to
conspiracy
in Texas had been on
think
the
eral
law
gener-
it
the
out that offense when
enacted
only
applied
books since
but it
to
the
15.02.
conspiracy
al crime of
section
felony
to come
agreement
offenses: “The
conspiracy must
within the definition of
be
Policy
and Public
C. Common Sense
following
of
to commit one or more
Considerations.
offenses,
Murder,
arson,
robbery,
to-wit:
to
any
there
common-sense reason
Is
burglary,
rape
any
or
other
offense of
of
does or
think that the crime
And,
grade
felony.”23
at least as far
of
only to offenses defined with-
should
offense
back as the 1925 Penal
purpose
If the
of
in the Penal Code itself?
by
illegal
corpora-
of
contributions made
punish
law is to deter and
felony.24
punishable
tions was
as a
This
commit a serious crime
agree
those who
transferred to the Election
provision was
that
steps
accomplish
and take overt
making
If the crime of
an
Code of 1951.25
crime,
any
separate
reason to
out
is there
illegal corporate political contribution was
defined within the Penal
serious offenses
forming
conspir-
the basis of a
amenable to
from serious offenses defined outside
Code
acy
up
until the enactment
and declare that one can
the Penal Code
if
1974 Penal
the 1974 Penal
conspiring to commit
prosecuted
be
for
merely
then-existing
Code
clarified the
law Penal
felonies but not extra-Penal
Code
more
felonies?26 Are some felonies
conspiracy,
of
it defies common sense to Code
(1974)
any political
defeating
approval
meas-
(stating
section 15.02 "is limited
that
conspiracies
contemplate
people of this
the commis-
ure submitted to a vote of the
thereof”;
felony”
noting
punish-
com-
any
"[a]t
sion of
State
subdivision
or
law,
purpose
for
mon
a combination
than
imprisonment
included
of not less
ment
committing any
act
un-
crime or a lawful
years).
one nor more than five
conspiracy.
be a
Prior
lawful means could
felony
law contained the
limitation with
Texas
appeals aptly noted in its
26. As the court of
exceptions”).
certain
case,
opinion in this
felony
legislature has created dozens of
(1884).
23. Texas Penal Code art. 957
twenty
contained in at least
statu-
light
historically
tory
codes.
(1925) (prohibit-
24. Texas Penal Code art. 213
application of Texas’s criminal con-
broad
any
ing political
bank or
contributions
offense,
unlikely
spiracy
we find it
that the
aiding
corporation
purpose of
or
"for the
legislature
elimi-
have intended to
would
defeating
any
the election of
candidate for
liability
conspiracy in
nate
Representative
Congress, or Presi-
office of
panoply
felony
such a
offenses.
dential or Vice-Presidential Electors from
court
listed
being conspiracy, used as the basis of a and Ellis DeLay, Colyandro, Messieurs felony-murder, burglary, kidnaping, hin- Legislature that the would have us believe dering apprehension, or other Penal Code to con- perfectly legal to make it intended felony,” crimes that reference “a then it felonies, all of these but spire to commit placed should have them the Penal Code illegal only actually carry them out. On Maybe it Title 12 itself. should create a credulity to think contrary, it strains section of to contain this persons intended that that the miscellany felony offenses described in to commit these felonies are conspired who twenty public or more other codes. Good conspir- prosecution for that immune from however, policy suggests, that these extra- fact, of- acy. extra-Penal Code some Penal Code offenses are defined those particularly susceptible to fenses are separate people codes because who are doubly and are dan- crime of directly separate most affected those Take, example, it. for gerous because of likely codes would be most to find and who never Big, drug kingpin Mr. a cartel read them and then conform their conduct hands with the ten kilos sullies his own example, For to avoid these crimes. flown across the cocaine that he orders felony Agriculture Instead, Code states it is conspires he border into Texas. anyone operate public grain ware- goods with his henchmen to deliver obtaining first a license.27 in his River happily house without while he is ensconced Chapter This offense is defined in titled mansion. Did the 1974 Oaks immune from really intend that he be “Regulation of Public Grain Warehouse Agric. 14.072(b). § 85.389 Code§ 29. Tex Nat. Res.Code 27. Tex 152.101(b). 37.125(b). 30. Tex Tax Code 28. Tex Educ.Code re- of 1977 cases. These cases should be prosecution for the Penal Code offense merely first, to deliver cocaine be- In the Moore v. examined. State>32 delivery of cocaine cause specif- Davis stated that the Commissioner defined outside the Penal Code? The attempt” ic offense of “criminal which is that the little mule Legislature intended defined section 15.01 of the Penal Code actually a kilo of cocaine who delivers did not to the offense of ob- go prison kingpin for life while the who substance fraud taining controlled conspired (unsuccessfully, for that is what which was defined in The Controlled Sub- *23 an inchoate crime is-one is not com- stances Act.33 He recited Section pleted) to cocaine into the hands of get the which that “the of Titles stated from I prosecution? the mule is immune 1, apply to offenses and 3 of this code think not.31 laws, unless the statute defined other Thus, good pub- both common sense provides defining the offense other- lic policy lead to the conclusion that sec- reasoned, And he then “The wise[.]”34 1.07(a)(2S) tions 15.02 state that “a 15.01, provisions of general attempt Sec. felony” “any felony” regardless is of in Title 4 of the Penal supra, are contained in the Penal or whether is defined Code 1.03(b), supra and thus does not Code Sec. in some other statute and that all such But this is a apply supra.”35 to Sec. may conspiracy felonies form the basis of a sequitur. Why any specific non would offense. And if all felonies are “real” such (or in the Penal crime defined felonies, felony so is the Election Code of defined) in title in which it is be mentioned it, too, making illegal an contribution and 1.03(b)? Only general princi- form the of a offense. basis criminal exported law are to extra- ples Thus it was before the 1974 Penal Code offenses, specific not enacted, it should remain thus of the offenses de- Code crimes. None legislative absent some action to the con- in are mentioned in fined the Penal Code trary. 1.03(b), not mean but does Sup- D. Moore and Baker Are the Sole they require that when the commission port a Fel- for the Conclusion That definition, that felony” part “a as a of their ony Defined in the Election Code do felonies defined outside the Penal Code Conspira- Be Cannot the Basis for qualify purposes felonies for as cy under the Penal Code. Offense pre- This was those Penal Code offenses. by Judge Douglas cisely point made DeLay, Colyandro, Messieurs and Ellis He stated that “Sec- exclusively two 1976 and his dissent Moore. rely upon almost example Legislature could not have intended such 31.Judge Douglas a similar set out logic absurdity of the in Moore which result. attempt. dealt with the offense of criminal Judge Douglas at 143. is abso- 545 S.W.2d He said: lutely correct. policy logic no There is sound reason Legislature (Tex.Crim.App.1976). for the to intend to omit an 32. 545 S.W.2d attempted provision the Controlled from lead Substances Act. Such omission would 4476-15, (citing art. Id. at 141-42 to the absurd result that one could be V.A.C.S., 4.09(a)(3)). Sec. gave prosecuted pharmacist him a if a prohibited in reliance on a substance 34. Id. at 142. pharma- forged prescription, not if the but recognized the criminal cist and frustrated completed. enterprise before it was justice.”41 Com- 15.01(a) in the interest of offenses de- review tion is not limited to must the issue thus: posed in the code. It states that one Davis fined missioner ‘an offense’ to come with- intend to commit before us is whether question “The attempt provisions.”36 of the the ambit provisions of the new absurdity logic: He noted the Controlled Texas in- appears they It not.”42 Act. We hold do Substances an to commit an tended that wrong issue. He should posed He Sub- offense involved the Controlled question “The before posed it thus: have an of- stance Act would not constitute in the Con- defined us is whether crimes attempts while at all other fense ‘a felo- qualifies Act as trolled Substances would constitute within the Penal Code conspira- of the crime of ny’ purposes a conclusion would con- offenses. Such conspiracy does not cy.” The crime of 1.05(a) of the Penal travene Section crimes, just crime as the “apply” to other Code[J37 to other felony-murder “apply” does not *24 Judge Douglas stated this Court crime, whether any But crimes. in- legislative should “effectuate the outside of the Penal defined inside or full find that the Penal Code tent. We should crime of may form the basis for the Act are and the Controlled Substances (or felony-murder, crime of conspiracy in complementary difficulty and have no forth). Commissioner burglary, and so construing together. the statutes Accord- simply mistaken. He was Davis was at- ingly, general we should hold that the attempts conspiracy and thinking that in tempt provisions set forth than legal principles rather general were supra, apply to the Controlled Substances complete within specific penal Alas, approved Act.”38 this Court Commis- mistaken, crime to be themselves. It is no opinion sioner Davis’s rather than that of Court, Judge Douglas, like should but this Judge Douglas.39 And then trouble now have the recognize that mistake. We later, snowballed. Six months Commis- it, to correct and we should. opportunity applicability sioner Davis addressed the obviously ap- did not The the crime of under Section opinions Davis’s prove of Commissioner 15.02 to the Act. In Controlled Substance It reacted either Moore or Baker. State,40 Baker v. Commissioner Davis not- Act amending the Controlled Substances any ed that the defendant did not file brief own, that Title had, explicitly provide to appeal, on but that he on his apply to the Controlled “fundamental error which we must Penal Code did found first, X, phrased and then he would (Douglas, dissenting). the issue 36. Id. at 143 "Offenses defined in have concluded: 1.05(a) provides: Id. at 143-44. may Substances Act form the basis Controlled penal strictly rule that a statute is to be prosecution under sec- of a criminal does not to this code. The construed tion 15.01 of the Code.” provisions of this code shall be construed terms, according import to the fair of their Id. at 142. objectives promote justice and effect of the code. (Tex.Crim.App.1977). 40. 547 S.W.2d 1.05(a). Tex. Penal (Tex. v. 547 S.W.2d 41. Baker Unfortunately, Judge Douglas Id. at 143. Crim.App.1977). linguis- Davis’s down Commissioner followed mistakenly adopted primrose path his tic and language. have re- "apply to” He should illogical But it on ...” But this “fix” and Substances Act.43 did so based is faulty that at- logic consequences Commissioner Davis’s have of its own.45 unintended legal tempts general were legislative might Another fix be amend principles, principles like those set out “felony” the definition of in Section “ 1.07(a)(23) Titles and 3 of the Penal rather ‘Felony to read: means an than discrete criminal offenses. And down designated by punishable offense so or law it, Court, through years like this has penitentiary. death or confinement in a perpetuated original logic mistake of any felony It includes defined in this code by enacting piece-meal conspiracy various code, it any applies other Texas some of the other Texas all offenses defined in all titles within this And, by declining accept codes. code, If this including Title 4.” seems re appeals’s urgent court of invitation to re- dundant, is, necessary given it our but it is logic Bak- visit mistaken Moore and present peculiar interpretation of the defi er, perpetuates this Court further nition. original Because this mistake. Court The citizens of Texas would be well mistake,
made original we should re- served if this Court admitted the mistake ourselves, pair responsibili- not foist that logic Moore and Baker over- ty Legislature. off on the declines turned them. Because the Court Unfortunately, origi- we compound the so, respectfully to do I dissent. by ignoring explicit language nal error *25 1.07(a)(23) of section defines
phrase felony” purposes “a for of the Penal by “an designated
Code as offense so law in a punishable by death or confinement Thus, penitentiary.”44 Legisla- even if the explicitly ture should take the hint and provi- amend section to state “The 1, 2, and C.A.P., sions of Titles 3 of this Code and In the Interest of JR. k, apply in Title M.M.P., Children. offenses defined ...,” by offenses defined other laws we No. 2-06-342-CV. problem would still be left with the felony” pur- having concluded that “a Texas, Appeals Court only those poses of the Penal Code means Fort Worth. felonies that are defined within the Penal Aug. Code.
Thus, fix legislative might one true be: provisions “The of Title and 3 of this Code and the in Titles k- offenses defined laws apply to offenses defined other laws, 4476-15, offenses defined other unless 43. Tex.Rev.Civ. Stat. art. (added by Leg., provides defining Acts 67th ch. the offense oth- statute 1, 1981). Sept. eff. again, might ...” But there be numer- erwise. consequences ous unintended and unforeseen 1.07(a)(23). Tex. application every provision with broad applying every the Penal Code phrasing A more felicitous somewhat defined in other Texas statutes. might be: "All of the of this