State v. Hall, 829 S.W.2d 184

State v. Hall

829 S.W.2d 184

Tex. Crim. App.

1992

Check Treatment

*1 184

Finally, as to what constitutes It follows that “the value of the value,” “any thing of our constitutions and thing misapplied” use of the is the sum of always sought protect laws “any money, to thing, fair in use of accruing value such property thing or other belonging of value” thing, “the use” of here government. See, e.g., generally a $20,000. more but less than $750 collection statutory prohibitions of enumer State, v. 534, at 535 Littlefield 2, 4, ated in chapter 1925, former title P.C. State, (Tex.Cr.App.1979); Prowell v. 541 and more especially former articles 95 and 432, (Tex.Cr.App.1976). S.W.2d at 433-434 Moreover, 97 therein. from 1945 to 1974 it Accordingly, we hold that the indictment specific penal was a offense for a permissibly alleges misappli- this cause commissioner knowingly permit to “use or county equipment cation of period over a of private profit to be used for to himself ... time with intent to obtain a benefit for as any property, supplies, equipment, or long county equipment as the being used thing other value belonging to the coun complete undertaking. the described ty,” or any person “the labor or service of Therefore, duplicitous. it is not paid whose labor or service is such ” county[.] (Penal For judg- See former article these reasons we reverse the 978o 1925), amended, Code part appeals, as the “service” ment of the court of and remand incorporated 31.04(a)(2). of which was disposition appellant’s the cause for re- The courts points construed those statutes and maining of error. prosecution

others to authorize single as a entirety “any thing

offense the of val misapplied though

ue” even actually it was See, intermittently

“used” e.g., thereafter. State,

Hamer v. 341, 131 60 Tex.Cr.R. S.W. Sate,

813, 814, (1910); Ferrell v. at 815-816 487, 901, 902, 903,

68 Tex.Cr.R. 152 S.W. at State, (1912); McKinney v.

905 104 Tex. 315, 798, (1925); Cr.R. 283 S.W. at 799-800 Texas, Appellant, The STATE of Burgess v. 48, 108 Tex.Cr.R. 254, 255, (1927); Mayse v. S.W. at HALL, Appellee. 360, 371, Patricia Ann 156 Tex.Cr.R. 242 S.W.2d. (1951). money “thing That was the No. 1096-90. require of value” those cases does not analysis corporeal Texas, different or result where Court Criminal personal property “thing.” is the Now En Banc. every has included 25, March 1992. thing “any thing under the umbrella of 6, Rehearing May controlling principles Denied

value” those See, Pow equally apt e.g., cases are here.

ell v. at

(Tex.Cr.App.1977) (money withdrawn period);

four checks over extended Smith, Hightower

ex rel. (Tex.1984), on remand 673 S.W.2d 1984) (value (Tex.App. Tyler of rent- — apartment free over six months obtained misconduct).

through (1979); Collegiate Dictionary study private property Black's Law time for shall New <nor > (in just compen- (Rev. Ed.1968) Dictionary be taken for without [use] Fourth non-tech- sense, sation thing ...>” means that one nical "The ‘use’of Dictionary Webster’s Third New International hold, enjoy, occupy, or have some manner is to 2523; (1969) see also Webster's New Interna- thereof.”) of benefit (Second Ed.1944); Dictionary tional Webster’s *2 Amann, Ramsey, B. Hous- Michael Cohn ton, appellee. Jr., Holmes, Atty., Dist.

John B. Dryer, Dist. Curry Alan and Denise Asst. Huttash, Houston, Attys., Robert State’s Austin, Atty., for the State. THE PETITION

OPINION ON STATE’S FOR DISCRETIONARY REVIEW CAMPBELL, Judge. Hall, charged

Appellee, Ann Patricia by criminal information with two counts of homicide, ly negligent A misde Class The meanor. Tex.Penal Code 19.07. trial on the court dismissed information ground by the prosecution was barred limitations, two-year and the statute First Court of affirmed the dismis Hall, (Tex. sal. 794 S.W.2d 916 1990). App. [1st Dist.] — Houston granted petition the State’s for discretion 200(c)(4) review, ary pursuant to Rule Procedure, Appellate the Texas Rules of limita determine whether the statute of prose so as tions was tolled to enable go Having cution to forward. determined that of limitations was statute tolled, judgment will affirm the of appeals. briefly procedural review the

We first history On of this cause. November County grand jury re- the Harris indictments, were turned two which presented in the 228th District Court appellee and which criminally negligent homi- committed persons. cide two two identically except for the were worded — alleged that names victims—and of the Texas, Ann County, Patricia Harris Defendant, Hall, styled the ... hereafter 27,1985, unlaw- did ... on about June knowingly oper- fully, intentionally and public highway, ate a vehicle on motor capacity as a Harris Coun- in her official Deputy, did ... ty Sheriff’s Office [and] ve- police official negligently cause her occupied hicle to a vehicle collide with victims], by the Defendant’s [the the death negligence, did cause criminal [victims], namely, by operating allege her ments did not misdemeanors involv police greater vehicle at a rate of ing official ap misconduct. The court of speed than was prudent reasonable and peals explained that a criminal act involves conditions, existing under the fail- jur “official for district court ing proper to maintain a lookout for the *3 purposes, only isdiction if that criminal act occupied by vehicle the and the [victims] “inextricably is a function of the official responding Defendant was not to an Hall, duties of the defendant.” 736 S.W.2d emergency call. at appeals 821. The court of went on to Appellee, relying on articles 4.05 and state that it operating did “not consider 4.071 of the Texas of Code Criminal Proce- motor vehicle an inextricable function of a dure,2 pretrial filed a motion to dismiss the Id. The police officer’s official duties.”

indictments, arguing that the district court court also cautioned the State that “[n]ot lacks to hear this case of every offense committed offi negligent Negligent homicide. homicide id. cial involves official is a County misdemeanor and it is the 820, and that “official misconduct is an jurisdic- Court which maintains exclusive offense which cannot be committed misdemeanors, tion of exception with the citizen,” id. at 822. ordinary of those misdemeanors which involve of- Despite holding the of the Fourteenth ficial misconduct. The State has failed Court, prose- the State did not abandon the allege any giving facts rise to the 23, 1989, August cution. On an assistant charge official misconduct which [of] attorney district County of Harris filed an thereby give would district [the court] County information in Criminal Court at jurisdiction. The mere fact that the in- county, charging Law Number 10 of that words, charges

dictment “while in appellee with the same two crimi- her counts of capacity,” “operating official her vehicle,” police nally negligent Appellee official homicide. wholly are insuffi- then cient as a matter of law to constitute an filed a motion to dismiss on the of the basis allegation of official misconduct. two-year statute of limitations for misde- prosecutions. meanor See Tex.Code Crim. Appellee’s denied, motion to dismiss was granted Proc. art. 12.02. The jury subsequently guilty and the found her dismiss, appellee’s charged. as motion to and the State appealed, arguing limi- that the statute of Appellee jurisdictional raised the issue tations, 12.05,3 Article was tolled when the again appeal, on and the Fourteenth Court presented initial indictments in the were reversed her conviction on that 228th District Court. The First Court of basis. Hall v. (Tex. 736 S.W.2d 818 parte on Ex Appeals, relying principally App. 1987, pet. [14th Dist.] — Houston Ward, (Tex.Cr.App.1978), ref’d). 560 S.W.2d 660 on Robinson v. part Relying disagreed with the and held that the (Tex.Cr.App.1971), 470 S.W.2d 697 State appeals the court of held that the indict statute of limitations was not tolled under provides: provides part: Article 4.05 3. Article 12.05 relevant District courts and criminal district courts (b) during pendency The of an in- time original jurisdiction shall have in criminal dictment, information, complaint or shall not grade felony, all cases ors of misdemean- period computed in the of limitation. involving official and of mis- (c) "during pendency," as used The term demeanor cases transferred to the district herein, period beginning time means that court under Article 4.17 of this code. indictment, information, day with the provided: In Article 4.07 complaint competent a court filed original jurisdic- courts shall have jurisdiction, ending day with the such tion of all misdemeanors of which exclusive is, by of a trial court accusation an order original jurisdiction court, given justice is not to the thereof, having jurisdiction to be determined imposed and when the fine to be shall any reason. invalid exceed two hundred dollars. added.) (Emphasis noted, 2. Unless otherwise all articles cited opinion this are in the Texas Code of Criminal Procedure. misde- therein presented ments original indict Article 12.05 because misconduct. compe meanors filed in a court of ments “were not Ward, Hall, parte held in Ex State jurisdiction.” tent that, purposes for the (Tex.Cr.App.1978), (Tex.App. [1st — Houston jurisdic- competent 1990). a court of Dist.] try the jurisdiction is a court with tion Court, its reasserts the State Before interpretation has case. Since limitations was the statute of claim that many in the overruled legislatively been original upon presentment tolled Ward, are confident following years court, which, the in the district See Lockhart that it is correct. competent a “court of argues, was 167-168 150 Tex.Crim. argues first jurisdiction.” The State *4 legislative silence follow- (1947) (prolonged competent a court of the district court was implies interpretation of statute ing judicial grants 4.05 dis because Article jurisdiction interpretation). Under Ward approval of all misdemeanors jurisdiction of trict courts 4.05, then, the district court and Article “the misconduct and involving official only jurisdiction competent of a court was this [original] [in case] alleged misdemeanors if the indictments miscon misdemeanors involving official misconduct. State, v. State, citing Studer duct.” The argues (Tex.Cr.App.1990), 263 799 S.W.2d had years we have in recent Twice a court the district court was second that meaning of the to discuss occasion because, under competent jurisdiction of in as used phrase, “official V, 12(b), the Texas Constitu Article of State, v. In Robinson 470 Article 4.05. tion, indictment to a presentment of an 697, (Tex.Cr.App.1971), we held 699 5.W.2d jurisdiction that court with court invests purposes for the that official try the case.4 article, in Tex.Rev.Civ. was defined of that Appellee argues response 5973, in that still in effect art. 5973.5 Stat. upon 1985, tolled of limitations was not de appellee’s statute trial in of at the time original indictments to presentment of the as fined “official misconduct” contends, as Appellee court. the district to the in relation any unlawful behavior below, district court was she did in its charac- office, his duties of wilful be- competent jurisdiction of not a court ter, any man- any intrusted of officer did not al- original indictments cause the justice, or administration ner with the involving official mis- lege misdemeanors law; and includes the execution respond to the Appellee does not conduct. failure, refusal or corrupt any wilful6 or argument. constitutional State’s any duty perform neglect of an officer by him law. enjoined on argu turn first to the State’s added.) Although (Footnote emphasis court was a court ment that the district term, statutory definition includes the indict- competent jurisdiction because 87.011(3). V, 12(b), substitute "inten provides: These new statutes Constitution art. 4. Texas generally State "wilful.” See tional” for instrument is a written An indictment Williams, (Tex.App.—Santon charging S.W.2d 891 by grand jury 780 a presented to a court An 1989, pet.). of an offense. no person the commission io a with instrument is a written An information attorney for the presented to a court intentional, dis- as if it is 6. Conduct is "wilful” charging person the commission negligent, done in tinguished and if it is from procedures practice and The an offense. ground be- or without reasonable bad faith and infor- relating use of indictments to the State, 167 lieving Brown v. to be it lawful. contents, mations, including amend- their 626, (1959); 621, 627-628 322 S.W.2d Tex.Crim. ments, pro- requisites, sufficiency, are as State, Tex.Crim. 139 Rankin presentment an indict- law. vided (1940); Tex.Crim. Elmore v. 126 invests the to a court ment information (1934); see also R. jurisdiction the cause. court with (3rd Boyce, Law 875 ed. R. Criminal Perkins & added.) (Emphasis 1982). repealed and recodi- in 1987 was Article 5973 21.002(b)(2) and §§ Code as Tex.Loc.Gov't fied neglect,” “wilful we do not construe that (quoting Legislative Texas Council term Rather, to include negligence. report). “wil- We went on to note that the ex- neglect” ful refers to “the dis- intentional legislative history tensive showed that “the regard plain duty.” or manifest perceived evil Texas [the was] (6th Black’s Dictionary Law ed. correcting raising was the of indictment 1991). defects for the first time after a trial and recently, subsequent More conviction and the Gallagher v. reversal of (Tex.Cr.App.1985), again conviction because of that defect.” discussed, length, at considerable nothing Id. 270-271. There is in the meaning of official misconduct legislative V, within history 12(b), of Article context again of Article 4.05 and concluded suggesting that it was believed that that that for a criminal act to constitute official article would automatically subject vest misconduct, it must be both wilful and re- matter any court which an lated to the duties of the defendant’s of- presented, indictment thereby effec- fice. See also Emerson v. 727 tively abrogating Chapter 4 of the Texas And, (Tex.Cr.App.1987). again, S.W.2d 267 Code of Criminal Procedure.7 As a mem- holdings because our Robinson observed, ber of this recently Court Gallagher legislatively have not been over- reading 12(b) a literal of article *5 turned, although many years passed, have could lead to absurd results. If the mere we are they confident that are correct. presentment of an indictment could vest Given legal the established defini court, jurisdiction in any capi- then a ... tion of apparent “official it is tal murder properly case could be tried in original the indictments in this case county a court. I cannot believe that allege did not misdemeanors offi legislature’s such a result was the or the cial misconduct. The indictments voters’ intent. neither “wilful” misconduct nor misconduct State, DeDonato v. 168 appellee’s “related to the duties” of office. (Tex.Cr.App.1991) J., (Maloney, concur- We thus conclude that the district court conclude, ring). therefore, the original against wherein the indictments original district court wherein the indict- appellee presented were was not a court of against appellee presented ments were was competent jurisdiction under Article 4.05. competent jurisdiction by not a court of Compare Slavin, parte Ex 691 S.W.2d 12(b).8 way of Article § (invalid (Tex.Cr.App.1977) indictment tolled Having determined that the district court limitations, statute of trial but court there competent jurisdiction, was not a court of subject jurisdiction had matter of offense we hold that the statute of limitations was charged). judgment not tolled. The of the court of We turn next the State’s contention appeals is therefore AFFIRMED. that the district court was a court of com- petent jurisdiction by virtue of the last Const, MILLER, J., in the concurs result. V, 12(b). sentence in Tex. art. Al- though language cited the State is CLINTON, Judge, concurring. apparently sweeping, recognized in Stu- giving In first decision rise to this original understanding der that the of this State, contretemps, language Hall v. only was that it would overrule 1987), (Tex.App. PDR re holding line of “the cases this [14th] [from Court] — Houston fused, charging appellate court determined that that a fundamental error deprives jur- jurisdiction over instrument court of district court lacked [trial] Studer, alleging pending isdiction of the case.” 799 S.W.2d two indictments essential- Chapter subject plaint regarding the criminal the indictment in the trial 7. four delineates Thus, matter of Texas courts. court. was no waiver of a sub- there 1.14(b), was stance defect under Article as there that, noting 8. worth fact unlike the Also is the in Studer. Studer, lodged appellee defendant com- applicable in civil remov- ficial misconduct” proscribed ly criminally negligent homicide involving county 19.07, Code, pursuant Penal proceedings V.T.C.A. al officers opinion In its Article 21.15 V.A.C.C.P. provisions and other only; that definition appellate cause another in the instant carried for- proceedings were for removal applied the “law of the case” doctrine every of civil statutes revision ward prior holding, viz: “that two adopt that Local Govern- in V.T.C.A. are now found charge appellee purporting to 87, Subchap- Code, 3, Chapter Title ment involv criminally negligent homicide ff. Talamantez C, ters B & 87.011 jur ing official did not confer State, supra. the district court.” State v. isdiction on Legislature proscrib Meanwhile the Hall, (Tex.App.— codes, penal so that ing conduct certain 1990).1 my judgment In Houston [1st] autho civil statutes contemporaneous with they basically right, albeit courts are both there rizing officers removal of “offi primarily to the definition looked ap criminal statutes which were numerous pro pertaining to removal cial misconduct” specifically prescribed plied to violations ceedings involving county officers without particular state and and functions of duties miscon taking into consideration “official This sort government. officers Code, in V.T.C.A. Penal duct” as delineated to chal statutory hodgepodge continued matters about to be other See, lenge the and bar until bench developed. discussed and cited Talaman e.g., cases “a close rela While there continues to be State, supra; Gallagher tez v. tionship ‘removal official miscon between (dissenting supra; Emerson v. supra ” misconduct,’ duct’ and ‘criminal official opinion). (Tex. Talamantez v. S.W.2d 174 my underlying its Cr.App., day), In confronted delivered *6 enactment of the Penal ef- thesis is that with headon in an evident jumbled creations 1,1974, January in Code effective recurring problems mani- resolve fort to Legislature made a rather clean break with Knowledgeable litigation. through fested trict the Framers deemed misdemeanors past formulations when V.T.C.A. duct” as used in Article provided officers). tion. See stood that ernance “criminal official “official Code, §§ Having lately experienced (dissenting opinion), and Emerson v. court), and “official misconduct” as § 39.01 used in Article misconduct” so approaching tyranny, new they felt no need to define Gallagher v. (Tex.Cr.App.1985); V.A.C.C.P. or elsewhere it created a meaning to the terms “all § meaning of the term (removal (jurisdiction V, State, commonly under- single former in the Constitu- arbitrary gov- also id. at apparently offense of and § miscon county of dis Penal thus it in plained the § commentators close ty structure. fied feasance missioner uniform mens self to (officer refusing to of Texas arts. 87 scribes 39.01. Official “This section violations public (neglect or harm ^[******] public generally misfeasance (misapplication of statutes, servant intends to benefit changes and failing to attend public servants, e.g., Penal Code another, rea drawing juries), replaces a viz: Misconduct, specific duties requirement most of which office, to its endeavors give and it consequences in but data). public money), large number court), 422 provides only and non- by speci- applied It penal- when (com- him- pro- ex- (Tex.Cr.App.1987) 727 S.W.2d 267 coverage of broadens This sections ff). (dissenting opinion at 269 comprehensive embrace the prior law to servant, in- public which category of included in revised revisers Thereafter and em- cludes, to officers in addition of “of- civil statutes of 1879 the definition otherwise indicated. throughout opinion mine unless is emphasis here and 1. All ployees government, identified ation of offices in V.T.C.A. Local Govern- [others Code, 1.07(a)(30) Code, in V.T.C.A. Penal ment 87.012. ]. § The five Furthermore, subdivisions of this section by then former 39.01 had ways describe the different terms, which simpler been reduced to viz: may public offense be committed. The “(a) A commits an servant of- responsible servant is for unauthorized if, fense with intent to obtain a or benefit power, exercise of beyond his acts his another, intent to harm he intention- power, perform failure to a mandatory ally knowingly: or duty, relating violation of law to his of- (1) relating violates a law to his office fice, public property and theft of under employment; or or his control.” (2) misapplies any thing of value be- Commentary.2 Practice longing government to that has possession custody come into his or specifically Because 39.01 defined employment. virtue of his office or constituting those acts “criminal official servants, by public misconduct” for the (b) (a)(1) An offense under Subsection bench and bar to continue to resort to a of this section is a A misdemeanor. Class definition of “removal official misconduct” (c) (a)(2) An offense under Subsection part ap- on the would degree class officers of misdemeanor [a pear contrary expressed legislative felony according to ‘the value of the use intent. thing misapplied’].” 27, 1985,

orOn about June when she criminally negligent appel- conduct allegedly criminally negligent committed allegedly engaged may lant not be con- homicide, appellant sheriff, deputy was a verted to “official misconduct” under servant,” “public best rather than a allegations 39.01 the further that she “county meaning officer” within the of operated “in a motor vehicle her official then effective Article 5973. former capacity County as a Harris Sheriffs Of- 5970, R.C.S.1925, namely: article describing Deputy” fice and then it as “negligently” operating police “her official county attorneys,

“All district and commissioners, responding she vehicle” while “was county judges, clerk of emergency majority opinion, call.” See single the district and courts and *7 requisite specific at 1. The intent “to ob- clerks in counties where one clerk dis- another,” tain a benefit or ... harm charges county the duties of district and alleged, clerk, treasurer, not nor do the acts that are sheriff, county relating office or assessor, collector, constable, law surveyor, “violate[] [her] employment,” “misap- she or tend to show inspector, justice cattle and hide belonging plie[d] any thing of value to the peace and all officers now or government^]” existing by authority either of hereafter laws, may re- the Constitution agree I For those reasons then with judge of the moved from office appeals “that the two indictments courts court for ... official miscon- district crimi- purporting charge appellee with duct[.]” homicide nally negligent occupies did not confer on Notice that each named officer agree Similarly, I also office. now a similar enumer- the district court.” elected 39.02, op- 2. This Court has determined that "official In also created phrase pression” ambit of the is "within the oppression," one not con- offense of “official used in ‘official misconduct’ as that term is were, however, spe- prior tained in law. There V, Texas Constitution Article 8 of the [former] prohibiting oppres- penal cific statutes certain 4.05, V.A.C.C.P.,”meaning that it is and Article activities, relating mostly to law enforce- sive involving official misconduct” "a misdemeanor replaces "these ad hoc stat- ment. This section jurisdiction. a district court has over which Gallagher general oppres- offense of official utes with a Emerson, supra. both We are applies to all servants.” Prac- sion that offense, such an not concerned here with Commentary. tice jurisdictional matter. thus do not address majority here that the district competent jurisdic- court was not a court of V,

tion 8 and under Article Article given by I majority for the reasons that it agree

further under 12(b).3

Accordingly, judgment I concur

the Court.

McCORMICK, P.J., joins. FULLER, Appellant, Lee

Aaron Texas, Appellee. STATE

No. 71046. Texas,

Court of Criminal

En Banc.

March 1992.

Rehearing May Denied *8 matter, power subject again general, personal, every once that not broad Demonstrated Dial, v. always particular judgment. Garcia law is inclusive nor free of enter statement of 524, (Tex.Cr.App.1980); charging "presentment at 527-528 ambiguity. That [a 425, v. 171 Tex.Cr.R. the court with Hultin invests instrument] Corbin, 248, (1961); cause," id., 12(b), Tex. Morrow a basic overlooks (1933); Cleve- jurisprudence, at 644-645 proposition and other in our Ward, S.W. jurisdictions: jurisdiction 116 Tex. 285 of a trial land (1926). law common well, depends on other elements as viv