Tharp v. State

subjective pri- the elaborating as reasonable legitimacy expectation, of this to sanction the length in a purportedly vacy expectation nonexhaustive of someone who is at some considerations, potentially pertinent arrange of list conduct a residence order to and Calloway, opinion from our taken if I Op. at Even business transaction.” 139. might true, which he consider thought proposition this to be odd evidence, greater ducing in “he has since not, inappro- I still be an which do it would at 138. In Op. facts[.]” access to the relevant priate unnecessary way to this and resolve proof in my opinion, assigning the burden of sup- judge trial here to case. The refused patently the this is inconsistent with press appellant, from and the evidence seized position that the matter in issue is a Court’s Appeals of affirmed his decision the Court of not evi- question law. One need adduce princi- legal the basis of an erroneous upon (certainly not the kind evidence dence of problem ple. Rather than exacerbate the contemplated) of to establish class here what law, I supportable with an even less rule expectations, any, to privacy if the law holds Appeals, reverse hold would looking Simply up reasonable. the law be presented appeal the issue is an quite enough for if should be this question, re- application-of-law-to-fact and really anything say to about it. am law mand this cause for further consideration therefore, mystified, proof as to what sort appro- Appeals First Court of under an expected an accused is to make in this con- priately deferential standard review. convincing proof must nection. How his be prevail? is fact- before he entitled to Is the liberty reject proof

finder at to his if it seems And, so, appellate if must

incredible?

court not defer in some to the fact- measure question? Holding finder’s on this Martin Parte James actually prove society that an accused must THARP, Appellant, expectation regards privacy his as reason- plainly ques- seems to hold that it able Texas, Appellee. The STATE of application tion of fact or of law fact. For to facts, facts, only must which No. 168-96. proven at simply be trial. The law is de- Texas, Appeals of Criminal judge, clared and there be no need En Banc. support his evidence adduced to declaration.2 27, 1996. Nov. Thus, majority of this Court falls into Appeals. same error as did the First Court of law, purports

It establish new rule of society

holding willing that “American Judge appellate concurring opinion, Presiding assigning responsibility to 2. In his ultimate argues regards applications appropriate McCormick standard courts as fact, some of law turn, precedents yet upon of review should whether our do accommodate presented approach. is one of fact or of law or While it is true that we have such both, (trial upon judicial judge questions, but we have which actor often seized control of such court) explanation why appellate positioned” attempted any “better to de- coherent or never intimates, question. Op. certain we refuse to defer to the factfinder on cide 140. He elaboration, questions applications application-of-law-to-fact much and not on without Instead, principles simply pretend, important as the ma- constitutional should others. we cause, (not "majoritarian ques- subject political jority the instant that such uniform really temporary passions day”), questions of law all. But processes and tions are after aren't, only promotes slop- they pretense suggests appellate courts are in a better appellate py thinking If this position uniformity and erratic review. ensure such than are is, position applica- Op. at to take level courts. See 140. There Court is some trial course, ultimately persuasive argument. province of of law to fact are much force tions courts, comprehen- present appellate fashion a it is at odds it should But nevertheless with law, theory bring profound general benefit of bench and our would sible state of about findings adopted just roughshod changes Ac- and not run over the in that law if wholesale. bar disagrees cordingly, very good with them. exist for of lower courts whenever even if reasons

for alcohol concentration. The test revealed an alcohol concentration level of at least 0.10. Appellant was served with notice of license suspension pursuant to Texas Revised Civil Subsequently, Stat. Article 6687b-l. the De- partment Safety suspended appel- of Public sixty days lant’s driver’s license for because performed specimen the test on his breath revealed an alcohol concentration of a level specified in Texas Penal Code 49.01 operation arrest for the offense of motor vehicle while intoxicated. 8, February On 1995 an information was County filed in Tarrant Criminal Court Num- 8, charging appellant ber with the misde- driving meanor offense of while intoxicated. pretrial application filed for Writ 1, 1995, Corpus May averring of Habeas on prosecution double barred the driving charge. while intoxicated After a hearing, County relief, Court denied find- ing the administrative license revocation hearing hearing was an administrative effect, finding, the license served a remedial purpose and was not purposes implicating ishment for jeopardy. Appeals subsequently

The Second Court of County affirmed the Court. parte Tharp, 912 S.W.2d 887 1995) (pet.granted). opin- -Fort Worth In its ion, held, the court of first States, Blockburger v. United 76 L.Ed. 806 Dixon, 688, 696-97, (1993) Westfall, Worth, Greg appellant. Fort and Parrish v. Windsor, Atty., Debra Ann Asst. Dist. Fort (Tex.Crim.App.1994), that Texas Revised Worth, Paul, Austin, Atty., Matthew State’s Civil Stat. Article 6687b-l and for State. § intoxicated under Texas Penal Code 49.04 constitute “same offense” for double jeopardy purposes. Tharp, supra, at 889. all The court noted of the elements of OPINION ON APPELLANTS PETITION while intoxicated under Texas Penal Code FOR DISCRETIONARY REVIEW 49.04 are included in the elements for admin- MANSFIELD, Judge. istrative license revocation under Article 6687b-l; thus, applying the “same elements” Appellant, Tharp, James Martin Blockburger, test of the two constitute the 5,1995 stopped February and arrested for “same offense.” suspicion police Fort Appellant agreed Worth officer. The court then addressed whether the six- provide specimen ty-day his breath at the revocation under Article time of his so purposes arrest that it could be tested 6687b-l is of im- actu- punishment, jeopardy. found plieating double The court Texas administrative ally served scheme re- to be cense Halper, 490 U.S. must be evaluated.” medial, is a noting that license to drive 7,109 n. 7. right, noting a further privilege and not and primary purpose of the administrative The temporary nature of the revocation. the the is not to deter suspension statute license court also Tharp, supra, at 890-891. The retribution, is to seek but noted, licensee or to citing Department Revenue Mon Ranch, 767, 114 carnage public tana v. Kurth 511 U.S. from the protect the (1994), 767 drivers’ 128 L.Ed.2d by driv- Texas public roads of caused are revocations under Article 6687b-l license purpose clearly remedi- primary This ers. far from administra- not so removed normal al, although secondary also has deterrent a license revocations as to constitute tive who that an arrest on motorists realize effect Tharp, supra, The court ishment. at 894.1 may driving while intoxicated well result for acknowledge Article has some did 6687b-l Third suspension of their As the in licenses. punitive/deterrent aspects it still but found Appeals has explained: goal the furthers State’s remedial rights the and the The nature of interest quickly protecting public from drunk has in drivers. a licensee a driver’s license by almost courts for been addressed Texas granted petition for appellant’s This Court a century. A license is not half a driver’s discretionary review to consider right, privilege. Driving is not but ground for review: constitutionally protected right, priv- abut appeals holding Did the court err in ilege. A license to an automobile on drive suspension a driver’s license under Texas subject ... a privilege the streets Revised Civil Stat. Annotated Article 6687b- regulations under formulated reasonable “punishment” 1 does not constitute for dou- police power of the the interest jeopardy purposes Fifth ble under safety general pub- Amendment to the Constitu- United States welfare and of the lic_ tion? a driver’s The revocation of punishment intended but is cense is not penalty consider first whether the civil We solely designed protection for of the art. assessed under Tex.Rev.Civ. Stat. In highways. use license one’s driver’s 6687b-l — Richardson, Safety Pub. days Dept. Texas v. sixty plus for a fee to reinstate of $100 (Tex.1964), following completion license the sus- 128 the court stated 384 S.W.2d pension period it was not with criminal concerned —constitutes analy- purpose of federal penalties because driver’s license Halper, In 490 sis. U.S. rath- suspended punishment; as additional 1892, 104 109 S.Ct. it comes with an administrative er Supreme Court held that “the determina- Depart- regulatory power in the vested given tion whether a civil sanction constitutes Safety Public for the ment of requires the relevant sense property lives of those protecting the particularized penalty assessment of the highway. using the posed penalty and the (Tex. Arnold, parte Ex fairly to serve.” at be said omitted). 1996) (citations See added). App. (emphasis at 1901 109 S.Ct. — Austin Tharp, 890- parte determining also further held The Court “that 1995) (pet.grtd.) constitutes Worth — Fort temporary “anomaly" addressed was not the kind of 1. The court of contrasted the sion (i.e. sixty-day suspension privilege the li- part Supreme of its Court in Kurth Ranch as drive), under cense rate of tax Article holding a bona was not that Montana statute assessed under at issue in the statute was, statute, reality, punitive law but fide tax (eight proper- times Kurth Ranch the value of drug punish dealers. intended taxed). sixty-day suspen- ty court The found the (administrative license not consid ment. 490 U.S. 109 S.Ct. punishment).2 Halper ered 1902. The sanction at issue in being found to be due to its Court has noted that an grossly in excess of the amount needed to “obviously purpose” deterrent did not auto- compensate damages for its matically illegal make a tax assessed on sub- Ranch, costs. Kurth “punishment.” Depart- stances a form of Court, effect, found that the tax Revenue v. Kurth drug punishment masquer- dealers was a 128 L.Ed.2d ading as a tax among for several (1994). recognize We that the individual being them the rate of tax exceeded the sixty days who has lost his value of the substance taxed over 800%. pay has to to have it reinstated certain- Kurth 511 U.S. at ly may “punished.” feel he has been Howev- at 1946-1948. er, perspective the individual’s does not de- termine whether a civil sanction constitutes persuade not us that the “punishment.” Supreme The Court has rec- relatively mild sanction under Tex. sanctions, ognized that even remedial for the magnitude art. Rev.Civ. Stat. 6687b-l is of a individual, may carry sting punish- reasonably necessary to exceed what is ment. hold that in “[W]e determin- accomplish goal keeping the remedial ing civil sanction consti- Compare drunk drivers off the road. punishment, tutes purposes criminal temporary appellant inconvenience to actually by in question, served the sanction relatively suspension per- brief license underlying proceeding nature of the $130,000 by Halper, manent loss of faced sanction, giving rise to the that must be difficult is to find such a sanction to be so 7, 109 (like evaluated.”- at 447 n. imposed Halper) excessive as to 7. implicate appellant’s jeopardy rights, double thereby precluding subsequent driving imposed— In the civil sanction prosecution.3 $130,000 over 200 times the amount of —was by the loss to the appeals caused Hal- of the courts of Several have re- (for per’s activity cently suspension which he had al- held that the of an individ- ready prison pursuant received a term and a substan- ual’s driver’s license to the adminis- fine). greatly tial The civil sanction was trative license revocation statute does not govern- excess of the costs incurred constitute for the “same of- fense,” in prosecuting Halper, ap- preclude, jeopardy which was so as to on double $16,000. proximately grounds, subsequent prosecution The of that did hold a civil sanction a criminal individual for the offense of State, prosecution fairly compensates gov- intoxicated. Helber v. 915 S.W.2d 955 prosecution 1996); parte ernment for its costs of and actu- [1st] Ex — Houston nature, Arnold, damages al supra; parte Tharp, supra; is remedial Ar- punishment, implicate (TexApp.— and does not the Dou- nold v. 920 S.W.2d 1996). Jeopardy ble appeals Clause of the Fifth Amend- Houston The courts of [1st] Appellant’s quotes examples highway 2. brief numerous dents of deaths on the as a result of from the license revocation which refer to the dropped dramatically. alcohol has (cid:127) provision serving at issue as ... [This bill] REP. GREENBURG: will However, legis- deterrent effect. lative even within the vide a valid means to deter drunk language quoted by appellant language trying get to save lives.... We are supporting a conclusion that the of the drivers off the road. provision protect to from drunk drivers: appellant, during 3. We also note that even providing [The REP. GREENBURG: bill suspension, occupa- period apply could for an revocation] for administrative license deter also will showing upon drive to tional license of need to they who drink and drive those before work, get go perform to school or to “essen- have a crash and hurt themselves or someone Tex.Transp.Code tial household duties.” See else. 521.241-521.246. have REP. WOLENS: What states found after they passed bill] have is that the inci- [such states, aspects persuasive we do find it there is near- focused the administra- procedure, unanimity agreement tive license revocation statute and administrative relatively mild well as the “punishments” for license revocations are not thereto, pursuant concluding posed jeopardy purposes. double sixty day suspension to “remedial” license appeals of the court “punishment.” not a find the rea- We AFFIRMED. soning of the courts of on this matter to be sound and hold administrative OVERSTREET, J., result. concurs appellant’s under Tex. did Rev.Civ. Stat. art. 6687b-l not constitute MEYERS, concurring. Judge, Jeop- Double years, last seven ardy Clause the Fifth Amendment. promulgated opin- Court has three Therefore, subsequent prosecu- appellant’s issue enlighten ions that before us tion for while intoxicated does today suggested each set different implicate protection his under the Double of indicators which to decide whether against punish- Jeopardy multiple Clause government action in that case constitutes parte for the offense. ments same See Ex purposes. Broxton, (Tex.Crim.App. differed, primarily, These indicators have be- 1994); 96, v. 777 97 Lofton type governmental cause of the action (Tex.Crim.App.1989). v. 490 Halper, each case. United States highest Most of the courts of other states 435, 1892, 109 104 487 U.S. S.Ct. L.Ed.2d that have this matter an addressed have held jeopardy the Court that double held administrative driver’s license is a prohibits a civil sanction to be a remedial sanction and does not consti- proceeding against a separate defendant who “punishment” implicating tute licensee’s already pros- in a punished been See, jeopardy rights. e.g., State v. serves, that ecution when at least Savard, (Me.1995); 659 A2d 1265 Rushworth a to or for part, as deterrent retribution Registrar Vehicles, v. Motor Mass. 413 that crime. Court surmised the size 265, (1992); Hickam, 596 N.E.2d 340 State v. sanction in almost times the civil ten 614, (1995); 235 Conn. 668 A.2d 1321 v. State necessary compen- adequately the amount Hanson, (Minn.1996); 543 84 v. N.W.2d State its sate the for both actual loss (1995); 1, Higa, 79 897 Hawai’i P.2d 928 investigating and the costs incurred in Funke, (Iowa 1995); State v. 531 N.W.2d 124 prosecuting person responsible that for Mertz, 745, State v. 258 Kan. P.2d 847 907 loss, only explained could as (1995); Oliver, be accommodat- North Carolina 343 N.C. such, (1996).4 goals. 202, ing deterrent or As retributive 470 S.E.2d 16 does any penal highest not cite the sanction not remedial but state court decisions and, therefore, supporting authority. Although prohibited by double we are not nature by the jeopardy. bound decisions of the courts of other Carolina, up-

4. The Court of North sanction constitutes holding the Carolina North administrative need the de- ishment not be determined from statute, cense revocation held: perspective fendant's since even remedial temporary ten-day carry punishment.” license rev- sting driver’s sanctions "DThe provided ocation for in N.C.G.S. 20-16.5 and 447, [109 490 n. 7 S.Ct. at U.S. at restoration fee are excessive neither 1901, Indeed, any 7]. effect a deterrent overwhelmingly disproportionate respons- nor may upon the driver’s license revocation have dangers impaired es to the immediate driver an impaired driver is incidental poses An and himself. overriding purpose public’s protecting immediate, impaired presents driver emer- decision, By join safety. ma- our we with the situation, gency required and swift action jority this is- of states which have considered highways driver to remove the unfit from the after a sue and held that a DWI conviction protect public. in order to We do not defendant has had his or her driver’s license pretend ignore revo- that driver’s license Jeopardy revoked not violate Double duration, cation, some, even of short Clause. However, have a deterrent effect. as the Oliver, supra, 470 North Carolina v. S.E.2d recognized, United States 162 n Firearms, years 354, Four later the Court faced the task 465 104 U.S. (1984). 1099, determining S.Ct. 79 L.Ed.2d 361 whether Montana tax on

illegal drugs might pun be characterized as contemplation Congress’ The Court’s in- ishment, question explicitly the Court stat tent, however, study did not involve Department Halper. ed that in was different from Rather, legislative history. because “actions Revenue Montana v. Kurth traditionally in rem have been viewed as civil f o Ranch, 767, 776, U.S. proceedings,” the pre- Court allowed for the (1994). 1944, 128 L.Ed.2d 767 While the sumption Congress that intended them to be “high Court found both the rate” and the presumption only that can —a purpose” “obvious deterrent of the tax indic- proof’ overcome the “clearest penalty, ultimately ative of a proceeding concluded punitive forfeiture is “so in form punitive that its characterization of the tax as and effect as to render criminal ...” [it] Id. followed from the fact that the tax 89 Fire- arms, supra, was “conditioned on the quot- commission S.Ct. at Ward, ing crime.” Id. at United States v. S.Ct. at 1946-48. (1980). 100 S.Ct. 65 L.Ed.2d 742 Finally, just year, again set jurispru- It is within the context of this particular gov- out to determine whether ap- dence that we must determine whether ernmental action constituted pellant’s license revocation was intended to time, jeopardy. of double This be a criminal for double however, the action was not a purposes. Although none of these cases tax, civil sanction or a but a civil forfeiture— blue-print by vide an exact which to answer a difference the Court found central to' its question, they together set out a basic — analysis. Ursery, United States v. framework which to resolve issue. -, (1996). 135 L.Ed.2d 549 short, in appel- order to ascertain whether This, forfeitures, because civil unlike civil primarily lant’s license revocation was penalties compensate gov- which serve to or, keeping him means of off the road in- ernment or taxes which serve to stead, punishment for the crime of revenue, designed raise to are confiscate the intoxicated, we must look first to the at-, illegality. instruments of an Id. 116 legislature’s passing in intent the statute and S.Ct. at 2145. In order to confiscate these then, part if that intent seems in even to rem, brpught

instruments the action is in goals, serve remedial we must ask whether or, words, personam against in in other the effect is so severe that it renders the at-, property, person. not the Id. punitive regardless legisla- statute noting S.Ct. at 2140. After the character ture’s intent otherwise. See United States v. rem, a civil forfeiture action as in — -, Ursery, U.S. two-part analysis undertook so as to deci- (1996).1 pher the nature of that action as civil or question, surely As to the first we can turn criminal: plain language to the of the statute as well as First, Congress we ask whether intended to order to answer it. proceedings Notably, only to [the] be criminal or those who have been arrested Second, civil. we ton to consider whether or convicted of proceedings punitive te purview are so fact as to come under the of art. “persuade proceed- us that the forfeiture statute at issue in this But the fact ease. ing[s] may legitimately only applies be viewed as that a statute to those who have at-, crime, although pivotal civil nature.” Id. 116 S.Ct. at committed a Ranch, analysis United States v. Assort- in Kurth One Court’s case, although sumption Ursery legislature 1. The action in this most like the intended all, Ursery, civil, forfeiture in is not in rem. After non-punitive, given statute to be or Ursery gov- unlike the forfeiture in ernment sued the in which the would, instead, nature and turn to more tradi- property, the title of the cause legislative to determine tional indicators of intent Tharp here is v. State. Because of this critical that intent. difference, indulge pre- I would hesitate to necessary reasonably what not exceed to render the statute “insufficient was found off the road. drivers keep drunk Ursery. Kurth in the more recent punitive” 1946-48; Ur at Ranch the ma- I concur with these For Moreover, sery jority. Halper; where the unlike sanction, and Kurth posed an excessive an ex- government levied where the tax, in no involves this case

orbitant Instead, art. government action.

inordinate merely mandates a license revoca-

6687b-l days, depending

tion of 60 to accused, fee. and a record of the then, surface, appears the statute itsOn Texas, Appellant, STATE removing goal of address the remedial and, additionally, the road drivers from the history this is legislative indicates RODRIGUEZ, Appellee. Henry John intended. A few ex- partly what was least No. 1364-96. legislative history illustrate cerpts from the point. Texas, Appeals of Court of Criminal En Banc. just again, I see what it is And want trying trying to to do. We are we’re 18, 1996. Dec. get off the road. drunk drivers Wolens, SB1, May Rep. Reading of Second

25,1993. piece make sure that want removing

legislation is an effective tool

the drunk driver off the road. Antonio, appellee. SB1, Angelini, Laura San May Rep. Campbell, Reading of Second 25,1993. III, Shaughnessy, Asst. Dist. Edward Paul, Antonio, to take drunk off the

We need drivers Matthew State’s Atty., San Austin, road. Atty., for State. Denver, SB1, Reading May

Rep. Second

25,1993.

Although the reflects legislature only to take meant not off the road but also to deter drunk drivers MANSFIELD, dissenting to Judge, drive, might drink and those who otherwise Discretionary Petition for refusal of State’s long held that deter- Court has Review. as criminal “may serve civil as well rence expressed Smith For the reasons goals.” Ursery (Tex.Crim.App.1995), I history looking legislative After both refusal of respectfully dissent then, language of art. plain and the Discretionary Review Petition State’s legislature intended I feel confident that the cause. be, part, a remedial statute to at least confident, equally for some measure. am the effect of very same punitive.

the statute does not render states, majority

Again, the statu- and as allowing a two to six

tory provisions fee do revocation and a $100

month license

Case Details

Case Name: Tharp v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Nov 27, 1996

Citation: 935 S.W.2d 157

Docket Number: 168-96

Court Abbreviation: Tex. Crim. App.