American Plant Food Corp. v. State

• Decision Date: 24 April 1974
• Docket Number: 48156,Nos. 48155,s. 48155
• Citation: 508 S.W.2d 598
• Parties: AMERICAN PLANT FOOD CORPORATION, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 598

508 S.W.2d 598

AMERICAN PLANT FOOD CORPORATION, Appellant, v. The STATE of Texas, Appellee.

Nos. 48155, 48156.

Court of Criminal Appeals of Texas.

April 24, 1974.

Rehearing Denied May 15, 1974.

James & Terrell, Kerrville, Sewell, Junell & Riggs, Houston, for appellant.

Carol S. Vance, Dist. Atty. James Brough & Mike Parks, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ODOM, Judge.

These appeals are from convictions for the offense of water pollution; punishment was assessed at a one thousand dollar fine in each cause.

The first ground of error attacks the statute under which this conviction was obtained; contending it is void because Article 698c, Vernon's Ann.P.C., Section 21.553 of the Water Code, and Article 7621d--2, Sec. 3.05, Vernon's Ann.C.S., all define this same offense yet provide for different penalties, thereby rendering the statutes so indefinite as to be inoperative, citing Stevenson v. State, 145 Tex.Cr.R. 312, 167 S.W.2d 1027.

Initially we observe that Article 7621d--2, supra, establishes the Gulf Coast Waste Disposal Authority, and Section 3.05 thereof grants that authority the power to bring a civil suit for collection of civil penalties and injunctive relief. The creation of this civil remedy no more renders the criminal provisions indefinite than the creation of administrative sanctions for violations of the Texas Liquor Control Act renders criminal sanctions for such violations indefinite. See Articles 666--1 et seq. and 667--1 et seq., V.A.P.C.

Next, we must consider whether Article 698c, V.A.P.C., and Section 21.553 of the Water Code, V.T.C.A., are in such conflict as to be inoperative. We note that the Legislature in enacting the 1974 Penal Code expressly repealed Article 698c, V.A.P.C., effective January 1, 1974. Acts 1973, 63rd Leg., p. 993, ch. 399, sec. 3. But also, effective June 16, 1973, Article 698c, supra, was expressly repealed by Acts 1973, 63rd Leg., p. 1780, ch. 653, sec. 7. The story does not end here, however, because prior to either of these express repeals of Article 698c, supra, we find that article was repealed by necessary implication upon the enactment of Sections 21.551 through 21.564 of the Water Code, Acts 1971, 62nd Leg., pp. 216--219, ch. 58. Those sections of the Water Code follow very closely the language of Article 698c, V.A.P.C.; the criminal offense section (21.552), follows Article 698c, Secs. 2 and 3, verbatim; and the certified Session Laws cite the Penal Code Article as the source. The repeal of Article 698c, supra, by necessary implication was accomplished by enactment of Section 21.564, Water Code, which provides:

'To the extent that any general or special law . . . makes an act or omission a criminal offense, and which act or omission also constitutes a criminal offense under this subchapter, the other general or special law is repealed, but only to that extent.'

Thus we see that Article 698c, supra, was repealed upon the enactment of Section 21.553, supra, and consequently there could be no conflict between the two. Appellant's prosecution and conviction could only have been under Sections 21.552 and 21.553 of the Water Code.

Appellant also contends the statute is unconstitutionally vague on its face. Section 1.002, Water Code, provides:

'The Code Construction Act (Article 5429b--2, Vernon's Texas Civil Statutes) applies to the construction of each provision in this code, except as otherwise expressly provided by this code.'

Article 5429b--2, Sec. 3.12, V.A.C.S., in relevant part, provides:

'If any provision of a statute or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the statute which can be given effect without the invalid provision of application and to this end the provisions of the statute are severable.'

The record reflects that appellant was charged with a violation of Section 21.552(a), Water Code, which provides:

'No person may discharge, or cause or permit the discharge of, any waste into or adjacent to any water in the state which causes or which will cause water pollution unless the water is discharged in compliance with a permit or other order issued by the Texas Water Quality Board, the Texas Water Development Board, or the Texas Railroad Commission.'

Appellant contends the vagueness of the statute resides in its definition of water pollution, which is stated in Sec. 21.551(2), Water Code, as follows:

"Water pollution' means the alteration of the physicial, chemical, or biological quality of, or the contamination of, any of the water in the state that renders the water harmful, detrimental, or injurious to humans, animal life, vegetation, or property, or to public health, safety, or welfare, or impairs the usefulness or public enjoyment of the water for any lawful or reasonable purpose.'

Specifically, appellant asserts that the possibility of conviction for causing water pollution that only 'impairs the usefulness or public enjoyment of the water' renders the statute void for vagueness, even though said condition is only disjunctively an element of the offense. Clearly this disjunctive element, even if too vague for enforcement as a definition of prohibited water pollution, would not render the entire statute void, but could be effectively severed from the definition in accordance with the legislative intent expressed in Article 5429b--2, Sec. 3.12, supra.

The challenged element being but disjunctive, to be entitled to reversal appellant must show that its case was tried and submitted upon this theory, since clearly if the prosecution were based upon any other definition of water pollution as disjunctively defined in Section 21.551(2), supra, appellant would be no more prejudiced by any vagueness in the challenged phrase than if it had been tried under Section 21.552(b), supra, which does not require any showing of water pollution whatsoever. No statement of facts is in the record, and we are unable to determine from the record upon what theory appellant was in fact tried and convicted. Absent a showing that appellant's convictions may in fact rest upon the challenged theory, at least in part, nothing is presented for review.

By the second ground of error, appellant complains of the allegations in the complaint and information. This ground is multifarious in that it raises at least three separate grounds, the first two claiming the allegations are general, vague and indefinite, and the third claiming the information does not allege a criminal offense. Chapter 21 of the Code of Criminal Procedure sets forth the requirements of indictments and informations as to form. Article 21.21 thereof enumerates the requisites of an information, and provides in part:

'7. That the offense be set forth in plain and intelligible words; . . .'

Article 21.23, V.A.C.C.P., provides:

'The rules with respect to allegations in an indictment and the certainty required apply also to an information.'

Articles 27.08 and 27.09, V.A.C.C.P., enumerate the causes for an exception to the substance and the form, and accordingly distinguish substance from form. In part they provide:

Art. 27.08:

'There is no exception to the substance of an indictment or information except:

'1. That it does not appear therefrom that an offense against the law was committed by the defendant;

'2. That it appears from the face thereof that a prosecution for the offense is barred by lapse of time, or that the offense was committed after the finding of the indictment; . . .'

Art. 27.09:

'Exceptions to the form of an indictment or information may be taken for the following causes only:

'2. The want of any requisite prescribed by Articles 21.02 and 21.21 . . .'

We observe that, as stated in 30 Tex.Jur.2d, Indictment and Information, Sec. 13:

'An indictment or information consists of four prominent parts: (1) the caption, (2) the commencement, (3) the charge, and (4) the conclusion. The first, second, and fourth of these constitute the formal parts of the pleading; the third, the charging part, is the vital portion.'

We point out this distinction between the formal parts of the information and the charge in order to avoid from the outset any confusion of that distinction with the distinction between exceptions to the form of an information and exceptions to the substance thereof. For example, an exception to the substance of an information based upon Article 27.08(2), supra, would be based in part upon the formal part of the information in that the date of the 'findings' of the information is contained in the formal part, not in the charge. Also, omission of the conclusion, though a formal part, is a fatal defect in substance, not a defect of form alone, and renders the indictment insufficient to support a conviction. Cox et al. v. State, 8 Tex.App. 254, at 305 et seq.

Likewise, an exception to the form of an information under Article 27.09(2), supra, will be to the charge if it be directed to a failure to comply with Article 21.21(7), supra, requiring that the charge set forth the offense in plain and intelligible words. Unless the deficiency under Article 21.21(7), supra, be of such a degree as to utterly fail to charge that an offense against the law was committed by the defendant (cf. Art. 27.08(1), supra), then it is objectionable only as to form and not as to substance. This distinction between an objection to the charge based on substance and one based on form, subtle though it be, is well founded in reason, in justice, and in the logic of the Code of Criminal Procedure.

If the charge alleges an offense was committed by the defendant, then it is sufficient in law to support a verdict of guilty if one be rendered thereon. If it does not so allege, then it is utterly insufficient and any conviction based thereon is void. ¹ A void conviction may be challenged at any time and thus an exception to the substance of the...