Baggett v. State
| Decision Date | 28 March 1984 |
| Docket Number | No. 09-83-027,09-83-027 |
| Citation | 673 S.W.2d 908 |
| Parties | Billy Jack BAGGETT, Appellant, v. The STATE of Texas, Appellee. CR. |
| Court | Texas Court of Appeals |
Two informations filed in the County Court of Jefferson County at Law presented that the Appellant, who was required to hold a Texas Finfish Import License, had unlawful packages of imported fish. The first information charged that he knowingly possessed a package of imported Speckled Sea Trout, not being identified as to the contents as required by TEX. PARKS & WILD. CODE ANN., Sec. 66.201(h) (Vernon Supp.1984) and Parks & Wildlife Dept., 31 TEX.ADMIN.CODE, Sec. 57.373 (Shepard's May 1, 1982) (Imported Redfish and Speckled Sea Trout). The second information charged the same offense concerning a package of imported Redfish. An additional (third) complaint was filed in the Justice of the Peace Court, Precinct No. 2, Jefferson County, charging Appellant with refusing to allow an employee of the department to inspect aquatic products in the possession of a wholesale fish dealer, referring to TEX.PARKS & WILD. CODE ANN., Sec. 47.037 (Vernon 1976).
The offenses, consolidated for trial, were that Appellant, a wholesale fish dealer, intentionally and knowingly possessed a package or packages of imported redfish (sciaenops ocellata) and speckled sea trout (cynoscion nebulosus) which were not identified as to contents; and that he refused to allow an employee of the Texas Parks and Wildlife Department inspection of aquatic products. 1 Even though in the bench trial of the case the prosecution argued for the maximum fine only (urging that the crime was economic as opposed to violent), the court assessed not only a one thousand dollar fine but also thirty days in jail on each of the two offenses of "possession" and the maximum two hundred dollar fine on the offense of "refusal".
Officers of the Texas Parks and Wildlife Department testified that on May 3, 1982, they made a surprise inspection of Appellant's place of business, a fish market or fish house, on College Street, Beaumont. Appellant was a licensed Finfish dealer. The officers first checked the display cases and saw no speckled sea trout or redfish. They then went to a cooler built on the back of the building and there found assorted aquatic products, including shrimp and fish. Upon further inspection they found three wooden "shrimp crates" filled with iced redfish. The crates had package labels on them but the labels did not contain invoice numbers. 2 The officers then proceeded to a refrigerated truck outside the premises and there found only gar, catfish and buffalo, but no speckled sea trout or redfish. Inspection was also made of a small building and there no specks or reds were found. Appellant acquiesced, the officers said, to search of each of the aforementioned places. The officers then proceeded to a large building on the west side of the main premises of the fish house. Approximately one half of this building is utilized for a garage, while the other half contains a large freezer. The large freezer was padlocked, officers testified, and they reported that Appellant declared he would have to get the key. Appellant's words and acts seemingly implied consent to inspect. The officers said they waited for approximately two and a half hours, until about 6:00 p.m., for various persons to appear who were said to have the key, but to no avail. Finally, an attorney of Appellant appeared, identified himself, and told the officers he had advised his client to refuse the search unless the officers obtained a warrant. Thereupon, the officers arrested Appellant for refusal to allow inspection. They then attempted to take him before a magistrate in Beaumont but none were available and so they took Appellant before a justice of the peace in Port Arthur. Eventually, a search warrant was obtained and the large freezer was opened under authority of the warrant. Inside, the officers found specks and reds packed in waxed cardboard boxes. The boxes had no labels on them. 3 The agents said they were unable to determine whether the fish were imported from other states or were "native fish without any paperwork". An employee of Appellant, however, did show the officers some invoices tending to indicate that the fish were imported. The officers estimated that approximately one thousand pounds of specks and reds were seized. 4
Before reaching the point of reversal in this case, we will address Appellant's other grounds of error.
Appellant's first ground of error advances that the caption or title to the statute in question "violates Article 3, Section 35 and Article 3, Section 36 of the Texas Constitution because of a faulty caption". 5 The caption or title in question reads:
"An act relating to sports and commercial activities involving redfish and speckled sea trout; providing penalties." Act of May 19, 1981, Ch. 153, H.B. 1000, 1 General and Special Laws, Texas, 67th Legislature--Regular Sess. 1981, page 374.
The allegedly faulty caption, Appellant says, fails to give notice to the public and to legislators of the changes in existing laws.
We hold: TEX. CONST. Art. III, Sec. 36 has not been violated by the caption in question. The purpose of this constitutional provision, we believe, was to prohibit the practice of amending a statute by referring to its title and then providing that it should be amended by striking out or deleting certain words and phrases and then inserting new words and phrases. A bill or statute, in other words, should be re-enacted and published at length when amended. The statute in question does not attempt to do such and so Art. III, Sec. 36, is not applicable.
We further hold: the caption to the subject statute meets the criteria of TEX. CONST. Art. III, Sec. 35, and is not unconstitutional. The caption in question gives notice regarding each and every sports and commercial activity involving redfish and speckled sea trout, and puts a reasonable caption reader, legislator or member of the public, on notice regarding the matters and penalties included therein. In White v. State, 440 S.W.2d 660 (Tex.Cr.App.1969), it was noted, at 664, that the purpose of the provision was to "give fair notice within itself and a reading must reasonably forewarn of the subject of the statute". The court further reasoned at 665:
"It has been consistently held that in determining its [Sec. 35] application, the caption or title of the act should be liberally construed so as to uphold its validity rather than giving the act a strict construction which would lead to striking down the act or a part thereof."
In Bates v. State, 587 S.W.2d 121 (Tex.Cr.App.1979), the court said, at pages 128 and 129:
Appropriate is the reasoning of Clark v. Finley, 93 Tex. 171, 54 S.W. 343 (1899), wherein the court reaffirmed an earlier case, at 344, stating:
" 'It is not meant by this provision that every act which amends the statutory law shall set out at length the entire law as amended....' "
From Smith v. Davis, 426 S.W.2d 827 (Tex.1968), at 833, we quote:
In the well reasoned case of State, Etc. v. Tex. Mun. Power Agency, 565 S.W.2d 258 (Tex.Civ.App.--Houston [1st Dist.] 1978, no writ), we find, at 272:
We believe that the subject statute and its caption meet the criteria for constitutionality as set forth in the referenced cases.
Appellant relies on Crisp v. State, 643 S.W.2d 487 (Tex.App.--Austin, 1982, pet. granted), and Crisp v. State, 661 S.W.2d 944 (Tex.Cr.App.1983). See and compare Bass v. State, 666 S.W.2d 113 (Tex.App.--Beaumont, 1982, disc. rev. granted). See and compare also Bass v. State, 661 S.W.2d 954 (Tex.Cr.App.1983), and Ex Parte Crisp, Miles, Sewell, Carter and Bass, 661 S.W.2d 956 (Tex.Cr.App.1983). In Crisp, attack was made on the caption of the (then) new Texas Controlled Substances Act which became effective September 1, 1981. That caption, which failed constitutional muster, stated the act related to offenses and criminal penalties but did not identify the controlled substances contained therein. Our case is different because the caption in question speaks of sports and commercial activities involving redfish and speckled sea trout and provides penalties. Inasmuch as the caption in question specifies, of all the fishes in the sea, which species fall within the statute, and which activities of mankind involving the fish are affected, the test in Crisp, supra, is satisfied.
We note that the facts of the record before us deal directly with commercial activities pertaining to redfish and speckled sea trout. Such activities are specifically mentioned in the caption and statute. We believe this concept is important, given the wording of TEX. CONST. Art. III, Sec. 35, which declares:
"But if...
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