Bass v. State, 09
| Decision Date | 03 November 1982 |
| Docket Number | No. 09,09 |
| Parties | Meddie Leon BASS, Jr., Appellant, v. The STATE of Texas, Appellee. 82 091 CR. |
| Court | Texas Court of Appeals |
Appellant was charged with intentionally and knowingly possessing marihuana in a usable quantity of under two ounces. He pleaded guilty and the Court found him to be guilty as charged and fixed his punishment at confinement in jail for six months and assessed a fine of one thousand dollars. Imposition of the sentence was suspended and appellant put on probation for a period of six months. One of the conditions of probation was that he commit no offense under the law during such probationary period.
Subsequently, but during the probationary period, upon proper notice and hearing, probation was revoked because of a violation thereof and appellant sentenced to confinement in jail for ninety days.
The appeal is based upon a single ground of error:
"The Trial Court erred in convicting Appellant of possession of marihuana because at the time of conviction, possession of marihuana was no longer a crime in the State of Texas, due to the unconstitutionality of the Texas Controlled Substances Act."
The date of the conviction was September 24, 1981, and counsel argues that "the new Texas Controlled Substances Act, which became effective September 1, 1981, fails constitutional muster when examined closely." The attack is aimed at the caption to House Bill 730, Acts 67th Leg., 1981, Ch. 268, p. 696, which, in its entirety, reads:
"An Act relating to offenses and criminal penalties under the Texas Controlled Substances Act."
Able counsel supports the contention now advanced with a scholarly attack first publicly espoused by the Honorable Percy Foreman, a Houston barrister of eminent renown. 1
Our attention is first called to the provisions of Art. III, Sec. 36, Constitution of Texas, reading:
"No law shall be revived or amended by reference to its title; but in such case the act revived, or the section or sections amended, shall be re-enacted and published at length."
The provision has been held to be mandatory and unless complied with, the amending act is invalid. State Highway Dept. v. Gorham, 139 Tex. 361, 162 S.W.2d 934, 937 (1942).
Next, counsel suggests that the "title does not identify the statute it seeks to amend," arguing that the title
Art. 4476-15, TEX.REV.CIV.STAT.ANN. (1976), which was amended by H.B. 730, now under consideration, contains as its first section, Sec. 1.01: "This Act may be cited as the 'Texas Controlled Substances Act.' " We note that the caption of the amendatory act gave notice that it related to "offenses and criminal penalties under the Texas Controlled Substances Act."
Counsel's supporting argument is based upon this syllogysm:
1. By the provisions of the statute, Sec. 1.02(5), a controlled substance "means a drug, substance, or immediate precursor listed in Schedules I through V and Penalty Groups 1 through 4 of this Act."
2. Marihuana is listed in Sec. 2.03(d)(13), but is not listed in any of the Penalty Groups.
3. Ergo, "[s]ince by definition a substance must be listed in both the schedule groups and the penalty groups and since marihuana is not [so listed], the title is void for failing to give notice that the provisions relating to marihuana are being drastically altered with much more severe penalties and the creation of new offenses relating to marihuana."
We disagree. When the preceding section of the Constitution, Art. III, Sec. 35, was before the Court of Criminal Appeals in White v. State, 440 S.W.2d 660, 664 (1969), the Court noted the avowed purpose of the Constitutional provision was to " 'give fair notice within itself and a reading must reasonably forewarn of the subject of the statute.' "
The Court continued:
"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."
See also, Bates v. State, 587 S.W.2d 121, 128-129 (Tex.Cr.App.1979), where the Court held:
The Court has also applied a stricter rule of conformity of title to subject matter in amendments than to titles of original acts. White, supra (440 S.W.2d at 665); Harvey v. State, 515 S.W.2d 108, 111 (Tex.Cr.App.1974). Since both constitutional sections have the same apparent goal and purpose, we apply the authorities involving Sec. 35 to this case involving Sec. 36. See and cf. Shannon v. Rogers, 159 Tex. 29, 314 S.W.2d 810, 814 (1958).
When the "reasonable caption reader" looked at H.B. 730, he was put upon notice that it was designed to accomplish two changes in the Texas Controlled Substances Act: the changes related to the offenses and to the criminal penalties; and our theoretical "reasonable caption reader" knew that there was but one "Texas Controlled Substances Act," the title to Art. 4476-15, where marihuana was specifically mentioned as one of the controlled substances.
Counsel relies upon language found in Gunter v. Texas Land & Mortgage Co., 82 Tex. 496, 17 S.W. 840, 843 (1891), where the Court wrote: "There is nothing in the title of the act under consideration from which the subject may be known...." 2 We do not find Gunter to be in point in the case at bar. Instead, we follow Clark v. Finley, 93 Tex. 171, 54 S.W. 343, 344 (1899), where the Court, quoting from an earlier case, reaffirmed a holding that " '[i]t is not meant by this provision that every act which amends the statutory law shall set out at length the entire law as amended....' "
In Smith v. Davis, 426 S.W.2d 827, 833 (Tex.1968), it was held:
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