Ex parte Crisp

• Decision Date: 14 September 1983
• Docket Number: Nos. 1044-82,1045-82,s. 1044-82
• Citation: 661 S.W.2d 944
• Parties: Ex parte Bernard Eugene CRISP, Jerry Michael Miles, Joe Lee Sewell. Ex parte Bruce Dudley CARTER.
• Court: Texas Court of Criminal Appeals

Page 944

661 S.W.2d 944

Ex parte Bernard Eugene CRISP, Jerry Michael Miles, Joe Lee Sewell.

Ex parte Bruce Dudley CARTER.

Nos. 1044-82, 1045-82.

Court of Criminal Appeals of Texas En Banc.

Sept. 14, 1983.

Dick DeGuerin, Miles & Sewell, Houston, for Crisp.

Charles O. Grigson, Austin, Dick DeGuerin, Houston, for Carter.

Charles D. Houston, Dist. Atty., Bellville, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before the Court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

Appellants were charged with the offense of "aggravated possession of marihuana," pursuant to indictments issued alleging that each of them possessed more than 2,000 pounds of marihuana. Appellants filed a pretrial writ of habeas corpus attacking the constitutionality of House Bill 730, ¹ which was passed by the Legislature in 1981 and purported to amend the Texas Controlled Substances Act, V.A.C.S., Art. 4476-15 (Supp.1982). The trial court conducted a hearing on the matter and refused to grant appellants relief. Appellants appealed to the Court of Appeals for the Third District in Austin which declared that the caption to H.B. 730 was defective, and the bill was therefore unconstitutional. Crisp v. State, 643 S.W.2d 487 (Tex.App.--Austin, 1982). Appellants were not released from the custody of the Fayette County Sheriff, however, since the Court of Appeals upheld the indictments under the pre-amendment version of the Texas Controlled Substances Act. The State petitioned this Court for discretionary review of the Court of Appeals' The Court of Appeals held that the caption to H.B. 730 violated Tex. Const., Art. III, § 35 (1955) since it failed to provide adequate notice of the major changes contained in the body of the bill.

holding, which we granted on January 12, 1983.

Art. III, § 35 of the Texas Constitution provides:

"No bill, (except general appropriation bills, which may embrace the various subjects and accounts, for and on account of which monies are appropriated) shall contain more than one subject, which shall be expressed in its title. But if any subject shall be embraced in an act, which shall not be expressed in the title, such act shall be void only as to so much thereof, as shall not be expressed.

This constitutional provision requires that a bill's caption be specific enough to give a reasonable reader fair notice of the subject and contents of the bill. Bates v. State, 587 S.W.2d 121 (Tex.Cr.App.1979); Castellano v. State, 458 S.W.2d 73 (Tex.Cr.App.1970); White v. State, 440 S.W.2d 660 (Tex.Cr.App.1969), and cases cited at 664.

When a statute is attacked under Art. III, § 35, the Court should construe the statute liberally so as to uphold it if possible. Stein v. State, 515 S.W.2d 104 (Tex.Cr.App.1974); White, supra. A somewhat stricter rule of conformity of title to subject matter legislated on within an act is applied to amendments in comparison to the original acts. Bates, supra at 128, citing White, supra; Stein, supra at 107, and cases cited therein.

The question before us is, given the constitutional provision relating to captions, does the caption of H.B. 730 which states: "AN ACT relating to offenses and criminal penalties under the Texas Controlled Substances Act," give readers fair notice of the subject matter contained in the bill. In order to resolve this question and ultimately the constitutionality of the statute, we must examine the contents of the bill vis-a-vis its caption.

Initially, the bill modified several areas of the Controlled Substances Act. The bill created two levels of offenses for possession of marihuana, one of which proscribes possession of more than 50 pounds of marihuana and is termed "aggravated" possession of marihuana. This new offense of aggravated possession of marihuana was then further divided into three additional levels of punishment. Overall, ten new sections of the Controlled Substances Act were added and at least one section was repealed.

Moreover, there were several statutes in addition to the Controlled Substances Act which were modified by the bill. Art. 42.12, § 3, V.A.C.C.P., was implicitly changed so that defendants convicted of aggravated possession could not receive probated sentences. Art. 42.12, § 3f(c), V.A.C.C.P., was modified so as to prohibit deferred adjudications for defendants convicted of aggravated ossession. Art. 44.04(b), V.A.C.C.P., and Art. 44.04(c), V.A.C.C.P., were amended so as to severely restrict the availability of bail to those defendants convicted of violating the new offenses in the Controlled Substances Act. The bill also incorporated Title 4 of the Penal Code into provisions of the Controlled Substances Act relating to aggravated offenses.

Given the bill's effect upon the Code of Criminal Procedure and the Penal Code, in addition to the changes made in the Controlled Substances Act, we must next determine whether the caption provides fair notice as to the subject and contents of the bill. A brief discussion of a similar case involving this issue is helpful. In White, supra, the caption to the 1967 act amending the Dangerous Drug Act, Art. 726d, V.A.P.C., read:

"An act to include lysergic acid diethylamide and other hallucinogens in the list defining 'dangerous drugs,' and specifying its possession to be an unlawful act; providing that the illegal sale, manufacture, or furnishing of any dangerous drug is unlawful; amending Subsection (a) of § 2, Subsection (d) of § 3 and § 15 We noted that although the act did include hallucinogens within the definition of dangerous drugs and made their possession an unlawful act, the act also made substantial changes in the penalty provisions of the Dangerous Drug Act. Since the language of the act clearly referenced particular changes and since no fair notice was given of any intent to change penalty provisions, we held that the caption was violative of Tex. Const. Art. III, § 35, and the bill was unconstitutional. See also Stein, supra.

Chapter 425, Acts of the 56th Legislature, Regular Session, 1959, as amended (Art. 726d, Penal Code); and declaring an emergency." White, supra, at 662-3.

The caption to the bill before us refers, at best, to changes in penalties and offenses relating to the Controlled Substances Act (at worst, the bill doesn't even give notice of those changes--see concurring opinion by Judge Clinton). No mention is made of changes made in the Code of Criminal Procedure or the Penal Code. Since the caption refers to one act and has the effect of modifying at least two other separate statutes not mentioned in the caption, it does not give readers fair notice of the subject matter contained within the bill. ² Even the most liberal construction of this caption and bill would not permit us to find that the caption fulfills Texas Constitutional requirements.

The State concedes that the purpose of Tex. Const. Art. III, § 35 is to give "fair notice" of the contents of the bill, but argues that we should apply that standard more restrictively by giving notification as to the body of the Act in a way not misleading or fraudulent. The State then argues that regardless of the standard applied, a liberal construction of the statute must be made in order to uphold the law, protect the legislature from embarassment, and allow the benefits for which the statute was adopted to continue. Last, the State argues that the caption involved meets constitutional requirements since the Code of Criminal Procedure and the Penal Code are related to the subject matter of the bill. We find these arguments to be unpersuasive.

First, we decline to interpret the "fair notice" standard to simply require that a caption not be fraudulent. The cases cited by the State in support of its position largely deal with captions referring to two subjects. Courts have consistently held that a caption may refer to two subjects if those subjects are related. Tabor v. State, 34 Tex.Cr.R. 631, 31 S.W. 662 (1895) (caption referred to changes in two particular sections of the Penal Code); McMeans v. Finley, 88 Tex. 515, 32 S.W. 524 (1895) (caption referred to tax on prize fighting and fighting between man and animal). We hold that the "fair notice" standard with which Tex. Const. Art. III, § 35 is to be applied requires that the caption give Second, the State's argument that the caption in the instant case must be given a liberal construction so as to uphold the constitutionality of the act does not alter the position taken by this court. Granted, captions should be construed liberally so that the law may be upheld. See discussion, supra. A liberal construction requirement, however, should not be used to the extent that the Legislature is permitted to circumvent the Constitution. See White, supra at 665. As we have already stated, even the most liberal construction of the caption involved would not provide sufficient notice concerning the changes in statutes other than the Controlled Substances Act.

reasonable notice of the contents of the bill to an average reader. See White, supra. ³

Last, the State's argument that the term "relating to" saves the bill from a fate of unconstitutionality because both the Code of Criminal Procedure and the Penal Code "relate" to the Texas Controlled Substances Act is totally without merit. In the broad sense of the term, all statutes relate to one another as legislative enactments of social policy. Moreover, all statutes pertaining to criminal matters relate to one another. If we were to validate the caption in this case because all criminal statutes are related, we would effectively eviscerate an entire section of our constitution. This we will not do.

Accordingly, our holding that the caption in the instant case is defective, thereby rendering the act unconstitutional, is unchanged by the State's arguments. We now turn to the issue of what effect our holding has on the provisions of the Controlled...