Ex parte Mangrum

• Citation: 564 S.W.2d 751
• Decision Date: 12 April 1978
• Docket Number: No. 57410,No. 1,57410,1
• Parties: Ex parte Veronica D. MANGRUM
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 751

564 S.W.2d 751

Ex parte Veronica D. MANGRUM.

No. 57410.

Court of Criminal Appeals of Texas,Panel No. 1.

April 12, 1978.

Rehearing En Banc Denied May 10, 1978.

Roark M. Reed, Dallas, for appellant.

Henry Wade, Dist. Atty., W. T. Westmoreland, Jr., Asst. Dist. Atty., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.

Before TOM G. DAVIS, DALLY and W. C. DAVIS, JJ.

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from the trial court's denial of relief under a pre-conviction writ of habeas corpus in a misdemeanor case. Art. 11.09, V.A.C.C.P. The appellant is charged by information with welfare fraud in violation of Art. 695c, Sec. 34, V.A.C.S.

Appellant contends that the information is void and that the trial court has no jurisdiction because the offense she is charged with no longer exists.

The general rule is that when there is a valid statute or ordinance under which a prosecution may be brought, habeas corpus is not available to test the sufficiency of the complaint, information, or indictment. Ex parte Jarvis, 109 Tex.Cr.R. 52, 3 S.W.2d 84 (1928); Ex parte Minor, 146 Tex.Cr.R. 159, 172 S.W.2d 347 (1943); Ex parte Dickerson, 549 S.W.2d 202 (Tex.Cr.App.1977). However, in the instant case, the appellant alleges that there is no valid statute under which she may be prosecuted for welfare fraud, and therefore the information is void. See Ex parte Ward, 560 S.W.2d 660 (Tex.Cr.App.1978); Ex parte Dickerson, supra.

Appellant is charged, as stated above, by information with having committed the offense of welfare fraud in violation of Art. 695c, Sec. 34, V.A.C.S. This is a misdemeanor offense punishable by a fine of up to one hundred dollars and confinement for up to two years, or both. The information alleges in pertinent part that appellant did

"knowingly and intentionally attempt to obtain and obtain assistance services and treatment from the Texas State Department of Public Welfare, to-wit: Aid to Families with Dependent Children, in an amount greater than that to which the said defendant, was otherwise justly entitled, by means of a wilfully false statement and representation, impersonation and other fraudulent means, to-wit: the said defendant failed to report income through employment at Colbert-Volks."

The offense is alleged to have occurred on or about October 2, 1975. The information was filed on April 11, 1977.

At the time the information was filed, Art. 695c, Sec. 34, V.A.C.S., read as follows:

"Whoever obtains, or attempts to obtain, or aids or abets any person to obtain, by means of a wilfully false statement or representation or by impersonation, or by other fraudulent means:

"(1) assistance, services, or treatment to which he is not entitled;

"(2) assistance, services, or treatment greater than that to which he is justly entitled;

"(3) Or, with intent to defraud, aids or abets in buying, or in any way disposing of the property of a recipient of assistance without the consent of the State Department, or whoever violates Section 32 or Section 33 of this Act, shall be deemed guilty of a misdemeanor . . . ."

This section of the Public Welfare Act of 1941, Art. 695c, V.A.C.S., was amended by Senate Bill 154 (Acts 1977, 65th Leg., p. 637, ch. 235, eff. May 25, 1977), which reads in part as follows:

"Section 1. Section 34 of the Public Welfare Act of 1941, as amended (Article 695c, Vernon's Texas Civil Statutes), is amended to read as follows:

"Section 34.

"(a) Whoever violates Section 32 or Section 33 of this Act commits an offense.

"(b) An offense under this section is a Class A misdemeanor."

Appellant argues that since the provisions of Section 34 as applied to this prosecution were repealed by Senate Bill 154, there is no statute presently in existence to support her prosecution under this information.

As hereinafter noted, the effect of Senate Bill 154 was to provide that offenses deleted by the amendment are now chargeable under the offense of theft as set forth in V.T.C.A. Penal Code, Sec. 31.03. Thus, under certain circumstances the offense may be a felony. It should be noted that Senate Bill 154 does not contain a savings clause within its provisions. The appellant argues that this is a clear indication that the Legislature intended to forgive all prior criminal conduct which had formerly been a violation of Art. 695c, Sec. 34, V.A.C.S.

The State urges that the savings provision of the Texas Code Construction Act, Art. 5429b-2, Sec. 3.11, V.A.C.S., is a general savings provision that allows continued prosecution for acts committed prior to the effective date of Senate Bill 154.

At common law the rule was that in the absence of an effective savings provision the repeal of a criminal statute operated to bar prosecution for earlier violations of the statute whether the prosecutions are pending or have not yet begun at the time of the repeal. The rule is based on the theory that the Legislature by its repeal has indicated an intention that the conduct in question shall no longer be prosecuted as a crime. United States v. Chambers, 291 U.S. 217, 54 S.Ct. 434, 78 L.Ed. 763 (1934); United States v. Tynen, 78 U.S. (11 Wall.) 88, 20 L.Ed. 153 (1871). See generally W. Lafave & A. Scott, Criminal Law, Sec. 13 (1972).

Texas has followed the common law rule.

"If the statute is repealed pending prosecution without a savings clause, no punishment can be inflicted, although the act was done while the law was in force. The prosecution is 'pending' though the case is on appeal. Wall v. State, 18 Tex. (682) 683; Green (Greer) v. State, 22 Tex. 588; Shepherd (Sheppard) v. State, 1 (Tex.) App. 522; Hubbard v. State, 2 (Tex.) App. 506; Tuton v. State, 4 (Tex.) App. 472; Halpin (Halfin) v. State, 5 (Tex.) App. 212; Whisenhunt v. State, 18 (Tex.) App. 491; Kenyon v. State, 31 (Tex.) Crim. 13, 23 S.W. 191 (pending appeal); Eichlitz v. State, 39 (Tex.) Crim. 486, 46 S.W. 643; Hall v. State, 52 (Tex.) Crim. 195, 106 S.W. 149." 1 Branch's Ann.Penal Code, 2d Ed., Sec. 20, p. 21 (1956). See 22 C.J.S. Criminal Law § 27, 75 Am.Jur.2d Statutes, § 418, 16 Tex.Jur.2d Criminal Law, § 13.

In Williams v. State, 476 S.W.2d 307 (Tex.Cr.App.1972), the defendants were convicted for operating an open saloon. This Court held that where the statute making it unlawful for any person to operate or assist in operating an open saloon was repealed by a 1971 legislative amendment, there was no basis for the prosecution. The defendants were charged with committing the offense of operating an open saloon on or about September 9, 1969, but their convictions in 1970 had not become final and the conduct was no longer an offense under any statute. See also Perez v. State, 480 S.W.2d 687 (Tex.Cr.App.1972).

In the case of Sekt v. Justice's Court, 26 Cal.2d 297, 159 P.2d 17, 167 A.L.R. 833, cert. denied 326 U.S. 756, 66 S.Ct. 96, 90 L.Ed. 454 (1945), the Supreme Court of California was faced with a situation similar to that in the instant case. The defendant was charged with conspiracy to commit a misdemeanor, which crime was itself a misdemeanor at that time under California law. While the defendant's case was pending, the California Legislature determined that conspiracy to commit a misdemeanor should be punished in certain instances as a felony. The amendment did not come within the general savings provision of the California Government Code. The defendant argued, as does the appellant herein, that the effect of the legislative enactment was to pardon him for his prior criminal act. The California Supreme Court recognized the common law rule of abatement but held that "To imply a saving clause in such a situation is simply to give effect to the obvious intent of the Legislature." ¹

Citing Sekt v. Justice's Court, supra, and cases from Indiana, Kansas, Kentucky, Louisiana, Missouri, and North Carolina, Wharton's Criminal Law and Procedure, infra, after acknowledging the common-law rule, states:

"A substantial number of cases, however, has ruled that an amendment prescribing for a particular kind of crime greater punishment than was prescribed by the statute thereby amended does not operate as a repeal of the earlier provision, so far as pending prosecutions or criminal liability for a violation committed prior to the effective date of the amendment are concerned, but that on the contrary the earlier provision proscribing punishment remains in force as to offenses committed prior to the time the amendment becomes effective and may thereafter be applied to the prosecution and sentencing of such prior offenders. In so holding, the courts consider that such an amendment increasing punishment is manifestly intended to operate prospectively only rather than retrospectively, and that to effectuate the intent of the Legislature such prospective operation for a saving clause as to prior offenses may properly be implied." R. Anderson, 1 Wharton's Criminal Law and Procedure, Section 22, pp. 49, 50 (1957).

Article 13 of the former Penal Code provided that if the penalty for any offense was increased by subsequent law, the defendant would be punished under the previous law. If, on the other hand, the subsequent law mitigated the punishment for a particular offense, the second law would automatically apply unless the defendant elected at time of trial to receive the penalty proscribed by the old law. Worley v. State, 485 S.W.2d 789 (Tex.Cr.App.1972). In accordance with the common-law rule, this provision also provided that if the statute were repealed and no other penalty was substituted, offenders against the repealed law were exempt from punishment except where a conviction had become final prior to the repeal. See also Art. 14, V.A.P.C. (1925); Mendoza v. State, 460 S.W.2d 145 (Tex.Cr.App.1970); Waffer v. State, 460 S.W.2d 147 (Tex.Cr.App.1970).

This specific savings clause in the old Penal Code was repealed by Acts 1973, 63rd Leg., p. 991, ch. 399, § 3(a), eff. Jan. 1, 1974. Two recent savings clauses, one general...