Ex parte Weise

• Decision Date: 13 April 2000
• Citation: 23 S.W.3d 449
• Parties: <!--23 S.W.3d 449 (Tex.App.-Houston 2000) EX PARTE BENNETT WEISE, Appellant NO. 01-99-01195-CR Court of Appeals of Texas, Houston (1st Dist.)
• Court: Texas Court of Appeals

Page 449

23 S.W.3d 449 (Tex.App.-Houston[1st Dist.] 2000)

EX PARTE BENNETT WEISE, Appellant

NO. 01-99-01195-CR

Court of Appeals of Texas,

Houston (1st Dist.).

April 13, 2000.

Rehearing Overruled July 7, 2000.

On Appeal from the County Criminal Court at Law No. 5

Harris County, Texas Trial Court Cause No. 994827

Panel consists of Justices Mirabal, Taft, and Price.^*

O P I N I O N

Tim Taft, Justice.

Appellant, Bennett Weise, challenges the trial court's denial of his pretrial application for habeas corpus relief. We address whether a statute prohibiting the dumping of trash is unconstitutional for not requiring proof of a culpable mental state. We reverse and dismiss the information.

Facts

By misdemeanor information, the State charged that appellant did:

. . . unlawfully, transport litter and other solid waste, namely, HOUSEHOLD TRASH, having an aggregate weight of more than fifteen pounds and less than 500 pounds, and a volume of more than thirteen gallons and less than 100 cubic feet, to a place that was not an approved solid waste site for disposal at the site.

. . . unlawfully, dispose, allow, and permit the disposal of litter and other solid waste, namely HOUSEHOLD TRASH, having an aggregate weight of more than fifteen pounds and less than 500 pounds, and a volume of more than thirteen gallons and less than 100 cubic feet, at a place that was not an approved solid waste site.

Appellant filed a motion to quash the information and a pretrial application for habeas corpus relief, asserting that the illegal dumping statute was unconstitutional, as applied to him, because the information alleging the statute's violation did not set forth a culpable mental state.

At the hearing on the motion to quash and for pretrial habeas corpus relief, the trial court inquired whether this matter involved commercial dumping. Appellant's counsel clarified that the State was attempting to apply the statute to appellant, an individual whose trash was found. Based on several hypothetical scenarios, appellant's counsel argued that the State had interpreted the statute as providing for strict liability. The trial court denied the motion to quash the information and the application for habeas corpus relief. Appellant gave notice of appeal of the denial of the pretrial application for writ of habeas corpus.

Constitutionality of Strict Liability

In his sole issue presented, appellant asks whether the statute criminalizing the dumping of trash is unconstitutional for imposing strict liability on persons who lack a culpable mental state. Appellant asserts, in his sole point of error, that the trial court erred in denying appellant's pretrial application for writ of habeas corpus because the illegal dumping statute is unconstitutional, as applied to him, for lack of a culpable mental state.

The decision to grant an application for habeas corpus relief is within the discretion of the trial court, and we will not disturb the trial court's decision unless that discretion was abused. Ex parte Ayers, 921 S.W.2d 438, 441 (Tex.App.-Houston [1st Dist.] 1996, no pet.). Whether the trial court abused its discretion depends upon whether it acted without reference to any guiding principles or rules. See Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990) (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

The illegal dumping statute proscribing appellant's alleged conduct is subsections 365.012(a) and (c) of the Texas Health and Safety Code. Subsection (a) provides: "A person commits an offense if the person disposes or allows or permits the disposal of litter or other solid waste at a place that is not an approved solid waste site . . . ." Tex. Health and Safety Code Ann. §365.012(a) (Vernon Supp. 2000). Subsection 365.012(c) provides: "A person commits an offense if the person transports litter or other solid waste to a place that is not an approved solid waste site for disposal at the site." Tex. Health & Safety Code Ann. § 365.012(c) (Vernon Supp. 2000).

Appellant argues that, although the illegal dumping statute does not specifically require it, a culpable mental state is mandated by the Texas Penal Code, which provides:

(a) Except as provided by Subsection (b), a person does not commit an offense unless he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct as the definition of the offense requires.

(b) If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.

(c) If the definition of an offense does not prescribe a culpable mental state, but one is nevertheless required under Subsection (b), intent, knowledge, or recklessness suffices to establish criminal responsibility.

Tex. Penal Code Ann. §6.02 (Vernon 1994). Section 6.02, which is in Title 2 of the Texas Penal Code, is made applicable to the Texas Health and Safety Code by section 1.03(b) of the Texas Penal Code, which provides: "The provisions of Titles 1, 2, and 3 apply to offenses defined by other laws, unless the statute defining the offense provides otherwise . . . ." Tex. Pen. Code Ann. §1.03(b) (Vernon 1994). Thus, under sections 6.02 and 1.03(b), the court had to determine whether section 365.012(a) plainly dispensed with a mental element.

Appellant and the State each relied on Aguirre v. State, 22 S.W.3d 463 (Tex.Crim.App. 1999), which addressed whether a culpable mental state was required in an El Paso ordinance that regulated adult businesses, but was silent about whether a culpable mental state was required. Id. at 463. In Aguirre, the Court of Criminal Appeals set out guidelines for determining whether a statute plainly dispenses with a mental state element. Id. at 471-477.

An affirmative statement in the statute, that the conduct is a crime though done without fault, would be conclusive. Id. at 471. In this case, as in Aguirre, there is no such statement. The Court of Criminal Appeals noted that "the typical strict liability statute is 'empty' it simply says nothing about a mental state," id., but then observed that, under the legislative history of section 6.02, the mere omission of a mental element cannot be construed to plainly dispense with a mental element and thus leaves a presumption that one is required. Id. at 471-72. This triggers an inquiry by the trial court whether an intent to dispense with the requirement of a culpable mental state is manifested by other features of the statute. Id. at 472.

One such feature is whether the statute makes a strict liability offense a crime. Id. Strict liability is generally associated with civil violations that incur only a fine. Id. In Texas, however, all offenses are classified as crimes. Id. at 472-73. This supports the general presumption against strict liability. Id. This presumption against strict liability becomes stronger for the offenses punishable by jail time.

The language of the statute is also to be considered. Id. If, for instance, the statute defines criminal offenses in four sections, three of which use a word such as "knowingly" and the fourth uses no such word, it is a clear implication that the legislature intended to dispense with a mental element in that section. Id. at 472-73. Because none of the sections defining offenses in section 365.012 contains the word "knowingly" or any other word indicating a culpable mental state, there is no such clear differentiation in the illegal dumping statute. While it could be argued that the use of language such as "dispose," "allow," "permit," and "transport" connote knowledge with respect to one's actions, there simply is no culpable mental state that encompassed the entire offense, much less, a culpable mental state in some portions, but not others.

Another factor is whether the offense is considered malum in se or malum prohibitum. Id. at 473. Strict liability offenses must be malum prohibitum. Id. The opposite is not necessarily true, as illustrated by many regulatory crimes, such as drug violations. Although illegal dumping is malum prohibitum, that classification neither requires nor precludes strict liability.

In more recent cases, the most important feature for determining whether a statute plainly dispenses with a mental element is the subject of the statute, with strict liability traditionally associated with the protection of public health, safety, or welfare. Id. at 473-74. On this point, the Aguirre court quoted extensively from a United States Supreme Court decision, Morisette v. United States, 342 U.S. 246, 72 S. Ct. 240, 96 L.Ed. 288 (1952):

Many of these offenses are not in the nature of positive aggressions or invasions with which the common law so often dealt, but are in the nature of neglect where the law requires care, or inaction where it imposes a duty. Many violations of such regulations result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize. While such offenses do not threaten the security of the state in the manner of treason, they may be regarded as offenses against its authority, for their occurrence impairs the efficiency of controls deemed essential to the social order as presently constituted. In this respect, whatever the intent of the violator, the injury is the same, and the consequences are injurious or not according to fortuity . . . . The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities. Also, penalties commonly are relatively small, and conviction does no grave damage to an offender's reputation. Under such considerations, courts have turned to construing statutes and regulations which make no mention of intent as dispensing with...