Oakley v. State

• Decision Date: 22 April 1992
• Docket Number: No. 367-91,367-91
• Citation: 830 S.W.2d 107
• Parties: David OAKLEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 107

830 S.W.2d 107

David OAKLEY, Appellant, v. The STATE of Texas, Appellee.

No. 367-91.

Court of Criminal Appeals of Texas En Banc.

April 22, 1992.

Michael B. Charlton, on appeal only, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and Alan Curry & Kim Ogg, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Presiding Judge.

Appellant was convicted in a trial by jury of the felony offense of aggravated robbery. See V.T.C.A., Penal Code, Section 29.03. After finding two enhancement paragraphs to be true, the jury assessed punishment at ninety-nine years' confinement in the Institutional Division of the Texas Department of Criminal Justice. The Fourteenth Court of Appeals affirmed appellant's conviction in a published opinion. Oakley v. State, 807 S.W.2d 378 (Tex.App.--Houston [14th Dist.], 1991). We granted appellant's petition for discretionary review to determine whether the Court of Appeals erred by holding that the "parole charge" instruction, as given by the trial court pursuant to Article 37.07, Section 4(a) of the Texas Code of Criminal Procedure, complies with Sections 13, 19 and 29 of Article I of the Texas Constitution. ¹ We shall affirm.

At the punishment phase of appellant's trial, his counsel objected to the court instructing the jury on the operation and effect of parole laws. The court, however, overruled appellant's objections and instructed the jury pursuant to Article 37.07, Section 4(a). ² Appellant now contends that: (1) this Court's opinion in Rose v State, 752 S.W.2d 529 (Tex.Cr.App.1987), correctly held that the parole instruction of Article 37.07, Section 4(a) violates the "due course of law" provisions in Article 1, Sections 13 and 19 in the Texas Constitution, and (2) the amendment of Article IV, Section 11 of the Texas Constitution failed to correct this problem because Article I, Section 29, makes the provisions in Article I, i.e., the Bill of Rights, supersede all other provisions in the Constitution.

In Rose, this Court declared that Article 37.07, Section 4(a), and the parole instruction that it mandated, was unconstitutional: specifically, the statute and its charge were violations of the separation of powers provision in Article II, Section 1, and the due course of law provisions in Article I, Sections 13 and 19, as provided for in the Texas Constitution. ³ Rose v. State, 752 S.W.2d at 552-553, n. 2 (Opinion on Court's Own Motion for Rehearing adopting these conclusions from Judge Clinton's original opinion) (plurality opinion). Thus, when the Rose opinion became final in November, 1988, it effectively voided Article 37.07, Section 4(a) and rejected the use of jury instructions on parole. See Ex parte Granviel, 561 S.W.2d 503, 515 (Tex.Cr.App.1978) (power to determine validity of statutes rests with courts). Appellant's case, however, was tried on May 16, 1990, after the re-enactment of Article 37.07, Section 4, pursuant to the amendment of Article IV, Section 11(a) of the Texas Constitution.

Article IV, Section 11(a) of the Texas Constitution was amended to provide:

"The Legislature shall by the law establish a Board of Pardons and Paroles and shall require it to keep record of its actions and the reasons for its actions. The Legislature shall have authority to enact parole laws and laws that require or permit courts to inform juries about the effect of good conduct time and eligibility for parole or mandatory supervision on the period of incarceration served by a defendant convicted of a criminal offense." (Emphasis for the portion added by constitutional amendment).

See Tex.S.J.Res. 4, 71st Leg., 1989 Tex.Gen.Laws 6414, and Act of May 17, 1989, Ch. 103, § 1, 1989 Tex.Sess.Law.Serv. 442 (Vernon). This amendment clearly authorized the Legislature to enact laws that permit or require courts to inform juries about the effect and operation of parole laws. In fact, in 1989 the Bill Analysis for Senate Joint Resolution No. 4, the precursor to the amendment in Article IV, Section 11(a), stated that the purpose for the amendment was to "establish a constitutional basis for any legislative efforts to provide courts with a jury charge regarding good conduct time and parole." Thus, when the Legislature re-enacted Article 37.07, Section 4, in 1989, it did so pursuant to express constitutional authority.

The Constitution of Texas is the fundamental law of the State, i.e., the supreme law of the land. Texas National Guard Armory Board v. McCraw, 132 Tex. 613, 126 S.W.2d 627, 634 (1939). The people of Texas have the sole power to amend or change any provision of the Constitution. Stephens v. State, 138 Tex.Crim. 43, 133 S.W.2d 130, 131 (App.1939). By amending the Constitution, the people express their will or intent to change the fundamental law, and those who are called on to construe the Constitution should not thwart the will of the people by construing it differently from its plain meaning. Cramer v. Sheppard, 140 Tex. 271, 167 S.W.2d 147, 154 (1942). An amendment then becomes just as much a part of the fundamental law as any section originally adopted and its effect is the same as if the amendment had been originally incorporated in the Constitution. Collingsworth County v. Allred, 120 Tex. 473, 40 S.W.2d 13, 15 (1931).

Consequently, when Texas voters approved the amendment to Article IV, Section 11(a) of the Texas Constitution on November 7, 1989, that amendment became part of the fundamental law of Texas with the same effect as if it had been adopted as part of the Constitution originally adopted in 1876. Moreover, by so explicitly changing the fundamental law, the people clearly articulated their will or intent that the Legislature be authorized to draft laws permitting trial courts to inform juries about the operation and effect of parole laws. It is apparent, and appellant concedes, that the amendment cured the "separation of powers" taint identified in Rose.

But appellant argues that the amendment of Article IV, Section 11(a) did not address the "due course of law" problem identified in Rose. Specifically, he contends that since Article I, Section 29 of the Constitution mandates that provisions in Article I, the "Bill of Rights," supersede all other provisions of the Constitution, the parole jury charge is unconstitutional. We disagree.

It is well established that the Constitution must be read as a whole, so as to give effect to each and every provision. Clapp v. State, 639 S.W.2d 949, 951 (Tex.Cr.App.1982). No part of the Constitution should be given a construction which is repugnant to express authority contained in another part, if it is possible to harmonize the provisions by any reasonable construction. Collingsworth County v. Allred, 40 S.W.2d at 17. Where there is irreconcilable inconsistency between an amended provision and the Constitution as originally adopted, this Court has announced two rules of constitutional construction to help determine which controls: (1) specific provisions control general provisions, and (2) the provision adopted later in time will be given controlling effect, it being the last expression of the sovereign will of the people. Clapp v. State, 639 S.W.2d at 952.

When these simple rules of construction are applied to the alleged conflict between the constitutional provisions in Article I, Sections 13 and 19, and Article IV, Section 11(a), the "due course of law" taint is clearly removed from Article 37.07, Section 4(a). First, the provision in Article IV, Section 11(a), authorizes the Legislature to draft laws permitting jury instructions on parole. Thus, it is a "specific" provision and should be given controlling effect over the more "general" provision in Article I, which universally guarantees that no citizen shall be deprived of life, liberty, or property, except by due course of law. Second, the sweeping due course of law provision was adopted in the first Texas Constitution and has continued as a part of all subsequent Constitutions. Article IV, Section 11(a) was amended in 1989; hence, it should prevail as the last expression of the sovereign will of the people.

Appellant, however, would have us ignore these traditional rules for construing the Constitution and find that the Rose due course of law problem was not resolved by amending Article IV, Section 11(a). Appellant contends that Article I, Section 29, of the Texas Constitution mandates that the due course of law provisions must control because the amendment did not modify or address Article I, Sections 19 or 13, and the constitutional provisions are now in conflict.

Article I, Section 29, of the Texas Constitution states that:

"To guard against transgressions of the high powers herein delegated, we declare that everything in this "Bill of Rights" is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void." (Emphasis added).

Appellant construes the emphasized language to mean that any section of the Bill of Rights supersedes other provisions of the Constitution unless directly amended by the people. We disagree with appellant's construction.

First, appellant completely ignores the phrase in Section 29 that says "all laws contrary [to the Bill of Rights], or to the following provisions, shall be void." (Emphasis added). This language cogently states that laws contrary to Article I, as well as the provisions following Article I, are void. Thus, Article I, Section 29, simply means that any law contrary to the Texas Constitution--any provision of the Constitution--must fail. See Braden, The Constitution of the State of Texas: An Annotated and Comparative Analysis (1977) at 85-86 (Section 29 was presumably a closing flourish to emphasize the Texas Bill of Rights and despite strong language seems to mean nothing at...