State v. Houdaille Industries, Inc.

• Decision Date: 26 May 1982
• Docket Number: No. C-581,C-581
• Citation: 632 S.W.2d 723
• Parties: STATE of Texas, Petitioner, v. HOUDAILLE INDUSTRIES, INC., d/b/a Houdaille-Duvall-Wright, Respondent.
• Court: Texas Supreme Court

Page 723

632 S.W.2d 723

STATE of Texas, Petitioner, v. HOUDAILLE INDUSTRIES, INC., d/b/a Houdaille-Duvall-Wright, Respondent.

No. C-581.

Supreme Court of Texas.

May 26, 1982.

Mark White, Atty. Gen., James R. Meyers and Jose Manuel Rangel, Asst. Attys. Gen., Austin, for petitioner.

Susman & McGowan, Robert A. Rowland, III, Susan A. Ohsfeldt, Houston, for respondent.

POPE, Justice.

The question presented is whether the State of Texas, in a suit to recover civil penalties authorized by section 16(b) of article 911b, ¹ the Motor Carrier Act, had to allege and prove that the violation was done with knowledge or intent. The State sued Houdaille Industries, Inc., to recover civil penalties and for judgment permanently enjoining Houdaille from aiding and abetting the transportation of its products over Texas highways by an uncertificated carrier. The State alleged that Houdaille on sixty-six separate occasions commencing on January 5, 1978, and continuing to November 20, 1978, had hired and paid L & L Trucking Company to transport concrete doors from its plant at Pearland, Texas, to other points in the state. The trial court sustained defendant's motion for summary judgment and the court of civil appeals affirmed the judgment. 617 S.W.2d 802. We reverse the judgments of the courts below.

L & L Trucking did not have a certificate of public convenience and necessity and, in a prior suit, had agreed to a judgment for penalties in the sum of $3,500 for its violations of the Motor Carrier Act, article 911b. The State then brought this suit against Houdaille, the shipper. The basis for granting Houdaille's motion for summary judgment was that the State did not allege that Houdaille, when placing the shipments with the uncertificated carrier, knowingly or intentionally promoted or assisted in the violation of article 911b.

Houdaille's attack upon the sufficiency of the State's pleadings should ordinarily have been by special exception, so that the State might have had an opportunity to amend its pleadings. Texas Department of Corrections v. Herring, 513 S.W.2d 6, 10 (Tex.1974). At the summary judgment hearing, however, the parties agreed in writing that, had the trial court sustained an exception prior to the motion for summary judgment and granted time for the State to amend and plead that Houdaille had knowledge and intent, the State would not have done so. This squarely posed the question before us now. The State's position is that it may impose penalties against one who procures, aids or abets the violation of the Motor Carrier Act without proof that the shipper knowingly or intentionally hired an uncertificated carrier. We agree with that contention.

We are here concerned only with section 16(b), the statute concerning penalties. Section 16(a) is also relevant, however, in that it aids in the construction of section 16(b). Sections 16(a) and 16(b) of article 911b provide:

(a) Every officer, agent, servant or employee of any corporation and every other person who violates or fails to comply with or procures, aids or abets in the violation of any provision of this Act or who violates or fails to obey, observe or comply with any lawful order, decision, rule or regulation, direction, demand, or requirement of the Commission shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than Twenty-Five Dollars ($25.00), nor more than Two Hundred Dollars ($200.00), and the violations occuring (sic) on each day shall each constitute a separate offense.

(b) Every officer, agent, servant or employee of any corporation and every other person who violates or fails to comply with or procures, aids or abets in the violation of any provision of this Act or who violates or fails to obey, observe or comply with any lawful order, decision, rule or regulation, direction, demand or requirement of the Commission shall in addition be subject to and shall pay a penalty not exceeding One Hundred Dollars ($100.00), for each and every day of such violation. Such penalty shall be recovered in any Court of competent jurisdiction in the county in which the violation occurs. Suit for such penalty or penalties shall be instituted and conducted by the Attorney General of the State of Texas, or by the County or District Attorney in the county in which the violation occurs, in the name of the State of Texas.

Legislative History of Section 16(b)

The legislative history of section 16(b) shows that the legislature did not intend to require knowledge or intent as elements of an action for penalty. The Motor Carrier Act was enacted in Texas by the Forty-First Legislature in 1929. See 1929 Tex.Gen.Laws, ch. 314, at 698-710. Sections 16(a) and 16(b) were substantially the same in the original act as they are today, except for provisions for greater fines and penalties. Section 16(a) provided that violations were criminal misdemeanors; section 16(b) authorized civil penalties. ²

Two years after the original enactment in 1931, the Forty-Second Legislature generally rewrote the Motor Carrier Act, making minor amendments to sections 16(a) and 16(b). See 1931 Tex.Gen.Laws, ch. 277, at 480-97. Those provisions have not been amended since 1931. Other revisions by the Forty-Second Legislature are very helpful in disclosing the legislature's intent. The same legislative act that enacted the amendments to section 16 also enacted section 6cc. Section 16 was silent about any requirement for knowledge or intent. Section 6cc, however, expressly required the prohibited action to be done knowingly. This is the amendment: ³

No motor carrier operating in whole or in part in this State under certificate or permit issued by the Railroad Commission of Texas, or any officer or agent of such motor carrier, shall require or knowingly permit any truck driver or his helper drive or operate a truck for a period longer than fourteen (14) consecutive hours; and whenever such driver or helper shall have been continuously on such duty for fourteen (14) hours, he shall be relieved and shall not be required or knowingly permitted to again go on duty until he has had at least eight (8) consecutive hours off duty; and no such driver or helper who has been on such duty fourteen (14) hours in the aggregate in any twenty-four (24) hour period, shall be required or knowingly permitted to continue or again go on duty without having had at least eight (8) consecutive hours off duty; and venue for prosecution under this section shall lie in the county of the residence of the defendant; provided, that in cases of emergency caused by the act of God, the foregoing restrictions as to hours shall not apply.

1931 Tex.Gen.Laws, ch. 277, § 6cc, at 487 (emphasis added).

Continuously since 1931 section 6cc has prohibited a carrier's officer or agent from "knowingly" permitting drivers to operate a truck for more than the permitted hours and from "knowingly" permitting the driver to return to duty until he had been off duty for eight hours. The requirement of knowledge in section 6cc and its omission in section 16, when taken with the fact that the same Forty-Second Legislature enacted both sections of the act at the same session, demonstrates that the legislature required knowledge in the one instance but did not intend it in the other.

Additional reasons support this conclusion. After the Forty-First Legislature enacted section 16 in 1929, Vernon Law Book Company, in compiling the statutes, separated section 16 from all the other sections of article 911b and compiled it as article 1690b of Vernon's Annotated Penal Code. This transfer from the civil statutes to the penal code included section 16(b), the civil penalty provision.

The Revised Penal Code, effective January 1, 1974, added article 6.02 to provide some uniformity in the Texas Penal Code concerning the requirement of culpability. ⁴ Article 6.02(b) says that a culpable mental state is required unless the definition of an offense dispenses with it. The Penal Code defines offenses as misdemeanors, art. 1.07(21), and felonies, art. 1.07(14). It does not define or relate to civil penalties. The same act of the Sixty-Third Legislature that enacted article 6.02 of the Penal Code expressly transferred section 16 of the Motor Carrier Act back to its original place in article 911b of the civil statutes. 1973 Tex.Gen.Laws, ch. 399, § 5, at 995-996f. As stated previously, the law book company, and not the legislature, had moved section 16 into the Penal Code and assigned it a number. The civil penalties for violation of the motor carrier act were neither enacted nor intended by the Legislature to be part of the Penal Code. When the Legislature made culpability a general requirement for misdemeanors and felonies, it simultaneously expressly ordered that both sections 16(a) and 16(b) be removed from the Penal Code and restored in the civil statutes as originally intended.

Article 6.02 became effective in its requirement of culpability on January 1, 1974. On that date, section 16(b), by legislative mandate, was no longer compiled as a penal statute. Article 6.02 of the Penal Code thus does not apply to section 16(b) of article 911b.

General Welfare Offenses

Civil penalty statutes are of comparatively recent historical origin. These offenses have been termed "public welfare offenses." Sayre, Public Welfare Offenses, 33 Colum.L.Rev. 55 (1933). The development is the natural result of two pronounced movements marking twentieth century criminal administration, i.e., (1) the shift of emphasis from the protection of individual interests that marked nineteenth century criminal administration to the protection of public and social interests, and (2) the growing utilization of the criminal law machinery to enforce, not only the true crimes of the classic law, but also a new type of twentieth century regulatory measure involving no moral delinquency. Sayre, supra at 67.

Knowledge and intent were early...