State v. Szela
| Decision Date | 27 November 1991 |
| Docket Number | Nos. 13-91-290-CR,s. 13-91-290-CR |
| Citation | 820 S.W.2d 200 |
| Parties | The STATE of Texas, Appellant, v. Mark R. SZELA, James Blevins, Richard Wayne Mullins, John R. Dean, Jimmy Dale Cobble, Bryan Keith Rudd, Thomas James Edwards, Rene Longoria, and James Ray Blevins, Appellees. to 13-91-298-CR |
| Court | Texas Court of Appeals |
Mark R. Kelly, Crim. Dist. Atty., Phillip Poplin, Sp. Asst. Dist. Atty., John D. Whitlow, Dist. Atty., Port Lavaca, for appellant.
Charles Hood, Hernandez & Hood, Port Lavaca, for appellees.
Before KENNEDY, DORSEY and HINOJOSA, JJ.
The State charged the above appellees with taking oysters from polluted waters, a violation of Tex. Parks & Wild. Code Ann. § 76.116(a) (Vernon 1991). Five of the appellees filed motions to quash, alleging, inter alia, that certain sections of the Texas Parks and Wildlife Code and the Texas Health and Safety Code were unconstitutional. 1 After hearing evidence, the trial court agreed and dismissed the charges. We find the sections constitutional and reverse and remand the causes to the trial court.
The Texas Health and Safety Code authorizes the State Commissioner of Health to declare areas of the State's waters "polluted" and to close them to shellfish harvesting. Tex. Health & Safety Code Ann. § 436.012(a)-(b) (Vernon Pamp.1991). The Texas Parks and Wildlife Code authorizes the State to enforce the Health Commissioner's declaration by prosecuting anyone who takes oysters from a polluted area. Tex. Parks & Wild. Code § 76.116.
The Health Commissioner declared certain portions of San Antonio and Espiritu Santo Bays polluted and described the closed areas as:
That area west, north and east of a line drawn in a northerly direction from McDowell Point to Cities Service Well # 3 (located approximately one half ( 1/2) mile south southeast of Grassy Point). Thence in an easterly direction from Cities Service Well # 3 to Energy Development Corp # 1 to Channel Marker # 28, then in a south southeasterly direction from Channel Marker # 28 along the Victoria Channel to the platform near Marker # 24, then in a northeasterly direction to Swan Point to the end of the last pier of the south most house.
That area of Matagorda Bay 500 yards offshore from the southern tip of Boggy Bayou parallel to the shoreline around Port O'Connor to the Intracoastal Waterway.
All area within a 50 yard radius of recreational cabins located on the bay.
Also all residential subdivision channels and harbor areas up to a radius of 300 yard (sic) offshore from the shoreline where the channels become land bound.
A map of San Antonio and Espiritu Santo Bays accompanied the order. The map marks the polluted, conditionally approved, and approved areas of the bays.
In the motion to quash, appellees alleged that the Health and Safety Code and the Parks and Wildlife Code were unconstitutional in that they denied appellees due process because the sections underlying their prosecutions were void for vagueness. Appellees attacked Health & Safety Code § 436.012, which provides:
(a) The commissioner [of health] by order shall declare to be polluted any area within the jurisdiction of the state that the commissioner finds is a polluted area.
(b) The commissioner shall close to the taking of shellfish for the period the commissioner considers advisable any water to which shellfish from a polluted area may have been transferred.
(c) The commissioner shall modify or revoke an order in accordance with the results of sanitary and bacteriological surveys conducted by the department. The commissioner shall file the order in the department's office and shall furnish without charge a copy of the order describing polluted areas to any interested person.
(d) The commissioner shall conspicuously outline polluted areas on maps and shall furnish the maps without charge to any interested person. The failure of a person to avail himself of that information does not relieve that person from liability under this subchapter.
Appellees also attacked Parks and Wildlife Code § 76.116, which provides:
(a) There is no open season for taking oysters from areas declared to be polluted by the State Department of Health, and a person who takes oysters from such an area violates Section 76.108(a) of this Code.
(b) The department may authorize by permit the transplanting of oysters from polluted areas to private oyster leases.
(c) A person removing oysters from polluted areas without a permit shall replace the oysters in the beds from which they were taken as directed by authorized employees of the department.
The sole witness at the hearing on the motion was Jeffery Wildes, the Classification Survey Branch Chief of the Texas Department of Health, Division of Shellfish Sanitation Control. Wildes testified about procedures the Department of Health uses to declare an area polluted and how those areas are marked on maps available to the public. None of the defendants testified. After this hearing, the trial court concluded that Health & Safety Code § 436.012(d) and Parks and Wildlife Code § 76.116 were unconstitutional for "a number of reasons." The trial court granted appellees' motion and dismissed the informations in a written order which reads, in part, as follows:
1) All of the public waters of the State of Texas are presumed to be open for the purpose of harvesting shellfish. Sec. 436.101(d) (supra) provides in part, "The failure of a person to avail himself of that information does not relieve that person from liability under this subchapter." The State cannot shift the burden of proof in criminal nor civil administrative proceedings. The effect of this Statute would be to require the defendant in a proceeding concerning the same to show he or she was in an open area, when the obvious burden of proof is on the State to prove the defendant was oystering in a closed area. Consequently, this Statute is unconstitutional.
2) Sec. 436.012(d) (supra) provides that maps shall be provided by the Commissioner of Health designating so-called polluted areas. Maps, in and of themselves, do not constitute adequate notice, unless they use boundary lines that are so commonly known to the public that they are obvious, boundary lines such as the boundaries between counties, north and south of a bridge or, for instance, the Intercoastal Canal. The maps provided by the Commissioner of Health have no means by which the lines can be surveyed. They have no latitudes nor longitudes nor north and south references. If a map is sufficient, the lines must be as accurate as those required in deeds. If the State is going to use the concept that on one side of a line an activity is legal and on the other side of the line that same activity is illegal, then, the line must be "bright" and must be ascertainable with certainty. It cannot be approximate. It's foolish to assume the general public will recognize the difference between safe and unsafe areas outlined on maps that are not issued with their licenses nor statutorily required to be distributed to the holder of every license. Maps without certain lines with the accuracy of deeds are unconstitutionally vague and can never serve notice on the public which can be the basis for upholding convictions of our penal laws. The maps prepared by the Commissioner of Health have clear straight lines, but the general public has no certain way to locate the line on the water.
3) These cases in question involve San Antonio Bay and two smaller bays, Hynes and Guadalupe. Not only are maps without bright lines unconstitutional, the lines as attempted to be designated on the ground or in the water are unconstitutionally vague. The maps refer to points that are miles apart. A person on San Antonio Bay can never clearly see the designated landmarks on hazy days, in the fog, the rain, the early morning and late afternoon. Also, one of the reference points is McDowell Point, which is supposed to be located on the western shore of San Antonio Bay. Anyone looking southwesterly at the general location of McDowell's Point from a distance of several miles can only see a shoreline. If a point exists, the third dimensional aspect and view looking in that direction from that distance is lost. McDowell's Point is not a point of legal reference. In addition, the wells and channel markers selected are miles apart and only those people with considerable experience on the bay can determine one from the other. Consequently, not only are maps vague, but also the landmarks and their locations are vague.
In these modern times, with PVC pipe and buoys available, it's an extraordinarily small price to pay, on the part of the State, to provide adequate notice to individuals on the water by marking and outlining legal and illegal areas and, more important, protecting the public from possibly contaminated oysters entering the food chain. If our public health is of any real concern to the State, the lines must be clearly marked, the same as those markers required of high pressure gas lines and the warnings on poisons. Even cigarettes are more clearly marked than our bays. Time after time, alleged violators have suggested to this Court they "simply didn't realize the area was closed". This condition cannot continue to exist. If we are to continue to sell Texas oysters nationwide, the State of Texas must mark the bays so the average person will not harvest oysters that may be contaminated. For this reason 436.012 (supra) and 76.116 (supra) are both unconstitutional.
From this order, the State appealed. In point of error one, subpoint A, the State contends the trial court erred in holding that the public waters of Texas are presumed to be open for the purpose of shellfish harvesting. The Parks and Wildlife Code states that public beds and reefs are open to the taking of oysters during a portion of the year. Tex. Parks & Wild. Code Ann. §...
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