Tovar v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: OVERSTREET, Judge, delivered opinion of the Court in which McCORMICK, Presiding Judge, and BAIRD, MEYERS, MANSFIELD, KELLER, PRICE, HOLLAND and WOMACK
• Citation: Tovar v. State, 978 S.W.2d 584 (Tex. Crim. App. 1998)
• Decision Date: 28 October 1998
• Docket Number: Nos. 1031-97,1032-97,s. 1031-97
• Parties: 130 Ed. Law Rep. 929 Joseph Louis TOVAR, Appellant, v. The STATE of Texas.

Page 584

978 S.W.2d 584

130 Ed. Law Rep. 929

Joseph Louis TOVAR, Appellant, v. The STATE of Texas.

Nos. 1031-97, 1032-97.

Court of Criminal Appeals of Texas En Banc.

Oct. 28, 1998.

Luis R. Vera, Jr., Michael D. Bernard, San Antonio, for appellant.

Roderick B. Glass, Asst. Dist. Atty., San Antonio, Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

OVERSTREET, Judge, delivered opinion of the Court in which McCORMICK, Presiding Judge, and BAIRD, MEYERS, MANSFIELD, KELLER, PRICE, HOLLAND and WOMACK, Judges, joined.

Appellant, former president of the Somerset Independent School Board, was indicted for two offenses involving violations of the Open Meetings Act ("the Act"). V.T.C.A. GOV'T CODE, § 551.144. The first indictment alleged that appellant knowingly participated in a special closed meeting of the school board in violation of the Act. The second indictment alleged that appellant knowingly called and aided in calling and organizing a special closed meeting of the school board in violation of the Act. A jury found appellant guilty as charged in both indictments. In each case, appellant's punishment was assessed at a term of six months incarceration in the Bexar County Jail and a $500 fine; however, the court suspended imposition of appellant's sentences and placed him on community supervision for a period of six months. ¹ On direct appeal, appellant's convictions were affirmed by the court of appeals. Tovar v. State, 949 S.W.2d 370 (Tex.App.--San Antonio 1997). We granted appellant's petition for discretionary review with regard to:

Whether the Court of Appeals erred in affirming the convictions based upon a conclusion that a public official can be found guilty of violating the Open Meetings Act, when the official is unaware that the Meeting is not permitted under the Act[?]

I. PERTINENT FACTS

At trial, appellant requested the following jury instruction: "The defendant must know that the closed meeting is not permitted under the Texas Open Meetings Act." The trial court denied the requested instruction, but instructed the jury as follows:

If you find from the evidence beyond a reasonable doubt that ... Joe Tovar ... did knowingly call or aid in calling or organizing a special closed meeting ... which was not permitted under Chapter 551 of the Government Code ... in that none of the above exceptions apply ... then you will find Joe Tovar, guilty of Violation of [the] Open Meetings Act as charged in the indictment. ²

On appeal, appellant argued that the trial court erroneously refused to instruct the jurors that appellant could be found guilty only if they found that he called or participated in the special closed meeting knowing that the meeting was not permitted by the Act. Appellant argued that the offense was either result oriented or circumstance oriented but not nature oriented. ³ Thus, appellant contended that the mental state requirement for the commission of the offense should refer to either the result of his actions or the circumstances surrounding his actions, and not to the nature of his conduct.

II. COURT OF APPEALS HOLDING

The court of appeals found that (1) the Act places a burden upon governmental officials to conduct open meetings, (2) the action of conducting a closed meeting is not inherently innocent and thus not a circumstance oriented crime; (3) Tovar v. State, 949 S.W.2d 370 (Tex.Crim.App.1997), is not dispositive authority for the proposition that section 551.144 is a result oriented offense; (4) the plain language of section 551.144 indicates that it is a nature-of-the-conduct offense; (5) the Act does not provide a good faith exception or a mistake of law defense; and (6) a good faith exception would conflict with the Texas Penal Code's prohibition of a mistake of law defense. Tovar, 949 S.W.2d at 372-374. Thus, the court held, "In light of the Act's general rule that all meetings are open, the plain wording of section 551.144, and the absence of a good faith exception, we find that section 551.144 is a conduct oriented offense and that the jury instruction correctly reflected the State's burden of proof." Tovar, 949 S.W.2d at 374.

III. STATE'S CLAIM

The State contends that section 551.144, by its plain language, is a nature-of-the-conduct oriented offense; that is, the conduct of calling, aiding, or participating in a closed meeting is an offense. Moreover, the State argues that adherence to the plain meaning of section 551.144 follows the purpose of the Act which is to safeguard the public's interest in knowing the workings of its governmental bodies and that the Act places the burden upon public officials to find an exception for the closed meeting or face criminal penalties.

IV. ANALYSIS

As a general rule, the Act requires every regular, special, or called meeting of a governmental body to be open to the public. V.T.C.A. Gov't Code, § 551.002. However, the Act also provides exceptions to the general rule in that it allows members of a governmental body to have closed meetings under certain circumstances. V.T.C.A. Gov't Code, Subchapter D. Exceptions to Requirement that Meetings be Open, §§ 551.072-551.084.

Section 551.144 of the Act makes it an offense for a member of a governmental body to call, aid, close, or participate in a closed meeting where such meeting is not permitted under the Act. It provides:

(a) A member of a governmental body commits an offense if a closed meeting is not permitted under this chapter and the member knowingly:

(1) calls or aids in calling or organizing the closed meeting, whether it is a special or called closed meeting;

(2) closes or aids in closing the meeting to the public, if it is a regular meeting; or

(3) participates in the closed meeting, whether it is a regular, special, or called meeting.

(b) An offense under Subsection (a) is a misdemeanor punishable by:

(1) a fine not of not less than $100 or more than $500;

(2) confinement in the county jail for not less than one month or more than six months; or

(3) both the fine and confinement.

In order to convict appellant, the jury charge in this case only required the jury to find that appellant acted knowingly with regard to calling, aiding in calling or organizing, or participating in the special closed meeting. The jury charge did not require the jury to find that appellant possessed any mental state with regard to the special closed meeting not being permitted under the Act.

If the meaning of statutory text, when read using established canons of construction relating to such text, should have been plain to the legislators who voted on it, we ordinarily give effect to that plain meaning. Schultz v. State, 923 S.W.2d 1, 2 (Tex.Crim.App.1996), citing Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). Moreover, "[w]ords and phrases shall be read in context and construed according to the rules of grammar and common usage." V.T.C.A. Gov't Code § 311.011(a); see V.T.C.A. Penal Code § 1.05(b) (Section 311.011 of the Government Code applies to the Penal Code). Resort to legislative history is permissible only if the statute is ambiguous or would lead to absurd results. Schultz, 923 S.W.2d at 2.

Under section 551.144, the dependent clause ⁴ "a closed meeting is not permitted under this chapter and the member knowingly ..." is connected to the independent clause "a member of a governmental body commits an offense" by the subordinating conjunction "if." See H. RAMSEY FOWLER, THE LITTLE, BROWN HANDBOOK, 108-137 (1980). The dependent clause contains two subclauses which are connected to each other by the coordinating conjunction "and." Each subclause of the dependent clause has a separate subject and predicate. Id. "A closed meeting" is the subject of the first subclause of the dependent clause; whereas, "the member" is the subject of the second subclause. Id. The second subclause has three predicates which are connected to each other by the coordinating conjunction "or." Id. The adverb "knowingly" contained in the second subclause immediately precedes and modifies the verbs calls, aids, closes, and participates. Id. Hence, it is evident that the second subclause is independent of the first subclause and that the adverb "knowingly" only modifies the verbs which it precedes in the second subclause. Id. The statute does not specify any other culpable mental state; thus, it does not provide a culpable mental state with regard to the element that a closed meeting is not permitted under the Act. Accordingly, we hold, based upon the plain language of the section 551.144 and the rules of grammar and common usage, a member of a governmental body can be held criminally responsible for his involvement in the holding of a closed meeting which is not permitted under the Act regardless of his mental state with respect to whether the closed meeting is permitted under the Act.

Our holding is consistent with both the Act's purpose of safeguarding the public's interest in knowing the workings of its governmental bodies and the Penal Code's prohibition of mistake of law defenses. Cox Enterprises, Inc. v. Board of Trustees of the Austin Independent School District, 706 S.W.2d 956, 959 (Tex.1986); V.T.C.A. Penal Code § 8.03 ("It is no defense to prosecution that the actor was ignorant of the provisions of any law after the law has taken effect."). The Act places a duty upon members of governmental bodies to hold open meetings and a concomitant duty to find an exception to the general rule if they desire to have a closed meeting. Neglect of this duty will subject a member of a governmental body to criminal sanction. Cf. Schultz v. State, 923 S.W.2d 1, 4 (Tex.Crim.App.1996) (The offense of abandoning or endangering a child can dispense with a requirement of awareness of danger because a person subject to the offense has already assumed a duty to act reasonably and it is the neglect of this duty that is criminalized).

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