White v. State

• Decision Date: 09 April 1969
• Docket Number: No. 41925,41925
• Citation: 440 S.W.2d 660
• Parties: Houston WHITE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 660

440 S.W.2d 660

Houston WHITE, Appellant, v. The STATE of Texas, Appellee.

No. 41925.

Court of Criminal Appeals of Texas.

April 9, 1969.

Rehearing Denied May 28, 1969.

Sam Houston Clinton, Jr., Austin, for appellant.

Robert O. Smith, Dist. Atty., Dain P. Whitworth, Asst. Dist. Atty., Austin, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

The offense is sale of a dangerous drug, to wit: lysergic acid diethylamide; the punishment, 5 years, probated.

In four grounds of error appellant attacks the constitutionality of the statute under which he was convicted. See Article 726d, V.A.P.C., as amended, 1967 (S.B. No. 17, Acts 1967, 60th Legislature, p. 1847, ch. 720.) ¹

First, we shall consider appellant's specific contention that the trial court erred in failing to quash the indictment since the caption or title to the 1967 act amending the Dangerous Drug Act, Article 726d, supra, to include hallucinogens (lysergic acid diethylamide, LSD, LSD--25, peyote, mescaline, etc.) in the definition of 'dangerous drugs' was insufficient to apprise the Legislature and the public of the drastic changes in penalties and the elimination of penalties for other offenses, thus violating the mandatory provisions of the Texas Constitution, Article III, Section 35. ²

The caption or title to the 1967 act under attack reads:

'An act to include lysergic acid diethylamide and other hallucinogens in the list defining 'dangerous drugs,' and specifying its possession to be an unlawful act; providing that the illegal sale, manufacture, or furnishing of any dangerous drug is unlawful; amending Subsection (a) of Section 2, Subsection (d) of Section 3 and Section 15, Chapter 425, Acts of the 56th Legislature, Regular Session, 1959, as amended (Article 726d, Vernon's Texas Penal Code); and declaring an amergency.'

The body of this act did include hallucinogens within the definition of dangerous drugs and made their possession an unlawful act, but at the same time it made substantial changes in the penalty provision of the Dangerous Drug Act.

Article 726d, supra, as originally enacted in 1959 (Acts 1959, 56th Leg., p. 923, ch. 425) was a rather comprehensive act designed to regulate and control the handling, sale and distribution of 'dangerous drugs' defined in the act. The legislative intent and policy is expressed in Section 1 thereof. ³ Such act, in Section 15 thereof provided the same or uniform penalty for All violations of the statute, making the first offense a misdemeanor and the second or subsequent violations a felony. ⁴

From 1959 until the 1967 amendment Article 726d, supra, had remained unchanged, except for the 1965 amendment (Acts 1965, 59th Leg., p. 971, ch. 466) to include thallium or any compound thereof in the list of 'dangerous drugs.' In 1965 no attempt was made to alter the uniform penalty.

The body of the 1967 act under attack made some definite changes in penalties. ⁵ It restricted the former uniform penalty to the unlawful possession of dangerous drugs Other than hallucinogens; provided that possession of the enumerated hallucinogens shall be a misdemeanor with penalties varying from that of penalties for the misdemeanor or first violation for possession of other dangerous drugs; provided that any person (no reference made to a firm or corporation as in the original act) who sells, delivers or manufactures any dangerous drug shall be guilty of a felony.

Further, while disagreeing as to the ultimate construction or interpretation, the State and the appellant do agree that changes in the penalty provisions have also eliminated any penalty for the offenses denounced in Subsections (b), (c), (f) and (g) of Section 3, Section 5, Section 6, Section 7, Section 13 and Section 14 of Article 726d, supra; and that such action renders those provisions unenforceable in a criminal proceeding. Among other things these provisions relate to unlawful refilling of a prescription for a dangerous drug, failure to file and retain prescriptions, failure to keep certain records, the unlawful revelation of any method or process which as a trade secret is entitled to protection, the duties of exempt persons, the keeping of files and records, inspection and inventory of drugs, contracts for purchases from or sales by out of state persons, using a minor as an agent, and forging or altering prescriptions.

The question thus presented is whether or not the above caption to the 1967 act was sufficient to meet the requirements of Article III, Section 35, Texas Constitution.

The reason underlying this constitutional requirement is to advise the Legislature and the people of the nature of each particular bill so as to prevent the insertion of obnoxious clauses which might otherwise be engrafted on it and become law. Fraud and deception are rendered less likely if the caption or title of an act, which is often the only part of the bill read by busy members of the Legislature, fully apprises the members of the contents of the bill itself. Consolidated Underwriters v. Kirby Lumber Co., Tex.Com.App., 267 S.W. 703; Schlichting v. Texas State Board of Medical Examiners, 158 Tex. 279, 310 S.W.2d 557; Gulf Insurance Co. v. James, 143 Tex. 424, 185 S.W.2d 966; Ferrantello v. State, 158 Tex.Cr.R. 471, 256 S.W.2d 587. See also Interpretive Commentary, Vernon's Anno. Texas Constitution, Article III, Sec. 35. See 53 Tex.Jur.2d, Statutes, Sec. 41, p. 74.

And it has been said that '(i)n so far as it deals with captions of bills, as distinguished from the matter of multiple subjects thereof, its object is to facilitate and protect the legislative process by affording legislators and other interested people a ready and reasonably accurate means of knowledge of the contents of bills without their having to read the full text.' Shannon v. Rogers, 159 Tex. 29, 314 S.W.2d 810. See also Harris County Fresh Water Supply District No. 55 v. Carr, Tex., 372 S.W.2d 523.

Since that is the function of the title requirement in legislative bills, the sufficiency of the title is determined by what the title says and not by what it was intended to say. 'It must give fair notice within itself and a reading must reasonably forewarn of the subject of the statute.' Harris County Fresh Water Supply District No. 55 v. Carr, supra; Adams v. San Angelo Water Works Company, 86 Tex. 485, 25 S.W. 605.

The Courts of this state have been called upon on numerous occasions to interpret Article III, Section 35, Texas Constitution. It has been consistently held that in determining its application, the caption or title of the act should be liberally construed so as to uphold its validity rather than giving the act a strict construction which would lead to striking down the act or a part thereof. Fletcher v. State, 439 S.W.2d 656 (Supreme Court of Texas, 1969); Lee v. State, 163 Tex. 89, 352 S.W.2d 724, 725; Gulf Insurance Co. v. James, supra; Yeary v. Bond, Tex.Civ.App., 384 S.W.2d 376 (err. ref. n.r.e.); Central Education Agency v. Independent School Dist. of City of El Paso, 152 Tex. 56, 254 S.W.2d 357; 53 Tex.Jur.2d 99, Statutes, Sec. 54.

A liberal construction will not, of course, be followed to the extent of allowing the Legislature to by-pass constitutional restrictions. Gulf Insurance Co. v. James, supra. When the Constitution grants certain powers, and the means by which these powers can be exercised are prescribed, such means are exclusive of all others. Parks v. West, 102 Tex. 11, 111 S.W. 726 (reh. den. 113 S.W. 529); Holley v. State, 14 Tex.App. 505.

In applying these same principles and constitutional provisions the Supreme Court of Texas had occasion recently to declare Article 2615f--2, V.A.C.S., 1965 (Polygraph Examiners Act) unconstitutional. Fletcher v. State, supra. There the Court was concerned with the caption or title to an original enactment.

In considering the question before us it must be borne in mind that we are dealing with an amendatory act, not an original enactment. A somewhat stricter rule of conformity of title to subject matter legislated on in body of the act is applied to amendments than to titles of original acts. Praetorians v. State (CA) Tex.Civ.App., 184 S.W.2d 299. Further, it must be remembered that the title or caption in question chose to specify the field the amendment is to cover.

It is well established that when the title of an original act embraces matters covered by an amendment, the title or caption of the amendment need not state the subject of the law amended or specify the nature of the proposed amendment, but new substantive matter in the amendment, not germane to the provision amended, is invalid as legislation on matters not expressed See 53 Tex.Jur.2d, Statutes, Sec. 60, p. 107. See 53 Tex.Jur.2d, Statutes, Sec. 60, 60, p. 107.

A title that is not, however, content to state a purpose to amend a certain statute but proceeds to specify the particular field an amendment is to cover or states a purpose to make a certain change in the prior law, that is not merely descriptive of the matter to which the law relates, limits the amendatory act to the making of the change designated, and precludes any additional, contrary or different amendment.

In Rutledge v. Atkinson, Tex.Civ.App., 101 S.W.2d 376, the Austin Court of Civil Appeals said:

'The rule announced in these cases ⁶ is to the effect that, although an act may be amended in any germane particular by an amendatory act, the title of which merely refers to the act or article sought to be amended, without specifying in what the amendment consists, yet when such title states the particular respect in which the amendment consists, any amendment not germane to that specified is invalid as being repugnant to the invoked constitutional provision.'

This rule was well discussed by Judge Christian speaking for this Court in Walker v. State, 134 Tex.Cr.R. 500, 116 S.W.2d 1076. See also Morgan v. State 134 Tex.Cr.R. 490, 116 S.W.2d 1079; ...