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Baumgart v. State

Court of Criminal Appeals of Texas

March 1, 2017

ERIC L. BAUMGART, Appellant
v.
THE STATE OF TEXAS

         ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTEENTH COURT OF APPEALS HARRIS COUNTY

          Keller, P.J., delivered the opinion of the Court in which Hervey, Alcala, Richardson, Yeary, Keel and Walker, JJ., joined. Keasler, J., concurred. Newell, J., dissented.

          Keller, P.J.

         Under the Private Security Act, people or entities that engage in certain private security businesses must have a license. Engaging in such a business without a license is a criminal offense. A subchapter of the Private Security Act contains a number of provisions that say the Act "does not apply to" certain classes of people, such as law enforcement personnel. We must determine whether these non-applicability provisions are exceptions that must be negated by the State in its charging instrument or are defenses that must initially be raised by the defendant.

         I. BACKGROUND

         Appellant acted as a security guard but had no license for doing so. He was charged with committing violations of the Private Security Act, in the Occupations Code. Each indictment alleged that appellant committed an offense by "act[ing] as a guard company, by engaging in the business of a guard on a contractual basis for another person . . . to prevent, observe, or detect unauthorized activity on private property without holding a license as a security services contractor."[1]Appellant filed motions to quash and to dismiss these indictments. One of his allegations was that each of the indictments failed to contain language negating statutory exceptions to the offense. The primary exception that appellant relied upon was that he was a law enforcement officer, but there are a dozen statutory provisions that he claimed created exceptions that the State was required to negate in the indictment. The trial court denied appellant's motions, and appellant was subsequently convicted.

         On appeal, appellant again raised his claim that the indictments failed to negate applicable statutory exceptions. Relying indirectly on American Plant Food Corp. v. State, [2] the court of appeals held that an exception did not have to be pled in the charging instrument if (1) the exception was contained in a separate section from the provision stating the offense and (2) a prima facie case could be made without proof negating the exception.[3] The court of appeals focused on the law enforcement provision and stated that the exception was contained within a separate section from the section that stated the offense and, in fact, was contained within a separate subchapter titled "Exceptions."[4] Further, the court concluded that a prima facie case of acting as a security services contractor without a license could be made without proof that negated the law enforcement exception. Consequently, the court of appeals rejected appellant's contention, and it ultimately affirmed his conviction.[5]

         Appellant now argues that American Plant Food relied on the common law rule for when a statutory exception to an offense had to be negated in the State's pleading.[6] He contends that this common law rule was superseded by the enactment of Texas Penal Code § 2.02, which provides:

(a) An exception to an offense in this code is so labeled by the phrase: "It is an exception to the application of . . . ."
(b) The prosecuting attorney must negate the existence of an exception in the accusation charging commission of the offense and prove beyond a reasonable doubt that the defendant or defendant's conduct does not fall within the exception.
(c) This section does not affect exceptions applicable to offenses enacted prior to the effective date of this code.[7]

         If it were otherwise, he argues, then the provisions of Texas Penal Code § 46.15-providing that certain offenses for unlawfully carrying weapons do not apply to certain classes of people or in certain situations-would be mere defenses to prosecution rather than exceptions to criminal liability, and he contends that the legislature did not intend such a result. Appellant argues that the court of appeals's construction is problematic because it blurs the line between exceptions (which have to be negated in the charging instrument) and defenses (which must be raised by defensive evidence at trial). He contends that "[a]n exception to the law excludes a person from criminal liability under special circumstances, while a defense is an excuse to relieve a person of liability for violating a law."

         The State contends that § 2.02 merely codified the common law. Alternatively, the State argues that, because § 2.02 explicitly requires that an exception be denoted by the language, "It is an exception to the application of . . ., " the provisions found in the "Exceptions" subchapter of the Private Security Act (which do not use that phrase) do not constitute "exceptions." Relying upon dictionary definitions, appellant responds that the word "exception" is defined to mean a situation where a rule does not apply, and he contends that the literal wording of the provisions found in the "Exceptions" subchapter of the Private Security Act satisfied this definition by providing: ". . . this chapter does not apply to . . . ."

         II. ANALYSIS

         A. Statutory Construction Principles

         To determine the meaning of § 2.02, along with the relevant provisions of the Private Security Act, we employ the relevant principles of statutory construction.[8] A statute must be construed in accordance with the plain meaning of its text unless the language of the statute is ambiguous or the plain meaning leads to absurd results that the legislature could not have possibly intended.[9] If the text of a statute is ambiguous, or the plain meaning leads to such absurd results, then we can consult extratextual factors, including: (1) the object sought to be attained, (2) the circumstances under which the statute was enacted, (3) the legislative history, (4) common law or former statutory provisions, including laws on the same or similar subjects, (5) the consequences of a particular construction, (6) administrative construction of the statute, and (7) the title (caption), preamble, and emergency provision.[10] Although relevant as an extratextual factor in construing the text of a statute when consideration of such factors are allowed, "[t]he heading of a title, subtitle, chapter, subchapter, or section does not limit or expand the meaning of a statute."[11] We also take into account any prior caselaw construing a statute.[12]

         B. Common Law

         Because the parties dispute whether § 2.02 codifies the common law, we find it helpful to first address the common law rule regarding exceptions. The court of appeals accurately described the rule recited in American Plant Food: When the statutory exception "is in a separate section from the provision which states the offense, and a prima facie case can be made without proof negating the exception, " then the exception need not be negated in the charging instrument.[13] In support of this rule, American Plant Food cited Salazar, McKnight, and Baker, [14] which we will discuss below.[15]Although American Plant Food was handed down after the enactment of § 2.02 in 1974, the offense at issue occurred before 1974, [16] and we did not cite or discuss § 2.02, [17] so the case was decided on the basis of common law, and the rule articulated in that case was the common-law rule.

         This rule had its origins in caselaw stretching at least as far back as 1878, to the decision of our predecessor court, the Court of Appeals, in Blasdell v. State.[18] The statute at issue in that case was Chapter 140 of the General Laws of Texas.[19] Section one of the statute stated that "no person shall be permitted to practice medicine . . . without first having a certificate of qualification . . . ."[20]Section five of the statute provided that a person "violating any of the provisions of this act" would be guilty of a misdemeanor and punished with a fine.[21] Later text in section five contained two provisos that exempted certain persons from the requirements of the statute.[22] The court held that the provisos were defenses that did not need to be negated in the State's pleading.[23] In support of this holding, the court stated the rule to be that an exception found in a subsequent clause of the statute from the clause containing the offense, or found in the same clause but not incorporated with the enacting clause by words of reference, was treated as a matter of defense only, and need not be negated in the State's pleading.[24] In Baker v. State, this Court cited Blasdell with approval but added that an exception would also need to be negated in the State's pleading if, "no matter where its [the exception's] location in the statute, . . . the thing forbidden by the particular statute under consideration could not be proved, or the case could not be made out without proof of the so-called exception or omission."[25]

         In McKnight v. State, we concluded that exceptions to the Dental Practice Act did not need to be negated in the charging instrument.[26] Separate articles contained the prohibition against practicing dentistry without a license (Art. 747), the relevant definition of practicing dentistry (Art. 754a), the exceptions to the statutory scheme (Art. 753), and the criminal punishment prescribed for violations of the statutory scheme (Art. 754).[27] In Salazar v. State, we held that the State was not required to negate exceptions to a statute prohibiting the possession of firearms.[28] Section one of the statute provided that it would be "unlawful for any person convicted of a felony . . . to have in his possession . . . any pistol, revolver or other firearm capable of being concealed upon the person."[29] Section two of the statute imposed criminal punishment, [30] and section four stated that "[t]he penal provisions of this Act shall not apply to" police officers, guards, and individuals who have not been convicted of an offense for five years following discharge or release from prison.[31]

         Appellant does not now contend that he would prevail if the common law governed his case, but he did argue that to the court of appeals. He claimed that the statute that proscribed the offense, Occupations Code § 1702.388, essentially incorporates the entirety of the Private Security Act so as to include the "Exceptions" subchapter as elements of the offense. Although § 1702.388 contains broad language, "A person commits an offense if the person violates a provision of this chapter for which a specific criminal penalty is not prescribed, "[32] the structure of the scheme imposed by the Private Security Act does not materially differ from the statutory schemes addressed in this Court's prior common law jurisprudence, where the exemptions from criminal liability were held to be defenses. The Private Security Act contains multiple provisions proscribing criminal offenses, with § 1702.388 simply being a catch-all for violations of the Act not punished elsewhere.[33] As with schemes addressed in other cases, the Private Security Act in this and some other instances contains separate sections addressing (1) the required or prohibited conduct, [34] (2) the criminal punishment imposed, [35] and (3) exemptions from the statute's application.[36] And in Blasdell, the statute imposed criminal punishment only if a person "violated" its provisions, but the provisos saying that the statute did not apply were nevertheless construed as defenses rather than as part of the State's case. Appellant's claim would fail under the common law.

         C. Penal Code

         1. Caselaw Statements about § 2.02 and Common Law

         The question then becomes, does Penal Code § 2.02 codify (or incorporate) the common law? In Threlkeld v. State, we said that, prior to the enactment of the Controlled Substances Act, the rule for exceptions was that, "where a penal statute embraces an exception which is part of the statute itself, or the exception appears within the enacting clause of the law, it is necessary for the State to negate such an exception in the indictment."[37] We then stated that § 2.02(b) "codified this common law rule."[38] But this statement was not necessary to the resolution of the case because we then said that the rule did not apply to the Controlled Substances Act, due to a specific provision that expressly removed the burden of negating exceptions in the charging instrument in a controlled substances prosecution.[39] Consequently, any statement in Threlkeld about whether § 2.02 codified the common law was dicta and is not binding authority.[40] In McElroy v. State, a plurality of the Court, referring to Threlkeld's statement of the common law rule, said that § 2.02(b) "simply codified the above earlier common law rule."[41] But plurality opinions are not binding authority.[42]

         Moreover, in Martinez v. State, we criticized a court of appeals for relying upon common law instead of applying § 2.02.[43] And the language of § 2.02(c), stating that "[t]his section does not affect exceptions applicable to offenses enacted prior to the effective date of this code, "[44] suggests that § 2.02 does in fact change the law and that the law before the enactment of § 2.02 was maintained for at least some statutes that preceded the enactment of § 2.02.

         2. § 2.02 and Offenses Outside the Penal Code

         Penal Code § 1.03(b) states, in relevant part, "The provisions of Titles 1, 2, and 3 apply to offenses defined by other laws, unless the statute defining the offense provides otherwise."[45] Title 1 of the Penal Code includes § 2.02 (as well as § 2.03, the significance of which we will discuss later).[46] We have held that § 2.02 was not applicable to the Alcoholic Beverage Code-but only because a statute in that Code explicitly provided that exceptions would be treated as defenses.[47] In Martinez, when we stated that § 2.02, rather than the common law, applied, we were discussing offenses outside the Penal Code.[48] And the carve-out in § 2.02(c) for offenses that pre-date the Penal Code seems to be an acknowledgment that § 2.02 will, at least sometimes, apply outside the Penal Code.[49]

         We note that nothing in the Private Security Act prevents the application of § 2.02.[50] The question remains whether the application of § 2.02 to the Private Security Act is prevented by anything within § 2.02 itself.

         3. Prior Law Carve-Out in § 2.02(c)

         As we have earlier explained, under § 2.02(c), at least some statutes that were enacted prior to § 2.02 are exempted from § 2.02.[51] For those statutes, then, the common law rule would continue to govern. The applicable effective date is January 1, 1974, when the 1974 Penal Code was adopted.[52] Whether all or part of the Private Security Act falls within § 2.02(c)'s carve-out might itself be a serious, unresolved question of statutory construction. The Occupations Code was adopted in 1999, [53] but it was a recodification of prior law and no substantive change was intended.[54]The Private Security Act has existed in some form since 1969, but amendments after 1974 have occurred, creating some new provisions and altering other provisions, including the law-enforcement exception.[55] We need not decide, at this juncture, how the Private Security Act should be viewed with respect to § 2.02(c) because we have already determined that appellant's claims would fail if the common law were found to control, and, as we shall see below, we reject appellant's claims under § 2.02.

         4. Penal Code §§ 2.02(a) and 2.03(e)

         As we have set out earlier, Penal Code §2.02(a) provides, "An exception to an offense in this code is so labeled by the phrase: 'It is an exception to the application of . . . .'"[56] In some contexts, we have suggested that "magic words" are not required[57] or that "substantial compliance" is sufficient.[58] But there are times when the legislature has mandated strict compliance with a statutory provision.[59] This is one of those times. In saying that an exception is "labeled" with a particular phrase, and in placing that particular phrase in quotation marks, the legislature has decreed that an exception exists only when that exact phrase is used. Even the ellipsis within the quoted phrase contributes to the idea that, though the content of exceptions may vary, they are always introduced with the same phrase.

         Any ambiguity that might otherwise exist in that regard is eliminated by § 2.03(e), which provides, "Any ground of defense in a penal law that is not plainly labeled in accordance with this chapter has the procedural and evidentiary consequences of a defense."[60] Although this provision is found in § 2.03, titled "Defense, " rather than § 2.02, the reference to "this chapter" makes clear that § 2.03(e)'s "plain labeling" requirement refers not only to § 2.03 but also to the rest of Chapter 2, which includes § 2.02(a) for exceptions, as well as § 2.04(a), prescribing the form for affirmative defenses.[61] The legislature essentially took a middle ground regarding the default position for defensive matters: If a defensive matter is not plainly labeled as an exception, defense, or an affirmative defense, then it is a defense. So, if a defensive matter does not use the exact wording outlined in § 2.02(a) (or the exact wording outlined in § 2.04(a)), then it is not an exception (or affirmative defense) but is a defense that is governed by § 2.03, and defenses do not have to be negated in the charging instrument.[62]

         This conclusion is consistent with our cases that have refused to recognize implied exceptions. In Bermudez v. State, we held the voluntary conduct requirement in Penal Code § 6.01 was not an exception because it was not "so labeled" in accordance with § 2.02.[63] And in Smith v. State, we held that the former version of the "safe place" punishment mitigator in the aggravated kidnapping statute was not an exception, despite being part of an "unless" clause in the statute.[64]

         Consistent with appellant's arguments, this construction of §§ 2.02(a) and 2.03(e) means that the weapons-offense exemptions in § 46.15-employing the language "do[es] not apply"-are defenses rather than exceptions. But we have indicated as much, [65] and that is exactly what several courts of appeals have held.[66] Moreover, other court-of-appeals cases have construed similar Penal Code provisions containing "does not apply" language as creating defenses under § 2.03(e).[67]Further, numerous provisions in the Penal Code use the exact phrasing of § 2.02(a) to create exceptions.[68] The legislature has shown that it knows how to create exceptions in the Penal Code that conform exactly to the labeling requirement in § 2.02(a).

         The next question is, does this construction of §§ 2.02(a) and 2.03(e) extend to defensive matters outside the Penal Code? It is true that § 2.02(a) contains the qualifying language "in this code."[69] Without more, we might conclude that the labeling requirement for exceptions applies only to defensive matters in the Penal Code. But § 2.03(e) contains broader language: Any ground of defense "in a penal law" must conform to the requirements of Chapter 2.[70] If the legislature had meant to limit § 2.03(e) to the Penal Code, it could have used the language "in this code" instead.[71]And as we have previously explained, the requirement that the plain labeling be "in accordance with this chapter" means that § 2.03(e) requires a matter to be treated as a defense if it does not conform to the Penal Code requirements for creating an exception (§ 2.02(a)) or an affirmative defense (§ 2.04(a)) .

         We have once applied § 2.03(e) to hold that a defensive matter in an Election Code provision was "a mere defense."[72] A court of appeals has applied § 2.03(e) to an exemption in a nepotism statute.[73] And numerous provisions outside the Penal Code contain the exact language required by § 2.02(a).[74] This plethora of provisions outside the Penal Code that conform exactly to the language required by § 2.02(a) demonstrates the legislature's understanding that § 2.02(a) would apply outside the Penal Code.

         And there is at least one good reason why the legislature would want to be parsimonious when it comes to construing whether a defensive provision constitutes an exception. Some statutory schemes may be littered with dozens of provisions that exempt certain classes of people or certain types of circumstances from the operation of the scheme. For example, Penal Code § 46.15 contains seventeen provisions that exempt people from the § 46.02 offense of unlawfully carrying a weapon.[75]The statutory scheme at issue in the present case, the Private Security Act, contains a dozen non-applicability provisions, many of which contain multiple exemptions.[76] Liberally construing such exemptions to be exceptions could result in the State having to negate more than a dozen allegations in a charging instrument, even if most of the exemptions would never be in issue in a given case.

         D. Occupations Code

         As we have explained above, Occupations Code § 1702.388 makes it an offense if a person "violates a provision of this chapter for which a specific penalty is not prescribed"[77] and prescribes the punishment for such an offense.[78] One provision for which a penalty is not otherwise prescribed, contained § 1702.102, says, "Unless the person holds a license as a security services contractor, a person may not . . . act as [a] . . . guard company."[79] Another provision, § 1702.108, defines "guard company."[80] Subchapter N of Chapter 1702, containing §§ 1702.321 through 1702.332, lists various types of persons or entities to which Chapter 1702 "does not apply."[81]

         Although the heading in Subchapter N is titled "Exceptions, "[82] we have already explained that the heading does not limit or expand the meaning of a statute.[83] Although a heading can sometimes be an aid in construing an ambiguous statute, § 2.03(e) specifically dictates what to do if there is ambiguity with respect to whether a penal statute prescribes an exception or a defense: If the matter is not plainly labeled as an exception under § 2.02(a), then it is construed as a defense ...


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