PDO has filed Mtn to withdraw plea in Defd case of Evading arrest/ Motor vehicle PC 38.04.

Claims that it is unconstitutionally vague. Thanks to Stride I now understand this is possible and thanks to Shannon know that our TDCAA books do Statutory construction when they write our manuals whereas West does not.

Supposedly there may be a swarm of Defense lawyers sharing a Writ in Galveston County. Anyone responded? I need to be able to intelligently argue before the trial court.

Doesn't seem vague at all to my simple brain. If you get arrested after 9-1-2011 evading in a MV it's a third degree. If we have an old case then it's a State Jail felony.I have no time to mess with this silliness!!!!!!!!

What is their argument of vagueness? Just that it's not clear what degree of felony it is?

Haven't read the brief. I was hoping one of you had seen it. If you happen to have a West published Penal Code you can see why the question has been raised. I'll call Galveston and check on their brief.

The only thing "vague" is their ethics in filing bogus motions/writs.

This issue is pretty simple. Example: Consider a statute that has subsections (a), (b), and (c). If one bill amends only subsection (a) and another bill amends only subsection (c), BOTH bills are given effect, and upon taking effect, the statute has a new subsection (a), the old subsection (b), and a new subsection (c).

Furthermore (and this is the PC 38.04 example), if one bill amends subsection (a) and (b), and another bill amends subsection (a) and (c), then once again, BOTH bills are given effect, including both changes to subsection (a), UNLESS the two changes to subsection (a) irreconcilably conflict. (Subsections (b) and (c) are changed regardless of what happens with (a)). And when we talk about conflicts, we are concerned not with the entire text, mind you, but only the CHANGES--i.e., what is underlined or struck through. So, where one bill changes one part of (a) and the other bill changes another part of (a), both can be given effect as long as it doesn't result in an absurdity.

Personally, I think most defense lawyers with half a brain understand this, they are just generating work/fees/mischief because they can.

I believe this issue involves SB 1416 along with SB 496 and HB 3423. SB 1416 amends evading in a vehicle to a 3rd degree felony, strikes the requirement of a preivious evading conviction; the other bills made no change regarding vehicle evading punishment (state jail felony if no prior evading conviction). There is no conflict in the bills regarding this amendment, just that SB 1416 makes a change that the other bills do not. I believe that the amendment / change controls - even if it (appears to) conflict with the "lack of change" in the other subject bills. Correct?

quote:

Originally posted by PLF:
There is no conflict in the bills regarding this amendment, just that SB 1416 makes a change that the other bills do not. I believe that the amendment / change controls - even if it (appears to) conflict with the "lack of change" in the other subject bills. Correct?

Exactly!!

Stated another way: A "conflict" between changed language in one bill and unchanged language in another bill is no conflict at all. The changed language is put into effect.

I meant to post this in the previous reply and forgot, but since we are still receiving inquiries about this change on an almost weekly basis, here is the statute from the Govt Code that supports my statement that "a 'conflict' between changed language in one bill and unchanged language in another bill is no conflict at all":

quote:

Sec. 311.025. IRRECONCILABLE STATUTES AND AMENDMENTS. (c) In determining whether amendments are irreconcilable, text that is reenacted because of the requirement of Article III, Section 36, of the Texas Constitution is not considered to be irreconcilable with additions or omissions in the same text made by another amendment. Unless clearly indicated to the contrary, an amendment that reenacts text in compliance with that constitutional requirement does not indicate legislative intent that the reenacted text prevail over changes in the same text made by another amendment, regardless of the relative dates of enactment.

FWIW, Art. III, Sec. 36 states that the full text of any statute or portion of statute being amended must be included in that legislation. It's simply a "context" provision that helps bill readers understand how something is being amended.

So....now we have an accelerated appeal on this issue...which, I totally agree with Shannon isn't an issue. I thought, however, that before I go about recreating the wheel, I'd see what everybody else has drafted or if they've gotten opinions back.

Thanks in advance.

I just had this come up and I am still confused. From what I see, it appears that the statute says an evading with a vehicle is both a 3rd and a SJF. Someone please explain.

you reconcile the two bills to give them both meaning....which means all evading in a car starts at a 3rd degree.

Look at the legislative note in the TDCAA code book, it explains it. I totally missed it the first time.

The writ I'm dealing with has to do with the single subject provision of the Tx Constitution. The other side decided that SB 1416 is unconstitutional because the title talks about tire deflation and not about changing all evading punishment.

The bill that restated the SJF punishment range was making changes in a different part of the law.

The bill that amended to create the F3 punishment range is not inconsistent with the other bill. It just did a different change.

So, the final version of the statute incorporates the change made by each bill, leaving the F3 as the appropriate punishment range for evading with a vehicle.

As for the claim that the bill is void because the title wasn't right, that nonsense hasn't been raised for 30 years. The last time it happened, in the 1980's, the people of Texas rose up and put a stop to it. The Texas Constitution now reads:

§ 35. Subjects and Titles of Bills

(a) No bill, (except general appropriation bills, which may embrace the various subjects and accounts, for and on account of which moneys are appropriated) shall contain more than one subject.

(b) The rules of procedure of each house shall require that the subject of each bill be expressed in its title in a manner that gives the legislature and the public reasonable notice of that subject. The legislature is solely responsible for determining compliance with the rule.

(c) A law, including a law enacted before the effective date of this subsection, may not be held void on the basis of an insufficient title.

Follow up:
What about the "unity of subject" issue in the title?

The argument being made by the defense is SB 1416's title /subject dealt with tire deflation devices---there's nothing in the title about evading.

The Fletcher Amendment made the use of a tire deflation device while evading a 3rd degree---which is fine.

But, the Fletcher Amendment ALSO made all evadings in a car a 3rd degree---which isn't discussed in the title / subject of the bill. Is this log rolling?

Those are all specious arguments by the defense. JB pointed you to why.

Think of this like a "waived-or-raised" objection at trial. The caption rule, the one-subject rule, etc., can be raised during legislative debate as "points of order" that can result in the bill being killed or revised. However, once the legislation has become law, those objections are not legally cognizable.

But does the insufficiency of the title address multiple subjects being handled within the bill itself?

That's an awful sentence. Let me try again.

They are claiming the subject of the bill was tire deflation devices, not evading generally. And because the bill dealt with tire deflation devices specifically AND changed ALL evading, the bill is unconstitutional because it violates the "unity of subject" provision.

Subsection (c) of section 35 of the Texas Constitution speaks pretty clearly that courts can no longer declare bills void because of title/subject issues. It just isn't an issue for the courts; the issue is left to the legislature to enforce. The use of fancy words by the defense doesn't change the true nature of the claim.

So the argument being that the title was simply insufficient and, consequently, the Courts can't find the law void even if different subjects are dealt with in the bill?

Does it matter what was said on the floor of the Leg and that nobody mentioned intentionally amending to include changing all punishment for evading?

None of that matters. The issue, described in whatever form, is not an issue for judicial review.

And, by the way, if an author's failure to inform the members before they vote as to the entire content of a bill was a basis for voiding a bill, we would have a very thin set of laws.

Nope, it doesn't matter a bit. That is only relevant when interpreting ambiguous laws, and this law is NOT ambiguous, nor is it conflicting. Standard rules of statutory construction resolve the issue, as explained above.

If you want proof of how unimportant a bill caption is, check out CCP Art. 38.141. The title of the bill--and of the law itself!--refers to undercover peace officers, but the language of the statute doesn't mention officers b/c they were removed from the bill before it passed. It applies to NON-officer CIs. And upon review, the court confirmed that the language of the law itself is what controls, not the heading, title, caption, or legislative discussion.

I have no idea why I'm having such trouble with this and at the risk of exposing my ignorance even further:

What is the caption and title for the bill?

Specifically S.B. No. 1416 reads:
A Bill to be entited an act
relating to the creation of the offense of possession, manufacture, transportation, repair, or sale of a tire deflation device; providing criminal penalities.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
Section 1: blah blah

So are all the parts before the language "be it entacted" the caption and or title?

I knew I shouldn't have skipped Starbucks this morning.