Talk about a legislative snafu! Prior to 2001 sec. 28.03(b)(3)(B) of the Penal Code provided that causing the diversion of a public water supply was a Class A misdemeanor if the amount of the pecuniary loss was any amount of less than $1500. Then along came SB1174 by Wentworth. To fight the loss of revenue for small public water suppliers and help assure no contamination, it was proposed that this crime be made a third degree felony "regardless of the amount of pecuniary loss". But, for reasons unclear to me, the Senate Criminal Justice Committee made a substitute to the original bill and changed the "third-degree" language to "Class A misdemeanor". Hence, what were felony offenses for amounts of loss of $1500 or more under (b)(4), (5), (6), (7) would now apparently become a Class A misdemeanor. Net result: public water suppliers now have less protection than under the prior law and less protection than any other type of victim of criminal mischief for losses of $1500 or more. This was apparently exactly the opposite of the original intent of the author.

I have a defendant arguing that although he is charged by indictment under (b)(4), he must be punished under new (b)(3)(B) since he illegally tapped into a public water supply line (avoiding payment of the $5000 fee charged to legitimate customers). (b)(3)(B) now conflicts with (b)(4) where $1500 or more in loss is caused. Furthermore, the defendant claims that (b)(3)(B) more specifically describes his offense. See Burke, 28 S.W.3d at 27. My indictment does not describe the victim as a public water supply (although that is obviously what the proof will show) and it is (b)(4) which seems to more specifically describe the offense committed (if one focuses on the amount of the loss and not the nature of the victim or the tangible property involved).

CSSB1174 became a very bad law. Public water supplies were carved out of original (3)(B) to give them greater not lesser protection. The Office of House Bill Analysis clearly misunderstood the bill passed by the Senate when they said: "making the amount of pecuniary loss irrelevant would . . . possibly provide a more effective deterrent." Anyone else run up against this problem?

[This message was edited by Martin Peterson on 05-03-04 at .]

Other people have run up against it, which led to the drafting of HB 2146 (78th R.S.) last regular session:

HB 2146

Unfortunately, the bill died in the Senate last year due to general apathy about the subject matter -- but I've received assurances it will be re-offered next regular session, and we'll try to get some momentum behind it again.

In the meantime, you're probably s.o.l. unless you can find a way to not treat the case as one involving a public water supply.

p.s. - this is what happens when special interest groups try to meddle with the Penal Code!

Thanks Shannon. The HB2146 bill analysis will clearly support our decision to recommend a misdemeanor punishment. Now the more interesting question becomes whether the district court ever obtained jurisdiction of the case. If the allegation of a pecuniary loss of $1500 or more was superfluous, then I guess the case should be transferred to the county court under 21.26 before the plea is accepted?

In light of Kingsbury, 129 S.W.3d 202, that is the course I am going to take anyway.

[This message was edited by Martin Peterson on 05-09-04 at .]