Reversed and Remanded; Motion for Rehearing Granted; Opinion of July 24, 2003, Withdrawn and Substituted with Majority and Concurring Opinions on Rehearing After Remand filed January 29, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-99-00811-CR
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JOHN WATTS, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the County Criminal Court at Law No. 15
Harris County, Texas
Trial Court Cause No. 99-08037
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C O N C U R R I N G O P I N I O N
O N R E H E A R I N G A F T E R R E M A N D
I respectfully concur in the court’s judgment, but I write separately to address the trial court’s instruction to the jury that a ditch itself is “water in the state.”
The majority concludes the trial court’s instruction, although inappropriate, was entirely accurate. A review of the statutory definition of “water in the state” and an analysis of parts of the Texas Water Code using the word “ditch” suggests otherwise. Though many ditches may fall within the definition of “water in the state,” all ditches do not, as a matter of law, constitute “water in the state.” The majority is correct in noting that the definition of “water in the state” includes not only water, but the beds and banks of all watercourses and bodies of surface water. See Tex. Water Code Ann. § 26.001(5) (Vernon Supp. 2004). However, this definition still presupposes that water is in some way present, whether it be constant or intermittent,[1] so that the beds and banks still pertain to “watercourses” or “bodies of surface water.” Indeed, the definition on which the majority relies describes a watercourse as any “body of water flowing . . . with bed and banks.” Black’s Law Dictionary 1585 (7th ed. 1999) (emphasis added). Under this definition, the bed and banks are part of an existing body of water but are not themselves “water.”
Notably, although the Texas Legislature refrained from using the word “ditch” when defining “water in the state,” it included the word in many other sections of the Water Code. In several of these sections, the legislature used “watercourse” and “ditch” separately. See, e.g., Tex. Water Code Ann. § 36.001(8)(E) (Vernon 2000) (defining “waste” as, among other things, “wilfully or negligently causing, suffering, or allowing groundwater to escape into any river, creek, natural watercourse, depression, lake, reservoir, drain, sewer, street, highway, road, or road ditch . . .”) (emphasis added); Tex. Water Code Ann. § 56.128 (2002) (describing injury to a drainage canal or ditch as “[a]ny person who wilfully fills up, cuts, injures, destroys, or impairs the usefulness of any canal, drain, ditch, watercourse . . .”) (emphasis added); Tex. Water Code Ann. § 56.242(d) (2002) (stating that “[t]he board may issue negotiable notes to pay any lawful expenditure of the district, other than principal and interest on debt, including all costs to improve or repair any existing drainage, canal, ditch, watercourse . . .”) (emphasis added). The legislature’s separate use of the words “watercourse” and “ditch” in these sections suggests that the latter is not necessarily always included in the definition of the former. See City of San Antonio v. Boerne, 111 S.W.3d 22, 25 (Tex. 2003) (stating that courts interpret a statute so as to give effect to every part thereof). If the legislature intended to include “ditch” in the definition of “water in the state,” it could have inserted the word quite easily as it did in these and other instances.
For example, the legislature used the word “ditch” in the Water Code’s definition of “point source.” See Tex. Water Code Ann. § 26.001(21) (Vernon 2000). A “point source” is defined as “any discernible, confined and discrete conveyance, including but not limited to any . . . ditch . . .” Id. (Emphasis added.) “Point source” and “water in the state” are later used in section 26.121 to describe unauthorized discharges. That section states: “Except as authorized by the commission, no person may discharge any pollutant, sewage, municipal waste, recreational waste, agricultural waste, or industrial waste from any point source into any water in the state.” Tex. Water Code Ann. § 26.121(d) (emphasis added). The language in this section, coupled with the foregoing definitions for these terms, suggests that a “point source” allows a contaminant to flow into “water in the state.” It does not support the notion that a “point source” is itself “water in the state.” Because the Texas Legislature did not include “ditch” in the definition of “water in the state,” it is logical to conclude that all ditches do not necessarily fall under this definition, only those that otherwise come within the language of the definition.
Moreover, as the Court of Criminal Appeals has noted, the trial court’s oral instruction to the jury did not accurately describe the situation in American Plant Food Corporation v. State. See Watts v. State, 99 S.W.3d 604, 614 n.26 (Tex. Crim. App. 2003). In American Plant Food, the Court of Criminal Appeals found that “drainage ditch water” was a type of surface water contemplated by the legislature under the section of the Water Code in effect at that time. American Plant Food Corp. v. State, 587 S.W.2d 679, 682 (Tex. Crim. App. 1979). Here, the trial court, perhaps inadvertently as suggested by the Court of Criminal Appeals, omitted the word “water” and instructed the jury that the drainage ditch itself was a type of surface water protected under the Water Code Act. This error was then reenforced by the State during its closing argument when the prosecutor told the jury: “And judicial notice of the fact that another Court, a hirer [sic] Court, the highest Court in Texas has held that drainage ditches are entitled to the protection of this statute. I think that’s pretty clear.”[2] The State emphasized it again when the prosecutor stated, “[Y]ou know that now a drainage ditch in cases can be accepted as a water in the State.” [3] The jury should have been free to read the undefined terms in the definition of “water in the state” to have any meaning acceptable in common parlance. See Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992) (stating that jurors are free to read undefined statutory terms to have any meaning acceptable in common parlance). But, the jury may have interpreted the trial court’s comments as an indication that all dry ditches are “water in the state” as a matter of law, even though the court’s charge and the Water Code do not say this.[4] The State’s reinforcement of this notion in its closing argument could only have exacerbated the trial court’s misstatement.
Appellant had a right to a jury verdict based on the jury’s determination of the meaning of the undefined statutory terms, in accordance with common parlance and understanding. See Vernon, 841 S.W.2d at 409. This court cannot conclude beyond a reasonable doubt that the trial court’s inaccurate characterization of the holding in American Plant Food did not contribute to appellant’s conviction. For this reason, we must find the error harmful and reverse the trial court’s judgment.
/s/ Kem Thompson Frost
Justice
Judgment rendered and Substitute Majority and Concurring Opinions filed January 29, 2004.
Panel consists of Justices Yates, Hudson, and Frost. (Hudson, J., majority.)
Publish — Tex. R. App. P. 47.2(b).
[1] The hypothetical presented in the last paragraph of footnote 8 of the majority opinion presupposes that water is in some way present. Therefore, the hypothetical ditch would qualify as a “watercourse” and the hypothetical dumper could not act with impunity.
[2] Emphasis added.
[3] Emphasis added.
[4] Moreover, although every dry ditch has the potential to become a “watercourse” and thus “water in the state,” a dry ditch is not per se a “watercourse.” Indeed, a freshly dug ditch that had never seen a drop of water would not be a “watercourse.”