Untitled Texas Attorney General Opinion

‘: : R-317 THEA GENERAL OFTEXAS .’ Ron. Jewel1 fielpinst ill, Chairman Committee on Motor Traffic House of Representat Ives Austin, Texas Opinion Ho. V-136 Re: Con&it ut ionalit of House Bill No. 64 0, Fiftieth Iegislat ure, Regular Session, 1947, relative to reglstra- tlon of motor vehicles Dear Sir: bj nonresidents. House Bill Ho. 690, Fiftieth Iaglslature, Re - ular Session, 1947, which is a bill to amend Chapter 3$ 2, page 800, Acts of 1935, Forty-Fourth Iagislature, Regular Session, reads as follows: %ec. 2. (a) A nonresldent owner of a motor vehicle trailer, OP seal-trailer which has been’duly registered fop ‘the cur- rent year in the State OP oountrg of which the owner is a resident and in accordance with the laws thereof, may, in lieu of reg- istering such vehicle as otherwise reClulred by law, apply to the State Highway Depart- ment through a County Tax Collector for the registration thereof as provided by law, ex- cept that the privileges granted as other- wise provided for in this Act ,shall not ap- ply to any motor vehicle, trailer, or semi- trailer operated within this State for the transportation of persons or property for compensation OF hire. Provided, however, that motor vehicles properly licensed in another State or county operated for cornpen& sat ion or hire may be allowed to make not to exceed two (2) trips during any calen- dar month and remain on each of said trips within the State not to exceed four (4) days, without being registered in this State, in the event thkt under the laws of / . Hon. Jewel1 HelpinstIll, Page 2, V-136 such other State OP country like exaeptions are granted to motor vehicles registered un- der the laws of and owned by residents of this State. Provided that in any prosecu- t ion, for the violation of this Act, It shall not be necessary for the State to allege or prove that there are no like laws in ef- Sect in such other State or country. “(b) Provided however, none of the pro- visions of this Section shall apply to or ex- empt the operator, owner or lessee of any motor vehicle being drlven under its own pow- er, or towed or otherwise transported by be- ing attached or coupled to some other vehicle from or through this State over the highways thereof, for the purpose of sale, resale OP trade in another State, or after having been sold, resold, or traded to any person, com- pany, corporation, or association In another State, but each such motor vehicle shall be registered for the Department through the County Ta% Collector of the US lrst county through which said motor vehicle passes af- ter entering this State; OP If moving Prom this State to another State, of the county from which said motor vehicle first moves and a registration See of Three Dollars ($3) for each such vehicle shall be paid to said Tax Collector unless such motor vehicle has been previously registered with the Depart- ment la lawful manner and license Sees paid. The Tax Collector of the county where such registration is had shall furnish the opera- tor of said motor vehicle with a receipt on a form prescribed by the Departslent and said operator shall retain said receipt in his possession and exhibit same to any member of the State Highway Patrol, or other peace of- ficer, for inspection upon request. If said operator is unable to present said receipt to said member of the State Highway Patrol,.or other peace officer, he and the motor vehicle which he is operating shall be detained by such member of the State Highway Patrol, or peace off leer until ‘proper registration is had and said receipt issued by the Tax Collec- t,or OS some county through which said motor vehicle is being, or has been driven OP towed, or otherwise transported by being attached or Eon. Jewel1 Helpinstill, Page 3, V-136, cou+lea to soms other vehicle from OP through this 3tate over the hlghways thereof O “(c) Any person or any officer, agent or employee of any corporation, company,~ or association who violates any ,of the,~~provi- slons of this Section shall be guilty of a mlsdeswanor and upon conviction thereof shall be fined in an sum of not more than One Hun- area Dollars ( 3 100) *” Section 2 of Article 8nb, V. P, C , in Its present form was enacted by the Forty-fourth Leglsla- ture, Chapter 342, page 800, Acts of 1935. The only change made in Section 2 of Article 827b, supra, by the proposed amendmnt as embraced in House Bill Xo. 690 is .the addition after the ‘second sentence of the first paragraph of said Section 2 of the following: “Provided that in any prosecution for the violation of this Act, It shall not bs necessary for the State to allege or prove that there are no like laws in effect in such other State OP country. v Article 827b, Vernonss Penal Code, 1s c,om- manly known in this State as the *Nonresident Temporary Registration Law‘, and it generally regulates the tempor- ary~~registration of vehicles operated over the highways of this State by out of state visitors and nonresidents. It is a well established ,princlple that the State may make regulations with respect to the registration of motor vehicles lwlicable to nonresidents driving Into or through the State, 1 Blashfield CmloDef~w;~eAuto- mobile Law and Practice P lH6, page 154 L the State may grant to nonresidents a limitid use of the State Highways at a nominal fee by the way of peclpro- city, and such legislation Is not Invalid as an unrea- sonable classification; and further, the State may con- ait ion the use of ,it s hishwavs by nonresidents to those nouresldents who have co&pli&i with similar legislation in their respective states, lienrick v. Marrland, 235 U. S. 610, 35 S, Ct. 140, 59 L Ed 385; 1 Blashfield CYClODedia of Automobile Law a&l Practice g 186, page 154. The problem presented by the proposed amend- ment to Section 2 of Article 8Qb, supra, is entirely different from the general principles above stated Eon,. Jewel1 Helplnatlll, Page 4, V-136 regardlng~ the right OS the Stats to regulate the :use of 1 Us highways by motor vehlo$es, The serious qmst@a to be decided involves the rlgbt ,and powd~ of ths bglsla- tare under our Comtltutlon to dispense ,,wlth Certati al- tigaticms aad p00r on the part 0r tb State la the pro- wcutitm 0r a pars06 r0r ths rioma ,0r a cmnuml sta- tute. ~~ btwu I,. s8d.i~ 10, 0r the Dooetltatioa 0r Texas provides in .k#rt ,a*, r0iim8 3, ‘In’ all crlmlnal prosecutions ths accused ahail haye a speedy public trial. by an qr- Art,icle I, Section 19, or %Iw Ckutltutloa of Tour provides .as .roUowa 8 ,’ ‘%e citisea of this State shall bs de- prived of ,Plfe, liberty+ pyoportye prlvlleges or lmmualt iea 9 OP in any mm8r di8fraaehiseU It Is to be observed that under Article Wb, scct1oi 2, vo P. c., as it now staads, aka also as pro- Plded for in House BIPP 690, the privileges granted to a nonsesldelat whose vehicle Is properly registered, for the current year in the State or country of which he Is a msidetlt do not apply to any motor ‘vehicle, trailer, OP aeli-trailer operated wfthin this State fop the trans- portation of persolsa or property for compensation dr hire, with ths exceptiom, however, that motor vehloles priwerly llceassd in another State OF country aad osmratod far oon- pe@satloa or hire may be allowed to ~m)P aot to .ezeeed two trips durlmg aay calelldar msmtkand wrlm on ewh ..0r, sold tilps wlthlm this State mot to exste~d fm..&m with- out rqiaterlng im t&la State, lm’tb l s vemt tW% ‘WSerb. .’ lawr or suah other State or ooumt~ BiL, uurp%tou @re granaed to motor vghieles nglstero& tder tL .tw8 of Texas and omed by resldolats of Taxar* I@ 0-r mm., and stated In aaether way, a motor vehlel? :m$ or~owr- ated by a nonresldeat ,aed used rr tbs tra&W%@tlw Or property or persons ror oorpemsatlorr or him ,r~:m mot to exceed two trips into this State ,ia amy ok aalmdar ronth and r&sain here not exceedlgg four days on each Ron, Jewel1 Helpinstill, Page 5, V-136 trip without registering his vehicle in this State pro- vided a citizen of Texas is granted the same rights and privileges in the operation of his motor vehicle In the State or country and under the laws of the State or coun- try of which the nonresident Is a resident. All of these matters are provided SOP in the sams section of the Act and within the same paragraph. As the statute now reads, and without re ard to the proposed amendment contained In House Bill %90, it is necessary in a prosecution for violation of the statute for the State to allege and prove the exceptions regarding not more than two trips in a calendar month and the non-existence of reciprocity In laws between Tex- as and the State OF country of which the accused is a resident. The amendment embraced in House Bill 690 would dispense with such allegationa and proof O It is to be noted, however, that even under the amnamnt all these matters are still contalned in the same section and para- graph, including the new and additional sentence which dispenses with the now necessary allegations and proof. If was established at an early date in this State that it was beyond the power of the Legislature to dispense with the statement in an IndictlDsnt of that which is essential to the description of the offense, and any statute which authorizes the oaissioa of the es- sential Darts of the descriDtlon of an offense is in vlo- latlon of the Bill of Rightb contained in o& State Con- stitution (Art. I). Hewitt v. State, 25 Tex. 722 (Sup. Ct e 1860); Stat. v. Duke 42 T 455 (sup. Ct* 1875) It was under this established g&iple of law that tie courts of this State struck do& the- “CommonSense In- dictment Act of 1881”, which dispensed with numerous allegations previously required in an indictment, hold- ing that the form of indlctmsat prescrlbsd by the Legla- lature under that Act was repwnant to Section 19 of Ar- ticle I of the Constitution.‘ ~llllams v. State, 12 Cr. R, 395 6Tex. Grim. App, 1882); YOUR v’. State, 12 CP. R. 614 (Tex. Grim. App. 1882)* It is believed that a discussion of the lead- lag cases touching upon the problem and question here presented will be helpful, In Hewitt v, State, supra, decided by the Sup- rem Court in 1860 the accused was Indicted and convicted for selling whiskei, At the time there was no inhibition in this State against the sale of whiskey unless it was Hon. Jewel1 Helpinstill, Page 6, ‘J-136 sold without a license. The statute under which the ia- dictment was had provided In part that “if any persoa or firm shall sell or be in any wise concerned in selling spirituous, vlnous, or other Intoxicating liquors In ..’ quantities less than one quart, without first havlng.ob-’ tained a license D O O h”,, she ,or they shall be deemed guilty of a misdemeanor, and %hat In all prosecut ions for any violations of any of the provisions of this act, it shall be sufficient to allege and prover that the per- aon charged with any such violation, did sell, or was concerned in selling spirituous, vinoua, oc lntoxlcatlng because the very omission authorized was a necessary il- ement of the offense O The Oourt said: nlat of the offen8e lm the omlsaioa or pr iv lleges , outlawed, exiled, manner, disfranchised, except by due course of the law of the land, 8 Bill of Rights, 0. & No Dig. 14. ’ (l&hasis ourr) The question of the actual location in the statute of the exception or omlrslon clause war not dis- ctured or apparently considend in the powitt Olre, It is plain from the case that the offense involved could not be charged without allegiag the sale us8 without a license. The case has been uniformly followed by the Court of Crimllral Appeals. SolPb fifteen years 18ter in ,A-+&cI 9 ate v supra, the Suprelre Court waa called upon to de ermine the validity of aa lndictmebt charging a person with carrying a pistol without negation of the exceptions contained in the statute with reference to pollaemen Hon. Jewel1 Iielplnstlll, Page 7, v-136 end others enursreted. The exceptions in the stetute appeared as (I part of the sams paragraph end sect Ion making it an offense to carry 8 pistol, The court held the exceptions essential parts of the offense, srylng: *But beinn essential Darts of the des- Subsequent to the rendition of the opinion in the Duke Case the Legislature changed the statute mklng it an offense to carry a pistol 8nd all those matters regarding exceptions to its appllcrtloa were placed la 8 separate rrtlcle 0 Thererfter It VU ml- iformly held that it was not necessary to negative the exceptions referred to la the Duke C e in an ln- dlctwnt or information0 See ye&e, 106 s. ii. (26) 308 (Tex, Crlm, App, 1937 D In ltranchss Annot8ted penal Code, Section 510,’ e number of cesea are cited holding 8nd ennounctig the rule that where the exceptions to 8 pen81 st8tute 814 lo distinct articles or section8 from th4 a&o d4flniag the offense, or they are not a necessary prrt of the definlt ion of the offense, or descrlptlve of it, and if the exception is not the gist of the offense, it is not necessary to negative the exception, Williams v, State 39 3. W, 664 (Tex, Grim, App. 1897); Lowem v, State, 165 3 W. 7 ('Per, Grim, App, 1916). The next era in our criminal jurispradsac4 which is outstanding la so fer 88 the question hereln lavalv$d is concerned began with the enactwnt of the “Dean Law in 1919. That lew as orlglnelly enacted provided in pert that “It shall be unlawful for any person . n . to . . r sell, 0 0 e spirituous, vlnous or melt liquors 0 0 . ex- cept for ~dlclnal, mchenlc~l, scientific or sacrewntal purposes. There was no provision in the statute saying thet it wes not necessary on the part of the State to Bon. Jewel1 Helpinstill, Page 8, V-136 allege or prove these exceptions. However, the Court of Criminal Appeals consistently held under this sta- tute that it was absolutely necessary to aegstive the except Ions, and it thus seems” certain that the court would have held any attempt on the part of the legis- lature to dispense with such exceptions in the law ea written as unconstltutlonal, ~’I&or the ‘Bebh fdw” wes’dwnded by the bg- lslature end the exceptions with regard to mediclnel, mschanlcal, sclent lflc or sacrawntal purposes were placed in a separate section of the rtstute. end the court thereafter, beginning with Crowlay v.-State, 242 9. W. 472 (Tex, Crlm. ADD. 1922). conslsteatla held that it wea not aec8s&$ * I~., to- negitlve the exc&&ions in the indictment. The repeal of the ‘Bean Law” end the enact- mat of the Texas Liquor Control Act (Article 666-l,etc., Vernoa’s Penal Code) again brought before the courts fur- ther discussion OQ the uest lam involved. In Anderson v. Stete, 105 S. W. (26 3 258 (Tex, Grim. App. liJs6j the court was celled upon to consider en information flied under Article 666-25, V. P. C., which et the time pro- vided that “no sale or delivery of liquor shell be made on~.or from the premises of the, holder of any permit (ex- cept. upon the pre%criptlon of a duly licensed physician): . . . On Sundays 0 The court held the Information funda- menttilly defective for failure to negative the exception regarding a prescription by a physician, end thla not- withstanding Section 9 of the Act (666-9, V. P, C.) mak- ing it unnecessary to negative an exception in any ln- dlctwnt or Information filed under the Act, In so hold- ing the court said: “we are not unaware of the fact that section gr art, 1, of said chep. 467, supra (Vernon’s Ann. P. C. art, 666-g), provides in general terms that it shall not be necessary for any information, com- plaint, or indictment to negative any ex- ception contained in this act concerning any prohibited act, etc., but this court has uniformly held that where the excep- tion is written in the body of the law, and, as said in 90811)of the cases, is made part of the enacting clause of the statute lt- self, we cannot give application to the Eon. Jewel1 Fieipinstill, Page 9, V-136 terms of section 9, supra. la so clearly made pert of 18 a0 plalaly written. - . . the very deflnl- into tlon and descrlptlon or We offease a8 that one crnnot be read without the Other. It woull have been compa*tively easy for iSi3 'Licgi~ixhlra 'Ltl 'msm7-WI4 +.?k%bs!!w&t~4m2a'*F&t separate clause. or to have writtsn it In' (I separate place so aa that we would not be cosnwlled to hold it en OssWitlal MEt of ut 88 we find it we do not feel DrlvlleRed to strike down the uxeat number OS decisions written by this court and by ours lllustFiOQ& predecessors. hence our holdiarr a8 above .. Indicated." Uhuphasls 0Ur8) Finally, ths'court of Criminal Appeals In E- lr v. Stete, supra, after reviewing all the 1eadLng auth- orities on the different phases of the question presented in this opinion, announced and restrted the controlllng rules on the subject. The court said: II . ..a . ?t would seea too plain for 8Fgumsnt that if the exception or omission mntloned In 8 statute be a necessary Dart of the des- crlotloa of the offense, it should be set out end properly negatived in order to wet the constitutional guar~antee to every cltl- eon, of en lndlctlasnt which should state the nature end character of the offense charged Eon. Jewel1 Eelplnstlll, Page 10, V-136 “We feel impelled to say that lf there be possibly an exception to the rule above mentioned, it must be when the except ion or omission, as in the Hewitt Case, supra, is of the very gist of the offense, and then same would have to be neget lved la the ln- dlctment, no mstter where its location in the statute, end the bglslature in such 18tter case would be powerless to enact e statute making it unnecessary to negative such 8n exception, end this, es stated, whether such exception be in the article defining the offense or be in 8 separate art lcle. In other words, If the thing for- bidden by the particular statute under con- sideration could not be proved, or the case could not be made out without proof of the so-called exception or omission, then arid exception would be (I necessary elewnt of the offense, and its existence should be negatived in the indictmat and find sup- port la proof. “If, however, the exception be of such form and oharacter es that a prima facie case could be made out rgalnst the accused for the vlolatlon charged, without proof of the oml8sion or exception, then ciesriy the Iaglslature might by enactment have placed such except ion in 8 separate article or sop t ion and there is no need for their negat Ion. ’ @mphasls ours) The rules announced ,ln Baker v. State, aupre, heve found 8ppilcstlon in prosecutions for the illegel practice of law under Article 430a, V. Pp. C., Howlsad v. State, 151 3, W. (2d) 601 (Tex. Crlr. App. 1941); prosecutions for the illegal practice of op- towtry under Articles 735- 38, V. P. C,, Blumber v. State, 161 9. W. (26) 1082 1Tax. Crlm. App.--?m+ 1 Eon. Jewel1 Helpinstill, Page 11, V-136 end prosecutions for unlawful under Article 725b, V. P. C. w. (26) 196 (Tex. Grim. App. 1945 Applybag the above principlea to Article 8ub, v. P. c., es it Is emended by House Bill Ilo; 690, it Is our opinion that the reglstratlon exception contained therein with respect to motor vehicles. of a nonresident operated into this State and transporting persons or property for compensation or hire set more than two trips la any calendar month and to remala here not to exceed four days on eny~ one trip In the event of reciprocity in law between this State and the State or oountry bf the nonresident, being 8 part of the ,sectlon itself deiflnlng the offense, must be considered descriptive of the oifense Itself. It would therefore be neoessary on the part of the State in an lnforwtloa or ladictwnt charging 8 person for violet ion of the pertlouler of- fense, to negative such exception by proper allegationsr Any attempt on the pert of the Legislature to dispense with such necessary sllegetion end proof on the part of the State would in 811 probability be held to vi&late Sections 10 and 19 of Article I (Bill of Rights) 09 the State Constitution under the doctrl&e of Hewitt v. State, supra, end other cases previously cited, end thus ths very thing sought to be accomplished by Honse Bill Ilo. 690 would be defoeted. We ere of the further o~laion, however, taat~ this objectlonabl4 feature may be cure’d by placing the exception in e separate and dlstlnct aeatlon, or article, separate end apart from Section 2 of said Act. In the event this is done the particular wording of the excep- tion as now provided for in Article 8T7b, Section 2; amtY also es now contained in House Bill No. 690, should prob- ably, for the sake of clarity be MQ#ttly @hanged. SlllQURY House Bill 690 making it unnecessary in prosecutions arising under Article 827b, Section 2, V. .P. C., aa amended by said H. B. 690, for the State to ellege or prove the exception contslned thereln with ref- erence to reciprocity In laws is ln viola- tion of Sections 10 end 19 of Article I of the State Constitution under the doetrlne . . Bon. Jewel1 &lpinstlll, Page 12, ,V-136 of Hewitt V. State, 25 Tex. 722, and Beker v. State, 106 3. g0 (26) 308 (Tex. Crr -7) end ceses there cited, inasmuch es said exception is contained In, end is e part of, the section defining the offense, end is descriptive thereof, Your8 very truly, ATTORREYOERERALOF TEXAS BY 4dLw5;1T- Qmrles D. Mathews' Assistant APPROVgDAPR. 10, 1947 m!l: jt :mrj &!iikiiu /: C