Miller v. State

I concur in the judgment with these supporting remarks. The 1975 amendment to Tex.Penal Code Ann. § 8.07 (Vernon 1974) removed all doubts that the Legislature acknowledged its earlier enactments brought two unwanted results. First, did the Legislature intend to change the determinative age of the juvenile from that at the time of the trial to the age at the time of the offense for a period of only four months, from September 1, 1973, to December 31, 1973. This seems unlikely, but that conclusion is reasonable if § 8.07(b),1 passed to become effective in 1974, is construed to prevail over the conforming amendment to article 30 of the old Penal Code. Action by the Legislature followed upon realization as well, and on the other hand, of the possible dominance of the provisions of the conforming amendment to article 30 over § 8.07(d),2 the second unwanted result. PracticeCommentary on § 8.07, Tex.Penal Code Ann. (Vernon 1974).

It is the 1974 § 8.07(d) statute which we have determined must fall in the face of the 1973 amended article 30. The Texas Court of Criminal Appeals confronted inconsistent statutes defining the offense of contributing to the delinquency of a minor, both passed during the same legislative session, in Ex parte de Jesus de la O, 154 Tex.Crim. 326,227 S.W.2d 212 (Tex.Crim.App. 1950). The Legislature had passed one bill on June 21, 1949, and the other on June 22, 1949. The Court wrote at 213:

Where two acts passed at the same session of the legislature cannot be reconciled by any known rule of construction, the first in time or position must give way to the last, and the latter will stand as the final expression of the legislative will.

The last in time rule is codified in Tex Code Construction Act, Tex.Rev.Civ.Stat.Ann. art. 5429b-2, Texas Code Construction Act, § 3.05(b) (Supp. 1982). Applying that same rule in this case, we must hold that the conforming amendment to article 30 of the old Penal Code prevails over the 1974 § 8.07 statute because it was the final expression of the legislative will. The Penal Code was passed by the Legislature on May 24, 1973. The juvenile code and the accompanying conforming amendment to article 30 of the Penal Code were passed by the Legislature on May 25, 1973.

An equally compelling reason that amended article 30 takes precedence over § 8.07 (1974) of the new Penal Code is *Page 409 stated in the Texas Code Construction Act, § 3.11(c) which provides in part:

The repeal of a statute by a code does not affect an amendment, revision, or reenactment of the statute by the same legislature which enacted the code. The amendment, revision, or reenactment is preserved and given effect as part of the code provision which the statute so amended, revised, or reenacted. (Emphasis added).

Thus, we must assume that the Legislature intended the specific conforming amendment to article 30 of the old Penal Code to change the law as stated therein and not as stated in § 8.07 of the Penal Code revision.

These provisions of the Code Construction Act mandate the conclusion that the appellant has indeed been twice placed in jeopardy, for he had "been alleged in a petition for an adjudication hearing to have engaged in delinquent conduct . . ." and, accordingly, could not later be convicted for that offense.

1 § 8.07(b) provided:

Unless the juvenile court waives jurisdiction and certifies the individual for criminal prosecution, a person may not be prosecuted for or convicted of any offense committed before reaching 17 years of age.

2 § 8.07(d) provided:

No person who has been adjudged a delinquent child may be convicted of any offense alleged in the petition to adjudge him a delinquent child or any offense within the knowledge of the juvenile judge as evidenced by anything in the record of the juvenile proceeding. (Emphasis added).