dissenting.
Joining Judge Meyers in his adherence to analytical treatment in my concurring opinion in Lugo-Lugo v. State, 650 S.W.2d 72, at 85 ff (Tex.Cr.App.1983), of principles of criminal responsibility provided in Chapter Six of the “new” Penal Code, I write first to “set the stage,” secondly to address the rationale expressed by the court of appeals and finally to critique certain notions espoused by the majority.
I
For “conduct” to constitute an offense it must first be defined as an offense by an authorized governmental entity. V.T.C.A. Penal Code, § 1.03(a). A person commits an offense only if he voluntarily engages in conduct with one or more requisite culpable mental states ordinarily prescribed in the definition of the offense. Id., § 6.02(a). Indeed appropriate culpable mental states are always required unless the definition of the offense plainly dispenses with any mental element. Id., § 6.02(b).
In the instant cause the proscribed offense is statutorily defined as follows:
“A person commits an offense if, having custody, care, or control of a child younger than 15 years, he intentionally abandons the child in any place under circumstances that expose the child to an unreasonable risk of harm.”
V.T.C.A. Penal Code, § 22.041(b).1 The information alleged the offense substantially in those terms. Schultz v. State, 879 S.W.2d 377, at 379 (Tex.App.— Amarillo 1994).
II
A
In rejecting appellant’s “contention of first impression concerning the culpable mental state required for conviction of the offense of abandoning a child,” the court of appeals disdained her “analogy of statutes and caselaw” to focus on the text of the statute itself. Schultz v. State, supra, at 379-380. It discerned that conduct the Legislature clearly proscribed is “the abandonment of a child younger than 15 years,” and that such conduct was “criminalized” when a person having custody of such child “intentionally abandons the child under any variety of circumstances exposing the child to an unreasonable risk of harm,” thus evidencing a legislative purpose “to punish specified conduct.” Id., at 380. The court of appeals believed “that the deliberate placing of ‘intentionally’ before ‘abandons’ means that the prescribed culpable mental state is connected with the act of abandonment itself, i.e., the specific conduct the Legislature intended to punish, and a culpable mental state is not, as appellant contends, connected with the circumstances surrounding the conduct.” Ibid. Concluding, the court of appeals iterated, “[I]t seems clear that the Legislature proscribed specific conduct, not specific circumstances.” Ibid.
*6B
What may seem clear to the court of appeals, however, was not all that certain to managers of the original legislation. Resorting to the record of legislative history the State finds “some concern over the scope of the intended legislation” and over “the need to define ‘abandonment.’ ” State’s Reply Brief at 7, citing Supp.R. p. 12 and its own appendix of pertinent papers.
In the Committee Substitute for S.B. No. 175, Subsection 22.041(a) defined the term thusly:
“In this section ‘abandon’ means to leave a child in any place without intent to return for the child and without providing reasonable and necessary care for the child.”
Standing alone that definition describes “nature of conduct,” and if denounced by statute the putative culpable mental states would be “intentionally” and “knowingly.” See § 6.03, (a) and (b). Concern on the House side, however, prompted the Committee on Criminal Jurisprudence and subsequently the Legislature to add another component, viz: “under circumstances under which no reasonable, similarly situated adult would leave a child of that age and ability.” That addition to the definition incorporates “circumstances surrounding conduct.” Thus as a definitional matter the clear legislative intqnt was that to leave a child in a place ■without providing reasonable and necessary care would constitute “abandonment” only where the circumstances then and there extant were such that no reasonable, similarly situated adult would have done so. Section 22.041(a).
Similarly, while under § 22.041(b) to “intentionally abandon” a child may be considered “specified conduct,” Schultz v. State, supra, at 380, without more such conduct alone does not constitute the whole of “forbidden conduct” denounced by the statute. The custodian who acts with a conscious objective or desire to leave the child, where no reasonable similarly situated adult would have, does not ipso facto commit the offense of abandonment. The alleged abandonment must be “under circumstances that expose the child to an unreasonable risk of harm”— again, “circumstances surrounding conduct.”
It is axiomatic that one cannot intend circumstances surrounding one’s own conduct. A person may act intentionally, or with intent, only with respect to the nature and result of his conduct. But with respect to circumstances surrounding conduct one must act knowingly or recklessly. The court of appeals erred in concluding that because the Legislature prescribed the culpable mental state of “intentionally” in connection with the “specific” act of abandonment, a culpable mental state was not required for circumstances surrounding conduct that allegedly exposed the child to an unreasonable risk of harm. See post.
Ill
The majority essentially accepts the theory formulated by the court of appeals, and invokes the hoary, hollow dictum that if the Legislature intended an additional culpable mental state, “it would have been a simple matter to have included language to that effect.” Opinion, at 3. But to guard against resort to just such evasions and voids, the Legislature laid down rules seeking to guarantee that a person is not convicted of an offense without the existence and proof of the requisite culpability. See Part I, ante. The very discussion in which we are now engaged demonstrates that resolution of the matters at issue is not all that simple.
In like vein, the majority says, “[T]he proposition that a culpable mental state must attach to every element of the offense ... has never been adopted by a majority of the Court.” Opinion, at 3, n. 2. In point of fact, the problem more frequently encountered in criminal cases is the ambiguity about to which elements of an offense a given culpable mental state applies. The proposed solution early on would have attached the same alleged culpable mental state to each element of the offense even though it did not syntactically modify the element language. But it was rejected, so in too many situations the proper relationship between culpable mental states and various prescribed elements of offenses remain ambiguous. See Practice Commentary to § 6.02 and § 8.02, V.T.C.A. *7Penal Code (1974), at 88 and 213, respectively. Consequently, in practice, we are obliged to resolve the problem on a case-by-case basis, and Judge Meyers has demonstrated that the Court has shown sensitivity to the “Lugo-Lugo proposition” that “generally, some genre of culpability is required for each element of conduct[.]” Id., at 87 (Emphasis in original).2
Finally, at first blush it might appear, as a matter of craftsmanship, that the legislative managers unwittingly created a conundrum by adding a “surrounding circumstance” ingredient to the definition of “abandon” in subsection (a), yet retaining the “surrounding circumstances” element in subsection (b). Certainly, the majority is moved to cry havoc. Opinion, at 3 (clause in definition rendered meaningless by imposing culpable mental state to risk of harm clause in subsection (b)). But closer analysis and reflection reveal they acquitted themselves in that respect.
A definition, of course, simply describes a term germane to an offense; it does not purport to proscribe conduct, which is to be separately and explicitly denounced as an offense. So here, to define “abandon” as leaving a child in any place “under circumstances under which no reasonable, similarly situated person would leave a child of that age and ability” is to invoke an objective test, the hypothetical ordinary prudent person. Compare definition of “reasonable belief’ in § 1.07(a)(42). Thus, leaving a child constitutes abandoning the child if a reasonably prudent person would not have left the child.
Yet, abandoning a child is not criminal conduct even though the actor harbors a conscious objective or desire to do so, i.e., “intentionally.” There is still no offense unless contemporaneously surrounding circumstances “expose the child to an unreasonable risk of harm.”
To require a showing that the actor be aware of circumstances creating an unreasonable risk of harm in no way impinges upon prior discrete underlying determinations that leaving the child constitutes intentional abandonment. The two seem compatible. If not, as an element of the offense, the former would trump the latter.
Because in my judgment the majority opinion is an exercise in affirmance, thereby continuing recognized difficulty in construction and candidly acknowledged confusion in application of most crucial statutes governing culpability for alleged criminal behavior, I respectfully dissent.
BAIRD and OVERSTREET, JJ., join.. Originally, Section 22.041(a) defined “abandon” to mean “to leave a child in any place without intent to return for the child and without providing reasonable and necessary care for the child, under circumstances under which no reasonable, similarly situated adult would leave a child of that age and ability.” See Acts 1985, 69th Leg., Ch. 791, p. 2703, § 1, effective September 1, 1985 (S.B. No. 175).
Subsequently, the Legislature amended certain subsections of Section 22.041. Inter alia, it deleted the clause underscored just above, and made an offense under subsection (b) a Class A misdemeanor if accused abandoned the child with intent to return for the child; a felony of the third degree if accused abandoned without intent to return for the child. Acts 1989, 71st Leg., Ch. 748, p. 3932, § 1, effective September 1, 1989 (S.B. No. 748).
As thus amended subsection (a) purports only to define a term for purposes of the section rather than to prescribe an offense; it does, however, contemplate as a defining ingredient "circumstances surrounding conduct.”
The instant offense is alleged to have been committed September 22, 1991, and is therefore governed by S.B. No. 748. See Acts 1993, 73rd Leg., Ch. 900, Article 1, § 22.041, p. 3623; §§ 1.18 & 1.19, p. 8705 (offense committed before effective date covered by law in effect when committed).
(All statutes cited are to V.T.C.A. Penal Code and all emphasis is mine unless otherwise indicated.)
. Arguably, there may be an alternative theory if one is inclined to justify further the result reached by the majority.
In this cause that part of the substantive statute prescribing the instant offense allegedly committed by appellant requires solely the culpable mental state of “intentionally” with respect to the nature of her conduct or to the result of her conduct. Surely it cannot be gainsaid that to "intentionally abandon” as defined and proscribed contemplates "nature of conduct” — a conscious objective or desire to "abandon” her children.
What then of “surrounding circumstances” plainly considered by the Legislature to be a telling factor under § 22.041(b)? The answer must be that since the Legislature did not see fit to require a separate culpable mental state such as "knowingly” or “recklessly” as described in § 6.03(c), with respect to "circumstances,” it expected the other facet of "intentionally” — "cause the result” — would apply to the consequences of "exposing the child[ren] to an unreasonable risk of harm." § 22.041(b).
Whether that is a viable theory is left for others to determine, but it seems to me that the bench and bar are entitled to a more definitive explication of the relationship between "intentional abandonment” and "surrounding circumstances.”