Tovar v. State

PRICE, Judge,

concurring.

I join the opinion of the Court, but write separately to emphasize my reasons for doing so. Appellant was convicted of violating *589a penal provision of the Texas Open Meetings Act. Tex. Gov’t Code Ann. § 551.144 (Vernon 1994), titled “Closed Meeting; Offense; Penalty,” provides:

(a) A member of a governmental body commits an offense if a closed meeting is not permitted under this chapter and the member knowingly:
(1) calls or aids in calling or organizing the closed meeting, whether it is a special or called closed meeting;
(2) closes or aids in closing the meeting to the public, if it is a regular meeting; or
(3) participates in the closed meeting, whether it is a regular, special, or called meeting.
(b) An offense under Subsection (a) is a misdemeanor punishable by:
(1) a fine of not less than $100 or more than $500;
(2) confinement in the county jail for not less than one month or more than six months; or
(3) both the fine and confinement.

The Court of Appeals affirmed appellant’s conviction. Tovar v. State, 949 S.W.2d 370 (Tex.App.-San Antonio 1997, pet.granted). We granted appellant’s petition for discretionary review on the following ground: Whether the Court of Appeals erred in affirming the convictions, based upon a conclusion that a public official can be found guilty of violating the Open Meetings Act, when the official is unaware that the meeting is not permitted under the Act.

The first step in this analysis is statutory interpretation. As we have previously stated, when interpreting a statute, we look to the literal text for its meaning, and we ordinarily give effect to that plain meaning. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). The only exceptions to this rule are where application of the statute’s plain language would lead to absurd consequences that the Legislature could not possibly have intended, or if the plain language is ambiguous. Id.

The text of § 551.144 is unambiguous. The term “knowingly” immediately precedes, and thus modifies, only the following:(l) calling or aiding in calling or organizing the closed meeting, whether it is a special or called closed meeting;(2) closing or aiding in closing the meeting to the public, if it is a regular meeting; or (3) participating in the closed meeting, whether it is a regular, special, or called meeting. Nothing within the statute even remotely appears to address the mental state of the accused with regard to his awareness that the closed meeting was not permitted under the Texas Open Meetings Act. Because § 551.144 includes the mental element “knowing,” no additional culpable mental state is required. See Tex.Pen.Code Ann. 6.02(b) (Vernon 1994); accord Long v. State, 931 S.W.2d 285, 291 (Tex.Crim.App.1996) (by prescribing mental states in connection with some divisions of a stalking statute, but omitting a mental state in a particular division of that same statute, the legislature plainly dispensed with any additional mental state in the latter which might otherwise be required); Johnson v. State, 967 S.W.2d 848, 852 (Tex.Crim.App.1998) (Price, J., concurring) (as to a statute proscribing indecency with a child, by including mental elements that did not modify the age of the victim, the legislature intended to dispense with a culpable mental state as to the victim’s age).

There is nothing particularly unusual about this statutory scheme. Appellant is essentially complaining that he was ignorant of the law. But, of course, as the ancient maxim goes, ignorance of the law is no excuse.1 That is, one of the most basic propositions of the law is that “... knowledge of the law defining the offense is not itself an element of the offense.” Model Penal Code § 2.02 explanatory note on subsection (9) (Official Draft & Revised Comments 1985).2 Our Penal Code specifically prohibits such a defense, with narrow exceptions not relevant *590in the instant case. Tex. Pen.Code Ann. § 8.03 (Vernon 1994).

The conduct delineated § 551.144, taken together with the requisite mental state, does not necessarily evince a mens rea or “criminal intent.” In asking this Court to construe § 551.144 so as to require that he was at least reckless with regard to whether the closed meeting was permissible under the Texas Open Meeting Act, appellant is asking us to graft a requirement of “criminal intent” onto the statute. However, given the statute at issue, this is not appropriate.

At first glance, it may seem odd that appellant’s conduct was subject to criminal sanctions, without some sort of proof of “criminal intent;” such is not the norm in the realm of criminal law. However, criminal laws which omit the element of “criminal intent” are not completely unknown; such acts are considered “malum prohibitum,”3 as opposed to being “malum in se.”4 Over forty years ago, the Supreme Court characterized the former types of crimes as “public welfare offenses,” which it described as “... regulations which heighten the duties of those in control of particular industries, trades, properties or activities that affect public health, safety or welfare.” Morissette v. United States, 342 U.S. 246, 254-255, 72 5.Ct. 240, 245-246, 96 L.Ed. 288 (1952). The list of such statutes is wide and varied,5 and, like § 551.144, some even carry the possibility of imprisonment.6 Certainly, given the efforts of our Legislature to ensure public access to open government,7 § 551.144 can reasonably be characterized as a “public welfare” law. In this context, a literal interpretation of § 551.144 does not lead to an absurd result, and it is not appropriate for this Court to graft onto the statute a requirement of “criminal intent”.

*591The drafters of the Model Penal Code have expressed skepticism at these types of laws. Model Penal Code § 2.05 comment. In the instant case, this Court has received several amicus curiae briefs urging reversal of appellant’s conviction, at least in part on the basis of public policy. Nevertheless, such laws are a staple of modern-day society. Except as subject to constitutional constraints not relevant here,8 any change to them should come from the Legislature, rather than the courts.

With these comments, I join the Court’s opinion.

BAIRD, MEYERS, MANSFIELD and KELLER, JJ., join.

. Black's Law Dictionary 747 (6th ed.1990); The Oxford Dictionary of Quotations 422 (2nd ed.1955) (attributed to John Selden).

. See also 22 C.J.S. Criminal Law § 94 (1989); 1 Wayne R. LaFave & Austin W. Scott. Jr, Substantive Criminal Law § 5.1(d) (1986); 21 Am.Jur.2d Criminal Law § 142 (1981); 1 Wharton’s Criminal Law § 77 (14th ed.1978).

. A "malum prohibitum” act is defined as "[a] wrong prohibited; a thing which is wrong because prohibited; an act which is not inherently immoral, but becomes so because its commission is expressly forbidden by positive law; an act involving an illegality resulting from positive law.” Black’s Law Dictionary 960.

. A “malum in se” act is defined as "[a] wrong in itself; an act or case involving illegality from the veiy nature of the transaction, upon principles of natural, moral and public law ... An act is said to be malum in se when it is inherently and essentially evil, that is, immoral in its nature and injurious in its consequences, without any regard to the fact of its being noticed or punished by the law of the state. Such are most or all of the offenses cognizable at common law (without the denouncement of a statute); as murder, larceny, etc.” Black’s Law Dictionary 959.

. Among the areas that have been covered by such laws are pure food and drug; giving false weight; selling over ceiling prices; minimum wage laws; liquor laws; soliciting insurance for unlicensed insurer; borrowing bank funds by bank officer; receiving mental patients without authorization; possession of counterfeit ration stamps; using another’s trademark; purchasing army-issue supplies without authorization; making false statement in shipping declaration; fishing in prohibited area; polluting in streams; entering poll booth with voter without authorization card; possession a machine gun; shooting game birds which have been lured by grain bait; failure to have common carrier permit; possession of lottery slips; owning house used for prostitution; shipping wild game out of state; failure to pay gaming tax; violation of hunting laws; selling margarine; possession of auto with defaced serial numbers; passing school bus stopped for discharging children; driving on wrong side of road; driving without tail light; driving overweight truck; carrying altered passport; shooting domesticated pigeons; cutting timber without authorization; criminal syndicalism; narcotic offenses; blue sky laws; obstructing justice; misleading advertising statements; "unknowingly” possessing explosives under suspicious circumstances; converting public funds by public official; official misfeasance; carrying concealed weapons; voting illegally; using proceeds of securities sales for purposes outside those stated in prospectus; “public officers" misappropriating or mishandling funds; selling liquor wholesale to unauthorized vendee; failing to give notice to respondent in administrative proceeding; publishing without permission accounts relating to conduct of war; transmission of racing results. See Model Penal Code § 2.05 comment.

. See Model Penal Code § 2.05 comment.

. See Tex. Gov’t Code Ann. tit. 5, subtit. A (Vernon 1994 & Supp.1998); see also Acker v. Texas Water Comm’n, 790 S.W.2d 299, 300 (Tex.1990) ("The Open Meetings Act was enacted in 1967 for the purpose 'of assuring that the public has the opportunity to be informed concerning the transactions of public business.’ ”) (citing Acts 1967, ch. 271, § 7, 1967 Tex. Gen. Laws 597); Cox Enters., Inc. v. Bd. of Trustees, 706 S.W.2d 956, 960 (Tex.1986) ("The [Open Meetings] Act is intended to safeguard the public’s interest in knowing the workings of its governmental bodies").

. See 21 Am.Jur.2d Criminal Law § 138 (1981).