dissenting on motion for rehearing.
The State of Texas asks for rehearing for substantial reasons, including: (1) the majority opinion used the wrong standard of review — abuse of discretion rather than de novo determination — of the trial court’s ruling on a motion to quash involving only a question of law; (2) the majority (and my concurring/dissenting opinion) used the wrong standard for determining when statutes are in pari materia; and (3) the majority made no attempt to harmonize the two statutes allegedly in conflict. The State asserts that: (1) the first reason renders the majority opinion at odds with well-settled principles recognized by all courts; (2) the second reason renders the majority and concurring/dissenting opinions in conflict with the leading Court of Criminal Appeals cases, as well as this Court’s opinion in Johnson v. State, 882 S.W.2d 39 (Tex.App.—Houston [1st Dist.] 1994, pet. refd) (analyzing in pari materia issues by comparing elements, penalties, and objectives of respective statutes); and (3) the third reason demonstrates that the concurring'dissenting opinion, rather than the majority opinion, is more consistent with this Court’s opinion in Lopez v. State, 756 S.W.2d *1349 (Tex.App.—Houston [1st Dist.] 1988, pet. ref d) (courts are to harmonize different statutes whenever possible). The majority opinion sustains the State’s first argument on rehearing and employs the correct standard of review of the trial court’s ruling. Because of the importance of the issue before us to the maintenance of the integrity of our State’s elected officeholders, and because the State has exposed fundamental errors in our original opinions, two of which the panel majority has not addressed on rehearing, I believe this case deserves to be reheard by this Court sitting en banc.
Wrong Standard Regarding In Pari Materia
In both the majority and concurring/dissenting opinions issued August 22, 1996, we relied upon Mills v. State for our statement of the doctrine of in pari materia. 722 S.W.2d 411 (Tex.Crim.App.1986). As the State correctly points out, we relied upon a portion of the opinion in Mills that did not even purport to define in pari materia, but rather gave examples of cases in which the Court of Criminal Appeals had found two statutes to be in pari materia. Id. at 414. Those examples involved situations where the same conduct could be punishable under two statutes, one broadly defined and another more narrowly defined, in which the punishment range was less for the more narrowly defined statute. Id.
As the State also points out, Mills had previously defined the doctrine of in pari materia earlier in the opinion:
The rule of in pari materia is nothing more than a principle of statutory interpretation, a means of devining [sic] and giving full effect to legislative intent. Two statutes that are in pari materia are to be construed together, “each enactment in reference to the other, as though they were part of one and the same law. Any conflict between their provisions will be harmonized, if possible, and effect will be given to all the provisions of each act if they can be made to stand together and have concurrent efficacy.” Statutes may be said to be in pari materia “when they relate to the same person or thing, to the same class of persons or things, or have the same purpose or object. Characterization of the object or purpose is more important than characterization of subject matter in determining whether different statutes are closely enough related to justify interpreting one in light of the other.”
Mills, 722 S.W.2d at 413 (citations omitted) (emphasis added). This Court followed Mills in Johnson v. State, 882 S.W.2d 39, 41 (Tex.App.—Houston [1st Dist.] 1994, pet. refd).
The State uses the original majority opinion’s own language to demonstrate that the Election Code and perjury statute have different objectives applicable to different classes of persons: “The purpose of the penalty provisions of section 254.041 of the election code is to punish a particular class of persons — candidates and public officials— who knowingly violate a law applicable only to them; perjury, by contrast, is an offense applicable to any person who swears falsely under oath about any subject.”
It is only after determining that statutes have the same objective, i.e., are in pari materia, that one proceeds to determine if they are in unresolvable conflict after which the specific is held to control over the general. Our original opinions skipped the threshold inquiry, as does the majority opinion on rehearing.
Therefore, I would sustain the State’s point on rehearing that we used the wrong standard for determining whether statutes are in pari materia. The inescapable result of using the proper standard is to hold that the election code violations and perjury prosecutions are not in pari materia; thus, prosecutions for either are proper.
No Attempt to Harmonize
Even if the majority opinion were correct that the statutes are in pari materia, the majority opinion made no effort to harmonize' to the extent possible. Cf. Mills, 722 S.W.2d at 413 (conflicting statutes in pari materia will be harmonized to the extent possible). Such an attempt is illustrated by my original concurring/dissenting opinion in which I would have held the trial court correctly applied Eversole to .allegations of omissions, *14but not to allegations of misrepresentations. My rationale was that the Election Code does not proscribe affirmative misrepresentations, only omissions. Thus, there is no conflict with the perjury statute in regard to prosecutions for affirmative misrepresentations in a candidate or officeholder report.
Other Reasons to Grant Rehearing
There are two more reasons to grant the State’s motion for rehearing: (1) to address the correctness of State v. Eversole, 889 S.W.2d 418 (Tex.App.—Houston [14th Dist.] 1994, pet. ref'd, 899 S.W.2d 204 (Tex.Crim.App.1995)); and (2) to address an untimely argument of the State that impacts on an analysis of Eversole.
A. Eversole
The stated basis for the trial court’s ruling was the Eversole case. Clearly, it is the leading case on the issue before us. The majority opinion states it is using its own analysis to reach the same result as Eversole, and peremptorily dismisses the State’s argument that the legislature repudiated the Ev-ersole decision, without any analysis of that decision.
In my concurring/dissenting opinion of August 22, 1996, I concluded that the Eversole opinion was correct as it applied to omissions from a report, but incorrect as it applied to affirmative misstatements in a report. After reconsideration, I have come to the conclusion that the Eversole majority opinion is wholly incorrect. The majority opinion on rehearing acknowledges that the Eversole majority opinion stated the wrong standard of review. Perhaps the most important error, however, is that the Eversole majority overlooked the main distinguishing element between Election Code reporting violations and perjury, namely, intent to deceive. The majority opinion in Eversole erroneously states that both statutes encompass the same mens rea. Id. at 424. It also asserts in regard to perjury that “any motive for not including all the required information is irrelevant.” Id. In perjury, the motive is an element of the offense, i.e., the specific intent to deceive; it is not only relevant, it is the crux of the offense.
Existence of the intent to deceive as an element in perjury eliminates any conflict between perjury and Election Code reporting violations. Therefore, whether Election Code reporting violations involve omissions or affirmative misrepresentations, if a candidate or officeholder swears that the report is true and complete with intent, to deceive, prosecution for perjury is warranted. As the dissenting opinion in Eversole observes, proving intent to deceive is another matter. Id. at 427 (Robertson, J., dissenting).
The majority opinion on rehearing finds the elements of the Election Code violation and perjury the same by equating “knowing failure to include all required information in spite of an oath to the contrary” with “intent to deceive.” A simple example shows the dissimilarity between the two concepts. Most candidate and officeholder activity becomes reportable when an aggregate amount of $50 is reached, except amounts from political contributions spent for nonpolitical purposes where no minimum amount is prescribed. Tex. Elec.Code Ann. 254.031(a)(1), (3) (Vernon Supp.1998). Thus, a candidate or officeholder who spends two dollars from political contributions for nonpolitical purposes might knowingly omit reporting this required information because it is a trivial amount, without intending to deceive anyone.
Because the Eversole majority opinion was the stated basis of the trial court’s decision, because it is the leading decision on the issue, and because it found that both statutes at issue encompass the same mens rea, as well as for other reasons set out below, I believe it is incumbent on us to thoroughly address the correctness of the Eversole majority opinion.
B. The State’s Complaint
The majority opinion on rehearing addresses the State’s complaint that we did not consider an argument presented for the first time in the State’s supplemental brief. The majority peremptorily dismisses the State’s argument because the statute involved does not apply to appellee. While I am unpersuaded that we are obligated to address such *15an untimely argument, I would find the argument worth examining on its merits.
The State’s argument is that two of the rationales for the Eversole decision are undermined by the subsequent enactment of a law providing for prosecution under the perjury statute for Election Code reporting violations. The two undermined rationales are: (1) that elimination of any mention to perjury in the specific election code statute involved here showed a legislative intent that perjury no longer be used to prosecute election code reporting violations; and (2) that Election Code reporting has become so complex that the legislature does not want to punish violations under the perjury statute. See Eversole, 889 S.W.2d at 422-25. The enactment of section 571.077, Texas Government Code, a statute that eliminates the need for swearing to a report filed electronically as a prerequisite to prosecution for perjury clearly contradicts two of the cornerstones of the Eversole majority opinion. Tex. Gov’t Code Ann. _ 571.077 (Vernon Supp.1998).
C. Rehearing En Banc
A final reason to grant the State’s motion for rehearing en banc is the importance of the issue in this ease to the enforcement of statutes attempting to uphold the integrity of the State’s elective system, as well as to police the integrity of candidates and officeholders throughout Texas. We must not recoil, or even appear to recoil, from addressing an issue because it may ultimately affect ourselves, as officeholders who have to make the same bothersome reports.
Conclusion
I respectfully dissent to the majority’s opinion on motion for rehearing.