Perez v. State

DORSEY, Justice,

dissenting.

I disagree with the panel’s decision that article 44.46 of the code of criminal procedure, requiring harm be shown when it is discovered that a disqualified juror participated in the verdict, is contrary,to article 16, section 2 of the Texas Constitution and thus invalid. The purport of the decision is that the constitution compels that any conviction be reversed, whether under collateral or direct attack, if a juror who is disqualified by felony conviction participated in the verdict. I can find no support for such a construction in the constitution, cases, or history of Texas. Accordingly, I dissent.

*763The acts of the legislature enjoy a presumption of. constitutionality under the rules of statutory construction and if a statute can be interpreted in a way that does not conflict with the constitution, we are compelled to favor that construction. Tex. Gov’t Code Ann. § 812.005 (Vernon 1988); Ely v. State, 582 S.W.2d 416, 419 (Tex.Crim.App.1979). I believe the majority has disregarded these fundamental canons of statutory interpretation.

The first difficulty with the majority’s construction is the plain language of the constitutional provision itself. The applicable sentence of article 16, section 2, states:

Laws shall be made to exclude from office, serving on juries, and from the right of suffrage, those who may have been or shall hereafter be convicted of bribery, perjury, forgery, or other high crimes.

Tex. Const, art. XVI, § 2 (emphasis added).

The constitution does not explicitly exclude those persons from office or from juries. Rather, it directs the legislature to make appropriate laws to exclude those persons from office and juries.

The legislature complied with this imperative early in the history of the state and that is reflected in the current code of criminal procedure. Article 35.16(a) of the present code provides that a challenge for cause of a potential juror may be made for a number of reasons, including that he is has been convicted of theft or any felony, or that he is under indictment or other legal accusation for theft or any felony. Tex.Code Crim. Proc. Ann. art. 35.16(a) 2 & 3 (Vernon 1989 & Supp.1998). Article 35.19 makes these disqualifications absolute, as is insanity, even though both parties may consent. Tex.Code Crim. Proc. Ann. art. 35.19 (Vernon 1989). These identical provisions have been, in the predecessor codes of criminal procedure and were carried forward in the recodification in 1965.

However, until 1993 the legislature had not addressed the question of what would result should a convicted felon actually serve on a petit jury. The court of criminal appeals had reached the question in a series of eases: Heath v. State, 161 Tex.Crim. 323, 276 S.W.2d 534, 537 (1955) (new trial should be awarded when a disqualified juror served on the jury);Tweedle v. State, 153 Tex.Crim. 200, 218 S.W.2d 846, 848 (1949) (a person under indictment or other legal accusation for theft or any felony is absolutely disqualified from jury service);Russell v. State, 84 Tex.Crim. 245, 209 S.W. 671, 672 (1919) (a defendant who has been convicted by a jury composed of a juror who has been convicted of a felony requires reversal under (former) code of criminal procedure article 692). In spite of its language that one convicted of a felony is “absolutely disqualified” from’jury service, the court of criminal appeals in Ex parte Bronson held that the defect in the jury did not render the verdict and judgment of conviction void and subject to collateral habeas corpus attack. Ex parte Bronson, 158 Tex. Crim. 133, 254 S.W.2d 117, 121 (1953) (the statute then under review mandated the grant of a new tidal without a harm showing; however, no constitutional imperative was noted).

Similarly, the Texas Constitution does not address what must result should a convicted felon serve in public office or on a jury. That issue would be inferentially incorporated in its mandate to the legislature to “make laws” in that area, or the matter would be left to the courts to determine the effect of a disqualified person serving. As to service on a jury, the legislature was apparently silent until 1993, when it passed article 44.46, in which it declared that a conviction may be reversed if the defendant raises the disqualification of a juror before the verdict is entered. That law also provides that if the disqualification is raised after verdict, the defendant must show that significant harm resulted by the service of the disqualified juror. Tex.Code Crim. Proc. Ann. art. 44.46 (Vernon Supp.1998).

Because the constitution was silent as to the remedy for a violation of its rule that convicted felons not serve in public office or on juries, I believe discretion in this area has been conferred on the legislature and that the legislature, through article 44.46, has permissibly satisfied its obligation.

I am also concerned by the majority’s acceptance, without explanation, of the equa*764tion of the term “high crimes” as employed by article 16, section 2 with any felony. The majority relies on the reasoning espoused in a 1994 criminal action decided by our sister court in Tyler, Welch v. State ex rel. Long, in which that court held: “Neither Welch nor the State cite any authority specifically defining “high crime” as a term of art. In ordinary usage the phrase means nothing more than a serious or grave crime. (Dictionary citation omitted). This suggests, especially after the references to bribery, perjury, and forgery, that the phrase refers to felonies.” Welch v. State ex rel. Long, 880 S.W.2d 79, 82 (Tex.App.—Tyler 1994, writ denied). Welch, the appellant in that action, was removed from the office of constable for having been convicted of the felony of driving while intoxicated. He argued the constitution did not anticipate mere felons in its proscription of public service from those having committed “high crimes.” He argued including that undefined term following the crimes of bribery, perjury, and forgery implied the constitutional prohibition involved crimes of moral tuipitude. Considering the nature of the privileges and duties denied the wrong-doers (public office, jury service, and the right to vote), I am inclined to agree with Mr. Welch. Certainly the identifiable crimes listed involve moral turpitude, and the nature of the offices and rights denied the offenders are positions of elevated public trust inconsistent with those proven to be unworthy of such trust.

The Welchcourt, in equating high crimes with simple felonies, bolstered its rationale by reference to a decision out of the 14th District Court of Appeals in Houston in which that court held a convicted felon was constitutionally barred from holding public office due to a prior felony conviction. Hayes v. Harris County Democratic Executive Comm., 563 S.W.2d 884, 885 (Tex.Civ.App.—Houston [14th Dist.] 1978, no writ). The Houston court did not explain its reasoning, simply stating “the relator is barred by the Texas Constitution and the Texas Election Code from holding public office.” Id. at 885. Certainly the election code makes a felony conviction a disqualification for holding public office.1 Whether the constitution provides such a disqualification does not, however, appear to me to be a settled question. Both of these cases seem to me to be terribly slender threads to support the proposition upon which the majority relies.

For these reasons, I respectfully DISSENT.

. To be eligible to be a candidate for, or elected or appointed to, a public elective office in this state, a person must: ... have not been finally convicted of a felony from which the person has not been pardoned or otherwise released from the resulting disabilities. Tex. Election Code Ann. § 141.001(a)(4) (Vernon 1986).