‘: :
R-317
THEA GENERAL
OFTEXAS
.’
Ron. Jewel1 fielpinst ill, Chairman
Committee on Motor Traffic
House of Representat Ives
Austin, Texas Opinion Ho. V-136
Re: Con&it ut ionalit of
House Bill No. 64 0,
Fiftieth Iegislat ure,
Regular Session, 1947,
relative to reglstra-
tlon of motor vehicles
Dear Sir: bj nonresidents.
House Bill Ho. 690, Fiftieth Iaglslature, Re -
ular Session, 1947, which is a bill to amend Chapter 3$ 2,
page 800, Acts of 1935, Forty-Fourth Iagislature, Regular
Session, reads as follows:
%ec. 2. (a) A nonresldent owner of a
motor vehicle trailer, OP seal-trailer
which has been’duly registered fop ‘the cur-
rent year in the State OP oountrg of which
the owner is a resident and in accordance
with the laws thereof, may, in lieu of reg-
istering such vehicle as otherwise reClulred
by law, apply to the State Highway Depart-
ment through a County Tax Collector for the
registration thereof as provided by law, ex-
cept that the privileges granted as other-
wise provided for in this Act ,shall not ap-
ply to any motor vehicle, trailer, or semi-
trailer operated within this State for the
transportation of persons or property for
compensation OF hire. Provided, however,
that motor vehicles properly licensed in
another State or county operated for cornpen&
sat ion or hire may be allowed to make not
to exceed two (2) trips during any calen-
dar month and remain on each of said trips
within the State not to exceed four (4)
days, without being registered in this
State, in the event thkt under the laws of
/ .
Hon. Jewel1 HelpinstIll, Page 2, V-136
such other State OP country like exaeptions
are granted to motor vehicles registered un-
der the laws of and owned by residents of
this State. Provided that in any prosecu-
t ion, for the violation of this Act, It shall
not be necessary for the State to allege
or prove that there are no like laws in ef-
Sect in such other State or country.
“(b) Provided however, none of the pro-
visions of this Section shall apply to or ex-
empt the operator, owner or lessee of any
motor vehicle being drlven under its own pow-
er, or towed or otherwise transported by be-
ing attached or coupled to some other vehicle
from or through this State over the highways
thereof, for the purpose of sale, resale OP
trade in another State, or after having been
sold, resold, or traded to any person, com-
pany, corporation, or association In another
State, but each such motor vehicle shall be
registered for the Department through the
County Ta% Collector of the US lrst county
through which said motor vehicle passes af-
ter entering this State; OP If moving Prom
this State to another State, of the county
from which said motor vehicle first moves
and a registration See of Three Dollars ($3)
for each such vehicle shall be paid to said
Tax Collector unless such motor vehicle has
been previously registered with the Depart-
ment la lawful manner and license Sees paid.
The Tax Collector of the county where such
registration is had shall furnish the opera-
tor of said motor vehicle with a receipt on
a form prescribed by the Departslent and said
operator shall retain said receipt in his
possession and exhibit same to any member of
the State Highway Patrol, or other peace of-
ficer, for inspection upon request. If said
operator is unable to present said receipt to
said member of the State Highway Patrol,.or
other peace officer, he and the motor vehicle
which he is operating shall be detained by
such member of the State Highway Patrol, or
peace off leer until ‘proper registration is
had and said receipt issued by the Tax Collec-
t,or OS some county through which said motor
vehicle is being, or has been driven OP towed,
or otherwise transported by being attached or
Eon. Jewel1 Helpinstill, Page 3, V-136,
cou+lea to soms other vehicle from OP through
this 3tate over the hlghways thereof O
“(c) Any person or any officer, agent
or employee of any corporation, company,~ or
association who violates any ,of the,~~provi-
slons of this Section shall be guilty of a
mlsdeswanor and upon conviction thereof shall
be fined in an sum of not more than One Hun-
area Dollars ( 3 100) *”
Section 2 of Article 8nb, V. P, C , in Its
present form was enacted by the Forty-fourth Leglsla-
ture, Chapter 342, page 800, Acts of 1935. The only
change made in Section 2 of Article 827b, supra, by
the proposed amendmnt as embraced in House Bill Xo.
690 is .the addition after the ‘second sentence of the
first paragraph of said Section 2 of the following:
“Provided that in any prosecution for
the violation of this Act, It shall not bs
necessary for the State to allege or prove
that there are no like laws in effect in
such other State OP country. v
Article 827b, Vernonss Penal Code, 1s c,om-
manly known in this State as the *Nonresident Temporary
Registration Law‘, and it generally regulates the tempor-
ary~~registration of vehicles operated over the highways
of this State by out of state visitors and nonresidents.
It is a well established ,princlple that the State may
make regulations with respect to the registration of
motor vehicles lwlicable to nonresidents driving Into
or through the State, 1 Blashfield CmloDef~w;~eAuto-
mobile Law and Practice P lH6, page 154 L the
State may grant to nonresidents a limitid use of the
State Highways at a nominal fee by the way of peclpro-
city, and such legislation Is not Invalid as an unrea-
sonable classification; and further, the State may con-
ait ion the use of ,it s hishwavs by nonresidents to those
nouresldents who have co&pli&i with similar legislation
in their respective states, lienrick v. Marrland, 235
U. S. 610, 35 S, Ct. 140, 59 L Ed 385; 1 Blashfield
CYClODedia of Automobile Law a&l Practice g 186, page 154.
The problem presented by the proposed amend-
ment to Section 2 of Article 8Qb, supra, is entirely
different from the general principles above stated
Eon,. Jewel1 Helplnatlll, Page 4, V-136
regardlng~ the right OS the Stats to regulate the :use of 1
Us highways by motor vehlo$es, The serious qmst@a to
be decided involves the rlgbt ,and powd~ of ths bglsla-
tare under our Comtltutlon to dispense ,,wlth Certati al-
tigaticms aad p00r on the part 0r tb State la the pro-
wcutitm 0r a pars06 r0r ths rioma ,0r a cmnuml sta-
tute. ~~
btwu I,. s8d.i~ 10, 0r the Dooetltatioa 0r
Texas provides in .k#rt ,a*, r0iim8 3,
‘In’ all crlmlnal prosecutions ths accused
ahail haye a speedy public trial. by an qr-
Art,icle I, Section 19, or %Iw Ckutltutloa of
Tour provides .as .roUowa 8 ,’
‘%e citisea of this State shall bs de-
prived of ,Plfe, liberty+ pyoportye prlvlleges
or lmmualt iea 9 OP in any mm8r di8fraaehiseU
It Is to be observed that under Article Wb,
scct1oi 2, vo P. c., as it now staads, aka also as pro-
Plded for in House BIPP 690, the privileges granted to
a nonsesldelat whose vehicle Is properly registered, for
the current year in the State or country of which he Is
a msidetlt do not apply to any motor ‘vehicle, trailer,
OP aeli-trailer operated wfthin this State fop the trans-
portation of persolsa or property for compensation dr hire,
with ths exceptiom, however, that motor vehloles priwerly
llceassd in another State OF country aad osmratod far oon-
pe@satloa or hire may be allowed to ~m)P aot to .ezeeed
two trips durlmg aay calelldar msmtkand wrlm on ewh ..0r,
sold tilps wlthlm this State mot to exste~d fm..&m with-
out rqiaterlng im t&la State, lm’tb l s
vemt tW% ‘WSerb. .’
lawr or suah other State or ooumt~ BiL, uurp%tou @re
granaed to motor vghieles nglstero& tder tL .tw8 of
Texas and omed by resldolats of Taxar* I@ 0-r mm.,
and stated In aaether way, a motor vehlel? :m$ or~owr-
ated by a nonresldeat ,aed used rr tbs tra&W%@tlw Or
property or persons ror oorpemsatlorr or him ,r~:m mot
to exceed two trips into this State ,ia amy ok aalmdar
ronth and r&sain here not exceedlgg four days on each
Ron, Jewel1 Helpinstill, Page 5, V-136
trip without registering his vehicle in this State pro-
vided a citizen of Texas is granted the same rights and
privileges in the operation of his motor vehicle In the
State or country and under the laws of the State or coun-
try of which the nonresident Is a resident. All of these
matters are provided SOP in the sams section of the Act
and within the same paragraph.
As the statute now reads, and without re ard
to the proposed amendment contained In House Bill %90,
it is necessary in a prosecution for violation of the
statute for the State to allege and prove the exceptions
regarding not more than two trips in a calendar month
and the non-existence of reciprocity In laws between Tex-
as and the State OF country of which the accused is a
resident. The amendment embraced in House Bill 690 would
dispense with such allegationa and proof O It is to be
noted, however, that even under the amnamnt all these
matters are still contalned in the same section and para-
graph, including the new and additional sentence which
dispenses with the now necessary allegations and proof.
If was established at an early date in this
State that it was beyond the power of the Legislature
to dispense with the statement in an IndictlDsnt of that
which is essential to the description of the offense,
and any statute which authorizes the oaissioa of the es-
sential Darts of the descriDtlon of an offense is in vlo-
latlon of the Bill of Rightb contained in o& State Con-
stitution (Art. I). Hewitt v. State, 25 Tex. 722 (Sup.
Ct e 1860); Stat. v. Duke 42 T 455 (sup. Ct* 1875)
It was under this established g&iple of law that tie
courts of this State struck do& the- “CommonSense In-
dictment Act of 1881”, which dispensed with numerous
allegations previously required in an indictment, hold-
ing that the form of indlctmsat prescrlbsd by the Legla-
lature under that Act was repwnant to Section 19 of Ar-
ticle I of the Constitution.‘ ~llllams v. State, 12 Cr.
R, 395 6Tex. Grim. App, 1882); YOUR v’. State, 12 CP. R.
614 (Tex. Grim. App. 1882)*
It is believed that a discussion of the lead-
lag cases touching upon the problem and question here
presented will be helpful,
In Hewitt v, State, supra, decided by the Sup-
rem Court in 1860 the accused was Indicted and convicted
for selling whiskei, At the time there was no inhibition
in this State against the sale of whiskey unless it was
Hon. Jewel1 Helpinstill, Page 6, ‘J-136
sold without a license. The statute under which the ia-
dictment was had provided In part that “if any persoa or
firm shall sell or be in any wise concerned in selling
spirituous, vlnous, or other Intoxicating liquors In ..’
quantities less than one quart, without first havlng.ob-’
tained a license D O O h”,, she ,or they shall be deemed
guilty of a misdemeanor, and %hat In all prosecut ions
for any violations of any of the provisions of this act,
it shall be sufficient to allege and prover that the per-
aon charged with any such violation, did sell, or was
concerned in selling spirituous, vinoua, oc lntoxlcatlng
because the very omission authorized was a necessary il-
ement of the offense O The Oourt said:
nlat of the offen8e lm the omlsaioa
or pr iv lleges , outlawed, exiled,
manner, disfranchised, except by due course
of the law of the land, 8 Bill of Rights,
0. & No Dig. 14. ’ (l&hasis ourr)
The question of the actual location in the
statute of the exception or omlrslon clause war not dis-
ctured or apparently considend in the powitt Olre, It
is plain from the case that the offense involved could
not be charged without allegiag the sale us8 without a
license. The case has been uniformly followed by the
Court of Crimllral Appeals.
SolPb fifteen years 18ter in ,A-+&cI
9 ate v
supra, the Suprelre Court waa called upon to de ermine
the validity of aa lndictmebt charging a person with
carrying a pistol without negation of the exceptions
contained in the statute with reference to pollaemen
Hon. Jewel1 Iielplnstlll, Page 7, v-136
end others enursreted. The exceptions in the stetute
appeared as (I part of the sams paragraph end sect Ion
making it an offense to carry 8 pistol, The court held
the exceptions essential parts of the offense, srylng:
*But beinn essential Darts of the des-
Subsequent to the rendition of the opinion
in the Duke Case the Legislature changed the statute
mklng it an offense to carry a pistol 8nd all those
matters regarding exceptions to its appllcrtloa were
placed la 8 separate rrtlcle 0 Thererfter It VU ml-
iformly held that it was not necessary to negative
the exceptions referred to la the Duke C e in an ln-
dlctwnt or information0 See ye&e, 106 s. ii.
(26) 308 (Tex, Crlm, App, 1937 D
In ltranchss Annot8ted penal Code, Section 510,’
e number of cesea are cited holding 8nd ennounctig the
rule that where the exceptions to 8 pen81 st8tute 814
lo distinct articles or section8 from th4 a&o d4flniag
the offense, or they are not a necessary prrt of the
definlt ion of the offense, or descrlptlve of it, and if
the exception is not the gist of the offense, it is not
necessary to negative the exception, Williams v, State
39 3. W, 664 (Tex, Grim, App. 1897); Lowem v, State, 165
3 W. 7 ('Per, Grim, App, 1916).
The next era in our criminal jurispradsac4 which
is outstanding la so fer 88 the question hereln lavalv$d
is concerned began with the enactwnt of the “Dean Law
in 1919. That lew as orlglnelly enacted provided in pert
that “It shall be unlawful for any person . n . to . . r
sell, 0 0 e spirituous, vlnous or melt liquors 0 0 . ex-
cept for ~dlclnal, mchenlc~l, scientific or sacrewntal
purposes. There was no provision in the statute saying
thet it wes not necessary on the part of the State to
Bon. Jewel1 Helpinstill, Page 8, V-136
allege or prove these exceptions. However, the Court
of Criminal Appeals consistently held under this sta-
tute that it was absolutely necessary to aegstive the
except Ions, and it thus seems” certain that the court
would have held any attempt on the part of the legis-
lature to dispense with such exceptions in the law ea
written as unconstltutlonal,
~’I&or the ‘Bebh fdw” wes’dwnded by the bg-
lslature end the exceptions with regard to mediclnel,
mschanlcal, sclent lflc or sacrawntal purposes were
placed in a separate section of the rtstute. end the
court thereafter, beginning with Crowlay v.-State, 242
9. W. 472 (Tex, Crlm. ADD. 1922). conslsteatla held
that it wea not aec8s&$
* I~., to- negitlve
the exc&&ions
in the indictment.
The repeal of the ‘Bean Law” end the enact-
mat of the Texas Liquor Control Act (Article 666-l,etc.,
Vernoa’s Penal Code) again brought before the courts fur-
ther discussion OQ the uest lam involved. In Anderson
v. Stete, 105 S. W. (26 3 258 (Tex, Grim. App. liJs6j the
court was celled upon to consider en information flied
under Article 666-25, V. P. C., which et the time pro-
vided that “no sale or delivery of liquor shell be made
on~.or from the premises of the, holder of any permit (ex-
cept. upon the pre%criptlon of a duly licensed physician):
. . . On Sundays 0 The court held the Information funda-
menttilly defective for failure to negative the exception
regarding a prescription by a physician, end thla not-
withstanding Section 9 of the Act (666-9, V. P, C.) mak-
ing it unnecessary to negative an exception in any ln-
dlctwnt or Information filed under the Act, In so hold-
ing the court said:
“we are not unaware of the fact
that section gr art, 1, of said chep. 467,
supra (Vernon’s Ann. P. C. art, 666-g),
provides in general terms that it shall
not be necessary for any information, com-
plaint, or indictment to negative any ex-
ception contained in this act concerning
any prohibited act, etc., but this court
has uniformly held that where the excep-
tion is written in the body of the law, and,
as said in 90811)of the cases, is made part
of the enacting clause of the statute lt-
self, we cannot give application to the
Eon. Jewel1 Fieipinstill, Page 9, V-136
terms of section 9, supra.
la so clearly made pert of
18 a0 plalaly written. - . . the very deflnl-
into
tlon and descrlptlon or We offease a8 that
one crnnot be read without the Other. It
woull have been compa*tively easy for iSi3
'Licgi~ixhlra 'Ltl 'msm7-WI4 +.?k%bs!!w&t~4m2a'*F&t
separate clause. or to have writtsn it In'
(I separate place so aa that we would not
be cosnwlled to hold it en OssWitlal MEt
of ut 88
we find it we do not feel DrlvlleRed to
strike down the uxeat number OS decisions
written by this court and by ours lllustFiOQ&
predecessors. hence our holdiarr a8 above ..
Indicated." Uhuphasls 0Ur8)
Finally, ths'court of Criminal Appeals In E-
lr v. Stete, supra, after reviewing all the 1eadLng auth-
orities on the different phases of the question presented
in this opinion, announced and restrted the controlllng
rules on the subject. The court said:
II
. ..a
.
?t would seea too plain for 8Fgumsnt
that if the exception or omission mntloned
In 8 statute be a necessary Dart of the des-
crlotloa of the offense, it should be set
out end properly negatived in order to wet
the constitutional guar~antee to every cltl-
eon, of en lndlctlasnt which should state the
nature end character of the offense charged
Eon. Jewel1 Eelplnstlll, Page 10, V-136
“We feel impelled to say that lf there
be possibly an exception to the rule above
mentioned, it must be when the except ion or
omission, as in the Hewitt Case, supra, is
of the very gist of the offense, and then
same would have to be neget lved la the ln-
dlctment, no mstter where its location in
the statute, end the bglslature in such
18tter case would be powerless to enact e
statute making it unnecessary to negative
such 8n exception, end this, es stated,
whether such exception be in the article
defining the offense or be in 8 separate
art lcle. In other words, If the thing for-
bidden by the particular statute under con-
sideration could not be proved, or the case
could not be made out without proof of the
so-called exception or omission, then arid
exception would be (I necessary elewnt of
the offense, and its existence should be
negatived in the indictmat and find sup-
port la proof.
“If, however, the exception be of such
form and oharacter es that a prima facie
case could be made out rgalnst the accused
for the vlolatlon charged, without proof of
the oml8sion or exception, then ciesriy the
Iaglslature might by enactment have placed
such except ion in 8 separate article or sop
t ion and there is no need for their negat Ion. ’
@mphasls ours)
The rules announced ,ln Baker v. State,
aupre, heve found 8ppilcstlon in prosecutions for the
illegel practice of law under Article 430a, V. Pp. C.,
Howlsad v. State, 151 3, W. (2d) 601 (Tex. Crlr. App.
1941); prosecutions for the illegal practice of op-
towtry under Articles 735- 38, V. P. C,, Blumber v.
State, 161 9. W. (26) 1082 1Tax. Crlm. App.--?m+ 1
Eon. Jewel1 Helpinstill, Page 11, V-136
end prosecutions for unlawful
under Article 725b, V. P. C. w.
(26) 196 (Tex. Grim. App. 1945
Applybag the above principlea to Article 8ub,
v. P. c., es it Is emended by House Bill Ilo; 690, it Is
our opinion that the reglstratlon exception contained
therein with respect to motor vehicles. of a nonresident
operated into this State and transporting persons or
property for compensation or hire set more than two trips
la any calendar month and to remala here not to exceed
four days on eny~ one trip In the event of reciprocity
in law between this State and the State or oountry bf
the nonresident, being 8 part of the ,sectlon itself
deiflnlng the offense, must be considered descriptive of
the oifense Itself. It would therefore be neoessary on
the part of the State in an lnforwtloa or ladictwnt
charging 8 person for violet ion of the pertlouler of-
fense, to negative such exception by proper allegationsr
Any attempt on the pert of the Legislature to dispense
with such necessary sllegetion end proof on the part of
the State would in 811 probability be held to vi&late
Sections 10 and 19 of Article I (Bill of Rights) 09 the
State Constitution under the doctrl&e of Hewitt v. State,
supra, end other cases previously cited, end thus ths
very thing sought to be accomplished by Honse Bill Ilo.
690 would be defoeted.
We ere of the further o~laion, however, taat~
this objectlonabl4 feature may be cure’d by placing the
exception in e separate and dlstlnct aeatlon, or article,
separate end apart from Section 2 of said Act. In the
event this is done the particular wording of the excep-
tion as now provided for in Article 8T7b, Section 2; amtY
also es now contained in House Bill No. 690, should prob-
ably, for the sake of clarity be MQ#ttly @hanged.
SlllQURY
House Bill 690 making it unnecessary
in prosecutions arising under Article 827b,
Section 2, V. .P. C., aa amended by said H.
B. 690, for the State to ellege or prove
the exception contslned thereln with ref-
erence to reciprocity In laws is ln viola-
tion of Sections 10 end 19 of Article I of
the State Constitution under the doetrlne
.
.
Bon. Jewel1 &lpinstlll, Page 12, ,V-136
of Hewitt V. State, 25 Tex. 722, and Beker
v. State, 106 3. g0 (26) 308 (Tex. Crr
-7) end ceses there cited, inasmuch
es said exception is contained In, end is
e part of, the section defining the offense,
end is descriptive thereof,
Your8 very truly,
ATTORREYOERERALOF TEXAS
BY 4dLw5;1T-
Qmrles D. Mathews'
Assistant
APPROVgDAPR. 10, 1947
m!l: jt :mrj &!iikiiu
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