Opinion

State of Texas v. Ellis, James Walter

Court: Court of Criminal Appeals of Texas
Filed: Jun 27, 2007
Status: Published
Cited by: 0 cases
Authority: More cited than 38.1%

observing that Section "4.09(a)(3) of the Act was amended in 1979 to specifically include the 'attempt to acquire or obtain possession of a controlled substance' in the description of offenses under that section."

How later courts described this case

observing that Section "4.09(a)(3) of the Act was amended in 1979 to specifically include the 'attempt to acquire or obtain possession of a controlled substance' in the description of offenses under that section."

Written by the judges who cited it.

The opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. PD-826-06, PD-827-06, PD-828-06, PD-829-06,

PD-830-06, PD-831-06, PD-832-06, PD-833-06

THE STATE OF TEXAS

JOHN DOMINICK COLYANDRO, JAMES WALTER ELLIS, and

THOMAS DALE DELAY, Appellees

ON STATE'S PETITIONS FOR DISCRETIONARY REVIEW

FROM THE THIRD COURT OF APPEALS

TRAVIS COUNTY

Keasler, J., delivered the opinion of the Court in which Keller, P.J., and Price,

Womack, and Hervey, JJ., joined . Keller, P.J., filed a concurring opinion in which Price,

J., joined . Price, J., filed a concurring opinion . Cochran, J., filed a dissenting opinion in

which Meyers, Johnson, and Holcomb, JJ., joined .

O P I N I O N

Charged with conspiracy to violate certain provisions of the Election Code, John

Dominick Colyandro, James Walter Ellis, and Thomas Dale Delay moved to quash the charges.

They contended that the State failed to allege an offense based on our prior decisions

implicitly holding that the offenses defined in Title 4 of the Penal Code, which includes the

criminal conspiracy statute, do not apply to offenses defined outside the Penal Code. The trial

judge agreed and quashed the charges. The State appealed, and the Third Court of Appeals,

bound by our prior holdings, affirmed. The State then petitioned for review, arguing that the

lower court erred because our prior decisions can be distinguished or should be overruled. We

hold that our prior decisions are not subject to distinction and, after examining the

Legislature's actions following those decisions, we adhere to our precedent and affirm the

Court of Appeals's judgment. I. Procedural Background In 2005, two Travis County grand juries presented indictments charging Colyandro,

Ellis, and Delay with, among other things, conspiracy to violate the Election Code. In the third

count of an indictment returned by a grand jury to the 147th Judicial District Court on

September 13, 2005, Colyandro and Ellis were charged with conspiracy to make an unlawful

political contribution in violation of Texas Penal Code Section 15.02 and Sections 253.003(a),

253.094(a), and 253.104 of the Election Code on or about September 13, 2002. An

indictment returned on September 28, 2005, to the 147th Judicial District Court charged

Colyandro, Ellis, and Delay with conspiracy to make an unlawful political contribution in

violation of Section 15.02, Penal Code, and Election Code Sections 253.003, 253.094, and

253.104 on or about September 13, 2002. Finally, a two-count indictment was returned on

October 3, 2005, to the 403rd Judicial District Court. The first count of the indictment, which

presented two charges, alleged in part that Colyandro, Ellis, and Delay conspired to make an

illegal political contribution to a candidate for the Texas House of Representatives in violation

of Section 15.02 of the Penal Code and Subchapter D of Chapter 253 of the Election Code "on

or about and between the sixth day of September, A.D., 2002, and the fourth day of October,

A.D., 2002[.]"

Colyandro, Ellis, and Delay moved to quash these charges, contending that they did not

allege an offense under Texas law. Relying on our decisions in Moore v. State (1) and Baker v.

State , (2) Colyandro, Ellis, and Delay argued that Section 15.02 of the Penal Code--the criminal

conspiracy statute contained in Title 4 of the Penal Code--did not apply to Election Code

violations in 2002.

In Moore , the appellant was convicted in 1975 under the newly-enacted 1974 Penal

Code of "attempting to obtain a controlled substance by fraud." (3) On appeal, the appellant

claimed that the indictment was fatally defective because the Penal Code's criminal attempt

provision, Section 15.01(a), located in Title 4, did not apply to the Controlled Substances Act. (4)

Finding that Section 1.03(b) of the Penal Code specified that only Titles 1, 2, and 3 of the

Penal Code were applicable to offenses defined outside the Penal Code, we held that the

attempt statute did not apply to the Controlled Substances Act. (5) Responding to the State's

argument "that the Legislature intended for the criminal attempt provision . . . to apply to the

Controlled Substances Act[,]" (6) we noted that the Legislature omitted any attempt provision

when it enacted the Controlled Substances Act shortly before enacting the new Penal Code

even though it had retained such a provision in the Dangerous Drug Act. (7) We stated:

we cannot agree that the Legislature in enacting the Controlled Substances Act

. . . made such omission with the knowledge that the new Penal Code (effective

four months after the Controlled Substances Act) would make the necessary

provisions for making any attempt to violate any provisions of the Controlled

Substances Act a criminal offense. (8)

Less than five months later, in Baker , we held that the Penal Code's criminal conspiracy

statute did not apply to the Controlled Substances Act. (9) Following Moore , we concluded:

"Since the criminal conspiracy provisions of . . . Penal Code, Sec. 15.02 are also contained in

Title 4 of the new Penal Code, the general provisions of . . . Penal Code, Sec. 1.03(b) . . . do

not apply to Sec. 15.02[.]" (10) As a result, we reversed the trial court's judgment revoking the

appellant's probation for the offense of conspiracy to sell marijuana, remanded the case, and

ordered the prosecution dismissed. (11)

We reaffirmed Moore and Baker in subsequent cases: Ex parte Lopez , (12) Ex parte

Barnes , (13) Ex parte Russell , (14) and Brown v. State . (15)

Shortly after the Moore - Baker line of cases was issued, the Legislature added Section

4.011 to the Controlled Substances Act in 1981. (16) When enacted, Section 4.011 provided that

"[t]he provisions of Title 4, Penal Code, apply to Section 4.052 and offenses designated as

aggravated offenses under Subc hapter 4 of this Act . . . ." (17) In 2003, the Legislature added a

similar provision to the Election Code, Section 1.018, titled "Applicability of Penal Code." (18)

Section 1.018 states: "In addition to Section 1.03, Penal Code, and to other titles of the Penal

Code that may apply to this code, Title 4, Penal Code, applies to offenses prescribed by this

code." (19)

Countering the arguments of Colyandro, Ellis, and Delay, the State argued that Moore

and Baker are distinguishable because they addressed the Controlled Substances Act, not the

Election Code, and, in the alternative, were wrongly decided. After reviewing the documents

filed by the parties, the trial judge quashed the Election Code-based conspiracy charges. The

indictment returned on September 28, 2005, was dismissed. The State then filed interlocutory

appeals challenging the trial judge's decision. (20)

The Austin Court of Appeals affirmed the trial judge's decision. (21) The court issued a

published opinion styled State v. Delay (22) and two unpublished opinions styled State v.

Colyandro (23) and State v. Ellis , (24) which cited the court's reasoning in Delay as controlling. (25)

In the court of appeals, the State reasserted the arguments that it had presented to the trial

judge--that Moore and Baker can be distinguished and, alternatively, were incorrectly

decided. (26)

The court of appeals first considered the State's claim that Moore and Baker were

wrongly decided. It concluded that as an intermediate appellate court, it was without authority

to overrule this Court's precedent and was therefore bound to follow Moore and Baker . (27) But

the court did suggest that we revisit Baker , stating that " Baker appears to be based on

questionable reasoning and is arguably in conflict with the history of the criminal conspiracy

offense in Texas as well as the growing legislative trend to propagate felony offenses

throughout the various statutory codes." (28)

Focusing on the history of Texas's criminal conspiracy law, the court stated that " Baker

was a marked departure from the generally applicable conspiracy offense that had been on the

books for ninety years." (29) The court also stated that Baker 's holding was not consistent "with

the state bar committee on the revision of the penal code's comment that section 15.02(a) was

intended to 'clarify present law without substantial alteration.'" (30) Looking at the criminal

conspiracy statute and the definition of "felony" provided in Section 1.07(23) of the Penal

Code, the court added that when read together, nothing in these provisions "suggests a

legislative intent to limit conspiracy to offenses found within the penal code." (31) The court then

noted that Section 1.03(b) "does not necessarily limit the applicability of other provisions." (32)

Last, the court observed that the Legislature has codified numerous felony offenses outside

the Penal Code and that it is "unlikely that the legislature would have intended to eliminate

criminal liability for conspiracy in such a panoply of felony offenses." (33)

The court then considered whether Baker is distinguishable and "should be limited in

application to the controlled substances act." (34) Rejecting the State's argument that the

reasoning we used in Moore is "inapplicable to this case because the legislative history of the

election code differs from that of the controlled substances act[,]" the court stated that "the

discussion of legislative history in Moore was not carried forward by the court of criminal

appeals in Baker ." (35) Baker , the court reasoned, was based solely on an interpretation of

Section 1.03(b). (36) As a result, the court held that Baker "applies with equal force to any

offense found outside the penal code whether in the controlled substance act or the election

code" and that the trial judge correctly found "that Baker generally limits the application of

the penal code's criminal conspiracy provision to felony offenses contained in the penal

code." (37)

The State petitioned for review, presenting the following ground for our consideration:

"The court of appeals erred in holding that, prior to September 1, 2003, the criminal

conspiracy provisions of section 15.02 of the Texas Penal Code did not apply to the felony

offense of making an illegal contribution under the Texas Election Code." We granted review.

II. Analysis

Advancing the same arguments it offered in the district court and the court of appeals,

the State urges us to (1) expressly overrule Moore and Baker or (2) limit their application.

We first address the State's argument that Moore and Baker should be limited. The

State argues that the court of appeals erred by extending Moore and Baker to offenses defined

in the Election Code and requests that we restrict Moore and Baker to inchoate offenses

involving an object offense defined in the Controlled Substances Act.

Title 1 of the Penal Code, labeled "INTRODUCTORY PROVISIONS," includes Chapter

1, which is designated "GENERAL PROVISIONS." (38) Section 1.03 of the Penal Code is

located in Chapter 1 of Title 1 and is titled "Effect of Code." (39) The version of Section 1.03(b)

in effect when Moore and Baker were decided stated:

The provisions of Titles 1, 2, and 3 of this code apply to offenses defined by

other laws, unless the statute defining the offense provides otherwise; however,

the punishment affixed to an offense defined outside this code shall be

applicable unless the punishment is classified in accordance with this code. (40)

In Moore , based on our reading of Section 1.03(b), we held that Section 1.03(b)

precludes the application of the criminal attempt statute, contained in Title 4 of the Penal

Code, to offenses in the Controlled Substances Act. (41) And in line with our interpretation of

Section 1.03(b) in Moore , in Baker we held that the criminal conspiracy statute, also contained

in Title 4, does not apply to offenses in the Controlled Substances Act. (42) As the State correctly

concedes, our interpretation of Penal Code Section 1.03(b) in Moore and Baker yielded broad

implicit holdings--that the inchoate offenses contained in Title 4 do not apply to offenses

defined outside the Penal Code. Therefore, the court of appeals did not err in extending Moore

and Baker to criminal offenses defined in the Election Code, and we decline the State's

invitation to limit our holdings in those cases.

We next consider the State's contention that Moore and Baker should be overruled.

Relying on our decision in Boykin v. State , which established our principal rules for statutory

interpretation, (43) the State argues that under the plain language of Section 15.02 of the Penal

Code and the definition of "felony" in Section 1.07(a)(23) of the Penal Code, the offense of

criminal conspiracy applies to all felony offenses defined under Texas law. Continuing, the

State claims that when the plain language of Sections 1.07(a)(23) and 15.02 of the Penal Code

are considered in combination with the plain language of Sections 253.003, 253.094, and

253.104 of the Election Code, the offense of criminal conspiracy applies to the felony offense

of unlawfully making a political contribution.

To put the State's argument in perspective, a review of the statutes cited by the State

is beneficial at this point. "Felony," as defined in Penal Code Section 1.07(a)(23), "means an

offense so designated by law or punishable by death or confinement in a penitentiary." (44)

Section 15.02, Penal Code, located in Title 4, defines the offense of criminal conspiracy and

states, in relevant part:

(a) A person commits criminal conspiracy if, with intent that a felony be

committed:

(1) he agrees with one or more persons that they or one or more of them

engage in conduct that would constitute the offense; and

(2) he or one or more of them performs an overt act in pursuance of the

agreement. (45)

Section 253.003 of the Election Code defines the offense of "Unlawfully Making or

Accepting Contribution." (46) Under Subsection (a) of Section 253.003, "[a] person may not

knowingly make a political contribution in violation of" Chapter 253 of the Election Code. (47)

Subsection (b) states that "[a] person may not knowingly accept a political contribution the

person knows to have been made in violation of" Chapter 253. (48) "A violation of Subsection (a)

or (b) is a felony of the third degree if the contribution is made in violation of Subchapter D." (49)

Located in Subchapter D, Section 253.094, titled "Contributions and Expenditures

Prohibited," states:

(a) A corporation or labor organization may not make a political contribution or

political expenditure that is not authorized by this subchapter.

(b) A corporation or labor organization may not make a political contribution

or political expenditure in connection with a recall election, including the

circulation and submission of a petition to call an election.

this section is a felony of the third degree. (50)

Section 253.104, also located in Subchapter D, is labeled "Contribution to Political

Party." (51) Under Subsection (b), "[a] corporation or labor organization may not knowingly make

a contribution authorized by Subsection (a) during a period beginning on the 60th day before

the date of a general election for state and county officers and continuing through the day of

the election." (52) Subsection (a) permits "[a] corporation or labor organization" to "make a

contribution from its own property to a political party to be used as provided by Chapter

257." (53) A violation of Subsection (b) is a third-degree-felony offense. (54)

In opposition, Colyandro, Ellis, and Delay collectively argue that the plain language of

Section 1.03(b) establishes that the criminal conspiracy statute does not apply to offenses

defined outside the Penal Code unless an extra-Penal Code provision provides otherwise. And,

as a result, they contend that in 2002, Section 15.02 did not apply to violations of the Election

Code. They further claim that Moore and Baker were correctly decided and fault the State for

failing to acknowledge the Legislature's response to Moore and Baker --the addition of

Section 4.011 to the Controlled Substances Act--and the Legislature's 2003 amendment to

the Election Code, which added Section 1.018. The Legislature, they argue, could have

amended Section 1.03(b) to include Title 4, but did not.

During oral argument, we sought clarification from the State about its position on the

various Penal Code provisions at issue. We asked whether Section 1.03(b) has the effect of

exporting only Titles 1, 2, and 3 of the Penal Code to offenses defined outside the Penal Code

unless the extra-Penal Code statute defining an offense provides otherwise. The State agreed

with this characterization of the effect of Section 1.03(b). And when questioned about whether

the definition of "felony" in the Penal Code has the effect of importing felony offenses

defined outside the Penal Code into certain offenses defined in the Penal Code, and in

particular, the criminal conspiracy statute by virtue of the statute's requirement that a person

commit the offense "with intent that a felony be committed[,]" (55) the State again agreed with this

characterization of the combined effect of the definition of felony and the criminal conspiracy

statute.

2. Over fourteen years after interpreting Section 1.03(b) in Moore and Baker , we issued

our decision in Boykin . (56) There, we said that when interpreting a statute to give effect to the

"collective legislative intent or purpose," we concentrate "on the literal text of the statute in

question and attempt to discern the fair, objective meaning of that text at the time of its

enactment." (57) We will give effect to the plain meaning if, "when read using the established

canons of construction relating to such text," the meaning of the text "should have been plain

to the legislators who voted on it[.]" (58) We will not apply the plain language, however, if (1) the

"application of a statute's plain language would lead to absurd consequences that the

Legislature could not possibly have intended," or (2) the language is ambiguous. (59) In those

instances, we will consult extratextual sources to reach a rational interpretation. (60)

Although we did not invoke Boykin 's rules for statutory construction when discerning

the meaning of Section 1.03(b) in Moore and Baker , our approach nevertheless conformed to

Boykin 's mandate. In Moore and Baker , we focused on the literal text of Section 1.03(b) and

found that Section 1.03(b) does not apply to the criminal attempt and conspiracy statutes. (61)

Because Section 1.03(b) references only Titles 1, 2, and 3 of the Penal Code, we concluded

that the criminal attempt and conspiracy statutes in Title 4 of the Penal Code did not apply to

offenses defined in the Controlled Substances Act. (62) Our review of the predecessor statutes

to the Controlled Substances Act in Moore was ancillary to our holding. (63) Those statutes were

reviewed solely to address the State's argument that the Legislature intended the criminal

attempt statute to apply to the Controlled Substances Act. (64) This determination is bolstered

by our subsequent decision in Baker . As the court below correctly observed, Baker 's holding

was based exclusively on our "interpretation of section 1.03(b) of the penal code to limit the

applicability of title 4's conspiracy provision to offenses found within the penal code." (65)

But given the State's arguments here, we must consider whether we reached the correct

result in Moore and Baker ; specifically, whether Section 1.03(b) is determinative and

therefore precludes the application of the criminal conspiracy statute to felony offenses

defined outside the Penal Code. In doing so, we must ask: Were we remiss in considering only

Section 1.03(b), thereby failing to take into consideration the criminal conspiracy statute,

Section 15.02, Penal Code, and the definition of "felony" in Section 1.07(a)(23) of the Penal

Code in Baker ? Compelling legislative ratification of our prior interpretation of Penal Code

Section 1.03(b) leads us to conclude that the answer is no.

When faced with a challenge to a prior judicial construction of a statute, we have long

recognized that prolonged legislative silence or inaction following a judicial interpretation

implies that the Legislature has approved of the interpretation. (66) "[W]e presume the

Legislature intends the same construction to continue to apply to a statute when the Legislature

meets without overturning that construction." (67) In recognition of this, we have, on occasion,

when reaffirming a prior judicial construction of a statute, stated that the prior interpretation

was correct when, over the course of many years, it had not been legislatively overruled. (68)

More recently, however, we stated that "legislative inaction does not necessarily equate

to legislative approval." (69) When implying legislative ratification, we observed that there is a

distinction between legislative inaction after judicial construction and the Legislature's

reenactment of a statute following judicial construction:

Certainly when a legislature reenacts a law using the same terms that have been

judicially construed in a particular manner, one may reasonably infer that the

legislature approved of the judicial interpretation. There is considerably less

force (though still some) to the argument that if a legislature does not agree

with the judicial interpretation of the words or meaning of a statute, the

legislature would surely have immediately changed the statute. (70)

Therefore, the following statement, the substance of which originated from a case before us

in 1946, remains true today: "where a statute has been reenacted by the Legislature with

knowledge of the judicial construction thereof a court would not be justified in overruling such

decision." (71)

The Legislature's actions following Moore and Baker and their progeny demonstrate

that it has ratified our interpretation of Section 1.03(b). Since those decisions, the Legislature

has carefully crafted statutes to make offenses defined in Title 4 of the Penal Code directly

applicable to offenses defined outside the Penal Code. The Legislature has also retained extra-Penal Code criminal statutes incorporating conspiracy or attempt or both. In other instances,

the Legislature has amended or enacted extra-Penal Code criminal statutes to include either

conspiracy or attempt or both. At the same time, the Legislature has abstained from amending

Section 1.03(b) of the Penal Code to include Title 4.

Shortly after the Moore - Baker line of cases, in 1981, the 67th Legislature added

Section 4.011 to the Controlled Substances Act, which made Title 4 applicable to Section

4.052, the offense of illegal investment, (72) and offenses designated as aggravated under

Subchapter 4 of the Act. (73) The Legislature, therefore, did not provide for the unlimited

application of Title 4 to offenses in the Controlled Substances Act. Punishment for an offense

was designated to be "the same as the punishment prescribed for the offense that was the object

of the preparatory offense." (74) The 68th Legislature, during the 1983 Regular Session, amended

Section 4.011 to include the identical text that was added by the 67th Legislature when Section

4.011 was first enacted. (75) Accordingly, the same qualifications placed on the application of

Title 4 by the 67th Legislature remained intact when the next Legislature amended Section

4.011.

In 1989, the 71st Legislature moved the Controlled Substances Act from the Revised

Civil Statutes to the Health and Safety Code. (76) Section 481.108 of the Health and Safety Code

is the successor statute to Section 4.011. The Legislature again provided similar limitations

on the applicability of Title 4 to offenses defined in the Controlled Substances Act. Section

481.108 stated:

Title 4, Penal Code, applies to Section 481.126[, which defines the offense of

Illegal Expenditure and Investment,] and offenses designated as aggravated

offenses under this subchapter, except that the punishment for a preparatory

offense is the same as the punishment prescribed for the offense that was the

object of the preparatory offense. (77)

Notably, despite the addition of a provision making Title 4 applicable to specific offenses in

the Controlled Substances Act and subsequent amendments to that provision, all of which were

made during a nine-year period, the Legislature never amended Section 1.03(b) of the Penal

Code to include Title 4.

The 73rd Legislature amended both Section 481.108 of the Health and Safety Code (78)

and Section 1.03(b) of the Penal Code in 1993. (79) Both statutes were considered and amended

pursuant to Senate Bill 1067.

In amending Section 481.108, the Legislature further restricted the applicability of

Title 4, making it applicable only to the offense of illegal expenditure or investment as defined

in Health and Safety Code Section 481.126. As amended, Section 481.108 read as follows:

Title 4, Penal Code, applies to Section 481.126, except that the punishment for

a preparatory offense under Section 481.126 is the punishment for a first degree

felony. (80)

The Legislature deleted the reference to offenses identified as aggravated in Section 481.108 (81)

and also deleted the designation of "aggravated offense" from various offenses defined in

Chapter 481. (82)

Before the Legislature's 1993 amendment of Section 1.03(b), Section 1.03(b) stated:

The provisions of Titles 1, 2, and 3 of this code apply to offenses defined by

other laws, unless the statute defining the offense provides otherwise; however,

the punishment affixed to an offense defined outside this code shall be

applicable unless the punishment is classified in accordance with this code. (83)

The 73rd Legislature deleted the words "of this code" from that Section. (84) It also added

Subsection (c) to Section 1.05 of the Penal Code, the "Construction of Code" statute. That

provision stated:

(1) a reference to a title, chapter, or section without further

identification is a reference to a title, chapter, or section of this code;

. . . . (85)

With the addition of Subsection (c)(1) to Section 1.05, the deletion of the text "of this code"

from Section 1.03(b) indicates that the Legislature deemed the deleted text to be superfluous.

Even though Health and Safety Code Section 481.108 and Penal Code Section 1.03(b) were

reviewed and amended together, the Legislature did not amend Section 1.03(b) to include Title

During the 1995 Regular Session, the 74th Legislature amended Section 481.108 of

the Controlled Substances Act to apply to all offenses in Chapter 481. (86) As enacted, the text

of 481.108 stated: "Title 4, Penal Code, applies to an offense under this chapter." (87) Since the

1995 amendment, the text of Section 481.108 has remained unchanged. (88)

At the same time, pursuant to Senate Bill 15, the Legislature also added provisions to

the Simulated Controlled Substances Act, the Dangerous Drugs Act, the Volatile Chemicals

Act, and the Abusable Volatile Chemicals Act to make Penal Code, Title 4 applicable. Section

482.005, which was added to the Simulated Controlled Substances Act, made Title 4 of the

Penal Code applicable to offenses under Chapter 482. (89) Section 483.053 was added to the

Dangerous Drugs Act. (90) Section 483.053 made Penal Code Title 4 applicable to an offense

under Subchapter C, titled "Criminal Penalties." (91) Section 484.008, which made Title 4

applicable to offenses under Chapter 484, was added to the Volatile Chemicals Act. (92) Finally,

Section 485.039 was added to the Abusable Volatile Chemicals Act and provided: "Title 4,

Penal Code, applies to an offense under [Subchapter C, Criminal Penalties]." (93) Despite these

combined 1995 acts, no amendment was made to Section 1.03(b) to include Title 4.

In 2001, the Legislature repealed Section 484.004 from the Volatile Chemicals Act

along with numerous other statutes contained in that Act. (94) And finally, in 2003, the

Legislature amended the Election Code to make Title 4 of the Penal Code applicable to

offenses defined in the Election Code. (95) Again, the Legislature did not amend Section 1.03(b)

to include Title 4.

The Legislature has clearly delineated exactly when Title 4 of the Penal Code will apply

to offenses defined outside of the Penal Code. In the thirty years since Moore and Baker were

decided, the Legislature has not amended Section 1.03(b) to include Title 4. Instead, it has

taken an unmistakable piecemeal approach when it comes to making the offenses contained in

Title 4 of the Penal Code applicable to extra-Penal Code criminal offenses. Although we

generally presume that the Legislature was aware of our interpretation of a particular statute

when it later amends or reenacts that statute after we have rendered a judicial construction, (96)

in this instance, we can impute actual knowledge. Significantly, each of these acts is in accord

with our decisions in Baker and Moore , and when considered collectively, they

overwhelmingly show continued legislative approval of our interpretation of Penal Code

Section 1.03(b).

Consistent with the approach that the Legislature has taken when making Title 4

applicable to offenses defined outside the Penal Code, the Legislature has maintained and

enacted statutes proscribing specific felony offenses involving conspiracy in criminal statutes

located outside the Penal Code. Examples of those statutes can be found in the Alcoholic

Beverage Code, (97) the Texas Free Enterprise and Antitrust Act of 1983, (98) the State Lottery

Act, (99) and the Transportation Code, (100) as well as the statute defining the offense of sedition in

the Government Code. (101) Additionally, from 1997 to 2005, Chapter 36 of the Human

Resources Code, titled Medicaid Fraud Prevention, contained a provision prohibiting felony

conspiracy. Subsection (9) of Section 36.002, which defines unlawful acts, states that it is

unlawful for a person to "knowingly or intentionally enter[] into an agreement, combination,

or conspiracy to defraud the state by obtaining or aiding another person in obtaining an

unauthorized payment or benefit from the Medicaid program or a fiscal agent[.]" (102) Until it was

repealed in 2005, Section 36.131, titled criminal offense, provided that an offense under

Section 36.002 was subject to first-, second-, and third-degree-felony-level punishments based

on "the value of any payment or monetary or in-kind benefit provided under the Medicaid

program, directly or indirectly, as a result of the unlawful act[.]" (103)

A survey of criminal statutes located outside of the Penal Code also reveals that the

Legislature has retained and enacted statutes proscribing specific felony offenses involving

attempt or amended existing statutes to include attempt. We have already cited to three of

those statutes. Section 15.05(b) of the Business and Commerce Code makes it unlawful for

a person to "attempt to monopolize" "any part of trade or commerce." (104) This offense is

designated as a felony. (105) And the felony offense of sedition, found in Section 557.001(a) of

the Government Code, includes attempt among the types of conduct prohibited by that

statute. (106) Section 542.303 of the Transportation Code, which defines inchoate offenses,

states that it is an offense to attempt to commit an offense defined in Subtitle C. (107) Two

examples of offenses that are subject to felony punishment in Subtitle C include Subsection

(b) of Section 548.603 (108) and Section 545.420. (109)

Section 481.129(a)(5) of the Controlled Substances Act contains the most historically-noteworthy example. (110) In Moore , the appellant was charged with attempting to violate Section

4.09(a)(3) of the Controlled Substances Act, (111) the forerunner to Section 481.129(a)(5). At

that time, Section 4.09(a)(3) stated that "[i]t is unlawful for any person knowingly or

intentionally to acquire or obtain possession of a controlled substance by misrepresentation,

fraud, forgery, deception, or subterfuge[.]" (112) In 1978, before the Legislature made Title 4

directly applicable to certain offenses in the Controlled Substances Act in 1981, (113) the 66th

Legislature added "attempt to acquire or obtain" to Section 4.09(a)(3). (114) This amendment was

clearly a direct response to Moore . Even though this provision was subsequently amended and

moved (115) and the Legislature expanded the scope of offenses that Penal Code Title 4 applies

to in the Controlled Substances Act in 1995, (116) the current version of the statute still includes

attempt. (117)

Other examples of statutes prohibiting criminal attempt are located in the Election

Code, (118) the State Lottery Act, (119) the Government Code, (120) Title 3, Chapter 195 of the Health

and Safety Code, (121) and the Occupations Code. (122)

Taken together, these legislative acts establish that, over the course of the past thirty

years, the Legislature has repeatedly approved of our interpretation of Section 1.03(b) of the

Penal Code that was rendered in Moore and Baker . From this we conclude that our prior

construction of Section 1.03(b) is correct. Overruling that construction now would be

unjustified; we would impermissibly launch ourselves into the role of super-legislators,

disturbing the State's legislatively-established penal laws.

Adhering to our prior decisions, we hold that Section 1.03(b) controls the application

of Penal Code provisions to criminal offenses defined outside the Penal Code. It directs the

export of the provisions contained only in Titles 1, 2, and 3 of the Penal Code to criminal

offenses defined outside the Penal Code and contemporaneously bars the import of extra-Penal Code offenses to offenses defined in Titles 4 through 11 of the Penal Code. The

offenses defined in Title 4 of the Penal Code apply to offenses defined outside the Penal Code

only where the Legislature has designated that Title 4 is applicable via legislative action like

the amendments made to the Controlled Substances Act, the Simulated Controlled Substances

Act, the Dangerous Drugs Act, the Abusable and Volatile Chemicals Act, and the Election

Code. Because Title 4 of the Penal Code, and therefore the Penal Code's criminal conspiracy

statute, did not apply to offenses defined in the Election Code prior to the inclusion of Section

1.018 to the Election Code in 2003, the court of appeals did not err in affirming the trial

judge's decision to quash the Election Code-based conspiracy charges against Colyandro, Ellis,

and Delay.

III. Conclusion

Having determined that our holdings in Moore and Baker cannot be restricted to

offenses defined in the Controlled Substances Act and that our interpretation of Section

1.03(b) of the Penal Code in those cases was correct, we affirm the judgment of the Third

Court of Appeals upholding the trial judge's decision to quash the Election Code-based

conspiracy charges against Colyandro, Ellis, and Delay.

DATE DELIVERED: June 27, 2007

PUBLISH

1. 545 S.W.2d 140 (Tex. Crim. App. 1976).

2. 547 S.W.2d 627 (Tex. Crim. App. 1977).

3. 545 S.W.2d at 141 .

4. Id. at 141-42 .

Id. at 142 .

Id. at 141 .

Id. at 142 .

Id.

9. 547 S.W.2d at 628 .

10.

Id. at 629.

11.

Id.

12. 549 S.W.2d 401, 402 (Tex. Crim. App. 1977).

13. 547 S.W.2d 631, 632 (Tex. Crim. App. 1977).

14. 561 S.W.2d 844, 844-45 (Tex. Crim. App. 1978).

15. 568 S.W.2d 137, 138 (Tex. Crim. App. 1978).

16. Tex. Rev. Civ. Stat. Ann. art. 4476-15, § 4.011 (Vernon Supp. 1981),

added by

Acts 1981, 67th Leg., ch. 268, § 2, eff. Sept. 1, 1981 (current version at Tex. Health &

Safety Code Ann. § 481.108 (Vernon 2003) (stating "Title 4, Penal Code, applies to an

offense under this chapter.")); Woods v. State , 801 S.W.2d 932, 942 (Tex. App.--Austin

1990, pet. ref'd).

17. Tex. Rev. Civ. Stat. Ann. art. 4476-15, § 4.011.

18. Tex. Elec. Code Ann. § 1.018 (Vernon Supp. 2004),

added by Acts 2003, 78th

Leg., ch. 393, § 2, eff. Sept. 1, 2003.

19.

Id.

20. Tex.

Code Crim. Proc. art. 44.01(a)(1).

21.

State v. Delay , 208 S.W.3d 603, 607-08 (Tex. App.--Austin 2006); State v.

Colyandro , Nos. 03-05-00811-CR, 03-05-00812-CR, 03-05-00813-CR, 2006 Tex. App.

LEXIS 3195 , at *1-2 (Tex. App.--Austin Apr. 19, 2006) (not designated for publication);

State v. Ellis , Nos. 03-05-00814-CR, 03-05-00815-CR, 03-05-00816-CR, 2006 Tex.

App. LEXIS 3192 , at *1-2 (Tex. App.--Austin Apr. 19, 2006) (not designated for

publication).

22.

Delay , 208 S.W.3d at 603 .

23.

Colyandro , 2006 Tex. App. LEXIS 3195 .

24.

Ellis , 2006 Tex. App. LEXIS 3192 .

25.

Colyandro , 2006 Tex. App. LEXIS 3195 , at *2; Ellis , 2006 Tex. App. LEXIS

3192 , at *2.

26.

Delay , 208 S.W.3d at 604, 607 .

27.

Id. at 607 .

28.

Id.

29.

Id. at 606 (citing Act of Feb. 4, 1884, 18th Leg., 1st C.S., ch. 14, § 1, 1884 Tex.

Gen. Laws 25 , 25).

30.

Id. (citing Texas Penal Code, A Proposed Revision § 15.02 cmt. at 137 (Final

Draft October 1970).

31.

Id.

32.

Id . (citing Tex. Penal Code Ann. § 1.03 (b)).

33.

Id.

34.

Id. at 607 .

35.

Id.

36.

Id.

37.

Id. at 607-08 .

38. Acts 1973, 63rd Leg., ch. 399, § 1, eff. Jan. 1, 1974 (current version at Tex.

Penal Code Ann. § 1.03 (b) (Vernon 2003)).

39.

Id.

40.

Id.

41. 545 S.W.2d at 142 .

42. 547 S.W.2d at 629.

43. 818 S.W.2d 782, 785-86 (Tex. Crim. App. 1991).

44. Tex. Penal Code Ann. § 1.07 (a)(23) (Vernon Supp. 2002).

45. Tex. Penal Code Ann. § 15.02 (Vernon Supp. 2002).

46. Tex. Elec. Code Ann. § 253.003 (Vernon Supp. 2002).

47. Tex. Elec. Code Ann. § 253.003 (a).

48. Tex. Elec. Code Ann. § 253.003 (b).

49. Tex. Elec. Code Ann. § 253.003 (e).

50. Tex. Elec. Code Ann. § 253.094 (Vernon Supp. 2002).

51. Tex. Elec. Code Ann. § 253.104 (Vernon Supp. 2002).

52. Tex. Elec. Code Ann. § 253.104 (b).

53. Tex. Elec. Code Ann. § 253.104 (a).

54. Tex. Elec. Code Ann. § 253.104 (c).

55. Tex. Penal Code Ann. § 15.02 (a).

56. 818 S.W.2d 782 .

57.

Id. at 785 .

58.

Id.

59.

Id. (emphasis in original).

60.

Id. at 785-86.

61.

Moore , 545 S.W.2d at 142 ; Baker , 547 S.W.2d at 629 .

62.

Moore , 545 S.W.2d at 142 ; Baker , 547 S.W.2d at 629 .

63.

Moore , 545 S.W.2d at 142 .

64.

Id. at 141-42 .

65.

Delay , 208 S.W.3d at 607 ; see also Baker , 547 S.W.2d at 628-29 .

66.

Moore v. State , 868 S.W.2d 787, 790 (Tex. Crim. App. 1993) (citing Watson v.

State , 532 S.W.2d 619, 622 (Tex. Crim. App. 1976); Lockhart v. State , 150 Tex. Crim.

230, 235 , 200 S.W.2d 164, 167-68 (1947) (op. on reh'g)); State v. Hall , 829 S.W.2d 184,

187 (Tex. Crim. App. 1992); Lewis v. State , 58 Tex. Crim. 351, 361-62 , 127 S.W. 808 ,

812 (1910); see also Watson v. State , 900 S.W.2d 60, 67 (Tex. Crim. App. 1995) (Clinton,

J., concurring); Garcia v. State , 829 S.W.2d 796 , 803 n.2 (Tex. Crim. App. 1992) (Miller,

J., concurring).

67.

Awadelkariem v. State , 974 S.W.2d 721, 725 (Tex. Crim. App. 1998) (citing

Hardy v. State , 963 S.W.2d 516, 523 (Tex. Crim. App. 1997)); see also Lewis , 58 Tex.

Crim. at 361 , 127 S.W. at 812 .

68.

Connolly v. State , 983 S.W.2d 738, 741 (Tex. Crim. App. 1999); Hall , 829

S.W.2d at 187 ; see also Smith v. State , 5 S.W.3d 673, 678 (Tex. Crim. App. 1999).

69.

State v. Medrano , 67 S.W.3d 892, 903 (Tex. Crim. App. 2002).

70.

Id. at 902 (emphasis in original).

71.

Collier v. Poe , 732 S.W.2d 332, 345 (Tex. Crim. App. 1987) (citing Brown v.

State , 150 Tex. Crim. 386, 389 , 196 S.W.2d 819, 821 (1946)).

72. Tex. Rev. Civ. Stat. art. 4476-15, § 4.052 (Vernon Supp. 1981).

73.

Added by Acts 1981, 67th Leg., ch. 268, § 2, eff. Sept. 1, 1981.

74.

Id.

75. Acts 1983, 68th Leg., ch. 425, § 4, eff. Aug. 29, 1983;