State of Texas v. Ellis, James Walter

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. PD-0826-06, PD-0827-06, PD-0828-06, PD-0829-06,

PD-0830-06, PD-0831-06, PD-0832-06, PD-0833-06

THE STATE OF TEXAS

v.

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

Cochran, J., filed a dissenting opinion, in which Meyers, Johnson and

Holcomb, JJ., joined.

O P I N I O N

I respectfully dissent.

In this case we are asked if any and all felony offenses, whether defined in the Penal

Code or in some other Texas statute, may form the basis of a conspiracy charge under Section

15.02 of the Penal Code. Were it not for two wayward 1976 and 1977 opinions written by

Commissioner Davis over the strong dissent of Judge Douglas, the answer to this question

would be obvious. Yes, any felony offense is subject to the Penal Code conspiracy provision.

Thus, a person may be prosecuted for conspiring to commit any felony offense, whether that

felony is defined in the Penal Code or elsewhere in Texas law. The plain language of the

conspiracy statute requires this result. The structure, legislative intent, and history of the 1974

Penal Code all require this result. Common sense requires this result. Public policy requires

this result. Only two poorly reasoned opinions from the mid 1970s, Moore v. State (1) and

Baker v. State , (2) stand in the way of reaching the right result. The Third Court of Appeals, in

its opinion in the present cases, invited us to re-visit the reasoning of those two cases and

suggested that we should overrule them. (3) I would accept that invitation and overrule Moore and

Baker . Not only are they poorly reasoned, but they carry the potential to cause untold

mischief to many other provisions in the Penal Code.

A. The Plain Language of the Penal Code Conspiracy Statute.

In construing the meaning of any statute, we look first to the plain language of that

statute. (4) This Court's interpretation of statutes must "seek to effectuate the 'collective' intent

or purpose of the legislators who enacted the legislation." (5) In Boykin , we established that if

the literal text of the statute is clear and unambiguous, we must ordinarily give effect to that

plain meaning. (6) The first rule of statutory construction is to presume that the legislature meant

what it said and said what it meant. (7) On its face, the conspiracy statute plainly applies to all

felony offenses.

Section 15.02 of the Penal Code defines the criminal offense of conspiracy:

(a) A person commits criminal conspiracy if, with the 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. (8)

There is absolutely nothing in the plain language of this statute that states or suggests that the

Legislature really meant "a felony defined in the Penal Code" when it said "a felony" in

defining the offense of conspiracy. In normal English usage, the phrase "a felony" means "any

felony." Under Boykin , our statutory analysis should end right there.

Is there anything else in the Penal Code that states or suggests that the phrase "a felony"

in the conspiracy statute really means "a felony defined in the Penal Code"? No, quite the

reverse. Section 1.07 of the Penal Code, the provision that sets out the definitions of words

that are used in the Penal Code, states:

(a) In this Code:

(23) "Felony" means an offense so designated by law or punishable by death

or confinement in a penitentiary. (9)

Under normal rules of English construction, any time the word "felony" is used in the Penal

Code, it means any offense that is titled or listed as a "felony" regardless of whether that

felony is defined in the Penal Code or some other statute. Once again, under Boykin , our

statutory analysis should end right there.

The Election Code provisions dealing with illegal contributions that Messieurs DeLay,

Colyandro, and Ellis are charged with having conspired to violate are all third-degree

felonies. (10) It would seem quite obvious, then, that they may be prosecuted for the offense of

conspiracy to commit the third-degree felony of violating the illegal contributions provisions

of the Election Code. That should be the end of the matter.

B. The Structure, Legislative Intent , and History of the Penal Code Conspiracy

Statute.

Messieurs Delay, Colyandro, and Ellis argue (as did Commissioner Davis in Moore and

Baker ) that we cannot follow the plain language of the conspiracy statute or the definition of

"a felony" in section 1.07 because section 1.03(b) of the Penal Code forbids us from using

felonies defined outside the Penal Code as the basis for a conspiracy offense. Section 1.03(b)

says no such thing. Nor does it imply any such thing. But to counter that argument one must

examine the basic structure of the Penal Code.

The Penal Code is divided into eleven titles. (11) The first three titles set out general

provisions which apply to any and all criminal offenses. (12) The rest of the titles-Title 4 through

Title 11-define specific criminal offenses. For example, the offense of conspiracy is defined

in Title 4; the offense of capital murder is defined in Title 5; the offense of bigamy is defined

in Title 6; and so forth. Thus, there are two entirely different portions of the Penal Code:

generalities in the first three titles, specific offenses in the rest.

Section 1.03 of the Penal Code is captioned "Effect of Code." Subsection (b) reads:

The provisions of Titles 1, 2, and 3 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. (13)

This subsection ensures that the general statutory provisions of the Penal Code, such as the

defenses to or justifications excluding criminal responsibility (self-defense, insanity,

necessity, duress, etc.), party liability for criminal offenses (accomplice liability), and

criminal responsibility of a corporation, apply not only to the criminal offenses defined within

the Penal Code but to all criminal offenses defined in other Texas statutes. It is an "export"

provision: one can cut and paste these three titles onto each and every criminal offense

defined outside the Penal Code unless the extra-Penal Code crime statute specifically says

otherwise. (14) There is no need to repeat all of these general principles in each and every code

that defines a criminal offense. Just export and overlay these three titles onto those

provisions.

Messieurs Delay, Colyandro, and Ellis argue that because section 1.03(b) does not

mention Title 4, in which the crime of conspiracy is defined, that crime of conspiracy cannot

be "exported" and applied to other crimes defined outside the Penal Code. Well, of course not.

The crime of conspiracy is a distinct and specific criminal offense, just like murder, burglary,

kidnaping, theft, and so forth. It is not a part of the general provisions of the Penal Code

applicable to all crimes; it is a specific crime itself.

It would make no sense to say, in section 1.03(b), that the general provisions of Titles

1, 2, and 3, as well as Titles 4-11 defining specific crimes, apply to offenses defined by other

laws. Commissioner Davis back in 1976 and 1977 made a grievous, but understandable,

mistake. In Baker, he apparently thought that the specific crime of conspiracy was really a

general principle provision (15) that could, if the Legislature had so desired, float around and

attach itself to other crimes defined outside the Penal Code. It cannot. The crime of

conspiracy, like the crimes of murder, burglary, and kidnaping, is firmly anchored in the Penal

Code. One cannot "export" it to other crimes.

But what the conspiracy statute explicitly requires one to do is "import" any

felony-whether defined as a felony inside or outside the Penal Code-into the crime of

conspiracy. When a crime defined in the Penal Code has, as part of its basis, "a felony," then,

under the explicit definition of a "felony" under section 1.07(a)(23), one may cut and paste any

felony crime defined in any Texas statute into that specific Penal Code offense. That is what

section 1.07(a)(23) requires. For example, the crime of conspiracy requires that the person

act "with intent that a felony be committed," that he agrees with at least one other person that

one of them will commit the felony offense, and that one of them performs an overt act in

furtherance of their agreement. (16) As another example, the crime of felony-murder requires

the person to commit or attempt to commit a felony ( any felony other than manslaughter) and

in the course of and in furtherance of committing that felony commit an act clearly dangerous

to human life that causes the death of a person. (17) Another example: burglary is the crime of

entering another's home without the consent of the homeowner and with the intent to commit

a felony (any felony), theft, or assault. (18) One last example: (19) aggravated kidnaping is the crime

of abducting a person with the intent to "facilitate the commission of a felony or flight after

the attempt or commission of a felony." (20)

Following the logic of Baker , it would not be a crime to abduct a person with the intent

to facilitate the commission of a felony that is defined outside the Penal Code because Title

5 (which contains the definition of the crime of aggravated kidnaping) is not mentioned in

section 1.03(b) as being applicable to offenses defined outside the Penal Code. This is an

absurd result and surely not one intended by the Legislature when it enacted the 1974 Penal

Code. In all of these examples, the Legislature obviously meant "any felony" when it used the

phrase "a felony." Especially since the definition of a "felony" in section 1.07(a)(23) says

exactly that. How much clearer can or should the Legislature be? Section 1.03(b) does not

reference any of the Penal Code titles in which these offenses are defined as applying outside

the Penal Code and indeed these offenses do not apply outside the Penal Code. But felony

offenses that are defined outside the Penal Code surely may be imported into the specific

Penal Code crimes that require the commission of "a felony" as part of that crime's definition.

Does the history of the 1974 Penal Code support the notion that only those felonies

defined within the Penal Code may be the basis for the crime of conspiracy? No. The

Committee Comment to the Final Draft of the Proposed Texas Penal Code explained that the

purpose of section 15.02, defining the crime of conspiracy, was to clarify the existing law

against criminal conspiracy. It stated:

Criminal conspiracy, a common-law crime, has become firmly

established as an offense that serves dual roles in modern criminal

jurisprudence. Functioning as an inchoate offense, criminal conspiracy fixes the

point of legal intervention at agreement to commit a crime coupled with an overt

act. Thus, it reaches further back into preparatory conduct than criminal attempt,

Section 15.01, but not as far back as criminal solicitation, Section 15.03. In its

second role criminal conspiracy provides a means of striking against the special

danger incident to group criminal activity and facilitates prosecution of the

group by providing extraordinary evidentiary and procedural advantages. Section

15.02 is essentially a clarification of the present Texas law of conspiracy,

Penal Code arts. 1622-1629 , emphasizing the inchoate aspect of the offense

without interfering with the procedural and evidentiary advantages of the group

prosecution aspect of the offense. (21)

Under the common law, the crime of conspiracy applied to any criminal offense, felony or

misdemeanor. (22) Indeed, the general conspiracy law in Texas had been on the books since 1884,

but it applied only to felony offenses: "The agreement to come within the definition of

conspiracy must be to commit one or more of the following offenses, to-wit: Murder,

robbery, arson, burglary, rape or any other offense of the grade of felony ." (23) And, at least as

far back as the 1925 Penal Code, the offense of illegal contributions made by corporations was

punishable as a felony. (24) This provision was transferred to the Election Code of 1951. (25) If the

crime of making an illegal corporate political contribution was amenable to forming the basis

of a conspiracy offense up until the enactment of the 1974 Penal Code, and if the 1974 Penal

Code merely clarified the then-existing law of conspiracy, it defies common sense to think

that the Legislature intended to wipe out that offense when it enacted the general crime of

conspiracy in section 15.02.

C. Common Sense and Public Policy Considerations.

Is there any common-sense reason to think that the crime of conspiracy does or should

apply only to offenses defined within the Penal Code itself? If the purpose of the conspiracy

law is to deter and punish those who agree to commit a serious crime and take overt steps to

accomplish that crime, is there any reason to separate out serious offenses defined within the

Penal Code from serious offenses defined outside the Penal Code and declare that one can be

prosecuted for conspiring to commit Penal Code felonies but not extra-Penal Code felonies? (26)

Are some felonies more felonious than other felonies? More deserving of being deterred and

punished before their actual commission? Or are felonies defined in the Penal Code

especially heinous "felonies-on-steroids," while their brethren defined outside the Penal Code

are puny, half-pint felonies unworthy of being the subject of the crime of conspiracy? I do not think so. There is certainly no reason in either the Penal Code or other

legislative enactments to believe that the Texas Legislature has categorized felonies into first-class Penal Code felonies and second-class extra-Penal Code felonies with the first group

capable of being the basis for the crime of conspiracy while the second group is not.

One might argue that if the Legislature thought that these extra-Penal Code offenses

were "real" felonies deserving of being used as the basis of a conspiracy, felony-murder,

burglary, kidnaping, hindering apprehension, or other Penal Code crimes that reference "a

felony," then it should have placed them in the Penal Code itself. Maybe it should create a

Title 12 section of the Penal Code to contain this miscellany of felony offenses described in

twenty or more other codes. Good public policy suggests, however, that these extra-Penal

Code offenses are defined in those separate codes because people who are most directly

affected by those separate codes would be most likely to find and read them and then conform

their conduct to avoid these crimes. For example, the Agriculture Code states that it is a

felony for anyone to operate a public grain warehouse without first obtaining a license. (27) This

offense is defined in Chapter 14 titled "Regulation of Public Grain Warehouse Operators."

This is the proper place for it to be located as it applies only to those who operate public grain

warehouses and they are the persons most likely to read this portion of the Agriculture Code

and be placed on notice of the existence of this offense. It is most unlikely to think that public

grain warehouse operators would go flipping through the Penal Code to see if that code

contained any penal provisions relating to their business. The same logic applies to the felony

offense of exhibiting a firearm that interferes with the normal use of a school building or bus

that is contained in the Education Code, (28) or the felony offense of tampering with an oil or gas

well that is contained in the Natural Resources Code, (29) or the felony offense of signing a false

statement or affidavit dealing with the payment of taxes on car sales that is set out in the

Transportation Code. (30)

Messieurs DeLay, Colyandro, and Ellis would have us believe that the Legislature

intended to make it perfectly legal to conspire to commit all of these felonies, but illegal only

to actually carry them out. On the contrary, it strains credulity to think that the Legislature

intended that persons who conspired to commit these felonies are immune from prosecution

for that conspiracy. In fact, some extra-Penal Code offenses are particularly susceptible to

the crime of conspiracy and are doubly dangerous because of it. Take, for example, Mr. Big,

a drug cartel kingpin who never sullies his own hands with the ten kilos of cocaine that he

orders flown across the border into Texas. Instead, he conspires with his henchmen to deliver

the goods while he is happily ensconced in his River Oaks mansion. Did the 1974 Penal Code

really intend that he be immune from prosecution for the Penal Code offense of conspiracy

to deliver cocaine merely because the offense of delivery of cocaine was defined outside the

Penal Code? The Legislature intended that the little mule who actually delivers a kilo of

cocaine may go to prison for life while the kingpin who conspired (unsuccessfully, for that is

what an inchoate crime is-one that is not completed) to get the cocaine into the hands of the

mule is immune from prosecution? I think not. (31)

Thus, both common sense and good public policy lead to the conclusion that sections

1.07(a)(23) and 15.02 state that "a felony" is "any felony" regardless of whether it is defined

in the Penal Code or in some other statute and that all such felonies may form the basis of a

conspiracy offense. And if all such felonies are "real" felonies, so is the Election Code felony

of making an illegal contribution and it, too, may form the basis of a conspiracy offense. Thus

it was before the 1974 Penal Code was enacted, and thus it should remain absent some

legislative action to the contrary.

D. Moore and Baker Are the Sole Support for the Conclusion That a Felony Defined

in the Election Code Cannot Be the Basis for a Conspiracy Offense under the

Penal Code.

Messieurs DeLay, Colyandro, and Ellis rely almost exclusively upon two 1976 and

1977 cases. These cases should be re-examined. In the first, Moore v. State , (32) Commissioner

Davis stated that the specific offense of "criminal attempt" which is defined in section 15.01

of the Penal Code did not apply to the felony offense of obtaining a controlled substance by

fraud which was defined in The Controlled Substances Act. (33) He recited Section 1.03(b) which

stated that "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[.]" (34) And he then reasoned,

"The general attempt provisions of Sec. 15.01, supra, are contained in Title 4 of the Penal Code

and thus Sec. 1.03(b), supra does not apply to Sec. 15.01, supra." (35) But this is a non sequitur .

Why would any specific crime defined in the Penal Code (or the title in which it is defined)

be mentioned in Section 1.03(b)? Only the general principles of criminal law are exported to

extra-Penal Code offenses, not specific Penal Code crimes. None of the offenses defined in

the Penal Code are mentioned in Section 1.03(b), but that does not mean that when they require

the commission of "a felony" as a part of their definition, that felonies defined outside the

Penal Code do not qualify as felonies for purposes of those Penal Code offenses. This was

precisely the point made by Judge Douglas in his dissent in Moore. He stated that "Section

15.01(a) is not limited to offenses defined in the code. It states that one must intend to

commit 'an offense' to come within the ambit of the attempt provisions." (36) He noted the

absurdity of the logic:

It appears that the Legislature intended that an attempt to commit an

offense involved in the Controlled Substance Act would not constitute an

offense while attempts at all other crimes within the Penal Code would

constitute offenses. Such a conclusion would contravene Section 1.05(a) of the

Penal Code[.] (37)

Judge Douglas stated that this Court should "effectuate the full legislative intent. We should

find that the Penal Code and the Controlled Substances Act are complementary and have no

difficulty in construing the statutes together. Accordingly, we should hold that the general

attempt provisions set forth in Section 15.01, supra, apply to the Controlled Substances Act." (38)

Alas, this Court approved Commissioner Davis's opinion rather than that of Judge Douglas. (39)

And then the trouble snowballed. Six months later, Commissioner Davis addressed the

applicability of the crime of conspiracy under Section 15.02 to the Controlled Substance Act.

In Baker v. State , (40) Commissioner Davis noted that the defendant did not file any brief on

appeal, but that he had, on his own, found "fundamental error which we must review in the

interest of justice." (41) Commissioner Davis posed the issue thus: "The question before us is

whether the criminal conspiracy provisions of the new Texas Penal Code apply to the

Controlled Substances Act. We hold they do not." (42) He posed the wrong issue. He should

have posed it thus: "The question before us is whether a felony defined in the Controlled

Substances Act qualifies as "a felony" for purposes of the crime of conspiracy." The crime

of conspiracy does not "apply" to other crimes, just as the crime of felony-murder does not

"apply" to other crimes. But any felony crime, whether defined inside or outside of the Penal

Code, may form the basis for the crime of conspiracy (or the crime of felony-murder,

burglary, and so forth). Commissioner Davis was simply mistaken. He was thinking that

attempts and conspiracy were general legal principles rather than specific penal offenses

complete within themselves. It is no crime to be mistaken, but this Court, like Judge Douglas,

should recognize that mistake. We now have the opportunity to correct it, and we should.

The Legislature obviously did not approve of Commissioner Davis's opinions in either

Moore or Baker . It reacted by amending the Controlled Substances Act to explicitly provide

that Title 4 of the Penal Code did apply to the Controlled Substances Act. (43) But it did so based

on Commissioner Davis's faulty logic that attempts and conspiracy were general legal

principles, like those principles set out in Titles 1, 2, and 3 of the Penal Code, rather than

discrete criminal offenses. And down through the years it, like this Court, has perpetuated that

original mistake of logic by enacting various piece-meal conspiracy provisions in some of the

other Texas codes. And, by declining to accept the court of appeals's urgent invitation to

revisit the mistaken logic in Moore and Baker , this Court further perpetuates that original

mistake. Because this Court made the original mistake, we should repair it ourselves, not foist

that responsibility off on the Legislature.

Unfortunately, we compound the original error by ignoring the explicit language of

section 1.07(a)(23) that defines the phrase "a felony" for purposes of the Penal Code as "an

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

even if the Legislature should take the hint and explicitly amend section 1.03(b) to state "The

provisions of Titles 1, 2, and 3 of this Code and the offenses defined in Title 4 , apply to

offenses defined by other laws . . . ," we would still be left with the problem of having

concluded that "a felony" for purposes of the Penal Code means only those felonies that are

defined within the Penal Code.

Thus, one true legislative fix might be: "The provisions of Title 1, 2, and 3 of this Code

and the offenses defined in Titles 4-11 , apply to offenses defined by other laws . . ." But this

"fix" is illogical and may have unintended consequences of its own. (45) Another legislative fix

might be to amend the definition of "felony" in Section 1.07(a)(23) to read: "'Felony' means

an offense so designated by law or punishable by death or confinement in a penitentiary. It

includes any felony defined in this code or any other Texas code, and it applies to all offenses

defined in all titles within this code, including Title 4." If this seems redundant, it is, but it is

necessary given our peculiar interpretation of the present definition.

The citizens of Texas would be well served if this Court admitted the mistake of logic

in Moore and Baker and overturned them. Because the Court declines to do so, I respectfully

dissent.

Filed: 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.

State v. DeLay , 208 S.W.3d 603, 607 (Tex. App. - Austin 2006). The court of appeals

stated:

As an intermediate appellate court, we lack the authority to overrule an opinion of the

court of criminal appeals. It is the prerogative of the court of criminal appeals alone to

overrule its interpretation of a statute. 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. The court of criminal appeals may want to revisit its

opinion in Baker . But until that time, Baker is the law and we are not free to disregard

it.

Id. (citations omitted).

4.

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

5.

Id. at 785 .

6.

Id.

7.

Id. ("Where the statute is clear and unambiguous, the Legislature must be understood to mean

what it has expressed, and it is not for the courts to add or subtract from such a statute."); see also

Seals v. State , 187 S.W.3d 417, 420 (Tex. Crim. App. 2005); Getts v. State , 155 S.W.3d 153, 155

(Tex. Crim. App. 2005) (stating that Boykin "instructs us to first 'focus our attention on the literal text

of the statute in question' because 'the text of the statute is the law.'").

8. Tex. Penal Code § 15.02(a).

9.

Id. § 1.07(a)(23).

10. Tex. Elec. Code § 253.003 (e) (third-degree felony to make or accept an unlawful political

contribution in violation of Subchapter D which prohibits certain contributions by corporations or labor

unions); Tex. Elec. Code § 253.094(c) (third-degree felony for a corporation or labor union to make

an unauthorized political contribution); Tex. Elec. Code § 253.104 (third-degree felony for a

corporation or labor union to knowingly make an otherwise authorized political contribution in violation

of 60-days before election rule).

11. Title 1 (Introductory Provisions); Title 2 (General Principles of Criminal Responsibility); Title

3 (Punishments); Title 4 (Inchoate Offenses); Title 5 (Offenses Against the Person); Title 6 (Offenses

Against the Family); Title 7 (Offenses Against Property); Title 8 (Offenses Against Public

Administration); Title 9 (Offenses Against Public Order and Decency); Title 10 (Offenses Against

Public Health, Safety, and Morals); Title 11 (Organized Crime).

12. For example, Title 1 contains chapters dealing with the general provisions of the code, the

burden of proof, and multiple prosecutions. Title 2 contains chapters dealing with culpability generally,

criminal responsibility for the conduct of another, general defenses to criminal responsibility, and

justifications excluding criminal responsibility. Title 3 sets out the punishments that apply to criminal

offenses.

13. Tex. Penal Code § 1.03(b).

14. The Practice Commentary to Section 1.03 of the 1974 Penal Code states:

The general principles of penal law, for the first time and for the most part

comprehensively treated and codified by this code, are designed to provide a

framework for the interpretation and application of every law now in effect or later

enacted that employs a penal sanction, whether or not it is located in this code.

Tex. Penal Code § 1.03, Practice Commentary.

15. In

Baker , Commissioner Davis may have confused the distinct crime of conspiracy (defined

in section 15.02) with the concept of criminal responsibility based upon conspiracy complicity (which is

set out in section 7.02(b)). Conspiratorial liability is, of course, contained within Title 2, and it is one of

those general provisions of the Penal Code that, under the explicit wording of section 1.03(b), applies

to all criminal offenses, regardless of whether those offenses are contained in the Penal Code or another

Texas law. But there is an enormous difference between criminal responsibility for the conduct of

another under general party liability principles and the commission of the distinct crime of conspiracy.

They frequently are, but should not be, confused.

16. Tex. Penal Code § 15.02(a).

17. Tex. Penal Code § 19.02(b)(3).

18. Tex. Penal Code § 30.02(a)(1).

19. Other Penal Code provisions that refer to "a felony" as part of the definition of the crime

include enticing a child (Tex. Penal Code § 25.04(b)); burglary of a motor vehicle (Tex. Penal

Code § 30.04(a)); coercion of a public servant (Tex. Penal Code § 36.03(b)); hindering

apprehension (Tex. Penal Code § 38.05(c)); escape (Tex. Penal Code § 38.06(c)(1)); bail jumping

(Tex. Penal Code § 38.10(f)).

20. Tex. Penal Code § 20.04(a)(3).

21. Texas Penal Code, A Proposed Revision, Final Draft, October 1970, § 15.02,

committee comment (emphasis added).

22.

See Charles P. Bubany, The Texas Penal Code of 1974 , 28 Sw. L. J. 292, 327 & n. 193

(1974) (stating that section 15.02 "is limited to conspiracies that contemplate the commission of a

felony" and noting that "[a]t common law, a combination for the purpose of committing any crime or a

lawful act by unlawful means could be a conspiracy. Prior Texas law contained the felony limitation

with certain exceptions").

23. Texas Penal Code art. 957 (1884).

24. Texas Penal Code art. 213 (1925) (prohibiting political contributions by any bank or

corporation "for the purpose of aiding or defeating the election of any candidate for the office of

Representative in Congress, or Presidential or Vice-Presidential Electors from this State, or any

candidate for any State, district, county or precinct office in this State, or the success or defeat of any

political measure submitted to a vote of the people of this State"; punishment included imprisonment "in

the penitentiary not less than two nor more than five years").

25. Texas Election Code art. 213 (Texas Sess. Laws 1951, 52

nd Reg. Leg. ch. 492, 1097,

1190 (1951)) (stating that corporations may not give, lend, or pay any money "directly or indirectly to

any candidate, campaign manager, assistant campaign manager, or any other person, for the purpose of

aiding or defeating the election of any candidate or of aiding or defeating the approval of any political

measure submitted to a vote of the people of this State or any subdivision thereof"; punishment included

imprisonment of not less than one nor more than five years).

26. As the court of appeals aptly noted in its opinion in this case,

the legislature has created dozens of felony offenses contained in at least twenty

statutory codes. In light of the historically broad application of Texas's criminal

conspiracy offense, we find it unlikely that the legislature would have intended to

eliminate criminal liability for conspiracy in such a panoply of felony offenses.

208 S.W.3d at 606 . The court then listed some of the codes that contain felony offenses: Tex. Agric.

Code § 14.072(b); Tex. Alco. Bev. Code § 54.12; Tex. Bus. & Com. Code § 35.54(d); Tex.

Educ. Code § 37.125(b); Tex. Elec. Code § 253.094(c); Tex. Fam. Code § 261.107(a); Tex. Fin.

Code § 33.108(c); Tex. Gov't Code § 302.034; Tex. Health & Safety Code § 481.141(b); Tex.

Hum. Res. Code § 35.012(b); Tex. Ins. Code § 101.106; Tex. Lab. Code § 418.001(b); Tex. Loc.

Gov't Code § 392.043(d); Tex. Nat. Res. Code § 85.389(b); Tex. Occ. Code § 204.352(b); Tex.

Parks & Wild. Code § 66.119(d); Tex. Tax Code § 152.101(b); Tex. Transp. Code §

501.151(c); Tex. Util. Code § 105.024(b); Tex. Water Code § 7.155(c).

27. Tex. Agric. Code § 14.072(b).

28. Tex. Educ. Code § 37.125(b).

29. Tex. Nat. Res. Code § 85.389

30. Tex. Tax Code § 152.101(b).

31. Judge Douglas set out a similar example of the absurdity of the logic in

Moore which dealt

with the offense of criminal attempt. He said:

There is no sound reason in policy or logic for the Legislature to intend to omit an

attempted provision from the Controlled Substances Act. Such omission would lead to

the absurd result that one could be prosecuted if a pharmacist gave him a prohibited

substance in reliance on a forged prescription, but not if the pharmacist recognized and

frustrated the criminal enterprise before it was completed. The Legislature could not

have intended such a result.

545 S.W.2d at 143 . Judge Douglas is absolutely correct.

32. 545 S.W.2d 140 (Tex. Crim. App. 1976).

33.

Id. at 141-42 (citing art. 4476-15, V.A.C.S., Sec. 4.09(a)(3)).

34.

Id. at 142 .

35.

Id.

36.

Id. at 143 (Douglas, J., dissenting).

37.

Id. at 143-44. Section 1.05(a) provides:

The rule that a penal statute is to be strictly construed does not apply to this code. The

provisions of this code shall be construed according to the fair import of their terms, to

promote justice and effect the objectives of the code.

Tex. Penal Code § 1.05(a).

38.

Id. at 143. Unfortunately, Judge Douglas followed down Commissioner Davis's linguistic

primrose path and mistakenly adopted his "apply to" language. He should have rephrased the issue

first, and then he would have concluded: "Offenses defined in the Controlled Substances Act may form

the basis of a criminal attempt prosecution under section 15.01 of the Penal Code."

39.

Id. at 142.

40. 547 S.W.2d 627 (Tex. Crim. App. 1977).

41.

Baker v. State , 547 S.W.2d 627, 628 (Tex. Crim. App. 1977).

42.

Id.

43. Tex. Rev. Civ. Stat. art. 4476-15, § 4.052 (added by Acts 1981, 67

th Leg., ch. 268, § 2,

eff. Sept. 1, 1981).

44. Tex. Penal Code § 1.07(a)(23).

45. A somewhat more felicitous phrasing might be: "All of the provisions of this Code apply to

offenses defined by other laws, unless the statute defining the offense provides otherwise . . . ." But

again, there might be numerous unintended and unforeseen consequences with a broad application of

every provision of the Penal Code applying to every criminal offense defined in other Texas statutes.