The opinion
..
The Attorney General of Texas
March 24. 1986
JIM MAlTOX
Attorney General
Supmm. Cowl Bulldin~ Honorable Gerald .A. Fohn Opinion No. JM-456
P. 0. Box 12548 District Attorney
Aurlln. TX. ?6711- 2548
SlW752501
Tom Green County #Courthouse RS: .Constitutlonality of section
T*mi Qlom?4-1357 Room 315 28.03(c) of the Texas Penal Code,
Telecopier 51214750266 San Angelo, Texas 76903 vhich creates a presumption about
the guilt of a person in whose
name utilities are billed
714 Jackson. Suite 700
Dallar. TX. 752024505
2Wl7428944 Dear Mr. Fohn:
You have asked several questions about certain Penal Code
4824 AiberIa Ave.. Suite 160
provisions concerning tampering with public utility meters. YOW
El Paso. TX. 7-2793
91515353464
first question l.s: “Is the presumption.contained in section 28.03(c)
of the Texas Penal Code constitutional?” Section 28.03, which governs
.
the offense of “criminal mischief,” provides:
1001 Texar. Suite 700
Hourlon. TX. 77002-3111 A ‘qrrson commits an offense if. without the
7lY2255886
effective consent of the owner:
806 BroWway. Suite 312 (1) he intentionally or knowingly damages o,r
Lubbock, TX. ?9401G?4?9 destrcys the tangible property of the owner; or
806n47.5239
(2) he Intentionally or knowingly tampers vlth
4309 N. Tenth. Suits B the tangible property of the ovner and causes
McAllen. TX. 78501.lM5 pccunj,ary loss or substantial inconvenience to the
512m82-4547 ovner or a third person.
200 Main Plaza. Suilc 400 .Penal Code 928.Cr3(a).
San Antonio. TX. 78205.2797
51212254191 The statuw also contains the following provision. which creates
a “presumption” regarding identity and mental state:
An EqualOpportunity/
Affirmative Action Employer
Fox the purposes of this section, It shall be
presumed that a person in vhose name public
communications, public water. gas, or power supply
is or was last billed and who is receiving the
economic benefit of said communication or supply,
has kmvingly tampered with the tangible property
of the owner if the communication or supply has
been :
p. 2075
llonorablc Gerald A. Pohn - Pago 2 (RI-456)
(1) diver%ed from PaMitlg through a
metering dev!.ce; or
(2) prevmted from being correctly regls-
tared by a metering device; or
(3) actiwted by any device Installed to
obtain publ:lc comunicatlons. public weter ,
gas, or power supply vithout a metering device.
Penal Code 128.03(c). !!ou ask about. the constitutionality of the
“presumptloo” set out in t’hat provlsloa.
The Peoal Code 6~‘:s out the consequences of a presumption
established by a penal law:
When this code or another penal lav establishes
a presumption sith respect to any fact, it has the
following consequences:
(1) if c:here is sufficient evidence of the
facts that give rise to the presumption, the
issue of tha existence of the presumed fact
must be subriitted to the jury, unless the court
is satisfied that the evidence as a whole
clearly precludes a finding beyond a reasonable
doubt of thlk presumed fact: and
(2) if the existence of the presumed fact
is subtitttrd to the jurp, the court shall
charge the jury. in terms of the presumption
and the spi:cfflc element to which it applies,
as follows:
(A) t’hat the facts giving rise to the
presumptimon must be proven beyond a reason-
able doubt;
(B) that if such facts are proven beyond
a reasonable doubt the jury may find that
the element of the offense sought to be
presumed erisrs, but it is not bound to so
find;
(C) t,het even though the jury mny find
the existence of such element. the state
must prove beyond a reasonable doubt csch of
the other elements of the offense charged;
and
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..
Honorable Gereld A. Pohn - Page 3 (JM-456)
(D) ii’ the jurp hes l reasonable doubt
as to the existence of a fact or feets
giving rlw to the presumption, the presump-
tion fail:1 end the jury shall not consider
the premmptlw for any purpose.
Penal Code 92.05.
A true presumption .u:ises when a court directs the fectflnder
that it must find the p,:esumed fact or that It must do so if the
defendant does not come forward with rebuttal evidence. County Court
of Ulster County v. All~an, 442 U.S. 140 (1979). A permissive
inference. in contrast, f; deduction that the factflnder x draw
from the circumstances of the case but one that he Is not required to
draw. Sardesty v. State. 656 S.W.Zd 73, 76 (Tex. Grim. App. 1983).
Section 2.05 of the Penal. Code requires that when the evidence in a
case gives rise to e “presumption” created by a penal statute, the
court must instruct the :ury that It may find the presumed fact but
that it is not bound to do so. The combined effect of section 2.05
and section 28.03(c) is to establish a permissible inference rather
than a true presumption. Moses v. State, 633 S.W.2d 5?5, 587 (Tex.
APP. - Houston [14th Dist.] 1982). overruled on other grounds in Davis
v. State, 658 S.W.2d 572 (Tex. Grim. App. 1983); see also Rardesi-
g. 656 S.W.2d 73, 76-77 (Tex. Grim. App. 1983) -----Y (en bane
(explaining proper use of terms “presumption” and “permissive
inference”); Roberts v. !jtate, 672 S.W.2d 570, 579-80 (Tex. App. -
Fort Worth 1984. no wri’gTholding that courts must use the term
“circumstance of guilt” ra,ther thao “presumption” or “inference” when
charging jury). Because different constitutional standards apply to
true presumptions and permissive inferences, we vi11 use the term
“permissive inference” in analyzing section 28.03(c) .
In essence, then, section 28.03(c) would permit the foliowing:
if the prosecution shovs that a particular utility meter has been
tampered with in one of th’e three ways described in section 28.03(c),
the court may, but need t.ot. instruct the jury that it may find that
the person in whose nama Ithe utility is billed and who is receiving
the economic benefit of t’na utility supply Is the person who tampered
with the meter and that ha: did so knovlngly. In other vords, the jury
may infer identity end mental state from the fact of tampering. You
ask whether this Is const:.tutional.
We have received s&era1 briefs regarding your opinion request.
All were submitted on behalf of utility companies. All conclude that
the permissive Inference created by section 28.03(c) is constitutional
because, in the opinion ,,:E the briefwriters, the facts presumed are
more likely than not to :iollow from the facts that give rise to the
permissive inference. These briefs do not sufficiently analyze the
relevant authority. Although a more-likely-than-not standard would be
the appropriate standard :tor testing this permissive inference In some
p. 2077
Ronorable Gerald A. Fohn -8 Page I (JM-456)
circumstances, it would trot be the appropriate standard if the fact of
tampering was the only evidence presented on the issues of Identity
and mental state.
In order to l xpla!.n the constitutional stsnderds for tebting
permissive inferences, it is first necess0ry to explain certsin
aspects of the constituti.onsl requirement that a criminal conviction
be based on proof beyond a reasonable doubt. Although the requirement
that guilt be proved beylnrd a reasonable doubt has elweys been part of
American criminal law, :Lt was not until 1970 that the United States
Supreme Court held that the due process clause of the fourttenth
amendment protects a criminal defendant agalaet conviction “except
upon proof beyond s rwsonable doubt of every fact necessary to
constitute the crime vi:h which he ir charged.” In re Winshi~. 397
U.S. 358, 361-64 (1970). The reasonable doubt standard involves not
only a fsct question for the factfinder, but also a legal question:
whether. after viewing t’w evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential
elements of the crime beyend a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 319 (1971’). Thus, insufficiency of the evidence to
prove guilt beyond a reasonable doubt can be, the basis for any entry
of acquittal by the tric.1 judge or for reversal of a conviction by an
appellate court.
The Supreme Court’ II decisions regarding the reasonable doubt
standard gave rise to questions about the constitutionality of
presumptions and permissive inferences. In County Court of Ulster
County v. Allen, the Supreme Court set out standards for tesrlng the
constitutionality of pr~rsumptions and permlsslve inferences in light
of the reasonable doubt standard. The court pointed out that the rule
governing the constitutional validity of any presumption or Inference
was that the presumption or inference “must not undermine the
factfinder’s responsibility at trial, based on evidence adduced by the
State, to find the, ultinate facts beyond a reasonable doubt.” e,
442 U.S. at 156. The court made clear, hwever. that the question of
sufficiency of the evidence to support a conviction is, in most cases,
a separate question fron the propriety of instructing the jury that it
may make a certain inference.
When a permissive inference Is not the only evidence on an
element of an offense, the validity of the permissive inference is to
be judged under a more-likely-than-not standard. Allen, 442 U.S. at
164-67. In .other vordrr, in such circumstancesrhcre must be a
rational connection between the fact proved and the fact inferred, and
the latter must be more likely than not to flow from the formtr.
Allen. 442 U.S. at 165. Tbe fact proved need not establish beyond a
Gnable doubt the fsct inferred because the prosecution can rely
on all of the evidenca presented to meet its burden of proving the
issue beyond a reasonabl.c: doubt. Raaxnontree v. Phelps. 6@5- P.2d i371,
1374 n.2 (5th Cir. 1979:.
p. 2078
..
Ronorable Gerald A. Fohn - Page 5 (m-456)
The Suprema Court ll.so atatad in Allan that the validity of a
oerminaive
r------- -
inference
--~~------
can
~-~
cmlv
--~-I
be
~~
iudnad
-~~1~
a ia record of a pariicular
case * Allen, 442 U.S. at :L62-63; MOSM V. State, 633 S.W.2d 585, 587
(Tat. Am. -Houston [14tt. Dist.] 1982). overrulad on other grounds In
Davis v:- State. 658 i.W.Z’i 512 (Tex. Grim. App. 1983). UC &mot say
whether the pcnsiasivc infc~rcnce latablishcd by section 28.03(c) would
wet tha more-likely-that.-not standard in every case In which that
standard appllad. Courtcl in several other jurisdletlons. howaver,
have tcatad permissible inferences similar to the one established by
section 28.03(c) under the more-likely-than-not standard and have
found. them to be valid in tha circumstances in vhich they were
applied. See, e.g., sr v. Kriss. 654 P.2d 942 (Kan. 1982); State
v. Curtis, 372 A.2d 612 (1I.J. Super. Ct. App. Div. 1977).
The briefs submitted to us fail to point out that the more-
likely-than-not standard is appropriate only when the permissive
inference “is not the so1.e and sufficient basis for a finding of
guilt .‘I Allen, 442 U.S. at 167. As WC said before, in such a case
the fact Gd need not eistabllsh beyond a reasonable doubt the fact
inferred because the mmecutlon can rely on all of the evidence
preientcd to meet Its Purim of proving th; issue beyond a reasonable
doubt. Rawontrec v. Phe:az, 605 F.2d 1371. 1374 n.2 (5th Mr. 1979).
If the facts giving rise to a permissive inference are the only
evidence introduced -on an element - of an offensa, hovever , the facts
provad must be sufficient to establish the element of the offense
inferred beyond a reasonab’le doubt. Id. Othervise, there would be a
violation of the constitutional requirement that the evidence be
sufflc%ent to prova guilt beyond a reasonable doubt.
The legal standard for determining whathar evidence is sufficient
to support a criminal conviction is whether, after vleving the
evidence in the light most favorable to the prosecution, any rational
trier of fact could have: found the essentiil claments of -tha crime
beyond a reasonable doubt. McGoldrick V. Stata, 662 S.W.Zd 573 (Tex.
Grim. App. 1985); United St2 taa V. Jackson, 700 F.2d 181. 185 (5th
Mr. 1, cert. denied7 wu’.S. 842 (1983). If it appears, as a matter
of law, that a reisonable-minded jury- wst ncce&arily have had a
reasonable doubt as to any essential llament of a crime. a convicrion
cannot stand. United Strlt:as v. Bland, 653 F.2d 989. 995 (5th Cir.),
cert. denied 454 U.S. 105T (1981).
The Fifth Circuit has held that a conspiracy conviction cannot
stand on evidence that only places the defendant in “a climate of
activity that reeks of something foul.” United States v. Jackson, 700
F.2d 181, 185 (5th Clr.), cert. denied 464 U.S. 842 (1983). We think
that description is appL:Lcablc to a situation in vhich the state
attempts to convict someone of criminal mischief on evidence of
tampering alone. Although the person responsible for paying for
utility service obvtousl:r has a motive for tampering with a utility
meter. in many cases he L:s not the only person vith a motive. Often
p. 2079
Ronorable Gerald A. Fohn - Page 6 01-456)
other people receive the benefit of utility service and lharu the coat
even if they are not beLog billed, and they also have a moclva for
tampering with l meter . Vsndallm could also account for some meter
tampering. We think thet evidence of tampering omly would be legally
insufficient to aupport 4s conviction of someone aimply because he
received benefit from the utility service and was responsible for the
bill.
Tour second questioc, la:
To be a felony offenae under section 28.03 of
the Pens1 Code, must the lnterruptlon or
impairment of wrvice be substantial?
The degree of an offense under the criminal mischief statute
depends on the amount of pecuniary loss involved. Penal Code
128.03(b). Regardless of the amount of pecuniary loss, however, the
offense of criminal mischief Is a third degree felony if
the actor causw in whole or in part impairment or
interruption
transportation f ” p%Z wi~‘~~i,onsir piEZE
SUPPlY8 or other public service. or diverts, or
causes to be diverted in whole, in part, or in any
manner, including installation or removal of any
device for such purpose, any public communica-
tions, public water, gas, or power supply;
Penal Code 128.03(b)(4)!8’).
In your letter you #state, “[Tlhere Is apparently some dictum on
the part of the courts !Eor the proposition that such impairment or
interruption, to qualify for a felony offense, must be ‘substantial.“’
Apparently you arc refwring to Williams v. State, 596 S.W.Zd 862
(Tex. Grim. App. 1980). That ease contains dictum regarding the
relationship between sej:c:ion 28.03(b) (4) (B) and section 28.03(a) (2),
which provides that a person commits an offtnsa if he “intantlonally
or knovingly tampers vith the tangible property of the owner and
causes pecuniary loss or substantial inconvenience to the owner or a
third person.” The Williams
--- court wrote:
Since impairment or interruption of public com-
munications 11%a felony of the third degree even
if no pecunla:?! loss results, it-is apparent that
Subsection (b: (,4)(B) was intended to be a type of
‘substantial inconvenience,’ which warranted
greater pcnlllty.
Id. at 865. Otherwise, WC find no case that contains a statement
zilar to the one you rusk about. .
p. 2080
. . . _ Rouorable Gerald A. Fohn - Pege 7 (JM-456)
SUMVARY
The combined affect of section 2.05 and section
28.03(c) of the Texas Penal Code ia to establish a
permlaslble infmence rather than a true presump-
tion. When a permissive inference Is not the only
evidence of an clament of an offense, the fact
inferred must lx more-likely-than-not to follow
from the facts Proved. Where the more-likely-than-
not standard applies. the constitutional validity
of a permissive Inference must be tested on a
case-by-case basis. If tha permissive inference
is the only evid,ence on an element of an offense,
however, the facts proved must establish the fact
inferred beyond a reasonable doubt. The per-
missive inferenx established by section 28.03(c)
does not meet that standard.
J I M MATTOX
Attorney General of Texas
JACK HIGHTOWER
First Assistant Attorney General
UARYKELLER
Executive Asslstant Attorxy General
ROBERTGRAY
Special Assistant Attorney General
RICK GILPIA
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
p. 2081