Opinion

Tovar v. State

  • 978 S.W.2d 584
  • 1998 Tex. Crim. App. LEXIS 144
  • 1998 WL 751140
Court
Court of Criminal Appeals of Texas
Filed
Oct 28, 1998
Status
Published
Author
Baird
On the bench
Overstreet, McCormick, Baird, Meyers, Mansfield, Keller, Price, Holland, Womack
Cited by
44 cases
Authority
More cited than 8.1%

noting that conjunction “and” connects separate elements of a statute, both of which must be satisfied

How later courts described this case

  • noting that conjunction “and” connects separate elements of a statute, both of which must be satisfied
  • concluding defendant could be convicted of violating Open Meetings Act upon showing he knowingly called closed meeting even without proof defendant knew closed meeting was prohibited
  • determining that adverb “knowingly” modifies three predicate verbs connected by the conjunction “or”
  • distinguishing between an offense that 9 is malum prohibitum versus one that is malum in se and noting that, in the latter instance, the act is “immoral in its nature” even without being legally noticed as such

Written by the judges who cited it.

The opinion

BAIRD, Judge,

concurring.

I join the majority opinion and Judge Price’s concurring opinion, but write separately to clarify my position in the instant case and my dissent in Johnson v. State, 967 S.W.2d 848, 854 (Tex.Cr.App.1998)(BAIRD, J. dissenting).

In Johnson , the defendant admitted committing the crime of indecency with a child because the complaining witness and her friends actively misrepresented her age. Id., 967 S.W.2d at 848 . Johnson was not a case of mistake of law, but of mistake of fact. Believing this was not the type of situation for which criminal culpability should result, I dissented.

The instant case presents a far different situation. Appellant does not complain that somehow the facts of the meeting were misrepresented to him; he contends he was not aware the closed meeting was impermissible under the Open Meetings Act. Tex. Gov’t Code Ann. § 551.144. As Judge Price succinctly stated, “ignorance of the law is no excuse." Post at 589; slip op. pg. 3.

I am mindful of the many amici curiae briefs submitted in this cause. 1 Compelling as their arguments may be, the role of this Court is not to legislate, but to interpret the laws as the legislature prescribes them. Tex. Const. Art. II, § 1. 2

In State v. Ross, 953 S.W.2d 748, 751, fn. 4 (Tex.Cr.App.1997), citing Ex parte Hayward, 711 S.W.2d 652, 655-56 (Tex.Cr.App.1986), this Court stated:

We have explained the duty of this Court to refrain from intruding on the legislative realm:

Courts have no power to legislate. It is the court’s duty to observe, not to disregard statutory provisions. Courts can neither ignore nor emasculate the statutes. Further, courts have no power to create an exception to a statute, nor do they have power to add to or take from legislative pains, penalties and remedies.... It is for the Legislature, not the courts, to remedy defects or supply deficiencies in the laws, and to give relief from unjust and unwise legislation.

In Dodd v. State, supra, 201 S.W. at p. 1018, this Court wrote:

“The duty of the courts is to observe statutory provisions. It does not lie with them to arbitrarily disobey them. The rights of the public and the citizen are best protected by an observance of the law as it is written where it does not overstep constitutional provisions .... ” (citations omitted).

The punishment is harsh in the instant case; however, it is incumbent upon public servants to be aware of the relevant laws. With these comments I join the majority opinion and Judge Price’s concurring opinion.

. Briefs were submitted on behalf of the following organizations: Texas Association of School Boards, Texas Association of School Administrators, Texas Councilof School Attorneys, Dallas County Hospital District, Texas Municipal League, Dallas County, and the Texas City Attorney’s Association.

. The Constitution provides:

Sec. 1. The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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