# Hixon v. State > Court of Criminal Appeals of Texas · June 4, 1975 · 523 S.W.2d 711 URL: https://www.frixlaw.com/law-library/cases/9680165 ## Case - **Full name:** Eric Charles HIXON, Appellant, v. the STATE of Texas, Appellee - **Court:** Court of Criminal Appeals of Texas - **Decided:** June 4, 1975 - **Citations:** 523 S.W.2d 711; 1975 Tex. Crim. App. LEXIS 986 - **Precedential status:** Published - **Opinion:** Concurrence by Odom - **Judges:** Morrison, Douglas, Odom - **Cited by:** 11 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9680165 ## Opinion text ODOM, Judge (concurring). I concur in the majority’s disposition of this cause, but find their analysis of appellant’s first ground of error incomplete. Appellant was convicted for selling jewelry on a sidewalk in the downtown area of Houston. He had an itinerant vendor’s license issued under Chapter 22 of the Houston Code of Ordinances. He was convicted because his sales under authority of that license were held in violation of Section 41-10, Houston Code of Ordinances. The majority improperly hold that Chapter 22, standing alone, does not license sale of merchandise on city sidewalks. That chapter authorizes itinerant vendors to follow their trade, as defined in Section 22-1, when duly licensed under its provisions, and makes it unlawful for an itinerant vendor to do so without such a license. Itinerant vendor is defined in Section 22-1 as follows: “The term 'itinerant vendor’ means and includes, and shall be construed to mean and include, all persons, as well as *716 their agents and employees, who engage in temporary or transient business in the city of selling, or offering for sale, any goods or merchandise, or exhibiting the same for sale, or exhibiting the same for the purpose of taking orders for the sale thereof, and who for the purpose of carrying on such business, or conducting such exhibits thereof, display, exhibit, sell or offer for sale such goods or merchandise upon or from a truck or other vehicle on the streets of the city, or who hire, rent, lease or occupy any room or space in any building, structure, other enclosure, vacant lot or any other property whatever in the city in, through or from which any goods or merchandise may be sold, offered for sale, exhibited for sale or exhibited for the purpose of taking orders for the sale thereof, or who shall sell or offer for sale any goods or merchandise while upon the property of another, without the express written consent of the owner or occupant thereof. Provided . . .” (Emphasis added.) The majority’s analysis of the scope of Sec. 22-1 is incomplete in that it ignores the language beginning with the third pair of emphasized words, which incorporates within the definition of itinerant vendors those otherwise qualifying “who shall sell or offer for sale any goods or merchandise while upon the property of another, without the express written consent of the owner or occupant thereof.” Certainly this would include the city sidewalks. Indeed, to hold that the city sidewalks are not within the scope of the ordinance, as the majority suggest, would be to hold that absent a prohibition such as that in Section 41-10 no itinerant vendor’s license would be required for sale of goods on the sidewalks. It is clear to me that the vendor would not be able to avoid the license fee by moving his goods from the privately owned vacant lot to the adjacent sidewalk, yet this is what the majority’s reasoning would permit. Clearly, the conduct engaged in by appellant, if not otherwise prohibited by law, was within the scope of the itinerant vendor’s licensing ordinance. Appellant cites 53 Tex.Jur.2d, Statutes, Section 161, for the proposition: “In case of conflict between a general provision and a special provision dealing with the same subject, the former is controlled or limited by the latter, since a specific statute more clearly evidences the intention of the legislature than a general one. . . .” The proposition of law is a sound one. Appellant would have us apply it to give effect to Chapter 22 in any conflict with Section 41-10. That section prohibits sale of foodstuffs, goods, wares, and merchandise (with the two exceptions of ice cream and flowers) “on any sidewalk, street, parkway, esplanade or any other property open or devoted to public use in the city. .” In my opinion it is Section 41-10 that is the special or limited provision. It prohibits sales in certain limited places, whereas Chapter 22 addresses places where itinerant vendors are licensed to make sales in broad general language. While the specifically designated places enumerated in Sec. 41-10 are within the scope of the general categories listed in Chapter 22, it is clear that Chapter 22 addresses them only as within the general categories there stated, while Sec. 41-10 is speaking narrowly and specifically to the sidewalks, roadways, and property open and devoted to public use. Even if the last category be broad or vague (an issue not presented in this case), Sec. 41-10 is clearly the special provision and controls. An itinerant vendor’s license does not authorize one to violate ordinances prohibiting sales in specific areas otherwise available for transacting such business. I therefore concur in the overruling of this ground of error. I must express the reasons for my disagreement with my brother Douglas’ analysis of appellant’s equal protection argument. He relies on the following principle *717 stated in Delorme v. State, 488 S.W.2d 808 , 811: “It is the duty of the court, if it can be done to construe a statute so that it will remain valid. Where a statute contains words or provisions which are valid and others which are not, effect should be given to the valid words and provisions by separating them from the invalid ones. [Citations omitted.] If the unconstitutional or void portion of any statute be stricken out and that which remains is complete in itself and capable of being executed in accord with the apparent legislative intent, wholly independent of that portion which is rejected, the statute must be sustained. [Citations omitted.]” (Emphasis added.) He does not give proper attention to the emphasized language. The statute addressed in Delorme prohibited desecration of the flag in various described ways. Each manner of desecration stated in the statute was a separate means by which the offense could be committed. It was the clear legislative intent to prohibit each means. Therefore, if there was a constitutional infirmity in the statutory description of one means, it could be severed and the remaining means continued in force with no violation of the legislative intent. The effect of such judicial action would be to narrow the effect of the statute in that it would narrow the scope of conduct prohibited by the terms of the statute. On the other hand, if one element of a single offense is found constitutionally defective, the offense must fall, because to sever the single element would broaden the scope of the statute, prohibit new conduct not prohibited by legislative act, and violate the legislative intent. The courts would be creating a new offense, prohibiting conduct not theretofore an offense. The principle stated in Delorme, supra, does not contemplate such judicial legislation. A simple example will illustrate. Consider a statute prohibiting vulgar dancing in public. If “vulgar” were held unconstitutionally vague (see Courtemanche v. State, 507 S.W.2d 545 ), the inappropriate application of Delorme would “sever” it from the statute and leave the clear and unambiguous prohibition of dancing in public. The absurdity if manifest. The Delorme principle has no application to Section 41-10, supra, in the manner suggested in the other concurring opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9680165. Public record. Not legal advice.