holding venue proper in Harris County for prosecution of aggregate theft arising out of a single scheme, even though offenses against some complainants took place outside Harris County because alleged out-of-county offenses arise from same scheme or continuing course of conduct as Harris County offenses
How later courts described this case
- holding venue proper in Harris County for prosecution of aggregate theft arising out of a single scheme, even though offenses against some complainants took place outside Harris County because alleged out-of-county offenses arise from same scheme or continuing course of conduct as Harris County offenses
- noting that the “main purpose” of the 1974 addition of Section 31.09 was to “increase the punishment range for a thief who commits various thefts” because under the common law, a person who “stole x amount from various victims at different times could not be as severely punished as a thief who stole the same amount from one victim at one time even though the Legislature considered these two thieves to be equally culpable”
- discussing 63rd Legislature’s consolidation of various separately defined theft offenses into one general theft offense that said “thou shalt not steal”
- hold ing that venue is proper in any county in which any element of any of the underlying thefts occurred
Written by the judges who cited it.
The opinion
MEYERS, Judge,
concurring.
This ease is not complicated. The applicable provisions are not unclear. No resort need be made to legislative history.
Penal Code § 31.09 permits the State to allege commission of several offenses pursuant to one scheme or continuing course of conduct, aggregated as a single offense. This is not an enhancement provision. A new and separate offense is created, its elements consisting of multiple offenses committed in one scheme or continuing course of conduct. In fact, once an offense is alleged under section 31.09, that new offense itself may be enhanced. Wages v. State, 573 S.W.2d 804 (Tex.Crim.App.1978). And, since it is one offense, its elements may not be severed. We have stated this before and have said nothing to the contrary since:
It is clear that the aggregation principle enunciated in Sec. 31.09 operates to create One offense. This provision applies when the amounts are obtained “pursuant to one scheme and continuing course of conduct.” It is axiomatic that you cannot sever One offense.
Id. at 806 . We have reaffirmed this notion:
Although theft under Section 31.09 consists of two or more incidents of theft, the statute makes them one offense, [citation omitted] This notion is buttressed by the fact that there is no vehicle by which a defendant can compel a severance of the underlying offenses, [citation omitted] Accordingly, we hold that Section 31.09 adequately creates a separate offense and defines conduct for purposes of jurisdiction, punishment and period of limitation from prosecution.
Graves v. State, 795 S.W.2d 185, 187 (Tex.Crim.App.1990)(emphasis added).
For these reasons, the Court of Appeals should be affirmed. Discussion of legislative history where the language of the controlling statute is plain injects needless dicta into our jurisprudence and ultimately leads to confusion. Apart from these relatively minor annoyances, such discussion is a constitutional violation by this Court. 1 I concur in the judgment of the Court.
. That such conduct by this Court is a violation of separation of powers could not have been *896 stated more forcefully in Boykin, which to my knowledge is still good law:
If the plain language of a statute would lead to absurd results, or if the language is not plain but rather ambiguous, then and only then, out of absolute necessity, is it constitutionally permissible for a court to consider, in arriving at a sensible interpretation, such extratextual factors as executive or administrative interpretations of the statute or legislative history.
This method of statutory interpretation is of ancient origin and is, in fact, the only method that does not unnecessarily invade the lawmaking province of the Legislature.
Boykin v. State, 818 S.W.2d 782 , (Tex.Crim.App.1991 )(emphasis added).