Opinion
NO. 14-16-00976-CR
02-15-2018
MIKE DESIR, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court Harris County, Texas
Trial Court Cause No. 1496596
CONCURRING OPINION
Presuming for the sake of argument that the indictment sufficiently alleges violations of Penal Code section 37.10 and Transportation Code section 548.6035, the trial court did not err in denying appellant Mike Desir's motion to quash the indictment because the statutes are not in pari materia.
When two statutes address the same general subject, the law considers them as being in pari materia. The doctrine of in pari materia commands that in construing a statute, and determining legislative intent, courts take, read, and construe together "all acts and parts of acts in pari materia," each enactment in reference to the other, as though they were parts of one and the same law. Whenever possible, the court must harmonize any conflict between two statutes to give effect to each. If the statutes irreconcilably conflict, then the more detailed enactment will prevail. In the context of penal provisions, statutes are in pari materia "where one provision has broadly defined an offense, and a second has more narrowly hewn another offense, complete within itself, to proscribe conduct that would otherwise meet every element of, and hence be punishable under, the broader provision." When a general statute and a specific statute both proscribe the conduct, the defendant should be charged under the more specific statute. But, the rule of in pari materia does not apply to enactments that cover different situations and that the legislature did not intend to be considered together.
Mireles v. State, 444 S.W.3d 679, 682 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd).
State v. Vasilas, 253 S.W.3d 268, 271 (Tex. Crim. App. 2008).
See id. at 271-72; Mireles, 444 S.W.3d at 682.
Jones v. State, 396 S.W.3d 558, 562 (Tex. Crim. App. 2013).
Id. at 561.
Cheney v. State, 755 S.W.2d 123, 126 (Tex. Crim. App. 1988).
Id.
Courts consider four non-exclusive factors in determining whether the statutes are in pari materia:
(1) Penalties: whether the statutes involve different penalties;
(2) Placement: whether the legislature placed the statutes in the same legislative act;
(3) Proof: -whether the statutes require the same elements of proof; and
(4) Purpose:-whether the legislature intended to achieve the same
purpose or objective in enacting the statutes.
Burke v. State, 28 S.W.3d 545, 547 (Tex. Crim. App. 2000); Dixon v. State, 455 S.W.3d 669, 680 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd).
Under Penal Code section 37.10, entitled "Tampering with Governmental Record," in relevant part:
(a) A person commits an offense if [the person]:
Under Transportation Code section 548.6035, entitled "Fraudulent Emissions Inspection of Motor Vehicle," in relevant part:(1) knowingly makes a false entry in, or false alteration of, a governmental record;
(2) makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent that it be taken as a genuine governmental record; [or]
(5) makes, presents, or uses a governmental record with knowledge of its falsity[.]
(a) A person commits an offense if, in connection with a required emissions inspection of a motor vehicle, the person knowingly:
(1) submits information to the [government's] inspection database stating that a vehicle has passed the applicable inspections or issues a passing vehicle inspection report, if:
(A) the vehicle does not meet the emissions requirements established by the department; or
(B) the person has not inspected the vehicle;
(2) manipulates an emissions test result;
(3) uses or causes to be used emissions data from another motor vehicle as a substitute for the motor vehicle being inspected; or
(4) bypasses or circumvents a fuel cap test.
Tex. Penal Code Ann. § 37.10(a) (West, Westlaw through 2017 1st C.S.).
Tex. Transp. Code Ann. § 548.6035(a) (West, Westlaw through 2017 1st C.S.).
Analysis of In Pari Materia Factors
An offense under section 37.10 of the Penal Code is a second-degree felony, whereas an offense under section 548.6035 of the Transportation Code is a state jail felony. Because the two statutes provide different penalties, the first factor weighs in favor of finding the statutes in pari materia. The second factor weighs against finding the statutes in pari materia because the statutes are not contained within the same legislative act. Likewise, the third factor also weighs against in pari materia because the statutes do not require the same elements of proof. An offense under section 37.10 requires proof of a false government record. A person could commit an offense under any subsection of section 548.6035 without falsifying a government record. A person violates section 548.6035(a)(1) if the person issues a passing vehicle inspection report, even if the person does not make a false government record. Offenses under subsections 548.6035(a)(2),(3), or (4) do not involve a government record. Penal Code section 37.10 and Transportation Code section 548.6035 differ in their elements of proof, so the third factor points away from the statutes being in pari materia. Though both statutes implicate dishonest conduct, the forbidden conduct under section 37.10 relates to deceptively creating or using government records while the forbidden conduct under section 548.6035 is manipulating or misreporting vehicle emissions inspections. This court has recognized section 37.10's broad purpose of "preventing the harmful effects caused by false government records" and concluded that section 37.10 was not in pari materia with a narrower record-keeping statute designed to deter resale of stolen auto parts. Because the two statutes have different purposes, the fourth factor weighs against finding the statutes in pari materia. Though the first factor favors an in pari materia finding, the remaining factors — two, three, and four — all weigh against finding the statutes in pari materia.
Compare Act of June 17, 2011, 82nd Leg., R.S., ch. 1202, § 6, 2011 Tex. Sess. Law Serv. (West) (codified at Tex. Transp. Code § 548.6035(a) with Act of June 14, 1973, 63rd Leg., R.S., ch. 399, 883, 948 (codified at Tex. Penal Code § 37.10).
Id. § 548.6035(a)(1).
Id. § 548.6035(a)(2)-(4).
Dixon v. State, 455 S.W.3d 669, 680 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd).
See Mills v. State, 722 S.W.2d 411, 415 (Tex. Crim. App. 1986) (determining statute's purpose and objective by considering conduct forbidden by statute); Dixon, 455 S.W.3d at 680 (same).
State v. Kinkle, 902 S.W.2d 187, 190 (Tex. App.—Houston [14th Dist.] 1995, no pet.).
See id.
Although the statutes prescribe different punishments, an offense under section 548.6035 is not a more narrowly drawn offense that is necessarily punishable under section 37.10. Section 37.10 is not in pari materia with section 548.6035.
See Dixon, 455 S.W.3d at 680, Kinkle, 902 S.W.2d at 190.
See Kinkle, 902 S.W.2d at 190.
The trial court did not err in denying appellant's motion to quash the indictment.
/s/ Kem Thompson Frost
Chief Justice Panel consists of Chief Justice Frost and Justices Jamison and Brett Busby. (Jamison, J., majority).
Publish — TEX. R. APP. P. 47.2(b).