Charles Hirsch v. State ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-121-CR
CHARLES HIRSCH APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 16TH DISTRICT COURT OF DENTON COUNTY
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OPINION
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Introduction
Appellant Charles Hirsch appeals the trial court’s judgment convicting him
of online solicitation of a minor. In three points, he asserts that the portion of
the judgment requiring him to register as a sex offender violates his federal and
state constitutional rights and that the trial court acted without statutory
authority in including such a requirement. We affirm.
Background Facts
In August 2007, a Denton County grand jury indicted appellant with two
counts of online solicitation of a minor. See Tex. Penal Code Ann. § 33.021
(Vernon Supp. 2008). The indictment alleged that appellant committed the
offenses on June 14 and 17, 2007.
On January 23, 2008, appellant filed an objection to the trial court’s
prospective imposition of any sex offender registration requirement upon his
conviction for the two charges. After the trial court denied his objection,
appellant pled guilty to the charges according to a plea bargain with the State.
The trial court convicted appellant, sentenced him to 180 days’ confinement,
and ordered that he register as a sex offender. Appellant preserved his right to
appeal the court’s ruling on his objection to the registration requirement.
See Tex. R. App. P. 25.2(a)(2)(A). After filing a motion for new trial, appellant
timely filed his notice of this appeal.1
1
… Appellant concedes that he committed the offenses as charged in the
State’s indictment. He does not appeal his convictions; rather, he asserts that
the portion of the trial court’s judgment that includes the registration
requirement is void.
2
Legislative History
The parties agree that the principal issue in this case is whether two bills
passed in the same legislative session, each relating to sex offender registration
requirements, are reconcilable. Thus, we will give a brief history of these bills.
In the 2005 regular session, legislators passed House Bill 2228, creating
the online solicitation of a minor offense and requiring anyone convicted of that
offense to register as a sex offender. See Act of May 25, 2005, 79th Leg.,
R.S., ch. 1273, § 2, 2005 Tex. Gen. Laws 4049, 4050–51 (amended 2005)
(current versions at Tex. Penal Code Ann. § 33.021 and Tex. Code Crim. Proc.
Ann. art. 62.001(5) (Vernon Supp. 2008)); see also Senate Research Ctr., Bill
Analysis, Tex. H.B. 2228, 79th Leg., R.S. (2005) (explaining that the bill
amended the penal code to “allow for the filing of charges against individuals
who engage in conversations over the Internet with the intent of meeting a
minor for sexual activity” and that it also redefined “reportable conviction or
adjudication” in the sex offender registration statute). To apply the sex
offender registration requirement to a conviction for online solicitation of a
minor, House Bill 2228 added a new subsection to the then-existing registration
statute; however, the bill included a recitation of the entire relevant registration
section:
3
SECTION 2. Article 62.01(5), Code of Criminal Procedure, is
amended to read as follows:
(5) “Reportable conviction or adjudication” means a conviction
or adjudication, regardless of the pendency of an appeal, that is:
(A) a conviction for a violation of Section 21.11
(Indecency with a child), 22.011 (Sexual assault),
22.021 (Aggravated sexual assault), or 25.02
(Prohibited sexual conduct), Penal Code;
(B) a conviction for a violation of Section 43.05
(Compelling prostitution), 43.25 (Sexual performance
by a child), or 43.26 (Possession or promotion of child
pornography), Penal Code;
(C) a conviction for a violation of Section 20.04(a)(4)
(Aggravated kidnapping), Penal Code, if the defendant
committed the offense with intent to violate or abuse
the victim sexually;
(D) a conviction for a violation of Section 30.02
(Burglary), Penal Code, if the offense is punishable
under Subsection (d) of that section and the defendant
committed the offense with intent to commit a felony
listed in Paragraph (A) or (C);
(E) a conviction for a violation of Section 20.02
(Unlawful restraint), 20.03 (Kidnapping), or 20.04
(Aggravated kidnapping), Penal Code, if the judgment
in the case contains an affirmative finding under Article
42.015;
(F) the second conviction for a violation of Section
21.08 (Indecent exposure), Penal Code;
(G) a conviction for an attempt, conspiracy, or
solicitation, as defined by Chapter 15, Penal Code, to
4
commit an offense listed in Paragraph (A), (B), (C), (D),
or (E);
(H) an adjudication of delinquent conduct:
(i) based on a violation of one of the
offenses listed in Paragraph (A), (B), (C),
(D), [or] (G), or (N) or, if the order in the
hearing contains an affirmative finding that
the victim or intended victim was younger
than 17 years of age, one of the offenses
listed in Paragraph (E); or
(ii) for which two violations of the
offense listed in Paragraph (F) are shown;
(I) a deferred adjudication for an offense listed in:
(i) Paragraph (A), (B), (C), (D), [or] (G),
or (N); or
(ii) Paragraph (E) if the papers in the
case contain an affirmative finding that the
victim or intended victim was younger
than 17 years of age;
(J) a conviction under the laws of another state,
federal law, the laws of a foreign country, or the
Uniform Code of Military Justice for an offense
containing elements that are substantially similar to the
elements of an offense listed under Paragraph (A), (B),
(C), (D), (E), [or] (G), or (N);
(K) an adjudication of delinquent conduct under the
laws of another state, federal law, or the laws of a
foreign country based on a violation of an offense
containing elements that are substantially similar to the
elements of an offense listed under Paragraph (A), (B),
(C), (D), (E), [or] (G), or (N);
5
(L) the second conviction under the laws of another
state, federal law, the laws of a foreign country, or the
Uniform Code of Military Justice for an offense
containing elements that are substantially similar to the
elements of the offense of indecent exposure; [or]
(M) the second adjudication of delinquent conduct
under the laws of another state, federal law, or the
laws of a foreign country based on a violation of an
offense containing elements that are substantially
similar to the elements of the offense of indecent
exposure; or
(N) a conviction for a violation of Section 33.021
(Online solicitation of a minor), Penal Code.
Act of May 25, 2005, 79th Leg., R.S., ch. 1273, § 2, 2005 Tex. Gen. Laws
4049, 4050–51 (amended 2005).
In the same session, the legislature enacted House Bill 867, which, in
part, amended the same section of the registration statute that the legislature
had amended the previous day by passing House Bill 2228. See Act of May
26, 2005, 79th Leg., R.S., ch. 1008, § 1.01, 2005 Tex. Gen. Laws 3385,
3386–87 (amended 2007) (current version at Tex. Code Crim. Proc. Ann. art.
62.001(5)). Unlike House Bill 2228, House Bill 867 did not contain any
reference to the inclusion of online solicitation of a minor as an offense subject
to registration requirements; it also made several other changes to the
registration statute not made by the previous bill:
6
SECTION 1.01. Chapter 62, Code of Criminal Procedure, is
reenacted and amended to read as follows:
....
(5) “Reportable conviction or adjudication” means a conviction
or adjudication, including an adjudication of delinquent conduct or
a deferred adjudication, [regardless of the pendency of an appeal,]
that, regardless of the pendency of an appeal, is a conviction for or
an adjudication for or based on:
(A) [a conviction for] a violation of Section 21.11
(Indecency with a child), 22.011 (Sexual assault),
22.021 (Aggravated sexual assault), or 25.02
(Prohibited sexual conduct), Penal Code;
(B) [a conviction for] a violation of Section 43.05
(Compelling prostitution), 43.25 (Sexual performance
by a child), or 43.26 (Possession or promotion of child
pornography), Penal Code;
(C) [a conviction for] a violation of Section
20.04(a)(4) (Aggravated kidnapping), Penal Code, if
the actor [defendant] committed the offense or
engaged in the conduct with intent to violate or abuse
the victim sexually;
(D) [a conviction for] a violation of Section 30.02
(Burglary), Penal Code, if the offense or conduct is
punishable under Subsection (d) of that section and the
actor [defendant] committed the offense or engaged in
the conduct with intent to commit a felony listed in
Paragraph (A) or (C);
(E) [a conviction for] a violation of Section 20.02
(Unlawful restraint), 20.03 (Kidnapping), or 20.04
(Aggravated kidnapping), Penal Code, if, as applicable:
7
(i) the judgment in the case contains an
affirmative finding under Article 42.015; or
(ii) the order in the hearing or the papers
in the case contain an affirmative finding
that the victim or intended victim was
younger than 17 years of age;
(F) the second [conviction for a] violation of Section
21.08 (Indecent exposure), Penal Code, but not if the
second violation results in a deferred adjudication;
(G) [a conviction for] an attempt, conspiracy, or
solicitation, as defined by Chapter 15, Penal Code, to
commit an offense or engage in conduct listed in
Paragraph (A), (B), (C), (D), or (E);
(H) [an adjudication of delinquent conduct:
[(i) based on a violation of one of the
offenses listed in Paragraph (A), (B), (C),
(D), or (G) or, if the order in the hearing
contains an affirmative finding that the
victim or intended victim was younger
than 17 years of age, one of the offenses
listed in Paragraph (E); or
[(ii) for which two violations of the
offense listed in Paragraph (F) are shown;
[(I) a deferred adjudication for an offense listed in:
[(i) Paragraph (A), (B), (C), (D), or (G); or
[(ii) Paragraph (E) if the papers in the
case contain an affirmative finding that the
victim or intended victim was younger
than 17 years of age;
8
[(J)] a violation of [conviction under] the laws of
another state, federal law, the laws of a foreign
country, or the Uniform Code of Military Justice for or
based on the violation of an offense containing
elements that are substantially similar to the elements
of an offense listed under Paragraph (A), (B), (C), (D),
(E), or (G), but not if the violation results in a deferred
adjudication; or
(I) [(K) an adjudication of delinquent conduct under the
laws of another state, federal law, or the laws of a
foreign country based on a violation of an offense
containing elements that are substantially similar to the
elements of an offense listed under Paragraph (A), (B),
(C), (D), (E), or (G);
[(L)] the second violation of [conviction under] the
laws of another state, federal law, the laws of a
foreign country, or the Uniform Code of Military Justice
for or based on the violation of an offense containing
elements that are substantially similar to the elements
of the offense of indecent exposure, but not if the
second violation results in a deferred adjudication[; or
[(M) the second adjudication of delinquent conduct
under the laws of another state, federal law, or the
laws of a foreign country based on a violation of an
offense containing elements that are substantially
similar to the elements of the offense of indecent
exposure].
Id. By passing House Bill 867, the legislature aimed to reorganize Chapter 62
of the code of criminal procedure,2 “streamline, simplify, and clarify” its
2
… For instance, House Bill 867 renumbered the section of the code of
criminal procedure relevant to this appeal from 62.01(5) (as indicated by House
Bill 2228) to 62.001(5).
9
provisions, and make some substantive changes. See Senate Research Ctr., Bill
Analysis, Tex. H.B. 867, 79th Leg., R.S. (2005).
The Code Construction Act and Reconciliation of the Two Bills
In his first point, appellant asserts that because the legislature passed
House Bill 867 (which, as indicated above, did not contain any reference to
online solicitation of a minor as an offense requiring sex offender registration)
after it passed House Bill 2228 (which did specifically contain such a
reference), and because the two bills are allegedly irreconcilable, House Bill 867
prevails; thus, no statutory authority existed for the trial court’s imposition of
the registration requirement in this case.3
Standard of Review
When deciding issues related to statutory construction, we apply a de
novo standard of review, “ascertaining and giving effect to the legislature’s
intent as expressed by the plain and common meaning of the statute’s words.”
3
… The legislature again amended the registration section relevant to this
appeal in 2007, before appellant’s conviction but after he committed his
offenses. See Act of May 18, 2007, 80th Leg., R.S., ch. 593, §§ 3.22, 4.01,
2007 Tex. Gen. Laws 1136, 1136–37, 1148 (current version at Tex. Code
Crim. Proc. Ann. art. 62.001(5)). This amendment also incorporated the online
solicitation of a minor offense as requiring sex offender registration; however,
the amendment applied only to offenses committed on or after September 1,
2007. Id. Thus, this amendment cannot serve as the basis for the trial court’s
imposition of appellant’s registration requirement.
10
See Wichita County v. Bonnin, 268 S.W.3d 811, 817 (Tex. App.—Fort Worth
2008, pet. denied); Molano v. State, 262 S.W.3d 554, 562 (Tex.
App.—Corpus Christi 2008, no pet.); Palladian Bldg. Co. v. Nortex Found.
Designs, Inc., 165 S.W.3d 430, 436 (Tex. App.—Fort Worth 2005, no pet.).
“It is a question of law for the court to decide whether a particular remedy is
available under a statute.” Molano, 262 S.W.3d at 562; see State v. Vasilas,
187 S.W.3d 486, 488 (Tex. Crim. App. 2006).
Analysis
The Code Construction Act applies to the legislative amendments detailed
above. See Tex. Gov’t Code Ann. §§ 311.001, 311.002(2) (Vernon 2005).
Section 311.025 of the Act states,
(a) Except as provided by Section 311.031(d),4 if statutes
enacted at the same or different sessions of the legislature are
irreconcilable, the statute latest in date of enactment prevails.
(b) Except as provided by Section 311.031(d), if amendments to
the same statute are enacted at the same session of the legislature,
one amendment without reference to another, the amendments
shall be harmonized, if possible, so that effect may be given to
each. If the amendments are irreconcilable, the latest in date of
enactment prevails.
4
… Section 311.031(d) provides that if “any provision of a code conflicts
with a statute enacted by the same legislature that enacted the code, the
statute controls.” Tex. Gov’t Code Ann. § 311.031(d) (Vernon 2005). Neither
party has contended that this section applies to the issues raised in this appeal.
11
(c) In determining whether amendments are irreconcilable, text
that is reenacted because of the requirement of Article III, Section
36, of the Texas Constitution is not considered to be irreconcilable
with additions or omissions in the same text made by another
amendment. Unless clearly indicated to the contrary, an
amendment that reenacts text in compliance with that
constitutional requirement does not indicate legislative intent that
the reenacted text prevail over changes in the same text made by
another amendment, regardless of the relative dates of enactment.
(d) In this section, the date of enactment is the date on which
the last legislative vote is taken on the bill enacting the statute.
(e) If the journals or other legislative records fail to disclose
which of two or more bills in conflict is latest in date of enactment,
the date of enactment of the respective bills is considered to be, in
order of priority:
(1) the date on which the last presiding officer
signed the bill;
(2) the date on which the governor signed the bill; or
(3) the date on which the bill became law by
operation of law.
Tex. Gov’t Code Ann. § 311.025 (Vernon 2005) (emphasis added).
This section relates that we must attempt to give effect to both of House Bills
867 and 2228; other portions of the Code Construction Act support this same
goal. See id. § 311.021(2) (Vernon 2005); see also State v. Preslar, 751
S.W.2d 477, 481 (Tex. 1988) (orig. proceeding) (indicating that in determining
whether bills are reconcilable, courts may consider the object to be attained,
the circumstances under which the statute was enacted, and the legislative
12
history); R & R Contractors v. Torres, 88 S.W.3d 685, 702 (Tex. App.—Corpus
Christi 2002, no pet.) (explaining that there is a presumption that bills affecting
the same statute are reconcilable); Price v. State, 35 S.W.3d 136, 142 (Tex.
App.—Waco 2000, pet. ref’d) (stating that a court’s role in interpreting the
effects of amendments is to “look for and give effect to the [legislature’s]
intent”).
In Rhoades v. State, the appellant contested his conviction for capital
murder, asserting (among other arguments) that two bills passed in the 1991
regular legislative session were incompatible. 934 S.W.2d 113, 121 (Tex.
Crim. App. 1996).5 The bills both concerned substantive changes to article
37.071 of the code of criminal procedure. Id.; see Tex. Code Crim. Proc. Ann.
art. 37.071 (Vernon 2006). The Court of Criminal Appeals explained the
changes made by both bills:
Senate Bill 880 amended Article 37.071 so as to delete the special
punishment issues concerning “deliberateness” and “provocation,”
while such a deletion was not reflected in House Bill 9.
....
5
… Because of such alleged incompatibility, the appellant contended that
his federal constitutional rights under the Fourteenth Amendment and his state
constitutional rights under Article 1, Section 19 had been violated. Rhoades,
934 S.W.3d at 121; see U.S. Const. amend. XIV; Tex. Const. art. I, § 19.
Appellant has asserted violations of these same constitutional provisions in his
second and third points.
13
House Bill 9 made a single substantive change to Article
37.071. That change was the addition of Section One, in which
the State might elect to decline pursuit of a death sentence in a
capital case. To indicate this change, the Legislature was
compelled to “re-enact” the entire statute as it was before
amendment. Article 37.071 did not yet contain the changes made
by Senate Bill 880 because these changes were made during the
same legislative session and had not yet taken effect.
Hence, House Bill 9 does not contain the changes made by Senate
Bill 880.
Senate Bill 880 made more extensive amendments.
These changes essentially involved the elimination of the
“deliberate” and “provocation” prongs of the jury charge, and the
addition of the mitigation finding. To signify these changes, the
Legislature was required to “re-enact” the entire statute, as it was
before amendment. House Bill 9 was not yet part of Article
37.071.
Rhoades, 934 S.W.2d at 121–22 (citation omitted). The court then relied on
section 311.025 of the Code Construction Act to hold that although each bill
made substantive changes the other did not, they were still reconcilable. Id. at
122.
Appellant contends that, unlike in Rhoades, section 311.025(c) does not
apply to this case because the text in House Bill 2228 was not “reenacted
because of the requirement of Article III, Section 36, of the Texas
Constitution,” as the section requires. 6 Tex. Gov’t Code Ann. § 311.025(c).
6
… Appellant concedes that if section 311.025(c) applies to the two bills
at issue, the bills are reconcilable, and both are effective.
14
House Bill 2228 reenacted the registration statute though it did not
contain the word “reenact”
First, appellant reasons that House Bill 2228 was not reenacted in
accordance with the constitutional requirement because the language in House
Bill 2228 does not include the term “reenacted,” as House Bill 867 does,
signaling the legislature’s intention only to amend the statute rather than to
reenact it. However, the court in Rhoades applied section 311.025(c) although
neither of the bills it considered contained any language regarding reenactment;
rather, like House Bill 2228, the bills merely stated that they “amended [the
statute] to read as follows.” Act of May 27, 1991, 72nd Leg., R.S., ch. 652,
§ 9, 1991 Tex. Gen. Laws 2394, 2395–96 (amended 1993) (current version
at Tex. Code Crim. Proc. Ann. art. 37.071); Act of May 17, 1991, 72nd Leg.,
R.S., ch. 838, § 1, 1991 Tex. Gen. Laws 2898, 2898–2900 (amended 1991)
(current version at Tex. Code Crim. Proc. Ann. art. 37.071); see Rhoades, 934
S.W.2d at 121–22. Like House Bill 2228, the bills in Rhoades did, however,
set forth the full statute, including the changed portions, at length. Act of May
27, 1991, 72nd Leg., R.S., ch. 652, § 9, 1991 Tex. Gen. Laws 2394,
15
2395–96 (amended 1993); Act of May 17, 1991, 72nd Leg., R.S., ch. 838,
§ 1, 1991 Tex. Gen. Laws 2898, 2898–2900 (amended 1991).7
We conclude and hold, therefore, that when the legislature recites a
statute at full length while amending it, it “reenacts” the statute, regardless of
the terminology it uses to do so.8 See also Tex. Fid. & Bonding Co. v. City of
Austin, 112 Tex. 229, 236, 246 S.W. 1026, 1029 (1922) (indicating that a
statute may be reenacted “by amendment”). Thus, we hold that House Bill
2228 reenacted the registration section by including the entire section within
the bill.
House Bill 2228 reenacted the registration section because of the
constitutional requirement
Second, appellant contends that even if House Bill 2228 did reenact the
relevant registration section, that reenactment was not “because of the
7
… Similarly, in State ex rel. Turner v. McDonald, the Court of Criminal
Appeals stated that a bill reenacted a section of article 42.12 of the code of
criminal procedure when the bill did not specifically contain the word “reenact,”
but stated that the article was “amended to read as follows.” 676 S.W.2d
375, 377 (Tex. Crim. App. 1984), superseded by statute on other grounds as
stated in Whitelaw v. State, 29 S.W.3d 129, 133–34 (Tex. Crim. App. 2000);
see Act of May 27, 1983, 68th Leg., R.S., ch. 303, § 9, 1983 Tex. Gen. Laws
1568, 1587–88 (amended 1993) (current version at Tex. Code Crim. Proc.
Ann. art. 42.12 (Vernon Supp. 2008)).
8
… Appellant has not cited any authority, and we have found none,
expressly requiring the word “reenact” to appear in a bill for the bill to have a
reenacting effect.
16
requirement of Article III, Section 36, of the Texas Constitution.” See Tex.
Gov’t Code Ann. § 311.025(c). Article III, section 36 provides, “No law shall
be revived or amended by reference to its title; but in such case the act revived,
or the section or sections amended, shall be re-enacted and published at
length.” Tex. Const. art. III, § 36; see Baggett v. State, 673 S.W.2d 908,
911–12 (Tex. App.—Beaumont 1984, no pet.) (noting that the intent of this
constitutional provision is “to prohibit the practice of amending a statute by
referring to its title and then providing that it should be amended by striking out
or deleting certain words and phrases and then inserting new words and
phrases”).
Appellant cites Henderson v. City of Galveston for the proposition that
when House Bill 2228 only added a new subsection to the registration statute
to include online solicitation of a minor as an offense requiring registration,
without making any other changes, no reenactment of the registration statute
was constitutionally required. 102 Tex. 163, 114 S.W. 108 (1908). However,
Henderson supports the opposite conclusion.
In Henderson, the Texas Supreme Court considered whether the
legislature’s act allowing Galveston to regulate its businesses’ sale of alcohol
complied with article III, section 36 when it only contained the language
amending Galveston’s charter, rather than a full recitation of the charter
17
incorporating the amending language. Id. at 165, 169, 114 S.W. at 109, 111.
The supreme court held that the act violated the constitution because the
charter was “not reenacted in the amendatory act; the amendment being
accomplished by the addition of a distinct provision.” Id. at 169, 114 S.W. at
111. The court explained,
By its very terms [the act] undertakes to amend [the charter], and
that section as amended is not re-enacted, and of course cannot be
published at length in the new statute. Nor is there anything in the
nature of the provision to take it out of the operation of the
Constitution. It is not only named an amendment, but it is such in
its character. It adds a provision to the existing section, and this,
according to all authority, judicial or parliamentary, of which we
know anything, is an amendment.
Id. at 169, 114 S.W. at 111 (emphasis added). The court then distinguished
the constitutional applicability of the act at issue in Henderson from one that
has
declared fully its provisions without direct reference to any other
act, although its effect should be to enlarge or restrict the operation
of some other statutes . . . [,] an independent statute, complete
within itself, not adopted as an amendment of, and adding nothing
to, and taking nothing from, the language of any other. That form
of legislation does not fall within the purview of the constitutional
provision, as has been held by every court that has considered the
question, because that provision applies only to attempts to amend
or revive. But when the Legislature in enacting new legislation
adopts the mode of amending existing laws, the Constitution
speaks and prescribes a rule that must be followed. That was the
mode expressly adopted here, and the amendment was attempted
by ‘adding to’ the existing section. . . . [N]o authority cited, and
none that we know of, has held that a section of a statute may be
18
amended by adding words to it, without re-enacting the entire
section as amended, and such a holding would be condemned by
the plain words of the Constitution.
Id. at 169–70, 114 S.W. at 111–12.
As set forth above, House Bill 2228 did not create an entirely new section
in the code of criminal procedure; instead, it amended an existing section by
adding a new subsection,9 while reenacting that entire section. Based on the
rationale expressed in Henderson, this reenactment was constitutionally
required. See id. at 169–70, 114 S.W. at 111–12; see also Rhoades, 934
S.W.2d at 121 (expressing that the purpose of article III, section 36 is for
“amended statutes to be re-enacted and published so that their meaning may
be known without the necessity of examining the statute amended”) (emphasis
9
… We note that the added subsection, “(N) a conviction for a violation
of Section 33.021 (Online solicitation of a minor), Penal Code,” cannot make
sense as any independent pronouncement; instead, the subsection has logical
meaning only when considered along with the remainder of the sex offender
registration statute; it is dependent upon the remainder of that statute for its
effect. We conclude that this distinguishes the addition in House Bill 2228
from those cases in which the added statutory language is complete within
itself. See State v. Sw. Gas & Elec. Co., 145 Tex. 24, 30, 193 S.W.2d 675,
679 (1946); Johnson v. Martin, 75 Tex. 33, 39, 12 S.W. 321, 323 (1889);
Ellison v. Tex. Liquor Control Bd., 154 S.W.2d 322, 326 (Tex. Civ.
App.—Galveston 1941, writ ref’d) (holding that the enactment of subsections
apart from the language of the entire section they were contained in was not
constitutionally defective when the subsections were equivalent to articles
within a chapter); see also Henderson, 102 Tex. at 169, 114 S.W. at 111
(indicating that an independent statute that declares its provisions fully is not
subject to the constitutional reenactment requirement).
19
added). Therefore, we conclude that section 311.025(c), relating to text
reenacted “because of the requirement of . . . the Texas Constitution,” applies
to House Bills 2228 and 867. See Tex. Gov’t Code Ann. § 311.025(c).
Because section 311.025(c) applies to House Bills 2228 and 867, the
bills are not irreconcilable, and they are both therefore effective
In applying the Code Construction Act, on the basis of the language
contained in section 311.025(c), we conclude that the reenacted portions of
House Bill 2228, subsections (5)(A)–(M) (as cited above), are not incompatible
with the expressly different corresponding portions of subsequently-enacted
House Bill 867. See id. And relying on that section as well as subsection (b)
of the same statute, we further conclude that the addition made by House Bill
2228 to the registration statute (inserting online solicitation of a minor as an
offense requiring registration) is not irreconcilable with the mere omission of
that addition from the same text in House Bill 867. See id. § 311.025(b), (c).
Effect may be given to each of the two bills relevant to this case, because
although House Bill 867 did not include online solicitation of a minor as an
offense requiring registration, nothing in the bill conflicted either expressly or
impliedly with House Bill 2228’s inclusion of that offense as being subject to
the registration requirement. See id. § 311.025(b) (stating that “amendments
shall be harmonized, if possible, so that effect may be given to each”); cf.
20
Saunders v. State, 49 S.W.3d 536, 539 (Tex. App.—Eastland 2001, pet. ref’d)
(holding that two statutes expressly differing on whether a deaf juror could be
accompanied by an interpreter during deliberations were irreconcilable).
Our conclusion is strengthened by our consideration of the legislature’s
intent. See Preslar, 751 S.W.2d at 481; Price, 35 S.W.3d at 142. Appellant’s
position, that the registration requirement for the online solicitation of a minor
offense, as added by House Bill 2228, was totally negated by House Bill 867
(passed the next day), would render a portion of House Bill 2228 completely
null, because adding online solicitation to the list of reportable offenses was the
only change made by House Bill 2228 to the registration section. See Act of
May 25, 2005, 79th Leg., R.S., ch. 1273, § 2, 2005 Tex. Gen. Laws 4049,
4050–51 (amended 2005). We cannot conclude that the legislature intended
such a futile action. See Hunter v. Fort Worth Capital Corp., 620 S.W.2d 547,
551 (Tex. 1981) (citing the “rule of statutory construction that the legislature
is never presumed to do a useless act”); Ex parte Tucker, 977 S.W.2d 713,
716–17 (Tex. App.—Fort Worth 1998) (“We will not presume that the
Legislature did a useless or vain thing by enacting language that was mere
surplusage or that was not intended to be effective.”), pet. dism’d, 3 S.W.3d
576 (Tex. Crim. App. 1999).
For these reasons, we conclude that through House Bill 2228, the
legislature validly amended the sex offender registration statute to apply to the
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online solicitation of a minor offense. Because House Bill 2228 became
effective in 2005, and because appellant committed his offenses in 2007, the
trial court acted according to the statute when it included the registration
requirement in its judgment. Thus, we overrule appellant’s first point.
Appellant’s Constitutional Points
In his second and third points, appellant asserts violations of his federal
and state constitutional rights. These alleged violations are dependent upon his
argument that there was no statutory authority for the trial court’s imposition
of the registration requirement.10 Because we hold that the trial court acted
with statutory authority, we overrule appellant’s second and third points.
Conclusion
Having overruled all of appellant’s points, we affirm the trial court’s
judgment.
TERRIE LIVINGSTON
JUSTICE
PANEL: CAYCE, C.J.; LIVINGSTON and GARDNER, JJ.
PUBLISH
DELIVERED: March 19, 2009
10
… Specifically, appellant contends that without a valid statute expressly
authorizing the trial court to impose a registration requirement, he was without
notice of the potential for such a condition when he committed his offenses,
which he claims violates due process and the due course of law. See U.S.
Const. amend. XIV; Tex. Const. art. I, § 19.
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