During the pandemic, Texas resident Ace Cannon wanted liquid refreshments – beer, to be precise – but lacked the required monies to pay for his “need.” Undeterred, Mr. Cannon headed to the nearest Stop and Rob. Grabbing an ice-cold twelve pack of cans, Mr. Cannon quickly whisked past the checkout counter without stopping to make requisite payment. However, our “Hero” quickly fell into the hands of the local law enforcement, who arrested him for Theft of Aluminum, a state jail felony.1
The grand jury returned an indictment for that felony offense. The State then “enhanced” the SJF to a third degree offense because it was committed “in an area that was at the time of the offense subject to a declaration of a state of disaster made by the Governor.”2 Ace’s Class C theft,3 with an assist from the Great State of Texas, has Mr. Cannon facing a potential ten year pen trip.
I know what you are thinking. “They” can’t do that! Yes. Yes, “they” can.
If you have a client facing a COVID-19 “state of disaster” enhancement, all is not lost. Although the plain language of the applicable enhancement statute seemingly allows such “horse hockey,”4 a look back on the legislative history of this law shows otherwise. Time to dust off your knowledge of statutory construction and argue that the enhancement is ill-advised outside times of natural disasters – and offenses directly related to the occurrence of the natural disaster. In legal terms, to apply the enhancement for “an offense committed in a disaster area” in Mr. Cannon’s case would provide for “an absurd result.”
Not all disaster declarations are meant to trigger this enhancement.
The trip to the “absurd result” begins with the landfall of Hurricane Ike in Texas on September 13, 2008.5 Ike swept through Galveston Island and onto the Texas mainland.6 Pertinent to our Tale of Woe, police arrested eight persons in Galveston County for looting in the week following landfall.7 Over 100 arrests were made for “looting” in Harris County in the same time.8 Then State Senator (now Lieutenant Governor) Dan Patrick heard the siren’s call, and introduced legislation “to increase punishment in theft cases committed in certain evacuated or disaster areas.”9 It important to note that the initial bill was tied only to the Theft statute, but evolved into a general sentence enhancement. The chart below tracks the progression of all related bills through the Texas Legislature in 2009.
12/15/2008: Senate Bill 359 filed.10
S.J. of Tex., 254 81st Leg. R.S.
“Relating to punishment for the offense of theft committed in certain evacuated or disaster areas.”11
03/13/2009: HB 4101 is filed.12
03/27/2009: The Senate Research Center issues its “bill analysis.”
“This bill addresses punishment levels for the offense of theft committed in evacuated areas or disaster areas. After Hurricane Ike, local officials brought to light the problem of looting in abandoned or evacuated areas. Section 31.03(f) (relating to certain offenses committed by actors that qualify for the next higher category of offense) of the Penal Code lists several specific theft offenses for which penalties are increased to the next higher category of offense.
C.S.S.B. 359 adds Section 12.50 (Penalty If Offense Committed in Disaster Area or Evacuated Area) to Subchapter D (Exceptional Sentences), Chapter 12 (Punishments), Penal Code, to provide that the punishment for an offense is increased to the punishment prescribed for the next higher category of offense if it is shown on the trial of the offense that the offense was committed in an area that is considered to be a disaster by certain government officials.”13
03/30/2009: Senate Bill 359 is reported out of committee revised to punishment enhancement, instead of focusing on amending the theft statute.14
05/18/2009: The House Research Organization bill analysis is issued.
SB 359 would help deter potential criminal behavior during a hurricane or other disaster by increasing the punishment for certain crimes if they occurred within a declared disaster area. Curfews are not enough to deter burglary or theft after a hurricane, because many looters and burglars are discovered after set curfew times. Some residents do not evacuate during hurricanes out of fear that their homes or businesses will be broken into or looted. By enhancing criminal penalties for certain offenses, the bill would provide peace of mind to residents and business owners.15
05/18/2009: SB 359 is amended.
Amend SB 359 (house committee printing) in SECTION 1 of the bill as follows: (1) In proposed Section 12.50(a), Penal Code (page 1, line 12), strike “is” and substitute “was, at the time of the offense”. (2) In proposed Section 12.50(a)(1), Penal Code (page 1, line 13), strike “considered to be a disaster area by” and substitute “subject to a declaration of a state of disaster made by”.
(3) In proposed Section 12.50(a)(1)(B), Penal Code (page 1, line 18), immediately following the underlined semicolon, insert “or”. (4) Strike proposed Section 12.50(a)(1)(D), Penal Code (page 1, lines 22-23).16
06/19/2009: SB 359 was signed into law by Texas Governor Rick Perry.17
Currently, the statute provides for a listing of applicable offenses that can be enhanced under the statute.18 If a listed offense “is alleged to have been committed in an area subject to a state of disaster declaration made by the President of the United States, the Texas Governor or a presiding officer of a governing body under Texas Government Code section 418.108 or subject to an emergency evacuation order,” then the punishment is increased to that prescribed for the next higher category of offense.19
Here is where it gets legal
The legislative history shows a clear intent that the punishment enhancement was to be used in cases where there is a combination of a natural disaster and persons attempting to “profiteer” from the results. But the plain language of the statute provides no such limitation. So, in the words of The Stork, “what the hell are we supposed to do, ya moron?”20 Well, hold my beer. All that is necessary is to prove that jacking Ace into the Institutional Division is an “absurd result.”21
The start of this process is to use statutory construction. The objective of this process is to give effect to the Legislature’s intent.22 To do so, the first step is to examine the statutory text according to its plain meaning.23 If the meaning of the statutory text would have been plain to the legislators who voted on it, courts are to “give effect to that plain meaning.”24 However, where application of a statute’s plain language would lead to absurd consequences that the Legislature could not possibly have intended, the plain language method is not used.25 A statute is ambiguous when it “may be understood by reasonably well-informed persons in two or more different senses.”26 Yeah, but how do you get to the absurd result? The absurd-results principle appears to be simple enough: “[i]interpretations of statutes which would produce absurd results are to be avoided.”27 There you go. Just tell the judge to avoid this issue.
How about another approach, one that might not draw the blank stare of indignation or incite judicial anger? One a bit more “legal?” Texas opinions finding “absurd results” are divisible into four general categories:
- The “conditional” statement, i.e., one stating that an interpretation producing absurd results should not be adopted if an alternative construction is available;
- The “normative” statement, i.e., one stating that courts should, may, must, or will not adopt a construction of a statute that leads to absurd results, without making the exception conditional on the existence of a reasonable alternative construction and without expressly declaring that the rule will control even over the literal meaning of statutory language;
- The “presumptive” statement, i.e., one stating that courts will presume the legislature did not intend for a statute to produce absurd results; and,
- The “deviatory” statement, i.e., one expressly stating that the court will deviate from the literal meaning of statutory language if an adoption of such meaning would produce absurd results.28
Luckily, it is necessary to examine only the “deviatory statement,” as it provides the best fit under existing Court of Criminal Appeals guidance. The deviatory statement theory includes those opinions that state the absurd-results principle in terms that are (1) not conditioned on the existence of an alternative reasonable construction, and (2) expressly stated to control even over the literal or plain meaning of the statutory language.29 This category is the most significant for purposes of Mr. Cannon’s defense – because it is the only version of the absurd-results principle that is, on its face, a true exception to the plain-meaning rule.30
Two Court of Criminal Appeals opinions demonstrate the “deviatory” statement theory. Begin with Mr. O. A. Bizzelle, who in 1938, was convicted of operating a modern school of beauty culture “without having it at all times under the direct supervision of a registered hairdresser or cosmetologist.”31 Mr. Bizzelle had left his school under the care of another, one Miss Cavanaugh.32 Miss Cavanaugh had absented herself from the cosmetology school for “several days” while visiting her sister.33 Obviously, under the plain meaning test, Mr. Bizzelle has committed an offense. However, the Court was called upon to determine the meaning of the language “at all times under the direct supervision of a registered hairdresser or cosmetologist.”34
The Court quickly found that enforcing the plain language of the statute would “lead to consequences which the Legislature could not have contemplated.” “When the literal enforcement of a statute would lead to consequences which the Legislature could not have contemplated, the courts are bound to presume that such consequences were not intended and adopt a construction which will promote the purpose for which the legislation was passed.”35
A similar issue arose when the Court of Criminal Appeals was asked to determine the meaning of the statute which required “[i]f during the trial evidence of the defendant’s incompetency is brought to the attention of the court from any source, the court must conduct a hearing out of the presence of the jury to determine whether or not there is evidence to support a finding of incompetency to stand trial.”36 In Johnson, while on the witness stand, the defendant “lapsed into a rambling narrative stating that he had been ‘under surveillance for five years’ by certain law enforcement officials; that certain documents and pieces of his private mail had been stolen from him… and also that there was a conspiracy among the trial officials, including the trial judge and his attorney, to send him to the penitentiary unjustly.37 Citing the plain language of the statute, the Court of Criminal Appeals found this outburst to be sufficient evidence to require the court to have a hearing concerning competency, and reversed the matter for a new trial.38
However, upon rehearing, the Court of Criminal Appeals reversed itself.39 Apparently having realized the import of what they had held in the original decision,40 the Court quickly backtracked. “In construing a statute, its subject matter, reason and effect must be looked to… when a literal enforcement would lead to consequences which the Legislature could not have contemplated, the Courts are bound to presume that such consequences were not intended and adopt a construction which will promote the purpose for which the legislation was passed.”41 The Court then declared “the plain meaning” of the statute could not stand, concluding that “the Legislature could not have contemplated the consequences attendant upon a literal interpretation.”42
“Nothing is over until we decide it is!”
Let’s return to our statute in question. Clearly, Lieutenant Dan did NOT intend for the State of Texas to use this enhancement as a weapon of mass destruction – however broadly it was written. It was to be pinpointed to areas that were affected by a natural disaster such as a hurricane or other weather events – and at those who attempt to profiteer from said disaster. To do so otherwise would certainly seem as absurd as fining the owner of a cosmetology school for not having 24/7 supervision of the participants or having a defendant create a need for a competency hearing when it is clear that it is a fake. In other words, a link to the “disaster” and the allegations of the crime is necessary.
Further, when attempting to limit this enhancement to a proper application, the Legislative history comes into play.43 Extra-textual factors that maybe considered include (1) the object sought to be attained by the Legislature; (2) the circumstances under which the statute was enacted; (3) the legislative history; (4) the common law or former statutory provisions, including laws on the same or similar subjects; (5) the consequences of a particular construction; (6) the administrative construction of the statute; and (7) the title or caption, preamble, and any emergency provision.44
So what did Lieutenant Dan tell us in the legislative history? The bill was to “deter potential criminal behavior during a hurricane or other disaster by increasing the punishment for certain crimes if they occurred within a declared disaster area. By enhancing criminal penalties for certain offenses, the bill would provide peace of mind to residents and business owners.”45 It is also known that this bill arose at the time when South Texas had been hit by Hurricane Ike – and that reports of looting and other criminal activity arising from those profiteering from the misery of others had been published. Last, the bill’s title was “Penalty If Offense Committed in Disaster Area or Evacuated Area.”
The plain language may allow use of the enhancement in Ace’s case, but the adoption of such a broad meaning would produce absurd results – or [in less legal terminology] would constitute a “really futile and stupid gesture.”46 As such, Mr. Cannon’s indiscretion should not be seized upon to create another resident of the Institutional Division of the Texas Department of Criminal Justice. Although the plain language of the statute provides the State with this potential, pointing out the irrationality of this application saves Ace an undeserved and unwarranted stay at TDCJ.47
Now, go do that voodoo that you do so well.48
- TEX. PENAL CODE ANN. § 31.03(e)(4) (West 2020).
- Id. at § 12.50(a)(1), (b).
- Id. at § 31.03(e)(1) (“Except as provided . . . an offense under this section is a Class C misdemeanor if the value of the property stolen is less than $100.00”).
- A colloquialism attributed to the fictional character of Col. Sherman T. Potter, M*A*S*H. https://tinyurl.com/y5965m8h.
- NASA, Hurricane Season 2008: Hurricane Ike, https://tinyurl.com/yyj9rmus (last visited November 1, 2020).
- N Id.
- Sarah Foley, 18 arrested for looting across county, Galveston County Daily News (Sept. 19, 2008), https://tinyurl.com/y2qvxlh7.
- Mike Glenn, Carolyn Feibel, Looters think twice as police patrol, arrest 100, Houston Chronicle (Sept. 16, 2008), https://tinyurl.com/y5mjaj9k.
- The bill as introduced is available at https://tinyurl.com/y56s57u7.
- Tex. S.B. 357, 78th Leg., R.S. 2009.
- The bill as introduced is available at https://tinyurl.com/y52smane and by clicking on the word “text.”
- The Senate Committee Report can be found under the Analysis column at https://tinyurl.com/yxoygetk.
- For the text, Tex. Subcomm. on Flooding and Evacuations, Sen. Comm. Report at 1. https://tinyurl.com/yxoygetk.
- Texas House Research Organization, Bill Analysis at 2, available at https://tinyurl.com/yxoygetk, and click on the link “HRO Bill Analysis.”
- The amendment language is available at https://tinyurl.com/y2qvxlh7.
- TEX. PENAL CODE ANN. § 12.50(b) (West 2020).
- Id at § (a). Governor Abbott recently “renewed” his state disaster declaration concerning COVID-19. Tex. Gov. Proclamation (Nov. 6, 2020), available at https://tinyurl.com/yyuh2s9y.
- ANIMAL HOUSE (Universal 1978).
- The author of this article badly wanted to end this article at this point, much like Joseph of Arimathea, when describing where to find the Holy Grail. “He who is valiant and pure of spirit…may find the Holy Grail . . . in the Castle of Aaargh.” MONTY PYTHON AND THE HOLY GRAIL (Python (Monty) Pictures 1975) (emphasis added). More than likely, you (like the movie characters) would think something like “he must have died while writing it.” However, out of respect for the Editor of The Voice, the author soldiered on to provide you something to cut and paste and shove under your judge’s nose. And there was much rejoicing.
- Mitchell v. State, 580 S.W.3d 386, 388 (Tex. App.—Houston [1st Dist.] 2019, no pet.).
- Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
- Bryant v. State, 391 S.W.3d 86, 92 (Tex. Crim. App. 2012); see also Baird v. State, 398 S.W.3d 220, 229 (Tex. Crim. App. 2013) (statute is ambiguous when the language it employs is “reasonably susceptible to more than one understanding”). This type of double speak is defined by the author as a “Through the Looking Glass” test: “When I use a word,” Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master — that’s all.” LEWIS CARROLL, THROUGH THE LOOKING-GLASS, AND WHAT ALICE FOUND THERE (1871).
- J. Woodfin Jones, The Absurd-Results Principle of Statutory Construction in Texas, 15 Rev. Litig. 81 (1996).
- Id. at 85–86.
- Id. at 107.
- Bizzelle v. State, 116 S.W.2d 385 (Tex. Crim. App. 1938).
- Id. at 385–86.
- Id. at 386.
- . Johnson v. State, 564 S.W.2d 707, 710 (Tex. Crim. App. 1977) (citing TEX. CODE. CRIM. PROC. ANN. art. 46.02, § (2)(b) (West 1977)), overruled on other grounds by Williams v. State, 663 S.W.2d 832 (Tex. Crim. App. 1984).
- Id. at 709. The author does not believe that the last thought uttered by the defendant in Johnson demonstrates any type of delusional thought, as this is a common occurrence throughout our State.
- Id. (op. on reh’g).
- It was fairly evident from the case that the defendant was malingering his purported mental health issues.
- Id. at 710.
- Id. at 711.
- Boykin, 818 S.W.2d at 786.
- TEX. GOV’T CODE ANN. § 311.023 (West 2020).
- Texas House Research Organization, Bill Analysis at 2, available at https://tinyurl.com/yxoygetk, and click on the link “HRO Bill Analysis.”
- ANIMAL HOUSE (Universal 1978).
- Ace’s case might have a different outcome if Ace was involved in the theft of facial coverings to prevent infection from COVID-19, or burglarizing a pharmacy in search of Remdesivir. However, the author makes no assertions as to this eventuality. “Son, you’re on your own.” BLAZING SADDLES (Warner Bros. 1974).
- BLAZING SADDLES (Warner Bros. 1974).