‘: :
                                                      R-317

               THEA                           GENERAL
                              OFTEXAS




   .’



Ron. Jewel1 fielpinst ill, Chairman
Committee on Motor Traffic
House of Representat Ives
Austin, Texas               Opinion Ho. V-136
                                Re:   Con&it ut ionalit      of
                                      House   Bill No. 64 0,
                                      Fiftieth    Iegislat ure,
                                      Regular    Session,   1947,
                                      relative    to reglstra-
                                      tlon of motor vehicles
Dear Sir:                             bj nonresidents.
           House Bill  Ho. 690, Fiftieth Iaglslature,   Re -
ular Session,   1947, which is a bill to amend Chapter 3$ 2,
page 800, Acts of 1935, Forty-Fourth Iagislature,     Regular
Session, reads as follows:
                %ec. 2. (a) A nonresldent owner of a
        motor vehicle        trailer,   OP seal-trailer
        which has been’duly registered          fop ‘the cur-
        rent year in the State OP oountrg of which
        the owner is a resident and in accordance
        with the laws thereof,        may, in lieu of reg-
        istering     such vehicle as otherwise reClulred
        by law, apply to the State Highway Depart-
        ment through a County Tax Collector           for the
        registration      thereof as provided by law, ex-
        cept that the privileges        granted as other-
        wise provided for in this Act ,shall not ap-
        ply to any motor vehicle,        trailer,    or semi-
        trailer    operated within this State for the
        transportation      of persons or property for
        compensation OF hire.         Provided, however,
        that motor vehicles properly licensed            in
        another State or county operated for cornpen&
        sat ion or hire may be allowed to make not
        to exceed two (2) trips during any calen-
        dar month and remain on each of said trips
        within the State not to exceed four (4)
        days, without being registered          in this
        State,    in  the  event   thkt under   the  laws of
                                                                   / .




Hon. Jewel1 HelpinstIll,       Page 2, V-136


     such other State OP country    like exaeptions
     are granted to motor vehicles registered      un-
     der the laws of and owned by residents     of
     this State.    Provided that in any prosecu-
     t ion, for the violation of this Act, It shall
     not be necessary for the State to allege
     or prove that there are no like laws in ef-
     Sect in such other State or country.
            “(b)     Provided however, none of the pro-
     visions of this Section shall apply to or ex-
     empt the operator,         owner or lessee of any
     motor vehicle being drlven under its own pow-
     er, or towed or otherwise transported by be-
     ing attached or coupled to some other vehicle
     from or through this State over the highways
     thereof,     for the purpose of sale, resale OP
     trade in another State, or after having been
     sold, resold,        or traded to any person, com-
     pany, corporation,         or association     In another
     State, but each such motor vehicle shall be
     registered      for the Department through the
     County Ta% Collector          of the US  lrst county
     through which said motor vehicle passes af-
     ter entering this State; OP If moving Prom
     this State to another State, of the county
     from which said motor vehicle first             moves
     and a registration         See of Three Dollars ($3)
     for each such vehicle shall be paid to said
     Tax Collector        unless such motor vehicle has
     been previously        registered     with the Depart-
     ment la lawful        manner and license      Sees paid.
     The Tax Collector         of the county where such
     registration       is had shall furnish the opera-
     tor of said motor vehicle with a receipt              on
     a form prescribed         by the Departslent and said
     operator shall retain said receipt             in his
     possession      and exhibit      same to any member of
     the State Highway Patrol,            or other peace of-
     ficer,    for inspection        upon request.    If said
     operator is unable to present said receipt               to
     said member of the State Highway Patrol,.or
     other peace officer,         he and the motor vehicle
     which he is operating           shall be detained by
     such member of the State Highway Patrol,              or
     peace off leer until ‘proper registration            is
     had and said receipt          issued   by the Tax Collec-
     t,or OS some county through which said motor
     vehicle     is being, or has been driven OP towed,
     or otherwise transported by being attached or
Eon. Jewel1 Helpinstill,      Page 3, V-136,


     cou+lea   to   soms other  vehicle from OP through
     this 3tate     over the hlghways thereof O
            “(c) Any person or any officer,    agent
     or employee of any corporation,     company,~ or
     association   who violates any ,of the,~~provi-
     slons of this Section shall be guilty      of a
     mlsdeswanor and upon conviction     thereof shall
     be fined in an sum of not more than One Hun-
     area Dollars ( 3 100) *”
            Section 2 of Article 8nb, V. P, C , in Its
present  form was enacted by the Forty-fourth   Leglsla-
ture,  Chapter 342, page 800, Acts of 1935.    The only
change made in Section 2 of Article   827b, supra, by
the proposed amendmnt as embraced in House Bill Xo.
690 is .the addition after the ‘second sentence of the
first paragraph of said Section 2 of the following:
            “Provided that in any prosecution  for
      the violation  of this Act, It shall not bs
      necessary for the State to allege or prove
      that there are no like laws in effect   in
      such other State OP country. v
             Article   827b, Vernonss Penal Code, 1s c,om-
manly known in this State as the *Nonresident Temporary
Registration     Law‘, and it generally        regulates   the tempor-
ary~~registration     of vehicles     operated over the highways
of this State by out of state visitors             and nonresidents.
It is a well established        ,princlple    that the State may
make regulations      with respect to the registration          of
motor vehicles      lwlicable     to nonresidents     driving Into
or through the State,         1 Blashfield     CmloDef~w;~eAuto-
mobile Law and Practice P lH6, page 154               L          the
State may grant to nonresidents           a limitid   use of the
State Highways at a nominal fee by the way of peclpro-
city, and such legislation          Is not Invalid as an unrea-
sonable classification;        and further,     the State may con-
ait ion the use of ,it s hishwavs by nonresidents           to those
nouresldents     who have co&pli&i with similar legislation
in their respective       states,     lienrick v. Marrland, 235
U.S. 610, 35 S, Ct. 140, 59 L. Ed. 385; 1 Blashfield
CYClODedia    of Automobile Law a&l Practice g 186, page 154.
          The problem presented by the proposed amend-
ment to Section 2 of Article  8Qb, supra,   is entirely
different from the general principles  above stated
Eon,. Jewel1 Helplnatlll,        Page 4, V-136


regardlng~ the right OS the Stats to regulate the :use of 1
Us highways by motor vehlo$es, The serious qmst@a to
be decided involves the rlgbt ,and powd~ of ths bglsla-
tare under our Comtltutlon to dispense ,,wlth Certati al-
tigaticms aad p00r on the part 0r tb State la the pro-
wcutitm 0r a pars06   r0r ths rioma     ,0r a cmnuml    sta-
tute. ~~
          btwu    I,. s8d.i~     10, 0r the Dooetltatioa       0r
Texas provides in .k#rt ,a*, r0iim8 3,
             ‘In’ all crlmlnal prosecutions ths accused
       ahail haye a speedy public trial. by an qr-




                Art,icle   I, Section 19, or %Iw Ckutltutloa   of
Tour    provides .as .roUowa 8        ,’
            ‘%e citisea   of this State shall bs de-
       prived of ,Plfe, liberty+ pyoportye prlvlleges
       or lmmualt iea 9 OP in any mm8r di8fraaehiseU



             It Is to be observed that under Article    Wb,
scct1oi   2, vo P. c., as it now staads, aka also as pro-
Plded for in House BIPP 690, the privileges    granted to
a nonsesldelat whose vehicle Is properly registered, for
the current year in the State or country of which he Is
a msidetlt do not apply to any motor ‘vehicle,    trailer,
OP aeli-trailer    operated wfthin this State fop the trans-
portation    of persolsa or property for compensation dr hire,
with ths exceptiom, however, that motor vehloles priwerly
llceassd    in another State OF country aad osmratod far oon-
pe@satloa or hire may be allowed to ~m)P aot to .ezeeed
two trips durlmg aay calelldar msmtkand wrlm on ewh ..0r,
sold tilps wlthlm this State mot to exste~d fm..&m         with-
out rqiaterlng      im t&la State, lm’tb l s
                                           vemt tW% ‘WSerb.      .’
lawr or suah other State or ooumt~ BiL, uurp%tou @re
granaed to motor vghieles nglstero& tder tL .tw8 of
Texas and omed by resldolats of Taxar* I@ 0-r         mm.,
and stated In aaether way, a motor vehlel? :m$        or~owr-
ated by a nonresldeat ,aed used rr tbs tra&W%@tlw           Or
property or persons ror oorpemsatlorr or him ,r~:m          mot
to exceed two trips into this State ,ia amy ok aalmdar
ronth and r&sain here not exceedlgg four days on each
Ron, Jewel1 Helpinstill,     Page 5, V-136


trip without registering    his vehicle in this State pro-
vided a citizen   of Texas is granted the same rights and
privileges   in the operation of his motor vehicle   In the
State or country and under the laws of the State or coun-
try of which the nonresident    Is a resident.  All of these
matters are provided SOP in the sams section of the Act
and within the same paragraph.
           As the statute now reads,     and without re ard
to the proposed amendment contained In House Bill %90,
it is necessary in a prosecution      for violation   of the
statute for the State to allege and prove the exceptions
regarding not more than two trips in a calendar month
and the non-existence    of reciprocity   In laws between Tex-
as and the State OF country of which the accused is a
resident.   The amendment embraced in House Bill 690 would
dispense with such allegationa      and proof O It is to be
noted, however, that even under the amnamnt all these
matters are still   contalned in the same section and para-
graph, including the new and additional       sentence which
dispenses with the now necessary allegations        and proof.
            If was established    at an early date in this
State that it was beyond the power of the Legislature
to dispense with the statement in an IndictlDsnt of that
which is essential    to the description     of the offense,
and any statute which authorizes        the oaissioa   of the es-
sential Darts of the descriDtlon        of an offense is in vlo-
latlon of the Bill of Rightb contained in o& State Con-
stitution   (Art. I).    Hewitt v. State, 25 Tex. 722 (Sup.
Ct e 1860); Stat. v. Duke 42 T           455 (sup. Ct* 1875)
It was under this established      g&iple       of law that tie
courts of this State struck do& the- “CommonSense In-
dictment Act of 1881”, which dispensed with numerous
allegations   previously   required in an indictment,      hold-
ing that the form of indlctmsat prescrlbsd          by the Legla-
lature under that Act was repwnant to Section 19 of Ar-
ticle   I of the Constitution.‘    ~llllams    v. State, 12 Cr.
R, 395 6Tex. Grim. App, 1882); YOUR v’. State, 12 CP. R.
614 (Tex. Grim. App. 1882)*
              It is believed that a discussion of the lead-
lag cases     touching upon the problem and question here
presented     will be helpful,
            In Hewitt v, State, supra, decided by the Sup-
rem   Court  in 1860   the accused was Indicted and convicted
for selling   whiskei,   At the time there was no inhibition
in this State against the sale of whiskey unless it was
Hon. Jewel1 Helpinstill,         Page 6, ‘J-136


sold without a license.      The statute under which the ia-
dictment was had provided In part that “if any persoa or
firm shall sell or be in any wise concerned in selling
spirituous,  vlnous, or other Intoxicating      liquors    In   ..’
quantities  less than one quart, without first havlng.ob-’
tained a license    D O O h”,, she ,or they shall be deemed
guilty of a misdemeanor,       and %hat In all prosecut ions
for any violations    of any of the provisions      of this act,
it shall be sufficient    to allege and prover that     the per-
aon charged with any such violation,       did sell,   or was
concerned in selling    spirituous,   vinoua, oc lntoxlcatlng




because the very omission authorized was a necessary           il-
ement of the offense O The Oourt said:
                     nlat   of the offen8e   lm the omlsaioa




          or pr iv lleges , outlawed, exiled,
          manner, disfranchised,     except by due course
          of the law of the land, 8 Bill of Rights,
          0. & No Dig. 14. ’ (l&hasis       ourr)
           The question of the actual location     in the
statute  of the exception   or omlrslon clause war not dis-
ctured or apparently considend     in the powitt Olre,    It
is plain from the case that the offense     involved could
not be charged without allegiag    the sale us8 without   a
license.   The case has been uniformly followed by the
Court of Crimllral Appeals.
            SolPb fifteen  years 18ter in ,A-+&cI
                                            9 ate v
supra, the Suprelre Court waa called upon to de ermine
the validity    of aa lndictmebt charging a person with
carrying a pistol without negation of the exceptions
contained in the statute     with reference   to pollaemen
Hon. Jewel1 Iielplnstlll,     Page 7, v-136


end others enursreted.    The exceptions in the stetute
 appeared as (I part of the sams paragraph end sect Ion
making it an offense to carry 8 pistol,     The court held
the exceptions  essential  parts of the offense,  srylng:
            *But   beinn essential   Darts of the des-




           Subsequent to the rendition    of the opinion
in  the Duke Case the Legislature    changed the statute
mklng it an offense to carry a pistol 8nd all those
matters regarding exceptions    to its appllcrtloa   were
placed la 8 separate rrtlcle 0 Thererfter      It VU ml-
iformly held that it was not necessary to negative
the exceptions   referred to la the Duke C e in an ln-
dlctwnt   or information0   See ye&e,              106 s. ii.
(26) 308 (Tex, Crlm, App, 1937 D
             In ltranchss Annot8ted penal Code, Section 510,’
e number of cesea are cited holding 8nd ennounctig the
rule that where the exceptions      to 8 pen81 st8tute 814
lo distinct    articles  or section8 from th4 a&o d4flniag
the offense,    or they are not a necessary prrt of the
definlt ion of the offense,     or descrlptlve    of it, and if
the exception     is not the gist of the offense,      it is not
necessary to negative the exception,         Williams v, State
39 3. W, 664 (Tex, Grim, App. 1897); Lowem v, State, 165
3 W. 7 ('Per, Grim, App, 1916).
           The next era in our criminal jurispradsac4       which
is outstanding la so fer 88 the question hereln lavalv$d
is concerned began with the enactwnt       of the “Dean Law
in 1919. That lew as orlglnelly     enacted provided in pert
that “It shall be unlawful for any person . n . to . . r
sell,  0 0 e spirituous,   vlnous or melt liquors     0 0 . ex-
cept for ~dlclnal,     mchenlc~l,  scientific   or sacrewntal
purposes.    There was no provision    in the statute    saying
thet it wes not necessary on the part of the State to
Bon. Jewel1 Helpinstill,     Page 8, V-136


allege or prove these exceptions.     However, the Court
of Criminal Appeals consistently    held under this sta-
tute  that it was absolutely  necessary to aegstive  the
except Ions, and it thus seems” certain that the court
would have held any attempt on the part of the legis-
lature to dispense with such exceptions    in the law ea
written as unconstltutlonal,
         ~’I&or the ‘Bebh fdw” wes’dwnded by the bg-
lslature  end the exceptions      with regard to mediclnel,
mschanlcal,  sclent lflc or sacrawntal       purposes were
placed in a separate section of the rtstute.         end the
court thereafter,   beginning with Crowlay v.-State,        242
9. W. 472 (Tex, Crlm. ADD. 1922). conslsteatla         held
that it wea not aec8s&$
                        * I~., to- negitlve
                                             the exc&&ions
in the indictment.
            The repeal of the ‘Bean Law” end the enact-
mat of the Texas Liquor Control Act (Article          666-l,etc.,
Vernoa’s Penal Code) again brought before the courts fur-
ther discussion     OQ the   uest lam involved.    In Anderson
v. Stete, 105 S. W. (26 3 258 (Tex, Grim. App. liJs6j           the
court  was celled upon to consider en information flied
under Article    666-25, V. P. C., which et the time pro-
vided that “no sale or delivery       of liquor shell be made
on~.or from the premises of the, holder of any permit (ex-
cept. upon the pre%criptlon      of a duly licensed physician):
. . . On Sundays 0      The court held the Information funda-
menttilly defective    for failure   to negative the exception
regarding a prescription      by a physician,   end thla not-
withstanding Section 9 of the Act (666-9, V. P, C.) mak-
ing it unnecessary     to negative an exception     in any ln-
dlctwnt    or Information filed     under the Act,    In so hold-
ing the court said:
                 “we are not unaware of the fact
     that section gr art, 1, of said chep. 467,
     supra (Vernon’s Ann. P. C. art, 666-g),
     provides in general terms that it shall
     not be necessary for any information,     com-
     plaint,   or indictment to negative any ex-
     ception contained in this act concerning
     any prohibited    act, etc., but this court
     has uniformly held that where the excep-
     tion is written in the body of the law, and,
     as said in 90811)of the cases, is made part
     of the enacting clause of the statute     lt-
     self,   we cannot give application   to the
    Eon. Jewel1 Fieipinstill,   Page 9, V-136


         terms of section 9, supra.
          la so clearly made pert of
          18 a0 plalaly written.    - . . the very deflnl-
                                    into
         tlon and descrlptlon      or We offease a8 that
          one crnnot be read without the Other.          It
         woull have been compa*tively        easy for iSi3
         'Licgi~ixhlra 'Ltl 'msm7-WI4 +.?k%bs!!w&t~4m2a'*F&t
           separate clause.    or to have writtsn it In'
           (I separate place so aa that we would not
           be cosnwlled to hold it en OssWitlal MEt
           of                                       ut 88
           we find it we do not feel DrlvlleRed to
           strike down the uxeat number OS decisions
           written by this court and by ours lllustFiOQ&
           predecessors.   hence our holdiarr a8 above ..
            Indicated."   Uhuphasls 0Ur8)
                 Finally,   ths'court  of Criminal Appeals In E-
    lr   v. Stete, supra, after reviewing all the 1eadLng auth-
     orities   on the different    phases of the question presented
     in this opinion,     announced and restrted  the controlllng
     rules on the subject.       The court said:
                 II
                      .   ..a
.

                  ?t would seea  too plain for 8Fgumsnt
           that if the exception or omission mntloned
           In 8 statute be a necessary Dart of the des-
           crlotloa  of the offense,   it should be set
           out end properly negatived in order to wet
           the constitutional   guar~antee to every cltl-
           eon, of en lndlctlasnt which should state the
           nature end character of the offense charged
Eon. Jewel1 Eelplnstlll,     Page 10, V-136




             “We  feel impelled to say that lf there
     be possibly an exception        to the rule above
     mentioned, it must be when the except ion or
     omission, as in the Hewitt Case, supra, is
     of the very gist of the offense,          and then
     same would have to be neget lved la the ln-
     dlctment, no mstter where its location          in
     the statute,      end the bglslature      in such
     18tter case would be powerless to enact e
     statute     making it unnecessary to negative
     such 8n exception,       end this, es stated,
     whether such exception be in the article
     defining the offense or be in 8 separate
     art lcle.     In other words, If the thing for-
     bidden by the particular        statute   under con-
     sideration      could not be proved, or the case
     could not be made out without proof of the
     so-called     exception   or omission,    then arid
     exception would be (I necessary elewnt          of
     the offense,      and its existence     should be
     negatived in the indictmat          and find sup-
     port la proof.
            “If, however, the exception be of such
     form and oharacter es that a prima facie
     case could be made out rgalnst the accused
     for the vlolatlon   charged, without proof of
     the oml8sion or exception,    then ciesriy   the
     Iaglslature   might by enactment have placed
     such except ion in 8 separate article     or sop
     t ion and there is no need for their negat Ion. ’
     @mphasls ours)
                  The rules announced ,ln Baker v. State,
aupre, heve   found 8ppilcstlon    in prosecutions    for the
illegel  practice   of law under Article    430a, V. Pp. C.,
Howlsad v. State, 151 3, W. (2d) 601 (Tex. Crlr. App.
1941); prosecutions     for the illegal  practice    of op-
towtry   under Articles    735- 38, V. P. C,, Blumber v.
State, 161 9. W. (26) 1082 1Tax. Crlm. App.--?m+   1
Eon. Jewel1 Helpinstill,     Page 11, V-136


end prosecutions    for unlawful
under Article    725b, V. P. C.                               w.
(26) 196 (Tex. Grim. App. 1945
           Applybag   the above principlea     to Article   8ub,
v. P. c., es it Is emended by House Bill Ilo; 690, it Is
our opinion that the reglstratlon      exception    contained
therein with respect to motor vehicles. of a nonresident
operated into this State and transporting         persons or
property for compensation or hire set more than two trips
la any calendar month and to remala here not to exceed
four days on eny~ one trip In the event of reciprocity
in law between this State and the State or oountry bf
the nonresident,    being 8 part of the ,sectlon itself
deiflnlng the offense,    must be considered descriptive       of
the oifense Itself.      It would therefore    be neoessary on
the part of the State in an lnforwtloa         or ladictwnt
charging 8 person for violet ion of the pertlouler         of-
fense, to negative such exception by proper allegationsr
Any attempt on the pert of the Legislature         to dispense
with such necessary sllegetion     end proof on the part of
the State would in 811 probability      be held to vi&late
Sections 10 and 19 of Article     I (Bill of Rights) 09 the
State Constitution     under the doctrl&e of Hewitt v. State,
supra, end other cases previously      cited,    end thus ths
very thing sought to be accomplished by Honse Bill Ilo.
690 would be defoeted.
           We ere of the further o~laion, however, taat~
this objectlonabl4   feature may be cure’d by placing the
exception   in e separate and dlstlnct   aeatlon,  or article,
separate end apart from Section 2 of said Act.       In the
event this is done the particular     wording of the excep-
tion as now provided for in Article     8T7b, Section 2; amtY
also es now contained in House Bill No. 690, should prob-
ably, for the sake of clarity    be MQ#ttly    @hanged.

                            SlllQURY
           House Bill 690 making it unnecessary
     in prosecutions   arising under Article   827b,
     Section 2, V. .P. C., aa amended by said H.
     B. 690, for the State to ellege or prove
     the exception contslned thereln with ref-
     erence to reciprocity    In laws is ln viola-
     tion of Sections 10 end 19 of Article     I of
     the State Constitution    under the doetrlne
                                                         .
                                                             .




Bon. Jewel1 &lpinstlll,   Page 12, ,V-136


     of Hewitt V. State, 25 Tex. 722, and Beker
     v. State, 106 3. g0 (26) 308 (Tex. Crr
     -7)         end ceses there cited,  inasmuch
     es said exception   is contained In, end is
     e part of, the section defining the offense,
     end is descriptive   thereof,
                               Your8 very truly,
                          ATTORREYOERERALOF TEXAS



                           BY 4dLw5;1T-
                                Qmrles D.     Mathews'
                                            Assistant


                           APPROVgDAPR. 10, 1947


m!l: jt :mrj               &!iikiiu




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