### IN THE TENTH COURT OF APPEALS
No. 10
- 12
- 00170
- CR JAMES EVERETT SHEAR , Appellant v. THE STATE OF TEXAS , Appellee

From the County Court at Law No
. 1 Brazos County, Texas Trial Court No. 10
- 03352
- CRM
- CCL1

MEMORANDUM OPINION
Appellant James Everett Shear was charged with one count of boating while intoxicated and three counts of deadly conduct. A jury found Shear not guilty of the boating

- while

- intoxicated count but found him guilty of the three deadly

- conduct
counts. The St ate and Shear reached an agreement as to punishment. The trial court followed the agreement and assessed Shear’s punishment on the first deadly

- conduct
count at 365 days in jail probated for eighteen months and a $4,000 fi n e with $2,000 of the fine probat ed and punishment on each of the second and third deadly

- conductShear v. State Page 2

counts at 365 days in jail probated for eighteen months and a $4,000 fine with $4,000 of the fine probated. This appeal ensued. In his sole issue, Shear contends that the trial court erred in denying his motion to dismiss and motion for new trial based on in par i
materia

. “The doctrine of in pari materia is a rule of statutory construction that seeks to carry out the Legislature’s intent.” Jones v. State , 396 S.W.3d 558, 561 (Tex. Crim. App. 2013). Statutes are in pari materia when they “deal with the same general subject, have the same general purpose, or relate to the same person or thing or class of persons and things.” Id. The statutes’ purposes are , however, the most significant f actor. Id. To determine whether two statutes share a common purpose, we consider whether the two statutes (1) are contained in the same legislative act, (2) require the same elements of proof, (3) involve different penalties, and (4) were clearly written to achieve the same objective. Burke v. State , 28 S.W.3d 545, 547

- 49 (Tex. Crim. App. 2000); Strickland v. State , 193 S.W.3d 662, 666 (Tex. App.

— Fort Worth 2006, pet. ref’d).

“ The doctrine [of in pari materia ] arises ‘where one statute deals with a subj ect in comprehensive terms and another [statute] deals with a portion of the same subject in a more definite way.’” Jones , 396 S.W.3d at 561 (quoting Azeez v. State , 248 S.W.3d 182, 192 (Tex. Crim. App. 2008)). The doctrine has been codified in section 3 11.026 of the Government Code: (a) If a general provision conflicts with a special or local provision, the provisions shall be construed, if possible, so that effect is given to both. (b) If the conflict between the general provision and the special or lo cal provision is irreconcilable, the special or local provision prevails as anShear v. State Page 3

exception to the general provision, unless the general provision is the later enactment and the manifest intent is that the general provision prevail.
T EX
. G OV ’ T C ODE A NN
. § 31 1.026 (West 2013 ). In the context of penal provisions , the Court of C riminal Appeals has determined statutes to be 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.” Jone s , 396 S.W.3d at 561 (quoting Azeez , 248 S.W.3d at 192) (quoting Mills v. State , 722 S.W.2d 411, 414 (Tex. Crim. App. 1986))). The Court of Criminal Appeals has also made clear, however, that “[t]he adventitious occurrence of like or similar phrases, or even of similar subject matter, in laws enacted for wholly different ends will not justify applying the rule.” Id. (quoting Alejos v. State , 555 S.W.2d 444, 450 (Tex. Crim. App. 1977) (quoting 53 T EX
. J UR
. 2 D , Statutes § 186 (1964))).

“ When two statutes are in pari materia , the doctrine requires that the statutes be

‘ taken, read, and construed together, each enactment in reference to the other, as though they were parts of one and the same law. ’ ” Id. (quoting Azeez , 248 S.W.3d at 192). “To that end, ‘[a ] ny conflict between their provisions will be harmonized, if possible, and effect will be given to all the provisions of each act if they can be made to stand together and have concurrent efficacy. ’ ” Id. at 561

- 62 (quoting Azeez , 248 S.W.3d at 192). But

w hen statutes irreconcilably conflict , “the more detailed enactment ... will prevail, regardless of whether it was passed prior to or subsequently to the general statute, unless it appears that the legislature intended to make the general act controlling.” Id.Shear v. State Page 4

at 562 (quoting Azeez , 248 S.W.3d at 192) . “ Further, s uch conflict implicates due process rights that require the State to prosecute the defendant under the special statute where
two statutes are in pari materia .” Id. Section 22.05 of the Penal Code , entitled “Deadly Conduct,” provides in pertinent part : “A person commits an offense if he recklessly engages in conduct that places another in imminent danger of serious bodily injury.” T EX
. P ENAL C ODE A NN
. § 22.05(a) (West 2011 ). Section 31.094 of th e Parks and Wildlife Code , entitled “Reckless or Negligent Operation,” provides: “No person may operate any motorboat or vessel or manipulate any water skis, aquaplane, or similar device in a wilfully or wantonly reckless or negligent manner that endanger s the life, limb, or property of any person.”
T EX
. P ARKS & W ILD
. C ODE A NN
. § 31.094 (West 2002 ). Shear acknowledges in his brief that these statutes were not contained in the same legislative act and “have no common legislative history.” The two statutes do not require the same elements of proof. First, contrary to Shear’s assertion, both offenses do not have the same culpable mental state. Penal Code
section 22.05 (a) requires that the offender act “recklessly” while Parks and Wildlife Code sect ion 31.094 requires that the offender act “wilfully or wantonly reckless or negligent.” T EX
. P ARKS & W ILD
. C ODE A NN
. § 31.094; T EX
. P ENAL C ODE A NN
. § 22.05(a). Shear argues that modifying the word “reckless” with the phrase “wilfully and wantonly” does n ot change the culpable mental state that the State must prove to be anything other than that of “reckless.” But every word of a statute is presumed to have been used for a purpose, and every word excluded is presumed to have been excludedShear v. State Page 5

for a purpose. Cameron v. Terrell & Garrett, Inc. , 618 S.W.2d 535, 540 (Tex. 1981); LaPointe
v. State , 166 S.W.3d 287, 293 (Tex. App.

— Austin 2005, pet. dism’d). We must therefore conclude that the offenses do not require the same culpable mental state. Second, Penal Co de section 22.05(a) requires that the offender’s conduct “place[] another in imminent danger of serious bodily injury” while Parks and Wildlife Code section 31.094 requires that the offender’s conduct “endanger[] the life, limb, or property of any person.” T EX
. P ARKS & W ILD
. C ODE A NN
. § 31.094; T EX
. P ENAL C ODE A NN
. § 22.05(a). Of note here is that no proof of imminence is required by Parks and Wildlife Code section 31.094. A person may also violate Parks and Wildlife Code section 31.094 by endangering th e property of any person while Penal Code section 22.05(a) criminalizes only the placing of another person in imminent danger of serious bodily injury. Parks and Wildlife Code section 31.094 also uses the phrase “any person” while Penal Code section 22. 05(a) uses the word “another.” A person could therefore arguably violate Parks and Wildlife Code section 31.094 by endangering his or her own life, limb, or property while Penal Code section 22.05(a) makes clear that the imminent danger of serious bodily injury must be that of another. For these reasons, we conclude that the two statutes do not require the same elements of proof. The two statutes also involve different penalties. An offense under Penal Code section 22.05(a) is a Class A misdemeanor. T E X
. P ENAL C ODE A NN
. § 22.05(e). A Class A misdemeanor is punishable by (1) a fine not to exceed $4,000; (2) confinement in jail for a term not to exceed one year; or (3) both such fine and confinement. Id. § 12.21 (West
2011 ). On the other hand, an offen se under Parks and Wildlife Code section 31.094 is aShear v. State Page 6

Class C Parks and Wildlife Code misdemeanor. T EX
. P ARKS & W ILD
. C ODE A NN
. § 31.127 (West Supp. 2013 ). A Class C Parks and Wildlife Code misdemeanor is punishable by a fine of not less than $25 nor more than $500. Id. § 12.406 (West 2002 ). The offender shall also be required to “successfully complete a boater education course approved by the department no later than the 90th day after the date the person is adjudged guilty.” Id. § 31.131 (West 2002 ). Finally, the statutes differ in their objectives. T he rationale behind “deadly conduct” statutes like Penal Code section 22.05 is to punish risk creation. See Guzman v.
State , 188 S.W.3d 185, 192 n.11 (Tex. Crim. App. 2006). Penal Code section 22.05 aim s to impose criminal responsibility on anyone who recklessly engages in conduct that places another in imminent danger of serious bodily injury. See T EX
. P ENAL C ODE A NN
. § 22.05. Parks and Wildlife Code section 31.094, on the other hand, is part of the Water Safety Act, which was enacted to promote recreational water safety and to promote uniformity of laws relating to water safety. See T EX
. P ARKS & W ILD
. C ODE A NN
. §§ 31.002, 31 .094 (West 2002)

. T he Act is applicable only to the State’s public water; privately

- owned water is not subject to its provisions. T EX
. P ARKS & W ILD
. C ODE A NN
. § 31.004 (West
2002 ). The statutes were therefore not “clearly written to achieve the same obj ective.” See Strickland , 193 S.W.3d at 666. In light of the foregoing, we conclude that Penal Code section 22.05 and Park s and Wildlife Code section 31.094 are not in pari materia

. Penal Code section 22.05 and Parks and Wildlife Code section 31.094 do not share a common purpose. See Burke , 28 S.W.3d at 547

- 49; Strickland , 193 S.W.3d at 666. The statutes are also aimed at differentShear v. State Page 7

groups of people. This is not an instance “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 br oader provision.” See J ones , 396 S.W.3d at 561. Although the same conduct may sometimes violate both statutes, this does not mean that the statutes

are in pari materia

. See State v. Wiesman , 269 S.W.3d 769, 777 (Tex. App.

— Austin 2008, no pet.).
T he tr ial court did not err in denying Shear’s motion to dismiss and motion for new trial based on in pari materia

. We overrule Shear’s sole issue and affirm the trial court’s judgment.

REX D. DAVIS Justice Before Chief Justice Gray, Justice Davis , and Justice Scoggins Affirmed Opinion delivered and filed May 8, 2014 Do not publish [C R25]