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&ITORNEX GENERAL OF ?&XKAS
Ars-rm, Texam 78711
December 17, 1968

Honorable Stanley C. Kirk District Attorney Wichita County Courthouse Wichita Falls,Texas Opinion No. M-322
Re: Constitutionalityof Article 1436b, Section 3, as amended,Vernon's Texas Penal Code, Acts of the 58th and 60th Legislatures
Dear Mr. Kirk:

In your opinion requestyou inquirewhether the present Article 1436b, Section 3, as amended,Vernon's Texas Penal Code, is constitutional?

In Marney v. State, 168 Tex.Cr. 567, 330 S.W.2d 623 (1960), the Texas Court of CriminalAppealsheld that Section 3 of Article 1436b, as it then appeared,was clearly an unreasonable restrictionupon the use and enjoyment of a lawful commodity which is not per se contraband,and it was thereforeunconstitutional. Tex. Const. Art. 1, Sec. 19; U. S. Const.Amend. 14, the "due process clauses". During the Fifty-eighthand Sixtieth Legislatures,at their regular sesaions, Chapter 426, page 1100, and Chapter 269, page 595, respectively,Article 1436b ofVernon's Texas Penal Code was amended so that Section 3 of the Article now appears as follows:

Section 3: "Anypersonwho may be found in any county in this statewith more than one (1)pound ofmercury in his possession and who has not in his possessiona bill of sale, or other written evidence of title to said mercury and is unable to produce such evidencewithout unnecessary delay, shall be guilty of a felony, and upon conviction thereof, shall be confined in the penitentiary for

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Hon. Stanley C. Kirk, Page 2 (M-322)

a term of not less than one (1)year nor more than five (5)years, or shall be confined in the county jail for not less than ninety (90)days nor more than two hundred (200)days, or shall be fined not less than One Hundred Dollars ($100)nor more than Five HundredDollars ($500),or both such fine and jail imprisonment." Section 3 (a):
"It shall be prima facie evidence that a person is illegally in possession ofmercury in excess of one (1)pound if at such time he does not have in his possession a bill of sale or otherwritten evidence of title to suchmercury and is unable to produce such evidencewithout unnecessary delay." Section 3 (b):
"It shall be a defense to any charge under Section 3 that the person so charged show, (1) that he actually is engaged in the business ofmining or processing ofmercury, or (2) that the mercury is an integralpart of a tool, instrument, or device used by him for a beneficialpurpose, or (3) that he is an officerdischarginghis official duties." The present Section 3 of Article 1436b, as amended, clearly prohibits any person fromhavingmore than one --P pound ofmercury in his possessionwithout a bill of sa e or otherwritten evidence of title or without being able to produce such evidencewithin a reasonable timewhen properly demanded. Furthermore, it providesa complete defense to the charge for all personswho may show that they are engaged in the business of mining or processingmercury, or that they possess the commodityas an integralpart of some devicewhich they use for a beneficialpurpose or in connectionwith their duties, or that an officer of some entity possesses themercury in the discharge of official, duties.
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Under the present statute, it is not a felony per se to have,any amount ofmercury inyour possession,as it was prior to the amendment. The requirement for anyone having possession of more than one (1)pound of mercury to producewritten evidence of title under the present law is not unreasonable. Such a statutorypattern finds reasonand precedent in similar time-honored requirements of our statutes for a bill of sale to accompany the sale or transferof livestock (Art.6903, 6983, V.C.S.), and making the absence of suchwritten conveyance prima facie evidence of illegalpossessionb the person chargedwith the theft of such stock (Art. 1 45, % P.C.); also, in the requiring of certificates, of title formotor vehicles for the announced purpose of lessenin and preventing the theft ofmotor vehicles, etc. (Art. le36-I., P.C.). Moreover, under Section 3 (b) the defenses added to the act to prevent it from imposingunreasonable restrictions on the use and enjoyment of a definiteand substantially greater quantity ofmercury have cured the vice of unreasonableness in the original enactment of Section 3. Our courts will take common knowledge of the fact that, absent the defensive possessionspermittedby the statute, few persons, if any, would have occasion to possess legallymore than one (1)pound ofmercury and be unable to producewritten evidence of title without unnecessarydelay.

In Ex parte Hensley 162 Tex.Cr. 348, 285 S.W.2d 720 119561. the Court decided Chat a statutewhich is held to be unconstitutionaldid not lose its existence for purposes of amendment; that the amended statutemight operate in the future if it were made to conform to the constitutionalrequirements.

Section 3 (a),providing that it shall be "prima facie evidence" that a person is illegally in possessionwhen he cannot producewritten evidence of titlewithout unnecessary delay, is not unreasonable. Our courtshave held that in prosecutions for possession of whiskey in a dry area, the statemay make out a prima facie case upon a showing that the defendantpossessed a sufficient quantity of whiskey to raise a oresumotion that he n vlolation of the law. Shawhartv: State, 163 Tex.Cr. 199, 289 S.W.2d 601

877 ;Templin v. State, 167 Tex.Cr. 605, 321 S.W.2d

. While liquor possessed for sale in a dry area is.contraband,itsmere possession there is not unlawful.

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The law requiring the sale or transfer of livestock to be accompaniedby a written bill of sale, absentwhich is prima facie evidence of illegal ossessionby one accused of theft of any such animal (Art. 1 45, E P.C.), presentsa very close analogy. It was early held by our state Supreme Court that this act regulating the sale of livestockwas not rendered unconstitutionalby reason of its provision that the absence of a written conveyance shall be prima facie evidence of illegal possession on trial of right of property or a charge of theft of such livestock. Tex. 355 (1869
. In any event, the provisions of Section 3 of Article i 2. Faith v. State, 32

143 b are not dependentupon the validity of Section 3 (a) thereof.

Therefore, since a courtwill presume the validity of the statute and resolveany doubt in favor of validity (16Tex.Jur.2d 93, Criminal Law, Sec. 4), it is the opinion of this office that any person having possession of more than one (1)pound ofmercury is properly on notice of the requirement to produce the written evidence of title or else qualify under one of the three defenses stated in Section 3 (b). The statute,as amended, in constitutional. However, it is cautioned that an abstract charge upon the provisions of Sec. 3 (a) of said statute in regard to prima facie evidence of guilt might be erroneousunder the reasoning set out in Reed v. State, 113 Cr.R. 366, 21 S.W.2d 684 (1929). The statute,as amended, in constitutional.

SUMMARY Article 143613,

Vernon's Texas Penal Code, as amended by the Legislature, is constitutionaland does not impose an unreasonable restriction on the use or enjoyment ofmercury as a lawful commodity.

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Prepared by Robert Darden AssistantAttorney General APPROVED: OPINION COMMITTEE Kern8 Taylor, Chairman
R. L. Lattimore 0. J. Floyd James Elder John Grace Hawthorne Phillips STAFF LEGAL ASSISTANT

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