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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: Constitutionality of 

Article 1436b, Section 

3, as amended, Vernon's 

Texas Penal Code, Acts 

of the 58th and 60th 

Legislatures 

Dear Mr. Kirk: 

In your opinion request you inquire whether 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 Criminal Appeals held that Section 3 of 

Article 1436b, as it then appeared, was clearly an unreasonable 

restriction upon the use and enjoyment of a lawful commodity 

which is not per se contraband, and it was therefore unconstitutional. Tex. Const. Art. 1, Sec. 19; U. S. Const. Amend. 14, 

the "due process clauses". 

During the Fifty-eighth and Sixtieth Legislatures, at 

their regular sesaions, Chapter 426, page 1100, and Chapter 269, 

page 595, respectively, Article 1436b of Vernon's Texas Penal 

Code was amended so that Section 3 of the Article now appears 

as follows: 

Section 3: 

"Any person who may be found in any 

county in this state with more than 

one (1) pound of mercury in his 

possession and who has not in his 

possession a bill of sale, or other 

written evidence of title to said 

mercury and is unable to produce 

such evidence without 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 Hundred Dollars ($500), or both 

such fine and jail imprisonment." 

Section 3 (a): 

"It shall be prima facie evidence 

that a person is illegally in possession of mercury in excess of 

one (1) pound if at such time he 

does not have in his possession 

a bill of sale or other written 

evidence of title to such mercury 

and is unable to produce such 

evidence without 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 of mining 

or processing of mercury, or (2) 

that the mercury is an integral part 

of a tool, instrument, or device 

used by him for a beneficial purpose, 

or (3) that he is an officer discharging his official duties." 

The present Section 3 of Article 1436b, as amended, 

clearly prohibits any person from having more than one 

pound of mercury in his possession without a bill of --P sa e 

or other written evidence of title or without being able 

to produce such evidence within a reasonable time when properly 

demanded. Furthermore, it provides a complete defense to the 

charge for all persons who may show that they are engaged in the 

business of mining or processing mercury, or that they possess 

the commodity as an integral part of some device which they use 

for a beneficial purpose or in connection with their duties, or 

that an officer of some entity possesses the mercury in the 

discharge of official, duties. 

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Hon. Stanley C. Kirk, Page 3 (M-322) 

Under the present statute, it is not a felony per se to 

have ,any amount of mercury in your possession, as it was prior 

to the amendment. The requirement for anyone having possession 

of more than one (1) pound of mercury to produce written evidence of title under the present law is not unreasonable. 

Such a statutory pattern finds reason and 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 such written conveyance 

prima facie evidence of illegal possession b the person 

charged with the theft of such stock (Art. 1 % 45, P.C.); also, 

in the requiring of certificates, of title for motor vehicles 

for the announced purpose of lessenin and preventing the 

theft of motor vehicles, etc. (Art. le36-I., P.C.). 

Moreover, under Section 3 (b) the defenses added to 

the act to prevent it from imposing unreasonable restrictions 

on the use and enjoyment of a definite and substantially 

greater quantity of mercury 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 possessions permitted by the statute, few persons, 

if any, would have occasion to possess legally more than one 

(1) pound of mercury and be unable to produce written evidence 

of title without unnecessary delay. 

In Ex parte Hensley 162 Tex.Cr. 348, 285 S.W.2d 720 

119561. the Court decided Chat a statute which is held to be 

unconstitutional did not lose its existence for purposes of 

amendment; that the amended statute might operate in the 

future if it were made to conform to the constitutional requirements. 

Section 3 (a), providing that it shall be "prima facie 

evidence" that a person is illegally in possession when he 

cannot produce written evidence of title without unnecessary 

delay, is not unreasonable. Our courts have held that in 

prosecutions for possession of whiskey in a dry area, the 

state may make out a prima facie case upon a showing that 

the defendant possessed 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. St ate, 167 Tex.Cr. 605, 321 

S.W.2d . While liquor possessed for sale in a 

dry area is.contraband, its mere possession there is not 

unlawful. 

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Hon. Stanley C. Kirk, Page 4 (M-322) 

The law requiring the sale or transfer of livestock 

to be accompanied by a written bill of sale, absent which is 

prima facie evidence of illegal ossession by one accused of 

theft of any such animal (Art. 1 E 45, P.C.), presents a very 

close analogy. It was early held by our state Supreme Court 

that this act regulating the sale of livestock was not rendered unconstitutional by 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 dependent upon the validity of 

Section 3 (a) thereof. 

Therefore, since a court will presume the validity 

of the statute and resolve any doubt in favor of validity 

(16 Tex.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 of mercury 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 erroneous under 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 constitutional and does not impose an unreasonable restriction 

on the use or enjoyment of mercury 

as a lawful commodity. 

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Hon. Stanley C; Kirk, Page 5 (M-322) 

Prepared by Robert Darden 

Assistant Attorney 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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