. . 

JIM MAlTOX 

Attorney General 

Supmm. Cowl Bulldin~ 

P. 0. Box 12548 

Aurlln. TX. ?6711- 2548 

SlW752501 

T*mi Qlom?4-1357 

Telecopier 51214750266 

714 Jackson. Suite 700 

Dallar. TX. 752024505 

2Wl7428944 

4824 AiberIa Ave.. Suite 160 

El Paso. TX. 7-2793 

91515353464 

. 

1001 Texar. Suite 700 

Hourlon. TX. 77002-3111 

7lY2255886 

806 BroWway. Suite 312 

Lubbock, TX. ?9401G?4?9 

806n47.5239 

4309 N. Tenth. Suits B 

McAllen. TX. 78501.lM5 

512m82-4547 

200 Main Plaza. Suilc 400 

San Antonio. TX. 78205.2797 

51212254191 

An Equal Opportunity/ 

Affirmative Action Employer 

The Attorney General of Texas 

March 24. 1986 

Honorable Gerald .A. Fohn 

District Attorney 

Tom Green County #Courthouse 

Room 315 

San Angelo, Texas 76903 

Opinion No. JM-456 

RS: .Constitutlonality of section 

28.03(c) of the Texas Penal Code, 

vhich creates a presumption about 

the guilt of a person in whose 

name utilities are billed 

Dear Mr. Fohn: 

You have asked several questions about certain Penal Code 

provisions concerning tampering with public utility meters. YOW 

first question l.s: “Is the presumption.contained in section 28.03(c) 

of the Texas Penal Code constitutional?” Section 28.03, which governs 

the offense of “criminal mischief,” provides: 

A ‘qrrson commits an offense if. without the 

effective consent of the owner: 

(1) he intentionally or knowingly damages o,r 

destrcys the tangible property of the owner; or 

(2) he Intentionally or knowingly tampers vlth 

the tangible property of the ovner and causes 

pccunj,ary loss or substantial inconvenience to the 

ovner or a third person. 

.Penal Code 928.Cr3 (a). 

The statuw also contains the following provision. which creates 

a “presumption” regarding identity and mental state: 

Fox the purposes of this section, It shall be 

presumed that a person in vhose name public 

communications, public water. gas, or power supply 

is or was last billed and who is receiving the 

economic benefit of said communication or supply, 

has kmvingly tampered with the tangible property 

of the owner if the communication or supply has 

been : 

p. 2075 
llonorablc Gerald A. Pohn - Pago 2 (RI-456) 

(1) diver%ed from PaMitlg through a 

metering dev!.ce; or 

(2) prevmted from being correctly reglstared by a metering device; or 

(3) actiwted by any device Installed to 

obtain publ:lc comunicatlons. public weter , 

gas, or power supply vithout a metering device. 

Penal Code 128.03(c). !!ou ask about. the constitutionality of the 

“presumptloo” set out in t’hat provlsloa. 

The Peoal Code 6~‘:s out the consequences of a presumption 

established by a penal law: 

When this code or another penal lav establishes 

a presumption sith respect to any fact, it has the 

following consequences: 

(1) if c:here is sufficient evidence of the 

facts that give rise to the presumption, the 

issue of tha existence of the presumed fact 

must be subriitted to the jury, unless the court 

is satisfied that the evidence as a whole 

clearly precludes a finding beyond a reasonable 

doubt of thlk presumed fact: and 

(2) if the existence of the presumed fact 

is subtitttrd to the jurp, the court shall 

charge the jury. in terms of the presumption 

and the spi:cfflc element to which it applies, 

as follows: 

(A) t’hat the facts giving rise to the 

presumptimon must be proven beyond a reasonable doubt; 

(B) that if such facts are proven beyond 

a reasonable doubt the jury may find that 

the element of the offense sought to be 

presumed erisrs, but it is not bound to so 

find; 

(C) t,het even though the jury mny find 

the existence of such element. the state 

must prove beyond a reasonable doubt csch of 

the other elements of the offense charged; 

and 

p. 2076 
. . 

Honorable Gereld A. Pohn - Page 3 (JM-456) 

(D) ii’ the jurp hes l reasonable doubt 

as to the existence of a fact or feets 

giving rlw to the presumption, the presumption fail:1 end the jury shall not consider 

the premmptlw for any purpose. 

Penal Code 92.05. 

A true presumption .u:ises when a court directs the fectflnder 

that it must find the p,:esumed fact or that It must do so if the 

defendant does not come forward with rebuttal evidence. County Court 

of Ulster County v. All~an, 442 U.S. 140 (1979). A permissive 

inference. in contrast, f; deduction that the factflnder x draw 

from the circumstances of the case but one that he Is not required to 

draw. Sardesty v. State. 656 S.W.Zd 73, 76 (Tex. Grim. App. 1983). 

Section 2.05 of the Penal. Code requires that when the evidence in a 

case gives rise to e “presumption” created by a penal statute, the 

court must instruct the :ury that It may find the presumed fact but 

that it is not bound to do so. The combined effect of section 2.05 

and section 28.03(c) is to establish a permissible inference rather 

than a true presumption. Moses v. State, 633 S.W.2d 5?5, 587 (Tex. 

APP . 

- Houston [14th Dist.] 1982). overruled on other grounds in Davis 

v. State, 658 S.W.2d 572 (Tex. Grim. App. 1983); see also Rardesig. 656 S.W.2d 73, 76-77 (Tex. Grim. App. 1983) (en bane -----Y 

(explaining proper use of terms “presumption” and “permissive 

inference”); Roberts v. !jtate, 672 S.W.2d 570, 579-80 (Tex. App. - 

Fort Worth 1984. no wri’gTholding that courts must use the term 

“circumstance of guilt” ra,ther thao “presumption” or “inference” when 

charging jury). Because different constitutional standards apply to 

true presumptions and permissive inferences, we vi11 use the term 

“permissive inference” in analyzing section 28.03(c) . 

In essence, then, section 28.03(c) would permit the foliowing: 

if the prosecution shovs that a particular utility meter has been 

tampered with in one of th’e three ways described in section 28.03(c), 

the court may, but need t.ot. instruct the jury that it may find that 

the person in whose nama Ithe utility is billed and who is receiving 

the economic benefit of t’na utility supply Is the person who tampered 

with the meter and that ha: did so knovlngly. In other vords, the jury 

may infer identity end mental state from the fact of tampering. You 

ask whether this Is const:.tutional. 

We have received s&era1 briefs regarding your opinion request. 

All were submitted on behalf of utility companies. All conclude that 

the permissive Inference created by section 28.03(c) is constitutional 

because, in the opinion ,,:E the briefwriters, the facts presumed are 

more likely than not to :iollow from the facts that give rise to the 

permissive inference. 

relevant authority. 

These briefs do not sufficiently analyze the 

Although a more-likely-than-not standard would be 

the appropriate standard :tor testing this permissive inference In some 

p. 2077 
Ronorable Gerald A. Fohn -8 Page I (JM-456) 

circumstances, it would trot be the appropriate standard if the fact of 

tampering was the only evidence presented on the issues of Identity 

and mental state. 

In order to l xpla!.n the constitutional stsnderds for tebting 

permissive inferences, it is first necess0ry to explain certsin 

aspects of the constituti.onsl requirement that a criminal conviction 

be based on proof beyond a reasonable doubt. Although the requirement 

that guilt be proved beylnrd a reasonable doubt has elweys been part of 

American criminal law, :Lt was not until 1970 that the United States 

Supreme Court held that the due process clause of the fourttenth 

amendment protects a criminal defendant agalaet conviction “except 

upon proof beyond s rwsonable doubt of every fact necessary to 

constitute the crime vi:h which he ir charged.” 

U.S. 358, 361-64 (1970). 

In re Winshi~. 397 

The reasonable doubt standard involves not 

only a fsct question for the factfinder, but also a legal question: 

whether. after viewing t’w evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential 

elements of the crime beyend a reasonable doubt. Jackson v. Virginia, 

443 U.S. 307, 319 (1971’). Thus, insufficiency of the evidence to 

prove guilt beyond a reasonable doubt can be, the basis for any entry 

of acquittal by the tric.1 judge or for reversal of a conviction by an 

appellate court. 

The Supreme Court’ II decisions regarding the reasonable doubt 

standard gave rise to questions about the constitutionality of 

presumptions and permissive inferences. In County Court of Ulster 

County v. Allen, the Supreme Court set out standards for tesrlng the 

constitutionality of pr~rsumptions and permlsslve inferences in light 

of the reasonable doubt standard. The court pointed out that the rule 

governing the constitutional validity of any presumption or Inference 

was that the presumption or inference “must not undermine the 

factfinder’s responsibility at trial, based on evidence adduced by the 

State, to find the, ultinate facts beyond a reasonable doubt.” e, 

442 U.S. at 156. The court made clear, hwever. that the question of 

sufficiency of the evidence to support a conviction is, in most cases, 

a separate question fron the propriety of instructing the jury that it 

may make a certain inference. 

When a permissive inference Is not the only evidence on an 

element of an offense, the validity of the permissive inference is to 

be judged under a more-likely-than-not standard. Allen, 442 U.S. at 

164-67. In .other vordrr, in such circumstancesrhcre must be a 

rational connection between the fact proved and the fact inferred, and 

the latter must be more likely than not to flow from the formtr. 

Allen. 442 U.S. at 165. Tbe fact proved need not establish beyond a 

Gnable doubt the fsct inferred because the prosecution can rely 

on all of the evidenca presented to meet its burden of proving the 

issue beyond a reasonabl.c: doubt. Raaxnontree v. Phelps. 6@5- P.2d i371, 

1374 n.2 (5th Cir. 1979:. 

p. 2078 
. . 

Ronorable Gerald A. Fohn - Page 5 (m-456) 

The Suprema Court l l.so atatad in Allan that the validity of a 

oerminaive inference can cmlv be iudnad a 

r------- - --~~------ ~-~ --~-I ~~ -~~1~ ia record of a pariicular 

case * Allen, 442 U.S. at :L62-63; MOSM V. State, 633 S.W.2d 585, 587 

(Tat. Am. -Houston [14tt. Dist.] 1982). overrulad on other grounds In 

Davis v:- State. 658 i.W.Z’i 512 (Tex. Grim. App. 1983). UC &mot say 

whether the pcnsiasivc infc~rcnce l atablishcd by section 28.03(c) would 

wet tha more-likely-that.-not standard in every case In which that 

standard appllad. Courtcl in several other jurisdletlons. howaver, 

have tcatad permissible inferences similar to the one established by 

section 28.03(c) under the more-likely-than-not standard and have 

found. them to be valid in tha circumstances in vhich they were 

applied. See, e.g., sr v. Kriss. 654 P.2d 942 (Kan. 1982); State 

v. Curtis, 372 A.2d 612 (1I.J. Super. Ct. App. Div. 1977). 

The briefs submitted to us fail to point out that the morelikely-than-not standard is appropriate only when the permissive 

inference “is not the so1.e and sufficient basis for a finding of 

guilt .‘I Allen, 442 U.S. at 167. As WC said before, in such a case 

the fact Gd need not eistabllsh beyond a reasonable doubt the fact 

inferred because the mmecutlon can rely on all of the evidence 

preientcd to meet Its Purim of proving th; issue beyond a reasonable 

doubt. Rawontrec v. Phe:az, 605 F.2d 1371. 1374 n.2 (5th Mr. 1979). 

If the facts giving rise to a permissive inference are the only 

evidence introduced -on an element - of an offensa, hovever , the facts 

provad must be sufficient to establish the element of the offense 

inferred beyond a reasonab’le doubt. Id. Othervise, there would be a 

violation of the constitutional requirement that the evidence be 

sufflc%ent to prova guilt beyond a reasonable doubt. 

The legal standard for determining whathar evidence is sufficient 

to support a criminal conviction is whether, after vleving the 

evidence in the light most favorable to the prosecution, any rational 

trier of fact could have: found the essentiil claments of -tha crime 

beyond a reasonable doubt. McGoldrick V. Stata, 662 S.W.Zd 573 (Tex. 

Grim. App. 1985); United St2 taa V. Jackson, 700 F.2d 181. 185 (5th 

Mr. 1, cert. denied7 wu’.S. 842 (1983). If it appears, as a matter 

of law, that a reisonable-minded jury- wst ncce&arily have had a 

reasonable doubt as to any essential l lament of a crime. a convicrion 

cannot stand. United Strlt:as v. Bland, 653 F.2d 989. 995 (5th Cir.), 

cert. denied 454 U.S. 105T (1981). 

The Fifth Circuit has held that a conspiracy conviction cannot 

stand on evidence that only places the defendant in “a climate of 

activity that reeks of something foul.” United States v. Jackson, 700 

F.2d 181, 185 (5th Clr.), cert. denied 464 U.S. 842 (1983). We think 

that description is appL:Lcablc to a situation in vhich the state 

attempts to convict someone of criminal mischief on evidence of 

tampering alone. Although the person responsible for paying for 

utility service obvtousl:r has a motive for tampering with a utility 

meter. in many cases he L:s not the only person vith a motive. Often 

p. 2079 
Ronorable Gerald A. Fohn - Page 6 01-456) 

other people receive the benefit of utility service and l haru the coat 

even if they are not beLog billed, and they also have a moclva for 

tampering with l meter . Vsndallm could also account for some meter 

tampering. We think thet evidence of tampering omly would be legally 

insufficient to aupport 4s conviction of someone aimply because he 

received benefit from the utility service and was responsible for the 

bill. 

Tour second questioc, la: 

To be a felony offenae under section 28.03 of 

the Pens1 Code, must the lnterruptlon or 

impairment of wrvice be substantial? 

The degree of an offense under the criminal mischief statute 

depends on the amount of pecuniary loss involved. Penal Code 

128.03(b). Regardless of the amount of pecuniary loss, however, the 

offense of criminal mischief Is a third degree felony if 

the actor causw in whole or in part impairment or 

interruption 

transportation f ” p%Z wi~‘~~i,onsir piEZE 

SUPPlY 8 or other public service. or diverts, or 

causes to be diverted in whole, in part, or in any 

manner, including installation or removal of any 

device for such purpose, any public communications, public water, gas, or power supply; 

Penal Code 128.03(b)(4)!8’). 

In your letter you #state, “[Tlhere Is apparently some dictum on 

the part of the courts !Eor the proposition that such impairment or 

interruption, to qualify for a felony offense, must be ‘substantial.“’ 

Apparently you arc refwring to Williams v. State, 596 S.W.Zd 862 

(Tex. Grim. App. 1980). That ease contains dictum regarding the 

relationship between sej:c:ion 28.03(b) (4) (B) and section 28.03(a) (2), 

which provides that a person commits an offtnsa if he “intantlonally 

or knovingly tampers vith the tangible property of the owner and 

causes pecuniary loss or substantial inconvenience to the owner or a 

third person.” The Williams court wrote: 

--- 

Since impairment or interruption of public communications 11% a felony of the third degree even 

if no pecunla:?! loss results, it-is apparent that 

Subsection (b: (,4)(B) was intended to be a type of 

‘substantial inconvenience,’ which warranted 

greater pcnlllty. 

Id. at 865. Otherwise, WC find no case that contains a statement 

zilar to the one you rusk about. . 

p. 2080 
. . . _ Rouorable Gerald A. Fohn - Pege 7 (JM-456) 

SUMVARY 

The combined affect of section 2.05 and section 

28.03(c) of the Texas Penal Code ia to establish a 

permlaslble infmence rather than a true presumption. When a permissive inference Is not the only 

evidence of an clament of an offense, the fact 

inferred must lx more-likely-than-not to follow 

from the facts Proved. Where the more-likely-thannot standard applies. the constitutional validity 

of a permissive Inference must be tested on a 

case-by-case basis. If tha permissive inference 

is the only evid,ence on an element of an offense, 

however, the facts proved must establish the fact 

inferred beyond a reasonable doubt. The permissive inferenx established by section 28.03(c) 

does not meet that standard. 

J I M MATTOX 

Attorney General of Texas 

JACK HIGHTOWER 

First Assistant Attorney General 

UARY KELLER 

Executive Asslstant Attorxy General 

ROBERT GRAY 

Special Assistant Attorney General 

RICK GILPIA 

Chairman, Opinion Committee 

Prepared by Sarah Woelk 

Assistant Attorney General 

p. 2081