THEA GENERAL 

OFTEXAS 

‘: : 

R-317 

.’ 

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. 6 4 0, 

Fiftieth Iegislat ure, 

Regular Session, 1947, 

relative to reglstratlon 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 current year in the State OP oountrg of which 

the owner is a resident and in accordance 

with the laws thereof, may, in lieu of registering such vehicle as otherwise reClulred 

by law, apply to the State Highway Department through a County Tax Collector for the 

registration thereof as provided by law, except that the privileges granted as otherwise provided for in this Act ,shall not apply to any motor vehicle, trailer, or semitrailer 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 calendar 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 under the laws of and owned by residents of 

this State. Provided that in any prosecut 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 efSect in such other State or country. “(b) Provided however, none of the provisions of this Section shall apply to or exempt the operator, owner or lessee of any 

motor vehicle being drlven under its own power, or towed or otherwise transported by being 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, company, 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 after 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 Department la lawful manner and license Sees paid. 

The Tax Collector of the county where such 

registration is had shall furnish the operator 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 officer, 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 Collect,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,~~provislons of this Section shall be guilty of a 

mlsdeswanor and upon conviction thereof shall 

be fined in an sum of not more than One Hunarea Dollars ( 3 100) *” 

Section 2 of Article 8nb, V. P, C , in Its 

present form was enacted by the Forty-fourth Leglslature, 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,ommanly known in this State as the *Nonresident Temporary 

Registration Law ‘, and it generally regulates the temporary~~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 l wlicable to nonresidents driving Into 

or through the State, 

mobile Law and Practice 

1 Blashfield CmloDef~w;~eAutoP 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 peclprocity, and such legislation Is not Invalid as an unreasonable classification; and further, the State may conait 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 amendment 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 bglslatare under our Comtltutlon to dispense ,,wlth Certati altigaticms aad p00r on the part 0r tb State la the prowcutitm 0r a pars06 r0r ths rioma ,0r a cmnuml statute. ~~ 

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 qrArt,icle I, Section 19, or %Iw Ckutltutloa of 

Tour provides .as .roUowa 8 ,’ 

‘%e citisea of this State shall bs deprived 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 proPlded 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 transportation 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 oonpe@satloa or hire may be allowed to ~m)P aot to .ezeeed 

two trips durlmg aay calelldar msmtk and wrlm on ewh ..0r, 

sold tilps wlthlm this State mot to exste~d fm..&m without rqiaterlng im t&la State, lmítbl svemtW% ‘WSerb. .í 

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~owrated 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 provided 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 country 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 Texas 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 paragraph, 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 essential Darts of the descriDtlon of an offense is in vlolatlon of the Bill of Rightb contained in o& State Constitution (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- “Common Sense Indictment Act of 1881”, which dispensed with numerous 

allegations previously required in an indictment, holding that the form of indlctmsat prescrlbsd by the Leglalature under that Act was repwnant to Section 19 of Article 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 leadlag cases touching upon the problem and question here 

presented will be helpful, 

In Hewitt v, State, supra, decided by the Suprem 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 iadictment 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 peraon charged with any such violation, did sell, or was 

concerned in selling spirituous, vinoua, oc lntoxlcatlng 

because the very omission authorized was a necessary ilement 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 disctured 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 9 ate v ,A-+&cI 

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 desSubsequent 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 mliformly held that it was not necessary to negative 

the exceptions referred to la the Duke C e in an lndlctwnt or information0 See 

(26) 308 (Tex, 

ye&e, 106 s. 

Crlm, App, 1937 

ii. 

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 . except 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 statute 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 legislature to dispense with such exceptions in the law ea 

written as unconstltutlonal, 

~’ I&or the ‘Bebh fdw” wes’ dwnded by the bglslature 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&$ to- negitlve the exc&&ions 

in the indictment. * I~., 

The repeal of the ‘Bean Law” end the enactmat of the Texas Liquor Control Act (Article 666-l,etc., 

Vernoa’s Penal Code) again brought before the courts further discussion OQ the ue st 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 provided that “no sale or delivery of liquor shell be made 

on~.or from the premises of the, holder of any permit (except. upon the pre%criptlon of a duly licensed physician): 

. . . On Sundays 0 The court held the Information fundamenttilly defective for failure to negative the exception 

regarding a prescription by a physician, end thla notwithstanding Section 9 of the Act (666-9, V. P, C.) making it unnecessary to negative an exception in any lndlctwnt or Information filed under the Act, In so holding 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, complaint, or indictment to negative any exception contained in this act concerning 

any prohibited act, etc., but this court 

has uniformly held that where the exception 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 ltself, 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 into 

. - . . 

the very deflnltlon 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 El r v. Stete, supra, after reviewing all the 1eadLng authorities 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 descrlotloa of the offense, it should be set 

out end properly negatived in order to wet 

the constitutional guar~antee to every cltleon, 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 lndlctment, 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 forbidden by the particular statute under consideration 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 support 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 optowtry under Articles 735- 38, V. P. C,, Blumber v. 

State, 161 9. W. (26) 1082 1 Tax. Crlm. App. 1 --?m+ 
Eon. Jewel1 Helpinstill, Page 11, V-136 

end prosecutions for unlawful 

under Article 725b, V. P. C. 

(26) 196 (Tex. Grim. App. 1945 

w. 

v. P. c., 

Applybag the above principlea to Article 8ub, 

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 offense, 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 exception as now provided for in Article 8T7b, Section 2; amtY 

also es now contained in House Bill No. 690, should probably, 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 reference to reciprocity In laws is ln violation 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, 

ATTORREY OERERAL OF TEXAS 

m!l: jt :mrj 

BY 4dLw5;1TQmrles D. Mathews' 

Assistant 

APPROVgD APR. 10, 1947 

&!iikiiu 

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