### GENERAL THEA 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 utionalit of House Bill No. 6 0,

4 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 amendChapter 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, 

### OPseal-trailer which has been’duly registered fop ‘the current year in the State 

### OPoountrg 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 HighwayDepartment through a CountyTax 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 anymotor vehicle, trailer, or semitrailer operated within this State for the transportation of 

### persons or property for compensation 

### OFhire. Provided, however, that motor vehicles properly licensed in another State or county operated for cornpen& sation or hire maybe allowed to makenot to exceed two (2) trips during any calendar monthand 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 

### OPcountry like exaeptions are granted to motor vehicles registered under the laws of and ownedby residents of this State. Provided that in any prosecution, for the violation of this Act, It shall not be necessary for the State to allege or prove that there are nolike 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 ownpower, or towed or otherwise transported by being attached or coupled to someother 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 CountyTa%Collector of the US lrst county through which said motor vehicle passes after entering this State; 

### OPIf 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 mannerand license Sees paid. TheTax 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 sameto any memberof the State Highway Patrol, or other peace officer, for inspection uponrequest. If said operator is unable to present said receipt to said memberof the State Highway Patrol,.or other peace officer, he and the motor vehicle which he is operating shall be detained by such memberof the State HighwayPatrol, or peace offleer until ‘proper registration is had and said receipt issued by the Tax Collect,or 

### OSsomecounty through which said motor vehicle is being, or has been driven 

### OPtowed, or otherwise transported by being attached orEon. Jewel1 Helpinstill, Page 3, V-136,

cou+lea to soms other vehicle from 

### OPthrough this 3tate over the hlghways thereof O

“(c) Any

### person or any officer, agent or employee of any corporation, company,~or association whoviolates any ,of the,~~provislons of this Section shall be guilty of a mlsdeswanor and upon conviction thereof shall be fined in an sumof not more than OneHun

### areaDollars (3100)*” Section 2of Article 8nb, V. P, C
, in Its present form wasenacted by the Forty-fourth Leglslature, Chapter 342, page 800, Acts of 1935. The only change madein 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 anyprosecution 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 

### OPcountry. v Article 827b, Vernonss Penal Code, 1s c,ommanlyknownin 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 andnonresidents. It is a well established ,princlple that the State may makeregulations with respect to the registration of motor vehicles l

wlicable to nonresidents driving Into or through the State, mobile Lawand Practice 1 Blashfield CmloDef~w;~eAutoPlH6, page 154 L the State maygrant to nonresidents 

### alimitid use of the State Highways at a nominal fee by the wayof 

### peclprocity, and such legislation Is not Invalid as an unreasonable classification; and further, the State mayconaition the use of ,its hishwavs by nonresidents to those nouresldents whohave co&pli&i with similar legislation in their respective states, lienrick v. Marrland, 235 U. S. 610, 35 S, Ct. 140, 59L Ed 385; 1 Blashfield 

### CYClODedia

of Automobile Lawa&l Practice g 186, page 154. Theproblem presented by the proposed amendment to Section 2of Article 8Qb, supra, is entirely different from the general principles above statedEon,.Jewel1Helplnatlll, Page 4, V-136

regardlng~the right OStheStats to regulate the:useof 1 Us highwaysbymotorvehlo$es, Theserious qmst@a to be decided involves the rlgbt ,andpowd~of ths bglslatare underour Comtltutlon to dispense,,wlthCertati altigaticms **aad**

### p00r onthe part 

### 0rtb State la the prowcutitm 

### 0r a pars06 r0r 

### ths rioma 

### ,0ra cmnuml statute. ~~ btwu I,. s8d.i~ 10, 

### 0r the Dooetltatioa 

### 0r Texasprovides in.k#rt,a*,

### r0iim8 3,

‘In’all crlmlnal prosecutions ths accused ahail haye a speedypublic trial. byan qrArt,icle I, Section 19, or %IwCkutltutloa of Tour **provides**.as.roUowa8
,’

‘%e citisea of this State shall bs deprived of,Plfe, liberty+ pyoportye prlvlleges or lmmualt iea 9 

### OPin any mm8r di8fraaehiseU

It Is to be observed that **under**Article Wb, scct1oi 2, vo P. c., as it nowstaads, aka also as proPlded for in HouseBIPP690, the privileges granted to anonsesldelat 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, OPaeli-trailer operated wfthin this State fop the transportation of persolsaor property for compensationdrhire, with ths exceptiom, however, that motor vehloles priwerly llceassd in another State 

### OFcountry aadosmratod

### far oonpe@satloa or hire maybe allowed to ~m)Paot **to** .ezeeed 

### twotrips durlmgaaycalelldar

### msmtk andwrlm onewh 

### ..0r, sold tilps wlthlmthis State motto exste~dfm..&m without rqiaterlng im t&la State, lmí tbs l vemtW%

### ‘WSerb. .í lawr or suahother State or ooumt~ BiL, uurp%tou @re granaed to motor vghieles nglstero& tder tL .tw8 of Texasandomed byresldolats of Taxar* I@0-r mm., andstated In aaether way, a

### motorvehlel? :m$ or~owrated by anonresldeat ,aedusedrr 

### tbs tra&W%@tlw Or property or 

### personsror oorpemsatlorr or him ,r~:m mot to exceed twotrips into this State ,ia amyok aalmdar ronth and r&sain here not exceedlgg four days oneachRon, Jewel1 Helpinstill, Page 5, V-136

trip without registering his vehicle in this State provided a citizen of Texas is granted the samerights 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 SOPin the samssection of the Act andwithin the sameparagraph.

As the statute nowreads, andwithout re ard to the proposed amendmentcontained InHouse Bill % 90, it is necessary in a prosecution for violation of the statute for the State to allege andprove the exceptions regarding not more than twotrips in a calendar month and the non-existence of reciprocity In 

### lawsbetween Texas and the State OFcountry of which the accused is a resident. Theamendmentembraced in House Bill 690would dispense with such allegationa andproof O It is to be noted, however, that even under the amnamnt all these matters are still contalned in the samesection andparagraph, including the newand additional sentence which dispenses with the nownecessary allegations and proof.

If was established at anearly date in this State that it wasbeyond 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, 25Tex. 722 (Sup. Cte 1860); Stat. v. Duke 42T 455 (sup. Ct* 1875) It was under this established g&iple of law that tie courts of this State struck do& the- “CommonSense 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); YOURv’

. State, 12 CP.R. 614 (Tex. Grim. App. 1882)*

It is believed that a discussion of the leadlag cases touching upon the problem andquestion 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 wasno inhibition in this State against the sale of whiskey unless it wasHon. Jewel1 Helpinstill, Page 6, ‘J-136

sold without a license. The statute under which the iadictment washad provided In part that “if any persoa or firm shall sell or be in anywise concerned in selling spirituous, vlnous, or other Intoxicating liquors In

..’ quantities less than one quart, without first havlng.ob-’ tained a license DOOh”
,, 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 andprover 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 lmthe omlsaioa

or privlleges
, outlawed, exiled, manner, disfranchised, except by due course of the law of the land, 8 Bill of Rights, 0. &NoDig. 14. ’ (l&hasis ourr) Thequestion 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.

SolPbfifteen years 18ter in 9 ate v ,A-+&cI supra, the Suprelre Court waacalled uponto 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 pollaemenHon. Jewel1 Iielplnstlll, Page 7, v-136

**end** others enursreted. Theexceptions in the stetute appeared as (Ipart of the samsparagraph end sect Ion making it an offense to carry 8pistol, 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 DukeCase 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 DukeC 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&od4flniag 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 393. W, 664 (Tex, Grim, App. 1897); Lowemv, State, 165 3 W. 7 ('Per, Grim,App, 1916).

Thenext 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 “DeanLaw in 1919. That lew as orlglnelly enacted provided in pert that “It shall be unlawful for anyperson
. n
. to

. . r sell, 0 0e spirituous, vlnous or melt liquors 0 0

. except for ~dlclnal, mchenlc~l, scientific or sacrewntal purposes. There was noprovision in the statute saying thet it wes not necessary on the part of the State toBon. 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 onthe 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 weanot 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 OQthe uestlam involved. In Anderson v. Stete, 105S. **W.** (263 258 (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 anypermit (except. upon the pre%criptlon of a duly licensed physician):

. . . OnSundays0 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:

“weare not unawareof 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 anyexception 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 madepart 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 madepert of 18a0plalaly 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' (Iseparate place so aa that we would not be cosnwlled to hold it en OssWitlal MEt of ut 88 wefind it wedo not feel DrlvlleRed to strike downthe uxeat numberOSdecisions written by this court and by ourslllustFiOQ& predecessors. hence our holdiarr a8 above

.. Indicated." Uhuphasls 0Ur8) Finally, ths'court of Criminal Appeals In Elrv. Stete, supra, after reviewing all the 1eadLng authorities on the different phases of the question presented in this opinion, announced andrestrted 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~anteeto every cltleon, of en lndlctlasnt which should state the nature end character of the offense chargedEon. 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 whenthe except ion or omission, as in the Hewitt Case, supra, is of the very gist of the offense, and then samewould have to be negetlved 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 artlcle. In other words, If the thing forbidden by the particular statute under consideration could not be proved, **or** the case could not be madeout without proof of the so-called exception or omission, then arid exception would be (Inecessary 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 madeout 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 tion and there is no need for their negatIon. ’ @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 **Crlm.** App. 1 Tax. --?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 emendedby HouseBill 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 

### orhire set more **than** two trips la any calendar monthand to remalahere 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 8part of the ,sectlon itself deiflnlng the offense, mustbe considered descriptive of the oifense Itself. It would therefore be neoessary on the part of the State in an lnforwtloa or ladictwnt charging 8person for violet ion of the pertlouler offense, to negative such exception by proper allegationsr Anyattempt 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 10and 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.

Weere of the further o~laion, however, taat~ this objectlonabl4 feature maybe 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 nowprovided for in Article 8T7b, Section 2; amtY also es nowcontained in **House**Bill No. 690, should probably, for the sake of clarity beMQ#ttly @hanged.
SlllQURY HouseBill 690making it unnecessary in prosecutions arising under Article 827b, Section 2, V..P. C., aa amendedby 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 10end 19of Article I of the State Constitution under the doetrlne.

.

Bon. Jewel1 &lpinstlll, Page 12, 

### ,V-136

of Hewitt V. State, 25Tex. 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

OFTEXAS



### m!l:jt:mrj 

# BY4dLw5;1TQmrles D. Mathews'

Assistant

APPROVgD

APR. 10, 

### 1947

&!iikiiu

/: C