Affirmed and Opinion filed June 11 , 2013

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 1 2

- 0 0 877

- CR

EX PARTE RICHARD DEWAYNE JONES

On Appeal from the 405th District Court Galveston County, Texas Trial Court Cause No. 11

- CR

- 3416

O P I N I O N

A ppellant is charged with evading arrest

– us e of vehicle, a third

- degree felony. See Tex. Penal Code Ann. § 38.04 (West Supp. 2012). In a pre

- trial application for writ of habeas corpus, appellant argued he is illegally restrained because the legislative bill which am ended punishment for his offense violate d the “single

- subject rule” of the Texas Constitution

. See Tex. Const. art. III, § 35. Specifically, appellant contends that, because the subject of Senate Bill 1416 (“SB 1416”) wa s tire deflation devices, the incl usion of a n additional subject in the
bill

— amending punishment for evading arrest

– use of vehicle

— violated the single

-2

subject rule. The trial court denied appellant’s application , and appellant filed this accelerated appeal. See Tex. R. App. P. 31.2. We affirm

.

P RE - T RIAL A PPLICATION FOR W RIT OF H ABEAS C ORPUS

A. Standard of Review

We review for abuse of discretion a trial court’s decision to grant or deny an application for writ of habeas corpu s

. Phuong Anh Thi Le v. State
, 300 S.W.3d 324, 327 (Tex

. App.

— Houston [14th Dist.] 2009, no pet.). T he trial court has no discretion to analyze the law incorrec tly; thus, when the trial court’ s ruling turns on the constitutionality of a statute, we review the ruling de novo

. See Rivera v. State , 363 S.W.3d 660, 666 (Tex. App.

— Houston [1st Dist.] 2011, no pet.) (reviewing de

novo trial court’s ruling on pretrial application for writ of habeas corpus in which
accused asserted ordinance was unconstitutional). When the constitutionality of a

statute is challenged , we presume the statute is valid. Rodriguez v. State
, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002). The burden rests upon the individual who challenges the statute to establish its unconstitutionality. Id.
B. Single

- Subject Rule

The Texas Constitution contains the following single

- subject rule:
(a) No bill, (except general appropriation bills, which may embrace the various subjects and accounts, for and on account of which moneys are appropriated) shall contain more than one subject. (b) The rules of procedure of each house shall require that the subject of each bill be expressed in its title in a manner that gives the legislature and the public reasonable notice of that subject. The legislature is solely responsible for determining compl iance with the rule. (c) A law, including a law enacted before the effective date of this subsection, may not be held void on the basis of an insufficient title.

Texas Const. a rt. III , § 35.3

The purpose of the single

- subject rule is to prevent log

- rolling

— the inclusion in a bill of several subjects having no connection with each other in order to create a combination of various interests in support of the whole bill. LeCroy v.
Hanlon
, 713 S.W.2d 335, 337 (Tex. 1986). A bill satisfies the rule , even if it contains numerous provisions, h owever diverse, as long as the provisions relate, directly or indirectly, to the same general subject, have a mutual connection, and are not foreign to the subject expressed in the title. Robinson v. Hill
, 507 S.W.2d 521, 52 4

– 25 (Tex. 1974)

. C . Analysis
Appellant correctly notes tha t, as originally introduced
, SB 1416 did not contain any revisions to the evading arrest statute:

A BILL TO BE ENTITLED AN ACT relating to the creation of the offense of possession, manufacture, transportation, repair, or sale of a tire deflation device; providing criminal penalties. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Section 46.01, Penal Code, is amended by adding Subdivision (17) to read as follows:

(17) “ Tire deflation device ” means a device, including a caltrop or spike strip, that, when driven over, impedes or stops the movement of a wheeled vehicle by punctu ring one or more of the vehicle’ s tires. SE CTION 2. Section 46.05, Penal Code, is amended by amending Subsection (a) and adding Subsection (b

- 1) to read as follows: (a) A person commits an offense if the person [ he ] intentionally or knowingly possesses, manufactures, transports, repairs, or sells :

(1) an explosive weapon; (2) a machine gun; (3) a short

- barrel firearm;4 (4) a firearm silencer; (5) a switchblade knife; (6) knuckles; (7) armor

- piercing ammunition; (8) a chemical dispensing device; [ or ] (9) a zip gun ; or (10) a tire deflation device

. (b

- 1) It is a defense to prosecution under this section that the actor ’ s conduct was incidental to dealing with a tire deflation device solely for the purpose of making the device available to an organization, agency, or institution listed in Sub section (b). SECTION 3. This Act takes effect September 1, 2011. SB 1416 (introduced version)
, http://www.capitol.state.tx.us/tlodocs/82R/billtext/html/SB01416I.htm (last visite d
June 2013). 1 Nothing in the title or text of th e introduced vers ion of SB 1416
refers to evading arrest, use of a vehicle, or Penal Code section 38.04

. However, SB 1416 was amended and ultimately approved and signed into
law as follows:

AN ACT relating to the creation of the offense of possession, manufacture, transportation, repair, or sale of a tire deflation device and to the offense of attempting to evade arrest through the use of a vehicle or a tire deflation device; providing criminal penalties. B E IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Section 46.01, Penal Code, is amended by adding Subdivision (17) to read as follows:

(17) “Tire deflation device” means a device, including a caltrop or spike strip, that, when driven over , impedes or stops the movement of a wheeled vehicle by punctur ing one or more of the vehicle’ s tires. The term does not include a traffic control device that:

(A) is designed to pu ncture one or more of a

1 Proposed text is underlined, and proposed deletions are struck through and surrounded by brackets

.5

vehicle’ s tires when driven over in a specific di rection; and

(B) has a clearly visible sign posted in close proximity to the traffic control device that prohibits entry or warns motor vehicle operators of the traffic control device. SECTION 2. Subsections (a), (d), and (e), Section 46.05, Penal Code, are amended to read as follows: (a) A person commits an offense if the person [ he ] intentionally or knowingly possesses, manufactures, transports, repairs, or sells:

(1) an explosive weapon; (2) a machine gun; (3) a short

- barrel firearm; (4) a firearm silencer; (5) a switchblade knife; (6) knuckles; (7) armor

- piercing ammunition; (8) a chemical dispensing device; [ or ] (9) a zip gun ; or (10) a tire deflation device

. (d) It is an affirmative defense to prosecution un der this section that the actor’ s conduct:

(1) was incidental to dealing with a switchblade knife, springblade knife, [ or ] short

- barrel firearm , or tire deflation device solely as an antique or curio; [ or ]

(2) was incidental to dealing with armor

- piercing ammunition solely fo r the purpose of making the ammunition available to an organization, agency, or institution listed in Subsection (b) ; or (3) was incidental to dealing with a tire deflation device solely for the purpose of making the device available to an organization, a gency, or institution listed in Subsection (b)

. (e) An offense under Subsection (a)(1), (2), (3), (4), (7), (8), or (9) [ this section ] is a felony of the third degree [ unless it is committed under Subsection (a)(5) or (a)(6), in which event, it is a Class A misdemeanor ]. An offense under Subsection (a)(10) is a state jail felony. An offense under Subsection (a)(5) or (6) is a Class A misdemeanor. SECTION 3. Subsections (b) and (c), Section 38.04, Penal Code, are amended to read as follows: (b) An offen se under this section is a Class A misdemeanor,6

except that the offense is:

(1) a state jail felony if[ : [ (A) ] the actor has been previously convicted under this section; [ or

[ (B) the actor uses a vehicle while the actor is in flight and the actor has n ot been previously convicted under this section; ] (2) a felony of the third degree if:

(A) the actor uses a vehicle while the actor is in flight [ and the actor has been previously convicted under this section ]; [ or ] (B) another suffers serious bodily in jury as a direct result of an attempt by the officer from whom the actor is fleeing to apprehend the actor while the actor is in flight; or

(C) the actor uses a tire deflation device against the officer while the actor is in flight; or

(3) a felony of th e second degree if : (A) another suffers death as a direct result of an attempt by the officer from whom the actor is fleeing to apprehend the actor while the actor is in flight ; or

(B) another suffers serious bodily injury as a direct result of the actor ’ s use of a tire deflation device while the actor is in flight

. (c) In this section : (1) “ Vehicle ” [ , “ vehicle ” ] has the meaning assigned by Section 541.201, Transportation Code.

(2) “ Tire deflation device ” has the meaning assigned by Section 46.01. SECTION 4. Section 38.04, Penal Code, as amended by this Act, applies only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is governed by the law in effect on the date the off ense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense occurred before that date. SECTION 5. This Act take s effect September 1, 2011. SB 1416 (enrolled version)
, http://www.capitol.state.tx.us/tlodocs/82R/billtext/html/SB01416F.htm (last visited7

June 2013)

. 2

The title of the enrolled version of SB 1416 was broader than the title in the
introduced version and specifically mentioned evading arrest with a vehicle: “AN
ACT relating to the creation of the offense of possession, manufacture, transportation, repair, or sale of a tire deflation device and to the offense of attempting to evade arrest through the use o f a vehicle or a tire deflation device ; providing criminal penalties .” Id. (emphasis added). In s ection 3 of th e enrolled
version
, Penal Code s ection 38.04 was amended to include certain use s of a tire
deflation device as third

- and second

- degree

- felony form s of evading arrest. Additionally, s ection 3 amended the thir d

- degree

- felony form of evading arrest

–

u se of vehicle by removing the requirement that the defendant must have been previously convicted under section 38.04.
We agree with appellant that th e enrolled version SB 1416 did not pertain solely to criminalizing possession of tire deflation device s. Nevertheless, liberally construing the bill in favor of constitutionality, we conclude t he ov erarching subject of the bill was criminal offenses related to vehicles

. As the device name suggests, the Legislature decided to criminalize possession of tire deflation devices
because individuals use the devices to stop vehicles

. T he Legislature also decided

to address other vehicle

- related offenses , na mely evading arrest

– use of vehicle and evading arrest

– use of tire deflation device. The common theme of these topics is
criminal behavior related to vehicles

— behavior that has recently become more problematic in South Texas

. See SB 1416 (bill analysis for enrolled version)
, http://www.capitol.state.tx.us/tlodocs/82R/analysis/html/SB01416F.htm (last
visit ed June 2013) (“ Recently, law enforcement officials in South Texas, when in

2 Proposed text is underlined, and proposed deletions are struck through and surrounded by brackets.8

pursuit of suspects, have had to deal with the suspects t hrowing ‘tire defla tion
devices’ at law enforcement officials ’ vehicles and then evading arrest as a
result.” ). Thus, the topics “relate, directly or indirectly, to the same general subject , have a mutual connection, and are not foreign to the subject expressed in
the title .” Robinson
, 507 S.W.2d at 5 25; see also Dellinger v. State
, 28 S.W.2d 537, 539 (Tex. Crim. App. 1930) (“[W] here the provisions are germane in any degree, the law will be upheld .”); Tex. Alcoholic Beverage Com m ’ n v. Silver City
Club
, 315 S.W.3d 643, 645

– 4 8 (Tex. App.

— Dallas 2010 , pet. denied ) (holding bill’s numerous provisions, ranging from regulation of alcoholic beverages and sexually

- oriented businesses to unclaimed wages and agriculture, did not viola te single

- subject rule because common subject of bi ll, according to title, was government reform )

. 3

I n State B oar

d o f Insurance v . Nat iona l Employee Ben efit Adm inistrator s, Inc. , the court of appeals concluded a bill violated the single

- subject rule, recognizing the bill’s title referred to “third party administrators” and “non profit subscription programs” a s distinct concepts by separating the phra s es with the
word “and.” 786 S.W.2d 106, 10 9 (Tex. App.

— Austin 1990 , no writ )

. The court also noted sections 1 through 3 of the bill pertained solely to “third party administrators” whereas section 4 pertain ed solely to “non profit subscription programs.” Id. We conclude SB 1416 is distinguishable. Although the title of SB 1416 also contains the conjunction “and,” offenses based on possession of tire
deflation devices , evading arrest using such devices , and evading arrest using

3 Appellant argues the portions of SB 1416 pertain ing to punishment changes for evading arrest were part of an earlier introduced bill that failed. He also notes that
, when discussing SB 1416, legislators mentioned the importance of prohibiting tire deflation device s but did not express concerns about ev ading arrest by using a vehicle. However, even if correct, th ese facts are irrelevant in our single

- subject rule analysis because the common subject of SB 1416 ’s provisions was offenses related to vehicles.9

vehicles all reasonably come within the subject of offenses related to vehicles

. 4
Finally, appellant relies on the Court of Criminal Appeals’s decision in
White v. State

. 440 S.W.2d 660 (Tex. Crim. App. 1969 ). In White , the title of a
bill stated the bill ’s purposes was to add certain drugs to the list of “dangerous drugs” but did not mention the bill was amending penalty provision s of the Dangerous Drug Act. Id. at 662

– 63. The court held the title did not afford readers of the bill fair notice that penalty provision were being amended and thus violated

a rticle III, section 35

. Id. at 665

– 67. T he holding in White is not instructive here
because it was based on the title

- sufficiency rule of article III, section 35 , not on the single

- subject rule

. Furthermore, a rticle III, section 35 was amended in 198 6 and no longer authorizes courts to declare a bill is void based on the title

sufficiency rule

. See Tex. Const. art. III , § 35(c); Baggett v. State , 722 S.W.2d 700, 701

– 02 (Tex. Crim. App. 1987).
Accordingly, w e overrule appellant’ s sole i ssue and affirm the trial court’s denial of appellant’ s pre

- trial application for writ of habeas corpus.

/s/ John Donovan Justice

Panel consists of Justices Frost, Boyce, and Donovan

. Publish

— Tex. R. App. P

. 47.2( b).

4 We also note that, in State Board , provisions pertaining to the two subjects became effective on different dates, whereas all provisions of SB 1416 became effective September 1, 2011. 786 S.W.2d at 10 8

.