i

Nos. PD-1358-15, PD-1359-15, PD-1360-15, & PD-1361-15

In the

Court of Criminal Appeals

At Austin 



Nos. 14-14-00307-CR, 14-14-00308-CR, 14-14-00309-CR, & 14-14-00310-CR

In the

Court of Appeals

For the

Fourteenth District of Texas

At Houston



Nos. 1909496, 1909497, 1909498, & 1909499

In County Criminal Court at Law Number Six

Of Harris County, Texas



ERIC L. BAUMGART

Appellant

V.

THE STATE OF TEXAS

Appellee



STATE’S REPLY TO APPELLANT’S BRIEF ON THE MERITS



DEVON ANDERSON

District Attorney

Harris County, Texas

DAN MCCRORY

HEYWARD CARTER

LAUREN BYRNE

Assistant District Attorneys

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

Tel.: 713/274-5826

FAX No.: 713/755-5809

Counsel for Appellee

PD-1358-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 5/20/2016 4:58:05 PM

Accepted 5/23/2016 6:43:17 AM

ABEL ACOSTA

CLERK
ii

STATEMENT REGARDING ORAL ARGUMENT

When this Court granted discretionary review, it announced that oral 

argument would not be permitted.
iii

TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT................................................ ii

INDEX OF AUTHORITIES.....................................................................................iv

STATEMENT OF THE CASE...................................................................................1

STATEMENT OF THE PROCEDURAL HISTORY................................................1

STATEMENT OF FACTS .........................................................................................2

SUMMARY OF THE ARGUMENT.........................................................................7

The court of appeals did not err in its application of section 2.02 by 

holding that the State need not negate an exception in the indictment

when the exception is in a separate statute from the statute defining 

the offense and a prima facie case can be made without proof negating 

the exception because: (1) this proposition is supported by wellestablished precedent from the court of criminal appeals; (2) section 

2.02’s plain language does not require negation of the exceptions in 

the occupations code because those exceptions do not contain the 

mandatory language that triggers section 2.02’s application; and (3) 

any other interpretation of section 2.02 would result in the absurd 

result of requiring the State to plead and prove over 40 exceptions.

REPLY TO THE GROUND FOR REVIEW.............................................................7

CONCLUSION........................................................................................................28

CERTIFICATE OF SERVICE .................................................................................29

CERTIFICATE OF COMPLIANCE .......................................................................30
iv

INDEX OF AUTHORITIES

CASES

American Plant Food Corp. v. State, 

508 S.W.2d 598 (Tex. Crim. App. 1974)....................................................9, 11, 15

Arias v. State, 

477 S.W.3d 925 (Tex. App.--Houston [14th Dist.] 2015, no pet.)................ 17, 27

Awadelkariem v. State, 

974 S.W.2d 721 (Tex. Crim. App. 1998)..............................................................18

Baker v. State, 

132 Tex. Crim. 527, 106 S.W.2d 308 (1937) (opin. on reh’g).............................14

Baumgart v. State, 

No. 14-14-00306-CR, 2015 WL 3986153 

(Tex. App.--Houston [14th Dist.] June 30, 2015, pet. granted) .............1, 9, 10, 11

Bell v. State, 

62 Tex. Crim. 242, 137 S.W. 670 (1911) .............................................................14

Bluitt v. State, 

137 S.W.3d 51 (Tex. Crim. App. 2004)................................................................18

Boykin v. State, 

818 S.W.2d 782 (Tex. Crim. App. 1991)....................................................... 18, 19

Bragg v. State, 

740 S.W.2d 574 (Tex. App.--Houston [1st Dist.] 1987, pet. ref’d)......................27

Elizondo v. State, 

No. PD-1039-14, 2016 WL 1359341 (Tex. Crim. App. April 6, 2016) (not yet 

reported) ........................................................................................................ 17, 18

Gardner v. State, 

478 S.W.3d 142 (Tex. App.--Houston [14th Dist.] 2015, pet. ref’d)...................11

Kirk v. State, 

454 S.W.3d 511 (Tex. Crim. App. 2015)..............................................................18
v

McElroy v. State, 

720 S.W.2d 490 (Tex. Crim. App. 1986)....................................................... 16, 17

Mills v. Kennedy, 

1 Bailey 17 (1828)................................................................................................12

Mosely v. State, 

18 Tex. Ct. App. 311 (1885).................................................................................13

Newman v. State, 

58 Tex. Crim. 223, 124 S.W. 956 (1910) (opin. on reh’g)............................ 13, 16

Rosemond v. United States, 

134 S.Ct. 1240 (2014) ..........................................................................................17

Salazar v. State, 

423 S.W.2d 297 (Tex. Crim. App. 1968)..............................................................15

State of Texas ex rel. Vance v. Clawson, 

465 S.W.2d 164 (Tex. Crim. App. 1971)..............................................................11

State v. Duke, 

42 Tex. 455 (1874) ........................................................................................ 12, 15

Threlkeld v. State, 

558 S.W.2d 472 (Tex. Crim. App. 1977)....................................................... 16, 18

STATUTES

TEX. OCC. CODE ANN. § 1702.001 (West 2012) ........................................................8

TEX. OCC. CODE ANN. § 1702.102 (West 2012) ....................................................2, 8

TEX. OCC. CODE ANN. § 1702.108 (West 2012) ....................................................2, 8

TEX. OCC. CODE ANN. § 1702.321-1702.332 (West 2012 & Supp. 2014) ..........9, 19

TEX. OCC. CODE ANN. § 1702.322 (West 2012) ........................................................3

TEX. OCC. CODE ANN. § 1702.388 (West 2012) ....................................................3, 9

TEX. PEN. CODE ANN. § 2.02 (West 2011) ...........................................................8, 18
vi

OTHER AUTHORITIES

Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974 ....................................16

Baumgart v. State, 

No. PD-1358-15, 2016 WL 922166 

(Tex. Crim. App. Mar. 9, 2016) (not designated for publication)....................7, 11

CONSTITUTIONAL PROVISIONS

TEX. CONST. art. V (1891)........................................................................................14

TEX. CONST. art. V, §§ 3, 6 (1876) ...........................................................................13
TO THE HONORABLE TEXAS COURT OF CRIMINAL APPEALS:

STATEMENT OF THE CASE

Appellant was charged by five indictments with the offense of violating the 

Private Security Act. (CR I 10; CR II 11; CR III 11; CR IV 10; CR V 10).1 After a 

jury found appellant guilty of the five charged offenses, the judge assessed 

punishment at two years of community supervision for each offense. (CR I 499; 

CR II 517; CR III 513; CR IV 504; CR V 497).

STATEMENT OF THE PROCEDURAL HISTORY

On June 30, 2015, the Fourteenth Court of Appeals issued a published 

opinion in which it affirmed appellant’s convictions in cause numbers 1909496, 

1909497, 1909498, and 1909499, and reversed his conviction in cause number 

1909495. Baumgart v. State, No. 14-14-00306-CR, 2015 WL 3986153, at *6 (Tex. 

App.--Houston [14th Dist.] June 30, 2015, pet. granted). The State did not file a 

motion for rehearing or a petition for discretionary review (PDR) for the cause 

number that was reversed.

On July 13, 2015, appellant filed a motion for rehearing for the four cause 

numbers in which his convictions were affirmed. The court of appeals denied 

 

1

“CR I” refers to the clerk’s record for cause number 1909495.

“CR II” refers to the clerk’s record for cause number 1909496.

“CR III” refers to the clerk’s record for cause number 1909497.

“CR IV” refers to the clerk’s record for cause number 1909498.
2

appellant’s motion on August 6, 2015. Appellant filed a PDR in these four cases 

on November 25, 2015. This Court denied appellant’s PDR on March 9, 2016. On 

this same date, however, this Court granted review on its own motion and directed 

the parties to address a particular question.

STATEMENT OF FACTS

The licensing requirement

Renearl Bowie is an assistant director assigned to the Regulatory Services 

Division of the Texas Department of Public Safety (DPS). (RR V 15-16). Director 

Bowie’s division regulates the private security industry and oversees the licensing 

of entities involved in that industry. (RR V 16-17). The DPS is the sole licensing 

authority for the private security industry. (RR V 18).

Director Bowie explained that the Private Security Act (the Act), located in 

chapter 1702 of the Texas Occupations Code, governs and regulates the private 

security industry. (RR V 20). He further explained that the Act requires a security 

guard to be licensed. (RR V 21, 23-26). TEX. OCC. CODE ANN. § 1702.102(a)(1) 

(West 2012) (requiring license for “guard company”); TEX. OCC. CODE ANN. §

1702.108(2) (West 2012) (defining “guard company” as a person who engages in 

the business of a guard on a contractual basis for another person to prevent, 

observe, or detect unauthorized activity on private property). A violation of this

 

“CR V” refers to the clerk’s record for cause number 1909499.
3

requirement constitutes a Class A misdemeanor. (RR V 21-22). TEX. OCC. CODE 

ANN. § 1702.388 (West 2012).

Director Bowie stated that the Act does provide some exceptions to the 

licensing requirement. (RR V 26). Namely, there is an exception for a full-time 

peace officer. (RR V 27). TEX. OCC. CODE ANN. § 1702.322(1) (West 2012). 

Director Bowie explained that the Act defines a full-time officer, in part, as one 

who: (1) works as a peace officer on the average of at least 32 hours a week; (2) is 

compensated at least at the minimum wage; and (3) is entitled to all employee 

benefits offered to a peace officer by his employing agency. (RR V 27-29, 34). 

TEX. OCC. CODE ANN. § 1702.322(1)(D) (West 2012). A peace officer who does 

not meet these requirements must obtain a license to work security. (RR V 34).

Director Bowie checked DPS records and determined that appellant did not 

have a license during the time period spanning June to December of 2012. (RR V 

36-37). In other words, appellant did not have a license to operate as a security 

guard on the dates alleged in the indictments. (RR V 38; CR I 10; CR II 11; CR III 

11; CR IV 10; CR V 10).

The offenses

Tammy Neuman works for a non-profit charitable organization that operates 

a bingo hall that brings in about $10,000 on a daily basis. (RR V 53-55, 62, 77). 
4

Given this amount of cash on hand, Neuman routinely hires uniformed police 

officers to serve as “security on the premises.” (RR V 62-64).

Neuman personally knows appellant since he and her husband grew up 

together. (RR V 64-65). She hired appellant to work as a security guard at the 

bingo hall on occasion. (RR V 64-67). In 2012, appellant worked for her on June 

23, July 2, July 7, and July 29. (RR V 74-75). Neuman thought appellant was a 

full-time police officer because he wore a uniform, carried a gun, drove a police 

car, and had a badge. (RR V 68-69). She also thought he worked for the Liberty 

County Sheriff’s Department. (RR V 69). Appellant represented himself to her as a 

full-time peace officer. (RR V 69).

When appellant was arrested on November 17, 2012, the arresting officer 

found an identification card in appellant’s wallet that identified him as a reserve 

police officer, with an expiration date of December 31, 2012. (RR V 188).

Appellant was not a full-time officer

To establish that appellant was not a full-time peace officer (meaning he was 

required to have a security license), the State presented the testimony of Kimberly 

Harris, the County Treasurer for Liberty County. (RR V 81-82). Her office 

operates the payroll for the employees of Liberty County, including the constables’ 

precincts within Liberty County. (RR V 83-84, 86). Her office also serves as the 

human resource office and, as such, it maintains files for all county employees, 
5

including payroll records, retirement records, and worker’s compensation records. 

(RR V 89). “[A]nything to do with an employee’s record, it comes through [her] 

office.” (RR V 89). Furthermore, all county employees are eligible for health 

insurance and retirement benefits. (RR V 88).

Harris searched her office’s records for paperwork associated with appellant 

from 2008 through 2013. (RR V 93-94). No paychecks were issued to appellant 

and there were no payroll records indicating that appellant received any 

compensation from the county. (RR V 94). There was no record of any time sheets 

submitted by appellant. (RR V 95). There was no record of any tax forms, such as 

a W-2, for appellant. (RR V 96). There were no vehicle compensation records for 

appellant. (RR V 96-97). There was no record of any county benefits being paid to 

appellant. (RR V 97). As such, Harris determined appellant was never a paid 

employee of Liberty County from 2008 through 2013. (RR V 97). In fact, to her 

knowledge, appellant had never been an employee of Liberty County. (RR V 108).

In an effort to show that he was a full-time peace officer at the time of the 

offenses (which would mean he did not need a license to work as a security guard), 

appellant presented the testimony of Chad Pafford. Pafford was the elected 

Constable in Liberty County from 2009 to 2013. (RR VI 75). He hired appellant as 

a reserve officer in 2009. (RR VI 75, 83-84). In 2011, Pafford “changed 

[appellant] over to full time.” (RR VI 79, 85). There were no funds in Pafford’s 
6

budget to pay appellant any money, so he compensated appellant by providing him

the use of a “take-home car” and the use of county equipment. (RR VI 79, 101). 

The car was apparently a 2000 Ford Crown Victoria with about 260,000 miles. (RR 

VI 109).

Regarding the three criteria for being a full-time officer, Pafford first 

claimed that appellant worked for him at least 32 hours a week. (RR VI 89). 

Pafford admitted, however, that he had no paperwork documenting his claim that 

appellant worked 32 hours per week. (RR VI 105). He explained that appellant 

worked his 32 hours per week on the honor system. (RR VI 105).

Second, Pafford testified that he believed appellant earned minimum wage 

while working for him because he considered the value of the use of the take-home 

car and the county equipment to exceed minimum wage. (RR VI 108-110). 

However, despite considering appellant’s use of county property to constitute 

compensation in excess of minimum wage, Pafford did not report this supposed 

compensation to the Liberty County Tax Assessor’s Office, the IRS, or any other 

taxing authority. (RR VI 122-123).

Third, Pafford testified that when appellant became a full-time employee, he 

did not get health care or a pension plan. (RR VI 103). Pafford did not know if 

appellant was entitled to all benefits offered by the county. (RR VI 110). Later,
7

Pafford testified that appellant received Workmen’s Compensation benefits and 

waived all other benefits. (RR VI 117).

SUMMARY OF THE ARGUMENT

The court of appeals did not err in its application of section 2.02 by holding

that the State need not negate an exception in the indictment when the exception is 

in a separate statute from the statute defining the offense and a prima facie case can 

be made without proof negating the exception because: (1) this proposition is 

supported by well-established precedent from the court of criminal appeals; (2) 

section 2.02’s plain language does not require negation of the exceptions in the 

occupations code because those exceptions do not contain the mandatory language 

that triggers section 2.02’s application; and (3) any other interpretation of section 

2.02 would result in the absurd result of requiring the State to plead and prove over 

40 exceptions.

REPLY TO THE GROUND FOR REVIEW

This Court granted review on its own motion and directed the parties to 

address the following question:

Did the court of appeals err in its application of Penal 

Code § 2.02?

Baumgart v. State, No. PD-1358-15, 2016 WL 922166 (Tex. Crim. App. Mar. 9, 

2016) (not designated for publication).
8

Relevant penal code provision

Section 2.02 of the Texas Penal Code is titled “Exception” and provides:

(a) An exception to an offense in this code is so labeled 

by the phrase: “It is an exception to the application of 

. . . .”

(b) The prosecuting attorney must negate the existence of 

an exception in the accusation charging commission 

of the offense and prove beyond a reasonable doubt 

that the defendant or defendant's conduct does not fall 

within the exception.

(c) This section does not affect exceptions applicable to 

offenses enacted prior to the effective date of this code.

TEX. PEN. CODE ANN. § 2.02 (West 2011) (italics added).

Relevant chapter 1702 provisions

The offense for which appellant was convicted is not found in the penal 

code; rather, the applicable statute resides in the Texas Occupations Code. Chapter 

1702 of the Texas Occupations Code is known as the Private Security Act. TEX.

OCC. CODE ANN. § 1702.001 (West 2012). This Act requires a security guard to be 

licensed. TEX. OCC. CODE ANN. § 1702.102(a)(1) (West 2012) (requiring license 

for “guard company”); TEX. OCC. CODE ANN. § 1702.108(2) (West 2012) (defining 

“guard company” as a person who engages in the business of a guard on a 

contractual basis for another person to prevent, observe, or detect unauthorized 
9

activity on private property). A person commits an offense if he violates this 

requirement. TEX. OCC. CODE ANN. § 1702.388(a) (West 2012). Appellant was 

charged with the commission of this offense by acting as a guard without a license. 

(CR II 11; CR III 11; CR IV 10; CR V 10).

Subchapter N of chapter 1702 is titled “EXCEPTIONS.” This subchapter 

contains 12 statutes which, collectively, provide a list of about 41 categories of 

individuals to whom chapter 1702 “does not apply.” TEX. OCC. CODE ANN. §

1702.321-1702.332 (West 2012 & Supp. 2014).

The court of appeals opinion

On direct appeal, appellant argued his indictments should have been quashed 

because they failed to negate the numerous exceptions listed in Subchapter N of 

chapter 1702 in violation of section 2.02. (appellant’s original brief, p. 14). The 

court of appeals rejected this argument. Baumgart, 2015 WL 3986153, at *2-3. 

The court explained that, generally, when a penal statute embraces an exception 

that is part of the statute itself, the State must negate the exception in the charging 

instrument. Id. at *2. However, the court further explained that when the 

exception is in a separate section from the provision that states the offense and a 

prima facie case can be made without proof negating the exception, the exception 

need not be negated in the charging instrument. Id. at *3 (citing American Plant 

Food Corp. v. State, 508 S.W.2d 598, 604-05 (Tex. Crim. App. 1974)).
10

The court then noted that the exceptions to appellant’s charged offense are 

found in a section separate from the section that provides for the offense. Id. The 

court further observed that a prima facie case of the charged offense could be made 

without proof negating the exceptions. Id. Under such circumstances, the court 

concluded that the State was not required to negate the exceptions in the 

indictments and, therefore, the trial judge did not err in denying appellant’s 

motions to quash. Id.

Argument and analysis

Appellant contends that the court of appeals erred in its application of 

section 2.02 by holding that “where an exception is in a separate section from the 

provision that states the offense and a prima facie case can be made without proof 

negating the exception, it is not an essential requirement that it be negated in the 

information or complaint.” (appellant’s brief, pp. 19-20 (citing Baumgart, 2015 

WL 3986153, at *3)). Appellant maintains that the applicability of section 2.02 

should not depend on whether the statutory exception is housed in same statute that 

defines the penal offense.

Despite appellant’s stance, the court of appeals did not err in interpreting 

section 2.02 in this manner because it relied on authority from this Court in 

reaching this conclusion. Namely, the court of appeals cited American Plant Food 

Corp. in support of its holding that restricted section 2.02’s application to 
11

situations in which the exception is located in the same statute as the offense. 

Baumgart, 2015 WL 3986153, at *3. In American Plant Food Corp., this Court 

held that when an “exception is in a separate section from the provision which 

states the offense, and a prima facie case can be made without proof negating the 

exception[, i]t is not an essential requirement that it be negated in” the charging 

instrument. 508 S.W.2d at 604-05.

As an intermediate appellate court, the court of appeals was bound to follow 

this precedent from the court of criminal appeals. Gardner v. State, 478 S.W.3d 

142, 147 (Tex. App.--Houston [14th Dist.] 2015, pet. ref’d) (citing State of Texas ex 

rel. Vance v. Clawson, 465 S.W.2d 164, 168 (Tex. Crim. App. 1971)). Having 

followed the precedent of this Court in applying section 2.02 (as it was bound to 

do), the court of appeals did not “err in its application of Penal Code § 2.02.” 

Baumgart, 2016 WL 922166 at *1.

Recognizing that the ruling in American Plant Food Corp. is adverse to his 

position, appellant states that this Court “was wrong 42 years ago” when it issued 

this opinion and prays for the overruling of this case. (appellant’s brief, pp. 25, 32). 

The American Plant Food Corp. ruling, however, is not some aberrational holding 

that may be lightly discarded. The proposition that an exception located in a 

different statute than the offense need not be pled has roots in precedent established 
12

well over a century ago and, in some instances, before this Court was created or 

even before Texas became a state.

In 1874, for example, the Texas Supreme Court held that “when an offense is 

created by statute, and there is an exception in the enacting clause, the indictment 

must negative the exception.” State v. Duke, 42 Tex. 455, 459 (1874) (italics 

added). In other words, this opinion restricted the need to plead an exception to 

situations in which the exception was in the same section as the offense. Id. at 

456-57. The Court explained: “The reason of this rule is that such exceptions 

constitute a part of the description of the offense, and unless they are negatived no 

offense is stated.” Id. at 459. 

In reaching this conclusion, the Duke Court cited to an 1828 South Carolina 

case which held: “It is, therefore, well established, that in declaring upon penal 

statutes, where there is an exception in the enacting clause, the plaintiff must shew 

[sic] that the defendant is not within the exception. If the exception be in another 

and subsequent clause, then it is a matter of defence [sic], and the other party must 

shew it to exempt himself from the penalty.” Id. at 460 (citing Mills v. Kennedy, 1 

Bailey 17 (1828)). Therefore, through the 1874 Duke opinion, the foundation was 

set for the American Plant Food Corp. ruling exactly 100 years later.
13

In 1885, after jurisdiction over criminal appeals was constitutionally 

transferred from the Texas Supreme Court to the Texas Court of Appeals2, the latter 

court addressed the issue of when exceptions must be pled in the charging 

instrument. Mosely v. State, 18 Tex. Ct. App. 311 (1885). The court ruled:

The provisos [exceptions] in the [statute defining the 

offense] are not part of the “enacting clause.” Nor are 

they descriptive of the offense. The “enacting clause” 

completely defines the offense, and prescribes the 

punishment therefor, without exceptions. Where the 

words of the statute defining the offense are so entirely 

separable from the exception that all the ingredients 

constituting the offense may be clearly and accurately 

alleged without any reference to the exception, then it is 

not necessary that the exception should be negatived. 

But where the exception is so incorporated with the 

language defining the offense that the ingredients of the 

offense cannot be accurately and clearly described if the 

exception is omitted, the indictment must allege enough 

to show that the accused is not within the exception. An 

indictment must show a prima facie case against the 

defendant, and it need not do more.

Mosely, 18 Tex. Ct. App. at 312 (original italics).

In 1910, after this Court was constitutionally created3, it confirmed the 

holdings in Duke and Mosely and provided the following rule of pleading: “it is 

only necessary to negative exceptions when they are contained in the enacting 

clause which defines the offense.” Newman v. State, 58 Tex. Crim. 223, 124 S.W. 

956, 958 (1910) (opin. on reh’g). “Where an offense is created by statute, and 

 

2

TEX. CONST. art. V, §§ 3, 6 (1876).
14

there is an exception in the enacting clause, the indictment must negative the 

exception.” Id. This Court explained the reason for such a pleading rule:

This is placed on the ground that such exceptions are 

essentially descriptive of the offense. In the case at bar 

the matters relied on are purely defensive, and are 

contained in a different section of the law than that which 

defines the offense.

Id.

The following year, this Court added the proposition that the State is not 

required to disprove an exception when the facts relating to the exception are 

peculiarly within the defendant’s knowledge. Bell v. State, 62 Tex. Crim. 242, 137 

S.W. 670, 670-71 (1911).

Finally, in 1937, this Court collected and reviewed case law on this issue 

from the previous half century or so and concluded, “if such exceptions be placed 

in a separate section or article from the one containing the definition of the offense, 

or if they be not such as to be essential to the definition of the offense, it will not be 

necessary to negative such exceptions in the indictment charging such offense.” 

Baker v. State, 132 Tex. Crim. 527, 106 S.W.2d 308, 311 (1937) (opin. on reh’g). 

However, the Baker Court provided an exception to this rule: “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, 

 

3

 TEX. CONST. art. V, §§ 4, 5 (1891).
15

then said exception would be a necessary element of the offense, and its existence 

should be negatived in the indictment and find support in proof.” Id. at 311-12. 

“If, however, the exception be of such form and character as that a prima facie case 

could be made out against the accused for the violation charged, without proof of 

the omission or exception, then clearly the Legislature might by enactment have 

placed such exception in a separate article or section and there is no need for their 

negation.” Id. at 312; see also Salazar v. State, 423 S.W.2d 297, 299 (Tex. Crim. 

App. 1968) (reinforcing Baker holding).

Accordingly, there is a long line of precedent supporting the American Food 

Plant Corp. ruling that an exception located in a separate section from the offense 

need not be pled in the indictment. American Food Plant Corp., 508 S.W.2d at 

604-05. Nevertheless, appellant maintains American Plant Food Corp. should be 

overruled because there is no reason to differentiate between exceptions, for 

pleading purposes, based on whether they are in the same statute as the charged 

offense. 

But both this Court and the Texas Supreme Court have provided reasons for 

this rule. The Supreme Court explained that exceptions within the same statute as 

the offense must be plead because: “The reason of this rule is that such exceptions 

constitute a part of the description of the offense, and unless they are negatived no 

offense is stated.” Duke, 42 Tex. at 459. Similarly, this Court explained that only 
16

exceptions within the same statute as the offense need be pled because “such 

exceptions are essentially descriptive of the offense.” Newman, 124 S.W. at 958.

Appellant also argues that the court of appeals’s reliance on the fact that the 

exceptions are in a different statute than the charged offense is erroneous because 

section 2.02’s plain language makes no mention of such a pleading rule. TEX. PEN.

CODE ANN. § 2.02 (West 2011). Regarding this claim, the State is certainly aware 

that none of the cases it cited above (starting with the 1974 American Plant Food 

Corp. case and working back in time to the cases issued in the 1800s) incorporate 

section 2.02 into their analysis. This is because each of these cases predates the 

effective date of section 2.02.4 Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 

1, 1974.

So the “exceptions pleading rule” announced in those cases was a common 

law rule. But section 2.02 has been interpreted as a codification of the common 

law rule that an exception must be negated in the indictment only when the 

exception is in the same statute as the offense. McElroy v. State, 720 S.W.2d 490, 

493 (Tex. Crim. App. 1986); Threlkeld v. State, 558 S.W.2d 472, 473 (Tex. Crim. 

App. 1977). On occasion, when a common law rule is codified, an aspect of the 

common law rule may survive and apply to the codifying statute even though such 

 

4

 American Plant Food Corp. was actually issued several months after section 2.02 was 

enacted, but the offense date for that case very likely predated the enactment date, rendering the 

newly-created statute inapplicable to that case. 
17

aspect is not specifically stated in the newly created statute. Elizondo v. State, No. 

PD-1039-14, 2016 WL 1359341, at *9 (Tex. Crim. App. April 6, 2016) (not yet 

reported) (legislature’s codification of provocation did not eliminate common law 

element of intent even though statute did not specifically mention intent). 

Therefore, the plain language of section 2.02 does not necessarily eliminate the 

long-standing rule providing that exceptions need not be negated if they are located

in a section separate from the section in which the offense is defined.

Furthermore, this rule is consistent with the general proposition that the 

State is not required to negate as an element of the offense matters “peculiarly 

within the knowledge of the defendant” because such matters support a defensive 

theory. Arias v. State, 477 S.W.3d 925, 929 (Tex. App.--Houston [14th Dist.] 2015, 

no pet.) (citing Rosemond v. United States, 134 S.Ct. 1240, 1256-57 (2014)). A 

review of the “exceptions” listed in the occupations code reveals that many of them 

involve facts that likely would fall only within appellant’s knowledge. For 

example, appellant is much better positioned to know whether he owned and 

installed an alarm device on his own property. TEX. OCC. CODE ANN. §

1702.328(1) (West 2012).

Moreover, well after section 2.02 was enacted, this Court interpreted it 

consistent with the common law rule that exceptions must be pled in the indictment 

only when they are in the same statute as the offense. McElroy, 720 S.W.2d at 493; 
18

Threlkeld, 558 S.W.2d at 473. Since the legislature has met without overturning 

McElroy and Threlkeld’s construction of section 2.02, it is presumed that the 

legislature intends for this construction to continue to apply to section 2.02. 

Elizondo, 2016 WL 1359341, at *9 (citing Awadelkariem v. State, 974 S.W.2d 721, 

725-26 (Tex. Crim. App. 1998), overruled in part by Kirk v. State, 454 S.W.3d 511, 

515 (Tex. Crim. App. 2015)). Accordingly, even considering the plain language of 

section 2.02, the court of appeals’s application of this statute was not erroneous.

Finally, if appellant seeks to interpret the plain language of section 2.02 in 

the strictest sense, so be it. Such an approach actually may be the most expedient 

way of disposing of this issue.

Under the rules of statutory construction, a reviewing court considers the 

plain language of the statute and focuses on the literal text. Bluitt v. State, 137 

S.W.3d 51, 54 (Tex. Crim. App. 2004); Boykin v. State, 818 S.W.2d 782, 785 (Tex. 

Crim. App. 1991). The plain and literal text of section 2.02 expressly limits it 

application to an exception that is so labeled by the phrase: “It is an exception to 

the application of...” TEX. PEN. CODE ANN. § 2.02(a) (West 2011). Other than an 

“exception” defined by this precise language, section 2.02 does not provide for its 

application to any other “exception” described in or out of the penal code. 

The “exceptions” listed in the occupations code, of course, do not bear the 

“It is an exception to the application of...” language mandated by section 2.02. 
19

TEX. OCC. CODE ANN. § 1702.321-1702.332 (West 2012 & Supp. 2014). Absent 

such specific language, the pleading and proof requirements of section 2.02 have 

no application to the occupations code exceptions based on the plain language of 

the penal code statute. Considering the plain language of section 2.02, the court of 

appeals did not err in finding no error in the indictments.

However, even assuming the plain language of section 2.02 did favor 

appellant’s interpretation of the statute, his claim would remain meritless. When 

the application of a statute’s plain language would lead to absurd results, the 

language should not be applied literally. Boykin, 818 S.W.2d at 785.

Under appellant’s interpretation of section 2.02, the State would have to 

plead and prove the negation of more than 40 exceptions listed in Subchapter N, 

many of which appellant is in much better position to have knowledge of than the 

State. Specifically, according to appellant’s interpretation, the State would be 

required to plead in the indictments that appellant was not:

- An officer or employee of the United States, this state, or a political 

subdivision of the state performing official duties. TEX. OCC. CODE ANN. §

1702.321(a) (West 2012).

- A person who has full-time employment as a peace officer and who receives 

compensation for private employment on an individual or an independent 
20

contractor basis as a patrolman, guard, extra job coordinator, or watchman. 

TEX. OCC. CODE ANN. § 1702.322(1) (West 2012).

- A reserve peace officer who is performing guard, patrolman, or watchman 

duties for a county while being compensated solely by that county. TEX.

OCC. CODE ANN. § 1702.322(2) (West 2012).

- A peace officer acting in an official capacity in responding to a burglar alarm 

or detection device. TEX. OCC. CODE ANN. § 1702.322(3) (West 2012).

- A person engaged in the business of electronic monitoring of an individual 

as a condition of that individual’s community supervision, parole, mandatory 

supervision, or release on bail, if the person does not perform any other 

service that requires a license. TEX. OCC. CODE ANN. § 1702.322(4) (West 

2012).

- A person employed in an employee-employer relationship exclusively and 

regularly by one employer in connection with the affairs of the employer. 

TEX. OCC. CODE ANN. § 1702.323(a) (West 2012).

- A manufacturer or a manufacturer’s authorized distributor while selling 

equipment intended for resale. TEX. OCC. CODE ANN. § 1702.324(b)(1) 

(West Supp. 2014).

- A person engaged exclusively in the business of obtaining and providing 

information to: (a) determine creditworthiness; (b) collect debts, or (c) 
21

ascertain the reliability of information provided by an applicant for 

insurance, an indemnity, or surety bond. TEX. OCC. CODE ANN. §

1702.324(b)(2) (West Supp. 2014).

- A person engaged exclusively in the business of repossessing property that is 

secured by a mortgage or other security interest. TEX. OCC. CODE ANN. §

1702.324(b)(3) (West Supp. 2014).

- A person who is engaged in the business of psychological testing or other 

testing and interviewing services for preemployment purposes. TEX. OCC.

CODE ANN. § 1702.324(b)(4) (West Supp. 2014).

- A person who is engaged in obtaining information that is public information 

under chapter 552 of the government code. TEX. OCC. CODE ANN. §

1702.324(b)(5) (West Supp. 2014).

- A licensed engineer practicing engineering or directly supervising 

engineering practice. TEX. OCC. CODE ANN. § 1702.324(b)(6) (West Supp. 

2014).

- An employee of a cattle association who inspects livestock brands under the 

authority granted by the Grain Inspection, Packers and Stockyards 

Administration of the U.S. Department of Agriculture. TEX. OCC. CODE 

ANN. § 1702.324(b)(7) (West Supp. 2014).
22

- A landman performing activities in the course and scope of the landman’s 

business. TEX. OCC. CODE ANN. § 1702.324(b)(8) (West Supp. 2014).

- An attorney engaged in the practice of law. TEX. OCC. CODE ANN. §

1702.324(b)(9) (West Supp. 2014).

- A person who obtains a document for use in litigation under an authorization 

or subpoena issued for a deposition. TEX. OCC. CODE ANN. §

1702.324(b)(10) (West Supp. 2014).

- An admitted insurer, insurance adjuster, agent, or insurance broker licensed 

by the state, performing duties in connection with insurance transacted by 

that person. TEX. OCC. CODE ANN. § 1702.324(b)(11) (West Supp. 2014).

- A person who on his own property or on his employer’s property installs, 

changes, or repairs a mechanical security device, repairs an electronic 

security device, or cuts or makes a key for a security device. TEX. OCC.

CODE ANN. § 1702.324(b)(12) (West Supp. 2014).

- Security personnel working at a commercial nuclear power plant licensed by 

the United States Nuclear Regulatory Commission. TEX. OCC. CODE ANN. §

1702.324(b)(13) (West Supp. 2014).

- A licensed accountant, an owner of an accounting firm, or an employee of an 

accountant or accounting firm while performing regulated services. TEX.

OCC. CODE ANN. § 1702.324(b)(14) (West Supp. 2014).
23

- A retailer, wholesaler, or other person who sells mechanical security devices. 

TEX. OCC. CODE ANN. § 1702.324(b)(1) (West Supp. 2014).

- Certain employees performing investigative services. TEX. OCC. CODE ANN.

§ 1702.324(b)(16) (West Supp. 2014).

- Certain licensed social workers engaged in the practice of social work. TEX.

OCC. CODE ANN. § 1702.324(b)(17) (West Supp. 2014).

- A licensed person engaged in the business of selling, maintaining, repairing, 

programming, or placing lockboxes used for accessing real property. TEX.

OCC. CODE ANN. § 1702.324(b)(18) (West Supp. 2014).

- A certified automobile club that unlocks a vehicle at the owner’s request. 

TEX. OCC. CODE ANN. § 1702.324(b)(19) (West Supp. 2014).

- A common carrier by rail engaged in regulated interstate commerce and 

transporting commodities essential to the national defense and general 

welfare of the community. TEX. OCC. CODE ANN. § 1702.325(1) (West 

2012).

- An officer, employee, or agent of a common carrier while protecting the 

carrier. TEX. OCC. CODE ANN. § 1702.325(2) (West 2012). 

- An entity that provides medical alert services for sick or disabled people. 

TEX. OCC. CODE ANN. § 1702.326(a) (West 2012).
24

- A nonprofit business or civic organization that employs a peace officer under 

certain circumstances. TEX. OCC. CODE ANN. § 1702.327(1) (West 2012).

- A charitable, nonprofit organization that maintains a system of records to aid 

in locating missing children. TEX. OCC. CODE ANN. § 1702.327(2) (West 

2012).

- A person who owns and installs a burglar detection or alarm device on his 

own property, or on someone else’s property if he does not charge a fee. 

TEX. OCC. CODE ANN. § 1702.328(1) (West 2012).

- A person in the business of building construction that installs electrical 

wiring and devices that may include in part the installation of a burglar

alarm or detection device. TEX. OCC. CODE ANN. § 1702.328(1) (West 

2012).

- A person who sells or installs automobile burglar alarm devices. TEX. OCC.

CODE ANN. § 1702.328(3) (West 2012).

- A person who sells exclusively by e-commerce, over the counter 

transactions, or mail order, alarm systems, electronic access control devices, 

locks, or detection devices. TEX. OCC. CODE ANN. § 1702.328(4) (West 

2012).

- A person whose activities are regulated under Article 5.43-2 of the insurance 

code. TEX. OCC. CODE ANN. § 1702.329(1) (West 2012).
25

- A person who holds a license to practice as an electrician and who installs 

fire or smoke detectors in single- or multi-family residences. TEX. OCC.

CODE ANN. § 1702.329(2) (West 2012).

- A person employed full time and commissioned as a campus security 

personnel employee by a private institution of higher education. TEX. OCC.

CODE ANN. § 1702.330(1) (West 2012).

- A peace officer commissioned by an unincorporated municipality who is 

hired under the education code on a regular basis by a private institution of 

higher education. TEX. OCC. CODE ANN. § 1702.330(2) (West 2012).

- An alarm systems company that sells, installs, services, monitors, or 

responds to only personal emergency response systems. TEX. OCC. CODE 

ANN. § 1702.331(b)(1) (West 2012).

- An alarm systems installer who installs, maintains, or repairs only personal 

emergency response systems. TEX. OCC. CODE ANN. § 1702.331(b) (West 

2012).

- A manager of an alarm systems company. TEX. OCC. CODE ANN. §

1702.331(3) (West 2012).

- A security salesperson employed by an alarm systems company. TEX. OCC.

CODE ANN. § 1702.331(4) (West 2012).
26

- An owner, officer, partner, or shareholder of an alarm systems company. 

TEX. OCC. CODE ANN. § 1702.33(5) (West 2012).

- A person who provides a telematics service. TEX. OCC. CODE ANN. §

1702.332(b) (West 2012).

Having to plead the negation of each of these exceptions in the indictment 

would obviously be unnecessarily time consuming, but the more complicating 

result would be satisfying the requirement that the State prove beyond a reasonable 

doubt that appellant did not fall within any of these exceptions. TEX. PEN. CODE 

ANN. § 2.02 (West 2011) (requiring State to plead and prove exceptions). 

If the Sate were required to prove appellant did not fall into any of the 

exceptions, a trial under the Private Security Act would devolve into a lengthy 

presentation of evidence regarding otherwise meaningless topics about such 

diverse matters as the business of electronically monitoring parolees, manufactured 

resale equipment, debt collection businesses, repossession businesses, 

psychological testing businesses, licensed engineers, cattle associations, landmen, 

insurance adjusters, licensed accountants, social work, automobile clubs,

electricians, private institutions of higher education, telematics, and whether 

appellant owns and installed an alarm device in his own home or possibly installed 

one in someone else’s home.
27

It would be absurd to interpret section 2.02 as requiring the State to 

investigate these forty-plus possible exceptions and then present evidence on each 

one to prove beyond a reasonable doubt that appellant did not fall within any of the 

described exceptions, particularly when the alternative is to have the defendant 

(who has actual knowledge of whether he falls within any of these categories)

identify and present evidence on the exception that applies to him. Arias, 477 

S.W.3d at 929 (the State is generally not required to negate as an element of the 

offense matters peculiarly within the defendant’s knowledge); Bragg v. State, 740 

S.W.2d 574, 576 (Tex. App.--Houston [1st Dist.] 1987, pet. ref’d) (“it is 

unreasonable to expect an indictment to include negations of 18 situations in which 

the offense does not apply”). By placing the responsibility of addressing the 

possible exceptions on the defendant, the jury hears evidence of the single relevant 

exception and is not bombarded with literally dozens of irrelevant exceptions. 

Since appellant’s interpretation would produce an absurd result, it should be 

rejected and the court of appeals’s application of section 2.02 should be affirmed.

Accordingly, for these various alternative reasons, the court of appeals did 

not err in its application of section 2.02.
28

CONCLUSION

It is respectfully requested that the court of appeals’s judgment be affirmed.

DEVON ANDERSON

District Attorney

Harris County, Texas

/s/ Dan McCrory

DAN McCRORY

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

(713) 274-5826

TBC No. 13489950

McCrory_Daniel@dao.hctx.net
29

CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing instrument has been mailed to 

the following email addresses via TexFile:

Michael D. Gillespie

Attorney at Law

226sheldon@gmail.com

Lisa C. McMinn

State Prosecuting Attorney

Lisa.McMinn@SPA.texas.gov

/s/ Dan McCrory

DAN McCRORY

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

(713) 274-5826

TBC No. 13489950
30

CERTIFICATE OF COMPLIANCE

 The undersigned attorney certifies that this computer-generated document 

has a word count of 5,948 words, based upon the representation provided by the 

word processing program that was used to create the document.

/s/ Dan McCrory

DAN McCRORY

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

(713) 274-5826 

TBC No. 13489950

Date: 5/20/2016