COURT OF APPEALS 

SECOND DISTRICT OF TEXAS 

FORT WORTH

NO. 02-14-00407-CR 

THE STATE OF TEXAS STATE

V. 

FRANK EMPEY APPELLEE

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FROM THE 271ST DISTRICT COURT OF WISE COUNTY 

TRIAL COURT NO. CR17613 

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DISSENTING OPINION 

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John Locke discussed the purpose of government in his Two Treatises of 

Government.

1 Many of his ideas are reflected in Thomas Jefferson’s writings, 

 1See generally John Locke, Two Treatises of Government (Peter Laslett 

ed., Cambridge Univ. Press, 2d ed. 1967) (1690). 
2 

including our Constitution.2 People join together to create a society and 

empower their leaders to govern because they seek protection of their lives, 

liberty, and property. A government is created and rightfully exists only by the 

consent of the governed “and is but the expression of their aggregate will, 

designed to secure and protect them in the enjoyment of life, liberty, and 

property . . . .”3

But, inevitably, tension arises between the enjoyment of life and liberty and 

the enjoyment of property when claims to property are in conflict. As Presiding 

Judge Sharon Keller of the Texas Court of Criminal Appeals has explained, 

The Supreme Court has interpreted the Due Process Clause as 

having both substantive and procedural components. The 

substantive component protects the individual against government 

action that either lacks a rational basis or unduly infringes on a 

fundamental right or liberty interest. A statute that infringes upon a 

fundamental right or liberty interest violates the substantive 

component of the Due Process Clause unless the infringement is 

narrowly tailored to serve a compelling state interest. A substantivedue-process analysis that is based upon the infringement of a 

fundamental right or liberty interest must provide a careful 

description of the asserted fundamental liberty interest. A 

fundamental right or liberty interest is one that is deeply rooted in 

this Nation’s history and tradition and implicit in the concept of 

 2See generally David L. Wardle, Reason to Ratify: The Influence of John 

Locke’s Religious Beliefs on the Creation and Adoption of the United States 

Constitution, 26 Seattle U. L. Rev. 291 (2002). 

3Galveston, H. & S.A. Ry. Co. v. De Groff, 110 S.W. 1006, 1010 (Tex. Civ. 

App.—Fort Worth 1908), rev’d on other grounds, 102 Tex. 433, 118 S.W. 134 

(Tex. 1909). 
3 

ordered liberty, such that neither liberty nor justice would exist if (it) 

were sacrificed.4

And as our sister court has pointed out, “Substantive due process protects 

against the arbitrary and oppressive exercise of government power over a 

person’s life, liberty, or property, regardless of the fairness of the procedures 

used to implement the government action.”5

My differences with the majority opinion are founded in such constitutional 

guarantees of due process. Unfortunately, in expressing my concerns with the 

statute in question and with the majority opinion, I am not sufficiently skillful to 

make these concerns clear to the thoughtful and articulate majority. The 

legislature alone, within the boundaries described by our constitutions, delineates 

those acts that violate our criminal laws.6 This obligation may not be delegated 

to other branches of the government.7 When statutes are so vague or contain 

 4Fleming v. State, 455 S.W.3d 577, 589–90 (Tex. Crim. App. 2014) (Keller, 

P.J., dissenting) (footnotes and internal quotation marks omitted), cert. denied, 

135 S. Ct. 1159 (2015). 

5Garcia v. Kubosh, 377 S.W.3d 89, 97 (Tex. App.—Houston [1st Dist.] 

2012, no pet.). 

6See Tex. Const. art. III, § 1; Miller v. French, 530 U.S. 327, 341, 120 S. 

Ct. 2246, 2255 (2000); Ex parte Hayward, 711 S.W.2d 652, 655 (Tex. Crim. App. 

1986); Grant v. State, 505 S.W.2d 279, 282 (Tex. Crim. App.), cert. denied, 417 

U.S. 968 (1974); David v. State, 453 S.W.2d 172, 179 (Tex. Crim. App. 1970), 

vacated in part on other grounds, 408 U.S. 937, 937, 92 S. Ct. 2862, 2862 

(1972); Sasser v. State, 131 Tex. Crim. 347, 349, 98 S.W.2d 211, 212 (1936). 

7See Ex parte Granviel, 561 S.W.2d 503, 514 (Tex. Crim. App. 1978) 

(relying on Margolin v. State, 151 Tex. Crim. 132, 138, 205 S.W.2d 775, 778–79 

(1947), and Williams v. State, 146 Tex. Crim. 430, 438–39, 176 S.W.2d 177, 183 
4 

terms that overlap and conflict so that an ordinary person cannot tell which 

statute he or she has violated or whether he or she has violated a criminal 

statute, the legislature, and no other branch of government, has the authority to 

establish certainty in the law.8 Other branches of government may not determine 

the elements of an offense on an ad hoc basis.9 To hold otherwise is to 

disregard the clear mandate of the due process guarantees of our state and 

federal constitutions.10

Not only must a statute be sufficiently specific to place the ordinary citizen 

on notice of the forbidden conduct; it must also provide sufficient notice to law 

enforcement personnel to prevent arbitrary or discriminatory enforcement.11 A 

 

(1943)); see also In re Johnson, 554 S.W.2d 775, 781–82 (Tex. Civ. App.—

Corpus Christi 1977), writ ref’d n.r.e., 569 S.W.2d 882, 883 (Tex. 1978). 

8Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S. Ct. 839, 

843 (1972). 

9See Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 1858 

(1983); Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 

489, 498–504, 102 S. Ct. 1186, 1193–96 (1982); Smith v. Goguen, 415 U.S. 566, 

575–82, 94 S. Ct. 1242, 1248–52 (1974); Grayned v. Rockford, 408 U.S. 104, 

108, 92 S. Ct. 2294, 2298–99 (1972); Kramer v. Price, 712 F.2d 174, 176–78 

(5th Cir. 1983), reh’g en banc granted, 716 F.2d 284 (5th Cir. 1983), grant of 

relief aff’d, 723 F.2d 1164 (5th Cir. 1984). 

10See Grayned, 408 U.S. at 108, 92 S. Ct. at 2298–99; Kramer, 712 F.2d 

at 178. 

11Chicago v. Morales, 527 U.S. 41, 64, 119 S. Ct. 1849, 1863 (1999) 

(holding loitering ordinance unconstitutionally vague because it “afford[ed] too 

much discretion to the police and too little notice to citizens who wish[ed] to use 

the public streets”); Bynum v. State, 767 S.W.2d 769, 773 (Tex. Crim. App. 

1989). 
5 

statute must be sufficiently definite to avoid the possibility of arbitrary and erratic 

arrests and convictions.12 Lack of notice and the lack of guidelines for law 

enforcement each provide an independent ground for finding a statute void for 

vagueness.13

A penal statute encourages arbitrary enforcement when it fails to provide 

clear guidelines, thereby giving law enforcement officials unbounded discretion to 

apply the law selectively.14

The pertinent portion of the theft statute in the penal code provides that no 

matter how minimal the value, a person commits a state jail felony if “the value of 

the property stolen is less than $20,000 and the property stolen is” aluminum, 

bronze, copper, or brass.15 At the same time, the occupations code provides a 

different offense level and therefore a different punishment. Under the 

occupations code, theft by purchase, and thereby possession, of stolen regulated 

metals is a misdemeanor that may be enhanced by evidence of prior 

 12Kolender, 461 U.S. at 357, 103 S. Ct. at 1858; Papachristou, 405 U.S. at 

162, 92 S. Ct. at 843. 

13Adley v. State, 718 S.W.2d 682, 685 (Tex. Crim. App. 1985), cert. 

denied, 479 U.S. 815 (1986); State v. Wofford, 34 S.W.3d 671, 679 (Tex. App.—

Austin 2000, no pet.). 

14May v. State, 765 S.W.2d 438, 440 (Tex. Crim. App. 1989) (op. on reh’g); 

Goocher v. State, 633 S.W.2d 860, 865 (Tex. Crim. App. [Panel Op.] 1982); 

Wofford, 34 S.W.3d at 680. 

15See Tex. Penal Code Ann. § 31.03(e)(4)(F) (West Supp. 2015). 
6 

convictions.16 Section 1956.001 of the occupations code defines different 

“materials,” “regulated materials,” and “regulated metals”: 

(1) “Aluminum material” means a product made from aluminum, 

an aluminum alloy, or an aluminum by-product. The term 

includes aluminum wiring and an aluminum beer keg but does 

not include another type of aluminum can used to contain a 

food or beverage. 

(2) “Bronze material” means: 

(A) a cemetery vase, receptacle, or memorial made from 

bronze; 

(B) bronze statuary; or 

(C) material readily identifiable as bronze, including bronze 

wiring. 

. . . . 

(4) “Copper or brass material” means: 

(A) a power inverter or insulated or noninsulated copper 

wire or cable that contains copper or an alloy of copper 

or zinc and is of the type used by: 

(i) a public utility or common carrier; 

(ii) a telecommunications provider as defined by 

Section 51.002, Utilities Code; 

(iii) a cable service provider as defined by Section 

66.002, Utilities Code; or 

(iv) a video service provider as defined by Section 

66.002, Utilities Code; 

(B) a copper or brass item of a type commonly used in 

 16Tex. Occ. Code Ann. § 1956.040(b)–(b-1) (West Supp. 2015). 
7 

construction or by: 

(i) a public utility; 

(ii) a telecommunications provider as defined by 

Section 51.002, Utilities Code; 

(iii) a cable service provider as defined by Section 

66.002, Utilities Code; or 

(iv) a video service provider as defined by Section 

66.002, Utilities Code; or 

(C) copper pipe or copper tubing. 

. . . . 

(6-a) “Lead material” means: 

(A) a commercial grade lead battery, lead-acid battery, or 

spiral cell battery; or 

(B) a material or an item readily identifiable as being made 

of or containing lead. 

 . . . . 

(9) “Regulated material” means: 

(A) aluminum material; 

(B) bronze material; 

(C) copper or brass material; 

(D) lead material; or 

(E) regulated metal. 

(10) “Regulated metal” means: 

(A) manhole covers; 

(B) guardrails; 
8 

(C) metal cylinders designed to contain compressed air, 

oxygen, gases, or liquids; 

(D) beer kegs made from metal other than aluminum; 

(E) historical markers or cemetery vases, receptacles, or 

memorials made from metal other than aluminum; 

(F) unused rebar; 

(G) street signs; 

(H) drain gates; 

(I) safes; 

(J) communication, transmission, and service wire or cable; 

(K) condensing or evaporator coils for central heating or air 

conditioning units; 

(L) utility structures, including the fixtures and hardware; 

(M) aluminum or stainless steel containers designed to hold 

propane for fueling forklifts; 

(N) metal railroad equipment, including tie plates, signal 

houses, control boxes, signs, signals, traffic devices, 

traffic control devices, traffic control signals, switch 

plates, e-clips, and rail tie functions; 

(O) catalytic converters not attached to a vehicle; 

(P) fire hydrants; 

(Q) metal bleachers or other seating facilities used in 

recreational areas or sporting arenas; 

(R) any metal item clearly and conspicuously marked with 

any form of the name, initials, or logo of a governmental 

entity, utility, cemetery, or railroad; 

(S) insulated utility, communications, or electrical wire that 

has been burned in whole or in part to remove the 

insulation; 
9 

(T) backflow valves; 

(U) metal in the form of commonly recognized products of 

the industrial metals recycling process, including bales, 

briquettes, billets, sows, ingots, pucks, and chopped or 

shredded metals; and 

(V) commercial grade lead batteries or lead-acid batteries.17

So if the person purchases and thereby possesses certain stolen metals included 

in the penal code section 31.03(e)(4)(F) list—aluminum, copper, bronze, and 

brass18—knowing the metal is stolen, and regardless of the amount or value, it 

appears that the offense is a Class A misdemeanor under the occupations 

code.19

Thus, if I knowingly go to my local fence and purchase stolen “aluminum 

material,” I have committed a Class A misdemeanor,20 unless, of course, either 

the arresting officer or the prosecutor decides to prosecute the “aluminum 

material” as plain aluminum. Then, I may be charged with a state jail felony 

unless I buy more than $20,000 worth.21 If I steal a $1,400 silver coin, I have 

committed a Class A misdemeanor,22 but if I pick an aluminum can up off the 

 17Id. § 1956.001. 

18See Tex. Penal Code Ann. § 31.03(e)(4)(F). 

19See Tex. Occ. Code Ann. §§ 1956.001(9), .040(b)–(b-1). 

20See id. §§ 1956.001(9), .040(b)–(b-1). 

21See Tex. Penal Code Ann. § 31.03(b)(2), (e)(4)(F). 

22See id. § 31.03(e)(3). 
10 

street and someone else claims it belongs to him, I am facing a state jail felony 

charge,23 unless either the arresting officer or the prosecutor decides to 

prosecute me based on the value of the can under section 31.03(e)(1) of the 

penal code, in which case theft of that same can becomes a Class C 

misdemeanor carrying no jail time.24 And what about the sandwich I take out of 

the office refrigerator because I’m really hungry? If the sandwich is wrapped in 

aluminum foil, the theft is a state jail felony.25 If that same sandwich is in a 

plastic baggie, the theft is only a Class C misdemeanor.26

 My confusion has many sources. What constitutes aluminum, bronze, 

copper, or brass for purposes of penal code section 31.03(e)(4)(F)? Does each 

term mean something made of the respective metal, alloyed with the respective 

metal, containing the respective metal, or decorated with the respective metal? If 

I steal an automobile and some of its parts are made of aluminum, have I stolen 

a car, aluminum, or both? That is, have I committed two offenses? When a 

person, such as Appellee, is accused of stealing aluminum bats, is he accused of 

committing one offense or two? What about copper coins? Does the theft of 

 23See id. § 31.03(e)(4)(F). 

24See id. § 31.03(e)(1). 

25See id. § 31.03(e)(4)(F). 

26See id. § 31.03(e)(1). 
11 

each coin constitute a separate offense?27

 Most baking powders for the home and antiperspirant deodorants contain 

aluminum.28 If I grab a biscuit off the buffet without paying for it, am I going to be 

charged with a state jail felony? How much of the object must be of the 

forbidden metal? More than 50%? Any amount? From the wording of the 

statute,29 logic suggests that the object must be primarily made of the forbidden 

metal. Otherwise, why would the statute specifically enumerate aluminum, 

copper, brass, and bronze,30 since brass and bronze are alloys containing copper 

and sometimes aluminum.31 Indeed, bronze is an alloy consisting primarily of 

copper.32 Are courts to conclude that any amount of the forbidden metal dooms 

the object in which it may hide? Are courts to hold that an object must contain 

sufficient forbidden metal that a person knows that he possesses it, as courts 

 27See Johnson v. State, 364 S.W.3d 292, 297 (Tex. Crim. App.) (“Theft has 

two gravamina: the property and ownership.”), cert. denied, 133 S. Ct. 536 

(2012). 

28Baking Powder, Wikipedia, The Free Encyclopedia, https://en.wikipedia. 

org/wiki/Baking_powder#Usage_of_aluminum_compounds (last visited July 27, 

2016) (permalink at https://en.wikipedia.org/w/index.php?title=Baking_powder& 

oldid=707002615); Antiperspirant Safety: Should You Sweat It?, WebMD, 

http://www.webmd.com/skin-problems-and-treatments/features/antiperspirant-fac 

ts-safety (last visited July 27, 2016). 

29See Tex. Penal Code Ann. § 31.03(e)(4)(F). 

30See id.

31Brass vs. Bronze, Diffen, http://www.diffen.com/difference/Brass_vs_ 

Bronze (last visited July 27, 2016). 

32Id.
12 

have held regarding controlled substances?33 Or is it sufficient that someone 

knows it? 

And returning to coins, does copper plating transform a penny from zinc to 

copper? Or is it a state jail felony to steal a 1981 penny but a Class C 

misdemeanor to steal a 1943 penny because it was made with no copper?34 The 

legislature does not inform us. Does this mean that the police officer or the 

prosecutor decides this issue on an ad hoc basis? 

 As section 31.03 of the penal code and section 1956.040(b)–(b-1) of the 

occupations code currently exist, the same act may be punished as a Class C 

misdemeanor, a Class A misdemeanor, or a state jail felony, depending on the 

whim or sound judgment of the arresting officer or the prosecutor, not the 

legislature. If the officer decides the offense is a Class C misdemeanor, there 

will likely be no arrest because the penalty carries no jail time and custodial 

arrest requires promptly taking the defendant before a magistrate.35 If the officer 

decides the offense is a Class A misdemeanor, the bail amount will likely be 

 33See Shults v. State, 575 S.W.2d 29, 29 (Tex. Crim. App. [Panel Op.] 

1979).

34Which U.S. Coin Has Absolutely No Copper in It?, About.com, 

http://coins.about.com/od/uscoins/f/coin_nocopper.htm (last visited July 27, 

2016). 

35See Tex. Code Crim. Proc. Ann. art. 14.06(b) (West Supp. 2015) 

(allowing peace officer to issue citation to person charged with Class C offense 

instead of taking the person before a magistrate); Tex. Penal Code Ann. § 12.23 

(West 2011) (providing Class C punishment is a fine up to $500); Berrett v. State, 

152 S.W.3d 600, 606 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d). 
13 

lower than if the officer decides the offense is a felony.36 Similarly, the ultimate 

punishment ranges from a tiny fine to two years’ imprisonment and a large fine, 

dependent on the officer’s choice.37 And after the officer makes this 

determination, the prosecutor weighs in and may make different determinations, 

both the officer and the prosecutor acting within the discretion improperly 

delegated them by the legislature. This is the very definition of unbounded 

discretion. 

As the Texas Court of Criminal Appeals has repeatedly reminded us, 

The federal constitution affords the states broad authority to 

narrowly construe a statute to avoid a constitutional violation. . . . 

Texas courts have a duty to employ a reasonable narrowing 

construction for that purpose. But . . . a narrowing construction 

should be employed only if the statute is readily susceptible to one. 

We may not rewrite a statute that is not readily subject to a 

narrowing construction because such a rewriting constitutes a 

serious invasion of the legislative domain and would sharply diminish 

the legislature’s incentive to draft a narrowly tailored statute in the 

first place. 

. . . [A] law “is not susceptible to a narrowing construction 

when its meaning is unambiguous.” This statement accords with our 

 36See Ex parte Castellanos, 420 S.W.3d 878, 882 (Tex. App.—Houston 

[14th Dist.] 2014, no pet.) (“The defendant’s potential sentence and the nature of 

the crime are significant factors for us to consider when assessing the 

reasonableness of a bail amount.”) (citing Montalvo v. State, 315 S.W.3d 588, 

593 (Tex. App.—Houston [1st Dist.] 2010, no pet.), and Ex parte Hunt, 138 

S.W.3d 503, 506 (Tex. App.—Fort Worth 2004, pets. ref’d)). 

37Compare Tex. Penal Code Ann. § 12.23 (providing that person convicted 

of “Class C misdemeanor shall be punished by a fine not to exceed $500”), with

Tex. Penal Code Ann. § 12.35(a)–(b) (West Supp. 2015) (providing that person 

convicted of state jail felony faces up to two years’ confinement in state jail and a 

fine of up to $10,000). 
14 

longstanding practice of giving effect to the plain meaning of a 

statute unless the language is ambiguous or the plain meaning leads 

to absurd results that the legislature could not have possibly 

intended. It also accords with our more recent statements that a 

statute is ambiguous if the statutory language “is reasonably 

susceptible to more than one understanding.”38

Penal code section 31.03(e)(4)(F) is another example of special-interest 

legislation intended to benefit real estate developers who were tired of repeated 

burglaries and thefts of wiring and air conditioner parts.39 With the increased 

value of copper and aluminum, other owners of houses, apartments, and 

buildings were also the victims of these thefts and burglaries.40 In 2011, the 

governor signed Senate Bill 694, which removed the requirement that at least 

50% of the stolen item be made of specific metals, such as copper or 

aluminum.41 The removal of this scope limitation generated many questions. 

 38Ex parte Thompson, 442 S.W.3d 325, 339–40 (Tex. Crim. App. 2014) 

(citations omitted). 

39See Dallas Sierra Club Lone Star Chapter, Rita Raccoon, Recycling 

Roundup—April 2011, http://www.dallassierraclub.org/index.htm?c=con&s=24& 

sc=212311 (last visited July 27, 2016); Press Release, The Office of Tex. State 

Senator Royce West, Senator West Announces New State Law to Fight Metals 

Theft (Apr. 4, 2008), available at http://www.senate.state.tx.us/75r/Senate/ 

Members/Dist23/pr08/p040408a.htm (last visited July 27, 2016). 

40See Dallas Sierra Club Lone Star Chapter, Rita Raccoon, Recycling 

Roundup—April 2011; Press Release, The Office of Tex. State Senator Royce 

West, Senator West Announces New State Law to Fight Metals Theft (Apr. 4, 

2008). 

41See Act eff. Sept. 1, 2011, 82nd Leg., R.S., ch. 1234, § 21, 2011 Tex. 

Sess. Law Serv. 3309, 3310 (West) (codified at Tex. Penal Code Ann. 

§ 31.03(e)(4)(F)). 
15 

That is, now that the legislature specifically removed this quantitative restriction 

from section 31.03(e)(4)(F), the statute is clearly ambiguous. 

The indictment that tracks that section also creates an additional 

constitutional issue. The Texas Court of Criminal Appeals has repeatedly held 

that generally, “an indictment tracking the language of the statute will satisfy 

constitutional and statutory requirements; the State need not allege facts that are 

merely evidentiary in nature.”42 In contrast, the Texas Legislature has 

established a baseline for indictments requiring that “[i]f known, personal property 

alleged in an indictment shall be identified by name, kind, number, and 

ownership. When such is unknown, that fact shall be stated, and a general 

classification, describing and identifying the property as near as may be, shall 

suffice.”43

Clearly, besides ownership, the gravamen of the theft offense under 

section 31.03(e)(4)(F) is theft of any amount of the forbidden metals. The 

indictment that tracks the statute gives no notice of the item containing or made 

of the forbidden metal. The prosecution is only for the theft of the forbidden 

metal, not the rest of the item. Nor does the indictment that tracks this statute 

give any notice of the identity of the item. But both the code of criminal 

procedure and the Texas Court of Criminal Appeals have provided that 

 42State v. Mays, 967 S.W.2d 404, 406 (Tex. Crim. App. 1998). 

43Tex. Code Crim. Proc. Ann. art. 21.09 (West 2009). 
16 

[t]he purpose of an indictment is “to give the defendant notice of the 

particular offense with which he is charged, and enable the court, on 

conviction, to pronounce the proper judgment”; an indictment must 

also be specific enough to “enable the accused to plead the 

judgment that may be given upon it in bar of any prosecution for the 

same offense.”44

 How does an indictment that tracks this vague statute give Appellee notice 

of the particular offense with which he is charged or enable the court to 

pronounce the proper judgment on conviction? How can a court conclude that 

the indictment here, which does not mention the baseball bats, is sufficiently 

specific to “enable the accused to plead the judgment that may be given upon it 

in bar of any prosecution” for stealing those same baseball bats? 

 Because I believe that due process demands both that we uphold the trial 

court’s decision in this specific case and that the legislature revise section 

31.03(e)(4)(F) so that it provides adequate notice to citizens and law 

enforcement, I must respectfully dissent. 

/s/ Lee Ann Dauphinot 

LEE ANN DAUPHINOT 

JUSTICE 

PUBLISH 

DELIVERED: August 4, 2016 

 44Lehman v. State, 792 S.W.2d 82, 84 (Tex. Crim. App. 1990) (citing Tex. 

Code Crim. Proc. Ann. arts. 21.04, 21.11 (West 2009)).