IN THE COURT OF CRIMINAL APPEALS

OF TEXAS




NO. 733-01

 

RUDY VALENTINO CUELLAR, Appellant


v.



THE STATE OF TEXAS




ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE FOURTH COURT OF APPEALS

VAL VERDE COUNTY


Keasler, J., filed this dissenting opinion.

DISSENTING OPINION



The issue in this case is whether Cuellar can be convicted of violating Penal Code 46.04 when his underlying conviction was one in which he successfully completed his community supervision. I believe the answer is "yes."

The majority begins its analysis with Article 42.12, 20, of the Code of Criminal Procedure, but the starting point should be 46.04. We should interpret a statute in accordance with the plain meaning of its language unless the language is ambiguous or the plain meaning leads to absurd results that the Legislature could not possibly have intended. (1) In analyzing the language of a statute, we assume that every word has been used for a purpose and that each word, phrase, clause, and sentence should be given effect if reasonably possible. (2) When the language is ambiguous, we may look to extratextual factors. (3) In such a case, we may consider, among other matters, the following: (1) the object sought to be attained, (2) circumstances under which the statute was enacted, (3) any legislative history, (4) common law or former statutory provisions, including laws on the same or similar subjects, (5) the consequences of a particular construction, (6) administrative construction of the statute, and (7) the title (caption), preamble, and emergency provision. (4)

In the event of an irreconcilable conflict between two statutes, the more specific provision prevails unless the general provision was enacted later and it is apparent that the general provision was intended to prevail. (5) If possible, we should interpret the applicable statutes so that effect may be given to each and avoid any interpretation that would render any parts of the statutes irreconcilable or meaningless. (6) We should strive to give effect to all the provisions to make them stand together and have concurrent efficacy. (7)

I. 46.04

A. Plain language

Section 46.04 provides as follows:

(a) A person who has been convicted of a felony commits an offense if he possesses a firearm:

(1) after conviction and before the fifth anniversary of the person's release from confinement following conviction of the felony or the person's release from supervision under community supervision, parole, or mandatory supervision, whichever date is later; or

(2) after the period described by Subdivision (1), at any location other than the premises at which the person lives. (8)



Initially, the plain language of 46.04 appears to encompass a person who has successfully completed his community supervision. The statute penalizes possessing a gun for five years after a person's "release from supervision under community supervision." This language can only refer to individuals who successfully complete their community supervision. To conclude, as the majority does, that 46.04 does not apply to people like Cuellar renders that portion of the statute meaningless.

But the statute also begins by limiting its application to people who have been "convicted of a felony." What does "convicted" mean here? Does a successfully completed community supervision constitute a conviction? The statute does not say. (9)

We have recognized that "[t]he word 'convicted' can have several meanings." (10) For example, in Article 42.12, 4(e), "convicted of a felony" means a final conviction. (11) But in the Constitution and in Article 42.12, 3, "conviction" does not mean a final conviction. (12) In the Concealed Handgun Act, "convicted" is defined as an adjudication of guilt "whether or not the imposition of the sentence is subsequently probated and the person is discharged from community supervision." (13)

"Convicted" is not defined in 46.04 or in 1.07, the Penal Code's definitional section. Words that are not defined in a statute must "be read in context and construed according to the rules of grammar and common usage." (14) Oxford's Dictionary defines the term "convicted" as "[p]roved or found guilty; condemned." (15) This broad definition would include a person in Cuellar's position. Cuellar was previously "proved guilty," regardless of what happened later.

It is also significant that the wording of the statute encompasses someone who used to have, but no longer has, a conviction. The statute refers to a person who "has been convicted of a felony," not a person who "has a felony conviction." Cuellar "has been convicted of a felony" in the past, even if, due to completing his community supervision, it could be said that he no longer has a felony conviction today.

I think that the language of the statute alone encompasses a successfully completed community supervision, because it specifically prevents gun ownership within five years after community supervision has expired, it requires only that the person "has been convicted of a felony" at some time in the past, and a "conviction" can mean simply that the person was "proved guilty." Nevertheless, given the various potential meanings of the word "convicted," I will err on the side of caution and find the word ambiguous, thereby permitting a review of some extratextual factors. (16)

B. Statutory history

The most telling extratextual factor, and the one on which I will focus, is the history of the statute. The prohibition against a felon possessing firearms has been part of our jurisprudence, in one form or another, since 1949. Back then, it could be found in Article 489c of the Penal Code, and it read as follows:

Section 1. It shall be unlawful for any person who has been convicted of a felony involving an act of violence with a firearm under the laws of the United States or of the State of Texas, or of any other State, to have in his possession away from the premises upon which he lives, any pistol, revolver or any other firearm capable of being concealed upon the person. (17)



This first version of the statute required that the underlying felony involve "an act of violence with a firearm." It only prohibited possessing guns away from home, and only prohibited guns "capable of being concealed upon the person." The term "firearm" was defined in 3 of the statute as "having a barrel of less than twelve (12) inches in length," (18) which would have excluded hunting rifles.

The statute was revised several times over the years. In 1957, the Legislature broadened the statute by adding burglary and robbery to the types of underlying felonies which brought a person within the terms of the statute:

Section 1. It shall be unlawful for any person who has been convicted of burglary or robbery, or of a felony involving an act of violence with a firearm under the laws of the United States, or of the State of Texas, or of any other state, and who has served a term in the penitentiary for such conviction, to have in his possession away from the premises upon which he lives any pistol, revolver or any other firearm capable of being concealed upon the person. (19)



As can be seen, the Legislature also specified that the statute only applied to individuals who had "served a term in the penitentiary" for the underlying felony. In 3 of the statute, the definition of "firearm" remained the same.

In 1969, the Legislature narrowed the statute by deleting the references to burglary and robbery, but broadened the statute by stating that the underlying felony need only involve "an act of violence," without any requirement that it involve the use of a firearm:

Section 1. No person who has been convicted of a felony involving an act of violence may possess away from the premises upon which he lives a prohibited weapon, or firearm having a barrel of less than 12 inches in length. (20)

It also broadened the statute by deleting any requirement that the individual spend time in the penitentiary. This version of the statute continued to forbid only gun possession away from home, and retained the previous definition of"firearm."

The entire Penal Code was rewritten in 1974, and Art. 489c was moved to 46.05. The new statute was significantly broader. It permitted the underlying felony to be one involving violence or "threatened violence":

(a) A person who has been convicted of a felony involving an act of violence or threatened violence to a person or property commits an offense if he possesses a firearm away from the premises where he lives. (21)



The definition of "firearm" was moved to 46.01 and was also broadened, deleting any limitation on the gun's barrel length. So for the first time, a hunting rifle fell within the types of firearms a felon was prohibited from possessing away from home.

Finally, in 1994, the statute moved to its current location in 46.04 and took on its present language. These revisions involved still more broadening of the provision. For the first time in 1994, the prohibition against possessing a weapon applied to all felons, regardless of whether their underlying offense involved an act of violence. And for the first time, a felon was now prohibited from possessing a gun even at home, at least for five years after his supervision ended. After that, the previous restriction took effect, preventing from possessing a firearm away from home. The definition of "firearm" in 46.01 remained unchanged.

The Legislature has changed the substance of this offense several times with the addition or deletion of just a few words. At times, the offense has only applied to persons after their release from the penitentiary, which would not include someone like Cuellar, who never went to prison. At times, the statute has applied specifically only to people who have committed crimes of violence. And at times, the statute has prohibited weapon possession only for certain kinds of guns, or only if possessed away from home.

Comparatively, the current statute is broader than all its previous versions. It applies regardless of the nature of the prior offense. It applies to gun possession both at home and away from home, preventing gun possession even at home for five years after the person's release from any type of supervision. (22) And, it applies to a person whether or not he ever spent time in prison.

C. Conclusion

My research indicates that, at least for the narrow purposes of 46.04, a person has been convicted of a felony even if he is placed on community supervision and successfully completes that supervision. The plain language of the statute refers to community supervision, and the statute's history reflects the Legislature's decision to broaden the statute to include people who have never spent time in prison.

II. Art. 42.12, 20

Having determined that 46.04 applies to individuals who successfully complete their community supervision, the next question is, what is the impact of Article 42.12, 20? Do these two statutes conflict, and if so, which one governs?

A. Plain Language

Article 42.12, 20, provides as follows:

(a) At any time, after the defendant has satisfactorily completed one-third of the original community supervision period or two years of community supervision, whichever is less, the period of community supervision may be reduced or terminated by the judge. Upon the satisfactory fulfillment of the conditions of community supervision, and the expiration of the period of community supervision, the judge, by order duly entered, shall amend or modify the original sentence imposed, if necessary, to conform to the community supervision period and shall discharge the defendant. If the judge discharges the defendant under this section, the judge may set aside the verdict or permit the defendant to withdraw his plea, and shall dismiss the accusation, complaint, information or indictment against the defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted or to which he has pleaded guilty, except that:

(1) proof of the conviction or plea of guilty shall be made known to the judge should the defendant again be convicted of any criminal offense; and

(2) if the defendant is an applicant for a license or is a licensee under Chapter 42, Human Resources Code, the Texas Department of Human Services may consider the fact that the defendant previously has received community supervision under this article in issuing, renewing, denying, or revoking a license under that chapter.

(b) This section does not apply to a defendant convicted of an offense under Sections 49.04-49.08, Penal Code, a defendant convicted of an offense for which on conviction registration as a sex offender is required under Chapter 62, as added by Chapter 668, Acts of the 75th Legislature, Regular Session, 1997, or a defendant convicted of an offense punishable as a state jail felony. (23)



At first glance, 20 appears to conflict with 46.04, at least in terms of how each statute treats a person like Cuellar who successfully serves out his felony community supervision. Section 20 requires a trial judge to remove "all penalties and disabilities" for this person, while 46.04 prevents this person from possessing a gun. But whether these two statutes actually conflict depends on the meaning and impact of 20.

The majority concludes that, since the Legislature specifically listed two exceptions in subsection (a), but did not mention possession of handguns, then possession of handguns is not excepted. While I agree that "[t]he Legislature could add other exceptions if it so chooses," (24) the fact that gun possession is not mentioned in 20 does not resolve the issue before the Court.

What are the "penalties and disabilities" which 20 removes? Again, the statute provides no answer. Words that are not defined in a statute must "be read in context and construed according to the rules of grammar and common usage." (25) Oxford's Dictionary defines "penalty" as "a loss, disability, or disadvantage of some kind." (26) It defines "disability" as "a restriction framed to prevent any person or class of persons from sharing in duties or privileges which would otherwise be open to them." (27) Under these definitions, it certainly appears that preventing a person from possessing a gun would constitute a "penalty" or "disability."

On the other hand, other language in 20 seems to presume that, even after "all penalties and disabilities" have been removed, a conviction still exists. Subsection (a)(1) states that "proof of the conviction" shall still be made known to the judge if the defendant is later convicted of another offense. So even though the penalties and disabilities, whatever those are, have been removed, a "conviction" apparently still exists. The Attorney General has similarly concluded that a final conviction still exists. (28) In interpreting the former version of 20, he concluded:

[I]n view of the fact that the statute [former Article 42.12, 7] thereafter goes on to declare that ". . . proof of his state conviction . . ." and to say ". . . again convicted. . .", and in view of the fact that no provision is made for expunging the "judgment of conviction" from the record, the statute by its own wording makes it clear that the "conviction" itself has not been entirely erased. (29)

Given the dictionary definitions of "penalty" and "disability" as contrasted with the statute's apparent presumption that a conviction still exists, I will again err on the side of caution and find that the effect of 20 on 46.04 is ambiguous. The penalties and disabilities are removed, indicating the individual would not be subject to the restraints of 46.04, but the conviction remains, indicating he would be subject to 46.04. To resolve the ambiguity, I will again look to extratextual factors, beginning with 20's statutory history.

B. Statutory History

Like 46.04, Article 42.12, 20, has an impressive, though less eventful, pedigree. It entered the Code in 1957 as Art. 781d, 7, and has remained almost unchanged since then:

At any time, after the defendant has satisfactorily completed one-third of the original probationary period or two years of probation, whichever is the lesser, the period of probation may be reduced or terminated by the court. Upon the satisfactory fulfillment of the conditions of probation, and the expiration of the period of probation, the court, by order duly entered, shall amend or modify the original sentence imposed, if necessary, to conform to the probation period and shall discharge the defendant. In case the defendant has been convicted or has entered a plea of guilty, and the court has discharged the defendant hereunder, such court may set aside the verdict or permit the defendant to withdraw his plea, and shall dismiss the accusation, complaint, information or indictment against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted or to which he has pleaded guilty, except that proof of his said conviction or plea of guilty shall be made known ot the court should the defendant again be convicted of any criminal offense. (30)

Minor amendments were made along the way. In 1966, the Legislature moved this provision to Article 42.12, 7, and added the phrase "or nolo contendere" after the reference to a plea of guilty. (31) In 1984, the Legislature excepted two offenses from the statute: an offense under Penal Code 19.05(a)(2) and an offense under Article 67011-l of the Code of Criminal Procedure (both alcohol-related offenses). (32)

In 1989, this provision moved to 23 of Article 42.12. (33) At that time, the Legislature added the second exception concerning an application for a license under Chapter 42 (regarding the operation of child care facilities). In 1993, it was moved to its current location in Article 42.12, 20. (34) The Legislature made some non-substantive, clerical changes and moved the two listed exceptions to a separate subsection, subsection (b). It also added state jail felonies to the list of offenses excepted. Most recently, in 1999, the Legislature added the sex offender exception. (35)

Despite all the amendments, or perhaps because of them, the statute in its current form is not a model of clarity. The majority concludes that "there are two entirely different types of 'discharge'" (36) under 20. One is apparently the removal of the person from the requirements of community supervision, while the other is setting aside the verdict and dismissing the charging instrument. (37) The majority views setting aside the verdict, permitting the defendant to withdraw his plea, and dismissing the charging instrument all as optional actions which constitute a form of "judicial clemency." (38) In this case, the judge's order both "set aside" the "judgment of conviction" and dismissed the indictment. Presumably, under the majority's analysis of 20, both these actions by the judge were optional and, therefore, reflect that the judge elected to grant Cuellar clemency.

I strongly disagree with the majority's interpretation of 20. Since its enactment in 1957, the statute has provided that, if the judge discharges the defendant under this section, he "may set aside the verdict or permit the defendant to withdraw his plea, and shall dismiss the accusation, complaint, information or indictment against the defendant . . ." Dismissing the charging instrument has always been mandatory and has always resulted in a release from all penalties and disabilities, while setting aside the verdict or permitting the defendant to withdraw his plea has always been discretionary. Regardless of whether the judge sets aside the verdict or allows the defendant to withdraw his plea, the judge must dismiss the charging instrument, which releases the defendant from all penalties and disabilities.

Analyzing the statute in this manner raises an inevitable question: what would happen if the judge elected not to set aside the verdict or permit the defendant to withdraw his plea? That is, what is accomplished by setting aside the verdict or allowing the defendant to withdraw his plea which is not accomplished by dismissing the charging instrument? My answer is, not one thing. (39)

To understand why the statute is worded as it is requires first to understand that, at the time the statute first appeared in the Code, a defendant was not permitted to waive a jury trial if he pleaded not guilty. (40) Back then, a defendant could go to the judge or the jury with his guilty plea, but if he pleaded not guilty, he had to go before a jury. In addition, the term "verdict" refers only to a jury's decision, not a judge's decision. (41)

Given this backdrop, I believe the confusing language in 20 made a little more sense when it was enacted. The statute required that the judge dismiss the charging instrument. Then, in an effort to dispose of the remaining paperwork associated with the case, the statute gave the judge the option of either setting aside the verdict or allowing the defendant to withdraw his plea. Which option the judge chose depended on whether the defendant had gone before a judge or a jury. If the defendant had had a jury trial, the judge would set aside the verdict; if the defendant had pleaded guilty before the judge, the judge would allow the defendant to withdraw his plea. So the permissive language in the phrase "may set aside the verdict or permit the defendant to withdraw his plea" does not mean that, once a judge dismisses the charging instrument, he may elect to do neither of these options. It means, instead, that he may elect which of these options to do, but he certainly will do one of them.

But even if he could choose to do neither of them, as the majority suggests, that choice would have no impact on the underlying case, because the charging instrument has been dismissed. Without a charging instrument, there can be no verdict and there can be no plea. Setting aside the verdict or allowing the defendant to withdraw his plea are merely formalities - the important procedures occur once the judge dismisses the charging instrument, a mandatory act upon discharging the defendant from community supervision.

Article 1.13 was revised in 1965, and since then, defendants have been able to plead not guilty before a judge, waiving their right to a jury trial. So the language in 20 may be dated. But, though awkwardly worded, the discretionary options still make some sense. The judge may choose to either set aside the verdict, if there was one, or allow the defendant to withdraw his plea, if he went before the court.

Nevertheless, as stated, the important part of 20 is the mandatory dismissal of the charging instrument and the resulting release from all penalties and disabilities. With that, the question remains, what is the impact of this language?

C. Other Statutes and Caselaw

Professors Dix and Dawson have recognized that "[d]espite the broad language" of this statute, "the consequences of a dismissal of the accusation are quite limited." (42) They explain that 20 "operates to restore civil rights - to vote, serve on juries, and hold public office - that were lost by the conviction or accusation of crime. However, the dismissal is not an expunction and does not preclude other collateral consequences of a criminal conviction." (43)

A review of other statutes confirms this. Significantly, regardless of the language of 20 removing "all penalties and disabilities," there are a number of statutes which impose various restrictions on a person who has successfully completed his community supervision. Specifically, this person still cannot change his name until two years after his community supervision has expired, (44) cannot practice law until five years after his community supervision has expired, (45) cannot work at a bingo establishment until ten years after his community supervision has expired, (46) cannot obtain a lottery license until ten years after his community supervision has expired, (47) and cannot be a corrections officer (48) until ten years after his community supervision has expired.

These time-limited restrictions are not the only limitations. For the rest of his life, this person cannot be a bail bond surety (49) or a peace officer, (50) cannot get his record expunged, (51) and cannot obtain a license to carry a concealed handgun. (52) He may be denied a license as a speech pathologist or audiologist. (53) Further, despite successfully completing his community supervision, he still must register as a sex offender for the rest of his life, if he has committed a sex offense. (54) In addition, the Attorney General concludes that this person must inform any prospective employers about the conviction when asked about his criminal history. (55) Also, under federal law, he can still get deported. (56)

And, of course, the entire incident is still admissible at sentencing in any future trial. (57) It can still be used to mandate a life sentence in certain circumstances (58) and to enhance an assault conviction from a Class A misdemeanor to a third-degree felony. (59) It still prevents him from being eligible for community supervision in the event of a future conviction. (60) And this person is still subject to civil commitment as a sexually violent predator if he commits more than one sexually violent offense, even if one of those convictions involved a successfully completed community supervision. (61)

In contrast, there are some statutes specifying that a person who successfully completes his community supervision shall have certain rights reinstated. This person can serve on a jury, (62) can vote, (63) can hold elected office, (64) and can be a notary public. (65) And the incident may not be used to impeach his testimony (66) or to enhance the punishment range pursuant to 12.42 in any future trial (67) (except for the mandatory life sentence provided for in subsection (c)(2) (68)).

But overall, the limitations outweigh the restored rights. So despite 20's alleged release from "all penalties and disabilities," a person discharged under this section is still subject to quite a few restrictions.

D. Clemency and Pardons

As mentioned above, the majority refers to the release from all penalties and disabilities in this section as "judicial clemency." (69) But is it? And even if it is, is "judicial clemency" equal to, or something different than, a pardon from the Governor?

We have previously found "room to doubt" whether this statute "is the equivalent of a full pardon," though we assumed it was for purposes of that case. (70) One court of appeals has indicated that interpreting 20 as granting a pardon would render the statute unconstitutional as an infringement upon the executive branch. (71) The Attorney General has opined that a discharge from community supervision under this statute does not make a person eligible to receive a pardon from the Governor, (72) indicating that, whatever is granted in Art. 42.12, 20, it is less than a pardon.

But even if we were to conclude that a judge's release from all penalties and disabilities is equal to a Governor's pardon, we have held that a pardon does not prevent the underlying conviction from being used in a felon-in-possession case, unless the pardon was based upon a finding that the person was actually innocent of that offense. (73) We later elaborated that a pardon "forgives only the penalty" and does not "direct that the courts shall forget either the crime or the conviction." (74) Since "the very essence of a pardon is forgiveness . . . a pardon implies guilt; it does not obliterate the fact of the commission of the crime and the conviction." (75)

If a pardoned conviction can be used as the underlying felony conviction in a 46.04 prosecution, then a successfully completed community supervision should not be treated any differently. Whatever the impact of 20, it ought be no greater than a pardon from the Governor. I believe that 20 provides no more relief than a pardon and so does not render the defendant immune from future prosecution under 46.04.

E. The Concurring Opinion

In her concurring opinion, Judge Cochran relies on the "rule of lenity" to conclude that 46.04 does not encompass someone who has successfully completed his community supervision. She cites an 1886 Texas case and a 1955 United States Supreme Court case as authority. But both our Court and the United States Supreme Court have since greatly limited the application of that rule.

The rule of lenity is not something we have often mentioned in the course of construing statutes. By my calculations, we have referred to it only seven times over the last 116 years. (76) Judge Cochran says this is because our Penal Code is clearly written. I disagree. Despite the Legislature's "precision," we have very often found ambiguities in various statutes over the last century. But rather than resorting to the rule of lenity, we have instead relied on other, much more helpful rules of statutory construction, including acquiescence on the part of the Legislature and judiciary, (77) making all the provisions of the statute consistent with each other and with the pre-existing body of the law, (78) the consequences of a particular construction, (79) the history of legislation, (80) the comments of the legislators in passing the bill, (81) the purpose of the statute, (82) looking at the language as a whole rather than rigidly construing individual words, (83) giving effect to every word if possible, (84) and giving effect to more specific provisions over general provisions. (85) These considerations mirrored those in the Code Construction Act even before that Act was written.

Today, our leading case on statutory construction is Boykin v. State. (86) In Boykin, we explained that if the meaning of the statutory text should have been plain to the legislators who voted on it, we should give effect to that meaning. (87) But if the plain language is ambiguous or leads to an absurd result, we should then consider extratextual factors. (88) The extratextual factors include those listed in the Code Construction Act and mentioned above. No mention is made in Boykin of the rule of lenity. A year after we handed down Boykin, we analyzed a statute's meaning by following the method outlined in Boykin, specifically rejecting the dissent's reliance on the rule of lenity. (89) That does not mean that the rule of lenity no longer exists in Texas. But it should not be used until all other avenues have been exhausted and a statute's meaning remains ambiguous. (90)

Indeed, this is exactly what the United States Supreme Court has stated many times. That Court has "repeatedly stated that 'the rule of lenity applies only if, after seizing everything from which aid can be derived, we can make no more than a guess as to what Congress intended.'" (91) "The rule comes into operation at the end of the process of construing what Congress has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers." (92)

The simple existence of some statutory ambiguity is not sufficient to warrant application of that rule because "most statutes are ambiguous to some degree." (93) A statute is not "ambiguous" for purposes of lenity merely because there is a division of judicial authority over its proper construction. (94) Rather, to invoke the rule, the Court must conclude that there is a "grievous ambiguity or uncertainty in the statute." (95) Only "where text, structure, and history fail to establish that the Government's position is unambiguously correct [will that Court] apply the rule of lenity." (96) As the Supreme Court has explained, "we have always reserved lenity for those situations in which a reasonable doubt persists about a statute's intended scope even after resort to the language and structure, legislative history, and motivating policies of the statute." (97)

In line with the Supreme Court's teachings, I have attempted to discern the meaning of 46.04 and Article 42.12, 20, by looking at each statute's text and history, as well as other pertinent statutes. This leads to the conclusion that 46.04 applies to individuals who have successfully completed their community supervision. So the rule of lenity just does not apply in this case. Judge Cochran says that she has granted my argument "every benefit of the doubt" and then applied the rule of lenity, but the rule does not apply if the ambiguity is resolved through standard methods of statutory construction, as it is here.

Judge Cochran contends that I am "turn[ing] statutory construction on its head." In reply, I contend that she turns a blind eye to Boykin and all accepted rules of statutory construction. She ignores the plain language of 46.04, which specifically states its application to individuals until the fifth anniversary of their release "from supervision under community supervision," as well as the plain language of 20, which indicates that a "conviction" still exists despite any release from "all penalties and disabilities." She ignores the history of both statutes, in particular the Legislature's decision to delete from 46.04 any requirement that a person subject to that statute have spent time in the penitentiary. She ignores all the other statutes which impose various restrictions on individuals who successfully complete their community supervision. And she rigidly looks at one phrase in 20, the release from penalties and disabilities, without considering other language in that statute and in 46.04. In addition, she ignores our own caselaw holding that even a felon who receives a pardon from the Governor is still subject to the provisions of 46.04. (98) Instead, Judge Cochran places sole reliance on the rule of lenity. I believe a thorough construction of any statute, and especially two statutes which appear to conflict, requires much more.

III. Conclusion

A. No conflict

Given the entirety of our statutory scheme, I conclude that 20's release from "all penalties and disabilities" is not absolute. Even after a release from all penalties and disabilities, a person's rights are limited. One of those limitations is on gun possession. I also conclude that when a judge issues an order pursuant to Art. 42.12, 20, that order does not erase all memory of the conviction. For purposes of 46.04, the person still "has been convicted of a felony" and is still subject to the provisions of that statute. Construed in this manner, the statutes do not conflict.

B. Alternatively, a conflict

But even if there were a conflict between the two statutes, our Code Construction Act states that the specific statute should control over the general, unless the general provision was enacted later and it is apparent that it was intended to prevail. (99)

The general statute in this instance is Article 42.12, 20. It broadly applies to all misdemeanants and felons who have been placed on community supervision. It broadly removes "all penalties and disabilities" once that community supervision has been successfully completed. Then there are a number of more specific statutes which limit the rights available even after community supervision is successfully completed. Section 46.04 specifically applies only to felons and provides a specific limitation on a felon's right to possess a gun. This specific provision controls over the general provisions of Article 42.12, 20.

For 20 to control, it would have to be "apparent" that the Legislature intended it to control. It is not. And considering the number of other statutes which limit a person's rights even after discharging his community supervision, it seems that just the opposite is apparent - that 46.04 controls.

C. Public Policy

The majority concludes that a person who successfully completes his community supervision "should not be stigmatized for the rest of his life. Such persons have demonstrated that they are ready to rejoin the community as law-abiding citizens." (100) The majority finds it "difficult to understand" why the State would allow Cuellar to sit on a jury and vote in elections but not possess a gun. (101) The question is not whether it is difficult to understand, but whether it is an absurd result that the Legislature could not possibly have intended. It is not. It is not absurd to allow Cuellar to sit on a jury and vote but not own a gun. Sitting on a jury and voting do not, as a general rule, lead to violence. Possessing a gun often does. The Legislature apparently believes that some restrictions are warranted for individuals who are convicted of a felony and then successfully complete their community supervision. If it is poor public policy to prevent a person in this category from going hunting, then that is for the Legislature to correct.

Is it fair that Cuellar was prosecuted and convicted essentially for going hunting some 15 years after he successfully completed his community supervision? Probably not. The district attorney's decision to prosecute this case is astonishing. "But the Due Process Clause does not permit courts to abort criminal prosecutions simply because they disagree with a prosecutor's judgment as to when to seek an indictment." (102) Our oaths are to uphold the constitutions and laws of this country and state; they are not a commission to do what a majority of us think is fair. (103) This is a court of law, not equity. As we have previously stated:

Courts have no power to legislate. It is the court's duty to observe, not to disregard statutory provisions. Courts can neither ignore nor emasculate the statutes. Further, courts have no power to create an exception to a statute, nor do they have power to add to or take from legislative pains, penalties and remedies. It is for the Legislature, not the courts, to remedy defects or supply deficiencies in the laws, and to give relief from unjust and unwise legislation. (104)



Judges should not impose their "personal and private notions of fairness" on the law. (105) By doing so, the majority blurs the distinction between lawmaker and law interpreter beyond recognition. (106)

Although the Attorney General agrees with the majority's position in this case, albeit for somewhat different reasons, (107) I wholeheartedly disagree. I would reverse the judgment of the court of appeals and affirm Cuellar's conviction. Because the majority does not do so, I dissent.



DATE DELIVERED: February 13, 2002

PUBLISH

1. Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).

2. State v. Hardy, 963 S.W.2d 516, 520 (Tex. Crim. App. 1997).

3. Boykin, 818 S.W.2d at 785-86.

4. Tex. Gov't Code Ann. 311.023 (Vernon 1998).

5. Tex. Gov't Code Ann. 311.026 (Vernon 1998); Mayo v. State, 4 S.W.3d 9, 11 (Tex. Crim. App. 1999).

6. See Ludwig v. State, 931 S.W.2d 239, 242 n.9 (Tex. Crim. App. 1996).

7. See Cheney v. State, 755 S.W.2d 123, 126 (Tex. Crim. App. 1988).

8. Tex. Penal Code Ann. 46.04 (Vernon 1994).

9. See Dawson, Robert O., Texas Adult Probation Law Manual 103 (October 1981) (recognizing that "it is unclear whether it makes any difference that the defendant was sentenced to prison or placed on probation for the prior felony and, if the latter, whether he or she was still on probation or was discharged from probation . . .").

10. McCarter v. State, 527 S.W.2d 296, 300 n.1 (Tex. Crim. App. 1975).

11. Ex parte Welch, 981 S.W.2d 183, 184-85 (Tex. Crim. App. 1998); Baker v. State, 520 S.W.2d 782, 783 (Tex. Crim. App. 1975).

12. Ex parte Giles, 502 S.W.2d 774, 784 (Tex. Crim. App. 1973).

13. Tex. Gov't Code Ann. 411.171(4) (Vernon Supp. 2001).

14. Tex. Gov't Code Ann. 311.011 (Vernon 1998).

15. Oxford English Dictionary 548 (Compact Ed. 1971).

16. See Boykin, 818 S.W.2d at 785-86.

17. Acts 1949, 51st Leg., p.1186, ch. 599, eff. July 25, 1949.

18. Id.

19. Acts 1957, 55th Leg., p.50, ch. 28, 1, eff. August 22, 1957.

20. Acts 1969, 61st Leg., p. 1951, ch. 653, 1, eff. September 1, 1969.

21. Acts 1973, 63rd Leg., p. 883, ch. 399, 1, eff. January 1, 1974.

22. See State v. Mason, 980 S.W.2d 635, 638 (Tex. Crim. App. 1998).

23. Tex. Crim. Proc. Code Ann. Art. 42.12, 20 (Vernon Supp. 2001).

24. Ante, slip op. at 7.

25. Tex. Gov't Code Ann. 311.011 (Vernon 1998).

26. Oxford English Dictionary 2117 (Compact Ed. 1971).

27. Id. at 737.

28. Op. Tex. Att'y Gen. No. MW-148 (1980).

29. Op. Tex. Att'y Gen. No. M-640 (1970) (emphasis deleted).

30. Acts 1957, 55th Leg., p. 466, ch. 226, eff. August 23, 1957.

31. Acts 1965, 59th Leg., vol. 2, p. 492, ch. 722, eff. September 1, 1966.

32. Acts 1983, 68th Leg., p. 1587, ch. 303, 12, eff. January 1, 1984.

33. Acts 1989, 71st Leg., ch. 785, 4.17, eff. September 1, 1989.

34. Acts 1993, 73rd Leg., ch. 900, 4.01, eff. September 1, 1993.

35. Acts 1999, 76th Leg., ch. 1415, 5(b), eff. September 1, 1999.

36. Ante, slip op. at 5.

37. Id., slip op. at 5-6.

38. Id., slip op. at 6.

39. But see United States v. Sauseda, 2000 U.S. Dist. LEXIS 21323 (West. Dist. TX 2000).

40. Acts 1931, 42nd Leg., p. 65, ch. 43, 1, eff. August 23, 1931.

41. Tex. Crim. Proc. Code Ann. Art. 37.01(Vernon 1981). See also State v. Lewallen, 927 S.W.2d 737 n.2 (Tex. App. - Fort Worth 1996, no pet.); State v. Davenport, 866 S.W.2d 767, 769 n.2. (Tex. App. - San Antonio 1993, no pet.); Williams v. State, 42 S.W.2d 441, 118 Tex. Crim. 366 (1931) (construing Art. 686, predecessor to Art. 37.01).

42. 43A George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure 40.136 (2d ed. 2001).

43. Id. at 173.

44. Tex. Fam. Code Ann. 45.103 (Vernon 1996).

45. Tex. R. Govern. Bar Adm'n IV (West 2001) Rule IV(d)(2)

46. Tex. Occ. Code Ann. 2001.105(a)(6) (Vernon 2000).

47. Tex. Gov't Code Ann. 466.155(a)(1)(A) (Vernon 1998).

48. Tex. Occ. Code Ann. 1701.312(b), 1702.371 (Vernon 2000).

49. Tex. Occ. Code Ann. 1704.153 (Vernon 2001); Smith v. Wise County Bail Bond Bd., 995 S.W.2d 881, 883-84 (Tex. App. - Fort Worth 1999, writ denied).

50. Tex. Occ. Code Ann. 1701.312(b)(1) (Vernon 2001); Op. Tex. Att'y Gen. MW-148 (1980).

51. State v. Gamble, 692 S.W.2d 200, 202 (Tex. App. - Fort Worth 1985, no pet.).

52. Tex. Gov't Code Ann. 411.171(4), 411.172(a)(3) (Vernon 2001); Tune v. Texas Dept. of Public Safety, 23 S.W.3d 358, 362 (Tex. 2000).

53. Tex. Occ. Code Ann. 401.453(a)(3) (Vernon 2001).

54. Tex. Crim. Proc. Code Ann. Arts. 62.06, 62.10, 62.12 (Vernon Supp. 2001).

55. Op. Tex. Att'y Gen. No. JM-1237 (1990).

56. State v. Jiminez, 987 S.W.2d 886, 889 n.2 (Tex. Crim. App. 1999).

57. Glenn v. State, 442 S.W.2d 360, 362 (Tex. Crim. App. 1969).

58. Tex. Penal Code Ann. 12.42(c)(2), (g) (Vernon Supp. 2001); Price v. State, 35 S.W.3d 136 (Tex. App. - Waco 2000, no writ).

59. Tex. Penal Code Ann. 22.01(b)(2), (f) (Vernon Supp. 2001).

60. Taylor v. State, 612 S.W.2d 566, 571 (Tex. Crim. App. 1981).

61. Tex. Health & Safety Code Ann. 841.003(b)(1)(A) (Vernon Supp. 2001).

62. Walker v. State, 645 S.W.2d 294, 295 (Tex. Crim. App. 1983); Payton v. State, 572 S.W.2d 677, 679 (Tex. Crim. App. 1978); Op. Tex. Att'y Gen. No. M-640 (1970). But see R.R.E. v. Glenn, 884 S.W.2d 189, 194 (Tex. App. - Fort Worth 1994, writ denied).

63. Tex. Elec. Code Ann. 13.001(a)(4) (Vernon Supp. 2001); Op. Tex. Att'y Gen. No. M-640.

64. Tex. Elec. Code Ann. 141.001 (Vernon 1986); Op. Tex. Att'y Gen. No. M-1184 (1972).

65. Tex. Gov't Code Ann. 406.009(e) (Vernon 1998).

66. Ex parte Menchaca, 854 S.W.2d 128, 131 (Tex. Crim. App. 1993); Trippell v. State, 535 S.W.2d 178, 180 (Tex. Crim. App. 1976); Parker v. State, 384 S.W.2d 712, 714 (Tex. Crim. App. 1964). But see Etheridge v. State, 903 S.W.2d 1, 20 (Tex. Crim. App. 1994).

67. Jordan v. State, 36 S.W.3d 871, 875 (Tex. Crim. App. 2001); Ex Parte Langley, 833 S.W.2d 141, 143 (Tex. Crim. App. 1992).

68. Tex. Penal Code Ann. 12.42(g) (Vernon Supp. 2001).

69. Ante, slip op. at 6.

70. Taylor v. State, 612 S.W.2d 566, 570-71 (Tex. Crim. App. 1981).

71. Glenn, 884 S.W.2d at 192-93.

72. Op. Tex. Att'y Gen. No. DM-393 (1996).

73. Runo v. State, 556 S.W.2d 808, 809-10 (Tex. Crim. App. 1977); see also Op. Tex. Att'y Gen. No. MW-270 (1980) (pardon does not entitle convicted felon to be certified as peace officer unless based on proof of innocence).

74. Watkins v. State, 572 S.W.2d 339, 341 (Tex. Crim. App. 1978).

75. Jones v. State, 141 Tex. Crim. 70, 147 S.W.2d 508, 510 (1941).

76. Thomas v. State, 919 S.W.2d 427 (Tex. Crim. App. 1996); Engelking v. State, 750 S.W.2d 213 (Tex. Crim. App. 1988); Bruner v. State, 463 S.W.2d 205 (Tex. Crim. App. 1970); Ex parte Wilmoth, 125 Tex. Crim. 274, 67 S.W.2d 289 (1933); Patillo v. State, 120 Tex. Crim. 568, 47 S.W.2d 847 (1932); Egan v. State, 68 S.W. 273 (Tex. Crim. App. 1902); Murray v. State, 21 Tex. App. 620, 2 S.W. 757, 761 (1886) (op. on reh'g).

77. Smith v. State, 108 Tex. Crim. 358, 300 S.W. 82 (1927).

78. Chapin v. State, 107 Tex. Crim. 477, 296 S.W. 1095, 1100 (1927).

79. Sparks v. State, 76 Tex. Crim. 263, 174 S.W. 351, 352 (1915).

80. Almanza v. State, 686 S.W.2d 157, 166 (Tex. Crim. App. 1984) (op. on reh'g); Ex parte Peede, 75 Tex. Crim. 247, 170 S.W. 749, 752 (1914); Augustine v. State, 41 Tex. Crim. 59, 52 S.W. 77, 80-81 (1899).

81. Peede, 170 S.W. at 754.

82. Sanchez v. State, 23 S.W.3d 30, 34 (Tex. Crim. App. 2000); Longoria v. State, 126 Tex. Crim. 362, 71 S.W.2d 268, 269 (1934); Ex parte Flake, 67 Tex. Crim. 216, 149 S.W. 146, 150 (1911); Jenkins v. State, 60 Tex. Crim. 236, 131 S.W. 542, 550 (1910); Cromeans v. State, 59 Tex. Crim. 611, 129 S.W. 1129, 1132 (1909); Croomes v. State, 40 Tex. Crim. 672, 51 S.W. 924, 927 (1899).

83. Weatherred v. State, 129 Tex. Crim. 514, 89 S.W.2d 212, 215-16 (1935) (op. on reh'g); Cromeans, 129 S.W. at 1132; Croomes, 51 S.W. at 927.

84. Campbell v. State, 49 S.W.3d 874, 876 (Tex. Crim. App. 2001); Whitelaw v. State, 29 S.W.3d 129, 131 (Tex. Crim. App. 2000); Rocha v. State, 16 S.W.3d 1, 14 (Tex. Crim. App. 2000).

85. Campbell, 49 S.W.3d at 876.

86. 818 S.W.2d at 785.

87. Id.

88. Id.

89. Iglehart v. State, 837 S.W.2d 122, 127 n.5 (Tex. Crim. App. 1992).

90. See State v. Houth, 845 S.W.2d 853, 866 n.2 (Tex. Crim. App. 1992) (Benavides, J., concurring).

91. Holloway v. United States, 526 U.S. 1, 12 n.14 (1999); United States v. Wells, 519 U.S. 482, 499 (1997); Reno v. Koray, 515 U.S. 50, 65 (1995); Smith v. United States, 508 U.S. 223, 239-40 (1993); Ladner v. United States, 358 U.S. 169, 178 (1958).

92. National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 262 (1994); Gozlon-Peretz v. United States, 498 U.S. 395, 409 (1991); Callanan v. United States, 364 U.S. 587, 596 (1961).

93. Muscarello v. United States, 524 U.S. 125, 138 (1998).

94. Moskal v. United States, 498 U.S. 103, 108 (1990).

95. Id.; Staples v. United States, 511 U.S. 600, 619 n. 17 (1994) (quoting Chapman v. United States, 500 U.S. 453, 463 (1991)).

96. United States v. Granderson, 511 U.S. 39, 54 (1994).

97. United States v. R.L.C., 503 U.S. 291, 305-06 (1992); Moskal, 498 U.S. at 108.

98. Runo v. State, 556 S.W.2d at 809-10.

99. Tex. Gov't Code Ann. 311.026 (Vernon 1998); Mayo, 4 S.W.3d at 11.

100. Ante, slip op. at 4 n.3.

101. Id.

102. United States v. Lovasco, 431 U.S. 783, 790 (1977).

103. Ex parte Smith, 977 S.W.2d 610, 611 (Tex. Crim. App. 1998).

104. State v. Ross, 953 S.W.2d 748, 751 n.4 (Tex. Crim. App. 1997); Ex parte Hayward, 711 S.W.2d 652, 655-56 (Tex. Crim. App. 1986).

105. See Dowling v. United States, 493 U.S. 342, 353 (1990).

106. See Ross, 953 S.W.2d at 755.

107. Op. Tex. Att'y Gen. No. JC-0396 (2001).