IN THE COURT OF CRIMINAL APPEALS

OF TEXAS




NO. 756 - 00

 

JENNIFER ALLEN, Appellant


v.


THE STATE OF TEXAS



ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE FIRST COURT OF APPEALS

HARRIS COUNTY


Holland, J., delivered a dissenting opinion, which was joined by Keller, P.J., and Johnson, J..

DISSENTING OPINION



I respectfully dissent to the Court's holding that appellant's failure to pay the license reinstatement fee did not continue the suspension period until the reinstatement fee had been paid. The majority's conclusion - that appellant's failure to pay the reinstatement fee within 90 days changed her status to being someone who was driving without a license - is not a fair interpretation of the plain language of the statute in the instant cause.

Appellant was charged with, and prosecuted for, the offense of driving with license suspended. (1) Appellant's license was suspended for 90 days pursuant to the provisions of Section 724.035 of the Texas Transportation Code. See Tex. Transp. Code Ann. 724.035 (a)(1). Appellant failed to pay her reinstatement fee as required by statute. See Tex. Transp. Code Ann. 724.046(a). The State advanced the theory that appellant's license suspension continued past the 90-day period because she failed to pay her reinstatement fee. This theory carried the implication that appellant's suspension continues until she pays her reinstatement fee. This theory is supported by the plain language of Section 724.046(a)(1).

A reviewing court should always focus its attention on the "literal text of the statute in question and attempt to discern the fair, objective meaning of that text at the time of its enactment." See Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). In examining the text of a statute, we know the following:

[T]he text of the statute is the law in the sense that it is the only thing actually adopted by the legislators, probably through compromise, and submitted to the Governor for her signature. We focus on the literal text also because the text is the only definitive evidence of what the legislators (and perhaps the Governor) had in mind when the statute was enacted into law. There really is no other certain method for determining the collective legislative intent or purpose at some point in the past, even assuming a single intent or purpose was dominant at the time of enactment. Yet a third reason for focusing on the literal text is that the Legislature is constitutionally entitled to expect that the Judiciary will faithfully follow the specific text that was adopted.



Id. (emphasis in original). If the fair and objective meaning of the statutory text should have been plain to the legislators who voted on it, we will give effect to that meaning. See id.

In applying this standard to the instant cause, subsection (a) of section 724.046 describes how appellant's suspension continued through the time of her arrest. The statute provides that a license which has been suspended under Chapter 724 cannot be reinstated, or a new license issued, until the $100 fee is paid. See id. The statute further provides that a driver subject to a denial order issued under Chapter 724 may not obtain a new license even after the "period of denial has ended" until he or she pays the outstanding fee. See id. If a driver's license is suspended and the driver does not pay the reinstatement fee, that driver will not be able to have his or her license reinstated. See id. Under the terms of the statute, appellant's failure to pay her reinstatement fee meant that her suspension continued. Based upon the plain language of the statute, I would conclude that the Legislature intended that a license suspended under Chapter 724 will remain suspended until the fee attendant to that suspension is paid.

The majority concludes, however, that appellant's period of suspension terminated after 90 days, regardless of whether or not she paid a reinstatement fee. The majority asserts that to continue the period of suspension until payment of the reinstatement fee would be contrary to the statement in Section 724.035 that the suspension will be for a "definite period of suspension (90 days)." See infra, slip op. at 4(italics in original). I believe this conclusion it unfounded and insupportable.

I first note that Section 724.035 does not contain the language "definite period" when describing the length of the period of suspension. Moreover, Section 724.035 establishes five different periods for the suspension of driver's licenses, which are all based on different conditions. Section 724.046 establishes another condition that defines the length of the period of suspension - the driver must pay his or her reinstatement fee in order to invoke the applicable time limit established by Section 724.035. Finally, even though the majority implies that my interpretation of 724.046 will create an indefinite period of suspension, I disagree. The termination of the period of suspension is clearly defined and determined under this theory - it will end upon payment of the $100 reinstatement fee.

In contrast, the majority's conclusion that the period of suspension should be terminated after 90 days regardless of whether the reinstatement fee has been paid runs counter to the intent of the Legislature, as evinced by the plain language of Sections 724.035 and 724.046. (2) The majority argues that if the Legislature had meant for the period of suspension to continue until the reinstatement fee had been paid, it would have explicitly set that out in the statute. But, in its holding, the majority has effectively written into Section 724.046 the result that a driver's license is terminated or revoked if the reinstatement fee is not paid within the applicable statutory period set under Section 724.035. Perhaps the Legislature could have been more definite in writing the statute. But the majority takes liberal steps in its interpretation, effectively re-writing the statute.

The majority's concession that appellant could have been prosecuted for any one of a number of other traffic offenses is of no consequence. The Legislature has established one offense that applies to appellant and all other defendants like her: driving while license invalid. But those alternative traffic offenses are not to be used for the purpose of enforcing a driver's license suspension under Section 724.035. The existence of these offenses and their potential applicability to appellant do not affect appellant's prosecution under Sections 724.035 and 724.046.

In conclusion, the majority erroneously holds that appellant's driver's license was effectively terminated or revoked when she failed to pay her reinstatement fee within 90 days and grants appellant an acquittal. For the previously stated reasons, I disagree and would reverse the court of appeals.

I respectfully dissent.

HOLLAND, J.



Delivered on June 27, 2001

Publish

1. Appellant was charged by an information with the instant offense under the title of Driving While License Suspended. Her conviction and judgment reflect this title. But, as is pointed out in briefs before this Court, the proper title of the offense under which appellant was convicted is Driving While License Invalid. The title for this offense was changed by the Legislature in 1995. See Act of May 23, 1995, 74th Leg., R.S., ch. 165, 1, sec. 521.457, 1995 Tex. Gen. Laws 1025, 1576. The alteration of the title was not accompanied by a substantive change in the elements of the offense.

2. The majority also states that the issue whether Section 724.046 "creates a continuing period of suspension or not is not an issue of first impression in this Court." Infra, slip op. at 6 (italics added). They base this conclusion on two statements. First, the majority cites to a lower court opinion, where no petition for discretionary review was filed, which opined that the Legislature's goal in establishing rules for the suspension of driver's licenses is to promote the public safety of motorists. See id. n.4. Second, the majority asserts, without support of any authority, that the collection of an administrative fee "does nothing to accomplish that intent." Id.

Neither of these statements describes how and when the instant issue has come before this Court prior to this cause. I would conclude this is an issue of first impression in this Court.