I join the majority opinion. I write this concurrence only to provide an additional reason that a person whose felony conviction has been set aside and the indictment against him dismissed is not prohibited from possessing a hunting rifle. In this situation, the Rule of Lenity requires this Court to adopt the less harsh interpretation of penal statutes.

I agree with the majority and the Attorney General of the State of Texas ⁽¹⁾ that the words of article 42.12, §20(a) are crystal clear and that they mean what they say. A person whose felony conviction has been set aside and whose indictment has been dismissed, who walks forth from the courtroom "released from all penalties and disabilities," may possess and use a firearm to the same extent as any other Texas citizen.

On the other hand, the dissent's interpretation is not unreasonable. It is possible to interpret art. 42.12, § 20(a) as removing some, but not all, legal disabilities attaching to a felony conviction that has been set aside regardless of the statute's plain language. However, it is a fundamental tenet of criminal jurisprudence that, when courts must choose between two reasonable readings of a statute to determine what conduct the legislature intended to punish, courts apply the policy of lenity and adopt the less harsh meaning. ⁽²⁾ Fortunately, Texas courts rarely need resort to the Rule of Lenity to construe its penal provisions. By and large, the Texas Legislature drafted the Texas Penal Code with clarity, precision, and straightforward, well-defined language. ⁽³⁾ But as early as 1886, recognizing the impossibility of achieving absolute linguistic perfection, the Texas Court of Appeals adopted the rule of lenity, stating:

the doctrine is fundamental in English and American law that there can be no constructive offenses; that, before a man can be punished, his case must be plainly and unmistakably within the statute, and, if there be any fair doubt whether the statute embraces it, that doubt is to be resolved in favor of the accused.

Murray v. State, 21 Tex. App. 620, 633, 2 S.W. 757, 761 (1886) (emphasis in original).

The United States Supreme Court has frequently stressed that a person is entitled to be informed of what the law commands or forbids. ⁽⁴⁾ A statute that is not sufficiently definite "to give a person of ordinary intelligence fair notice that his conduct is forbidden" therefore violates constitutional standards of due process of law. ⁽⁵⁾ When a penal statute is so ambiguous that its meaning is uncertain, or its application is broader than what reasonable persons would anticipate, the statute fails to provide adequate notice of its coverage, and that statute is therefore void. ⁽⁶⁾

That "void-for-vagueness" doctrine does not apply to Tex. Penal Code

§ 46.04 (Unlawful Possession of Firearm by Felon) because that provision is unambiguous on its face regarding what conduct is prohibited (the possession of a firearm) and under what circumstances (when a person is a convicted felon). The potential ambiguity arises only when one attempts to define who "has been convicted of a felony" for purposes of that penal provision.

As the dissent aptly points out, the word "convicted" has several different meanings in Texas law, depending upon the particular statute and the particular situation. Usually, the legislature carefully defines what the term "convicted" means within a specific statute. ⁽⁷⁾ Just because the Legislature did not specifically define its term "convicted of a felony" for purposes of the "felon in possession of a firearm" law does not mean, however, that Texas courts may judicially create or import any reasonable definition of "convicted of a felony" into the statute. When the choice between two equally reasonable definitions of a word or phrase makes ⁽⁸⁾ the difference between perfectly lawful conduct and conduct which could be punished by up to ten years in prison, courts must adapt that reasonable definition which avoids the harsher result. ⁽⁹⁾

For example, in construing the federal "felon in possession of a firearm" statute, the United States Supreme Court applied the Rule of Lenity. ⁽¹⁰⁾ There, the possible ambiguity centered around the phrase "in commerce or affecting commerce." The statute could reasonably be read broadly to criminalize all possessions by a felon of any firearm that had itself been purchased in commerce. ⁽¹¹⁾ Conversely, the statute could be read narrowly to criminalize firearm possession by a felon only when the government could prove a nexus between the felon's possession, use, or transport of the firearm and interstate commerce. ⁽¹²⁾ The Supreme Court chose the latter construction based on the Rule of Lenity, and stated:

First, as we have recently reaffirmed, "ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity. ... In various ways over the years, we have stated that "when choice has to be made between two readings of what Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite. ... This principle is founded on two policies that have long been part of our tradition. First, "a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make a warning fair, so far as possible the line should be clear. ... Second, because of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity. This policy embodies "instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should." H. Friendly, Mr. Justice Frankfurter and the Reading of Statutes, in Benchmarks 196, 209 (1967). Thus, where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant. ⁽¹³⁾

In the present situation, Mr. Cuellar was arrested in 1976 for felony possession of heroin. He pled guilty and was placed on five years' probation. Then, on September 1, 1981, the trial judge found that Mr. Cuellar had satisfactorily fulfilled all the requirements of his probation and he entered the following order:

It is the order of the court that the judgement [sic] of conviction entered in said cause be and hereby is set aside and the indictment against said defendant be and the same is hereby dismissed.

Stripped of its legal jargon, the trial court's order explicitly told Mr. Cuellar that the judgment of conviction had been erased, the indictment was dismissed, and that the felony conviction was "gone with the wind." He was once more the equal of other Texas citizens. ⁽¹⁴⁾ Was Mr. Cuellar naive to believe the court's order meant what it said? Was the trial judge wrong in telling Mr. Cuellar he had been released from all legal penalties and disabilities when the conviction was set aside and the indictment dismissed? Even though the statute explicitly states "all," should the trial judge have improvised and said "some" to ensure that he did not mislead Mr. Cuellar to his detriment? Is this a legal "gotcha" in which judges follow the written words of the statute and tell a person one thing, that person reads and relies upon the explicit spoken or written words, only to wake up in jail one day and discover that the words he was told do not mean what reasonable people thought they meant? No. The Rule of Lenity is designed to avoid this difficult dilemma. It simultaneously saves a statute from being struck down as void for vagueness or overbreadth and ensures that people who rely upon a reasonable interpretation of statutory language are not punished as criminals.

I can certainly agree with the public policy concerns expressed by the dissent that "[i]t is not absurd to allow Cueller to sit on a jury and vote but not own a gun." Dissenting Op. at 24. ⁽¹⁵⁾ If the Texas Legislature also agrees with this proposition, it can easily enact such a prohibition. But the dissent turns statutory construction on its head in concluding that "[i]f it is poor public policy to prevent a person in this category from going hunting, then that is for the Legislature to correct." Dissenting Op. at 24. But the Legislature has not explicitly prohibited those whose felony convictions have been set aside and whose indictments have been dismissed from possessing a firearm. We cannot judicially broaden a criminal offense and then tell the legislature that if it does not like our judicial enlargement, the legislature may fix it. Were we to do so, people who were explicitly told by the legislature and the trial judge that "all penalties and disabilities" had been removed when their felony indictment was set aside many years ago must go to jail for possessing a hunting rifle. Fortunately, the Rule of Lenity protects us from such a situation.

With these additional comments, I join the majority opinion.

Cochran, J.

Delivered: February 13, 2002

Publish

1. See Op. Tex. Att'y Gen. No. JC-0396 (2001) (concluding that "[b]ecause a defendant whose verdict is set aside or who is permitted to withdraw a plea under article 42.12, section 20 is generally '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,' . . .a defendant whose guilty verdict has been set aside or who has been permitted to withdraw a plea is, like a pardoned felon, not subject to section 46.04 of the Penal Code").

2. Black's Law dictionary 1196 (5^th ed. 1979) defines the Rule of Lenity as:

Where the intention of Congress is not clear from the act itself and reasonable minds might differ as to its intention, the court will adopt the less harsh meaning. U.S. v. Callanan, D.C. Mo., 173 F. Supp. 98, 100. Under "rule of lenity," when it is unclear whether a legislature intended multiple sentences for single act involving multiple victims, doubt will be resolved in favor of defendant. Davenport v. State, Alaska, 543 P.2d 1204, 1209.

3. The purpose of writing a penal code is to put all reasonable people on notice of precisely what conduct, under what circumstances, is subject to criminal liability and punishment.

4. See, e.g., Kolendar v. Lawson, 461 U.S. 352, 357-58 (1983) (penal laws must give "fair warning" to "ordinary people"); Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972) (vagrancy statute void for vagueness); Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939) (stating that "[n]o one may be required at peril of life, liberty, or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids").

5. United States v. Harriss, 347 U.S. 612, 617 (1954).

6. See, e.g., Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971); Palmer v. City of Euclid, Ohio, 402 U.S. 544, 545 (1971); Bouie v. Columbia, 378 U.S. 347, 350-51 (1964).

7. For example, in the Concealed Handgun Act, the legislature defined "convicted" as an adjudication of guilt regardless "of whether or not the imposition of the sentence is subsequently probated and the person is discharged from community supervision." Tex. Gov't Code § 411.171(4) (Vernon Supp. 2001). This statute is precise and clear in its definition of "conviction" for purposes of applying for a concealed handgun license. All reasonable persons applying for a permit are clearly on notice of who falls within or without the category of "convicted" felons.

Similarly, a person whose felony indictment has been dismissed and who has been "released from all penalties and disabilities result from the offense" is nonetheless disqualified from becoming a law enforcement or security officer because the Occupations Code expressly says so. Tex. Occ. Code § 1701.312(b)(1).

Similarly, a person whose felony indictment has been dismissed and who has been "released from all penalties and disabilities result from the offense" may be denied a licence as a speech pathologist or audiologist because the statute explicitly says so . Tex. Occ. Code § 1701.312(b)(1).

Obviously, the Texas Legislature knows how to define the word "conviction" to include those who have been released from all penalties and disabilities when it wishes to. The fact that it did not do so in defining the crime of "felon in possession of a firearm" statute is at least some evidence that it did not want to.

8. I cannot conclude that the dissent's definition of "convicted of a felony"for purposes of the "felon in possession"offense is as reasonable as that of the majority. However, if one could assume that the two were equally reasonable definitions under the circumstances as the major premise, then the minor premise, the rule of lenity, must apply.

The dissent expresses concern that I am unnecessarily invoking the rule of lenity without first using every other statutory construction aid to resolve the "ambiguity"of the term "felony conviction." True enough. I am placing the dissent's statutory construction argument in its best possible light, granting it every benefit of the doubt, and concluding that, even if we could find its interpretation of the term "convicted felon" was just as reasonable as the straightforward, plain-language construction of the majority, then the Rule of Lenity would apply. Of course, if one concludes that the dissent's interpretation and construction of the term is not as reasonable as that of the majority, then the Rule of Lenity need not be invoked because there are no equal and competing alternatives. The Rule of Lenity only applies when both alternative choices or definitions are more-or-less equally reasonable. In that situation, courts are required to choose the less harsh alternative.

9. In Bell v. United States, 349 U.S. 81, 83 (1955), the government asked the Supreme Court to adopt one reasonable construction of the Mann Act which would permit multiple prosecutions for interstate transportation of "any woman or girl" for immoral purposes. The government's interpretation of the statutory phrase, written in the singular, would permit multiple prosecutions for the transporting of multiple women or girls across state lines at one time. The Court rejected this reasonable interpretation under the Rule of Lenity, stating:

It is not to be denied that argumentative skill, as shown at the Bar, could persuasively and not unreasonably reach either of the conflicting constructions. About only one aspect of the problem can one be dogmatic. When Congress has the will it has no difficulty in expressing it--when it has the will, that is, of defining what it desires to make the unit of prosecution and, more particularly, to make each stick in a faggot a single criminal unit. When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity.

10. United States v. Bass, 404 U.S. 336 (1971).

11. Id. at 346.

12. Id.

13. Id. at 347-48 (citations omitted as indicated).

14. Of course, article 42.12, §20(a) does explicitly warn Mr. Cuellar and others similarly situated that there is still a small legal shadow hovering over their heads. As both the dissent and the Texas Attorney General have noted, the felony conviction "has not been entirely erased." See Dissenting Op. at 12 (quoting Op. Tex.Att'y Gen. No. M-640 (1970)). Thus, under subsection (a)(1) Mr. Cuellar is explicitly put on notice that "proof of the conviction or plea of guilty shall be made known to the judge shall the defendant again be convicted of any criminal offense." Under subsection (a)(b) he is explicitly told that if he applies for a license to operate a child care facility, the Texas Department of Human Resources may consider the prior probation in deciding whether to issue such a license. Both of these explicit statutory exceptions make good sense and good public policy. The legislature can add other exceptions if it so chooses. Indeed, it can add a provision stating that a person discharged under this section is nonetheless considered a "felon" for purposes of carrying an otherwise legal hunting rifle or other firearm. But until and unless the legislature does so, we do not have the authority to judicially engraft such an exception onto the statute. We must apply the law as the legislature wrote it, not how we might wish it had been written.

15. Conversely, the Legislature may not think that it is absurd that a person whose drug-related felony judgment was set aside and whose felony indictment was dismissed some twenty years ago is entitled to go hunting on his own hunting lease with his own hunting rifle. I cannot conclude that application of the plain language of article 42.12, § 20(a) leads to any "absurd" result in this case. One does not invoke the Rule of Lenity to be "lenient to wrongdoers" as suggested by the dissent. Dissenting Op. At 25. The Rule of Lenity is invoked to ensure that those who conform their conduct to a reasonable interpretation of the law are not mislabeled as "wrongdoers."