Legal felony defined in the unabridged..applying to every criminal offense defined in other Texas statutes. but not Uncle Tom.....

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS


NOS. PD-0826-06, PD-0827-06, PD-0828-06, PD-0829-06,

PD-0830-06, PD-0831-06, PD-0832-06, PD-0833-06

THE STATE OF TEXAS


v.


JOHN DOMINICK COLYANDRO, JAMES WALTER ELLIS, and

THOMAS DALE DELAY, Appellees


ON STATE'S PETITIONS FOR DISCRETIONARY REVIEW

FROM THE THIRD COURT OF APPEALS

TRAVIS COUNTY

Cochran, J., filed a dissenting opinion, in which Meyers, Johnson and Holcomb, JJ., joined.

O P I N I O N


I respectfully dissent.

In this case we are asked if any and all felony offenses, whether defined in the Penal Code or in some other Texas statute, may form the basis of a conspiracy charge under Section 15.02 of the Penal Code. Were it not for two wayward 1976 and 1977 opinions written by Commissioner Davis over the strong dissent of Judge Douglas, the answer to this question would be obvious. Yes, any felony offense is subject to the Penal Code conspiracy provision. Thus, a person may be prosecuted for conspiring to commit any felony offense, whether that felony is defined in the Penal Code or elsewhere in Texas law. The plain language of the conspiracy statute requires this result. The structure, legislative intent, and history of the 1974 Penal Code all require this result. Common sense requires this result. Public policy requires this result. Only two poorly reasoned opinions from the mid 1970s, Moore v. State (1) and Baker v. State, (2) stand in the way of reaching the right result. The Third Court of Appeals, in its opinion in the present cases, invited us to re-visit the reasoning of those two cases and suggested that we should overrule them. (3) I would accept that invitation and overrule Moore and Baker. Not only are they poorly reasoned, but they carry the potential to cause untold mischief to many other provisions in the Penal Code.

A. The Plain Language of the Penal Code Conspiracy Statute.

In construing the meaning of any statute, we look first to the plain language of that statute. (4) This Court's interpretation of statutes must "seek to effectuate the 'collective' intent or purpose of the legislators who enacted the legislation." (5) In Boykin, we established that if the literal text of the statute is clear and unambiguous, we must ordinarily give effect to that plain meaning. (6) The first rule of statutory construction is to presume that the legislature meant what it said and said what it meant. (7) On its face, the conspiracy statute plainly applies to all felony offenses.

Section 15.02 of the Penal Code defines the criminal offense of conspiracy:

(a) A person commits criminal conspiracy if, with the intent that a felony be committed:
(1) he agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense; and
(2) he or one or more of them performs an overt act in pursuance of the agreement. (8)


There is absolutely nothing in the plain language of this statute that states or suggests that the Legislature really meant "a felony defined in the Penal Code" when it said "a felony" in defining the offense of conspiracy. In normal English usage, the phrase "a felony" means "any felony." Under Boykin, our statutory analysis should end right there.

Is there anything else in the Penal Code that states or suggests that the phrase "a felony" in the conspiracy statute really means "a felony defined in the Penal Code"? No, quite the reverse. Section 1.07 of the Penal Code, the provision that sets out the definitions of words that are used in the Penal Code, states:

(a) In this Code:

(23) "Felony" means an offense so designated by law or punishable by death or confinement in a penitentiary. (9)


Under normal rules of English construction, any time the word "felony" is used in the Penal Code, it means any offense that is titled or listed as a "felony" regardless of whether that felony is defined in the Penal Code or some other statute. Once again, under Boykin, our statutory analysis should end right there.

The Election Code provisions dealing with illegal contributions that Messieurs DeLay, Colyandro, and Ellis are charged with having conspired to violate are all third-degree felonies. (10) It would seem quite obvious, then, that they may be prosecuted for the offense of conspiracy to commit the third-degree felony of violating the illegal contributions provisions of the Election Code. That should be the end of the matter.

B. The Structure, Legislative Intent, and History of the Penal Code Conspiracy Statute.


Messieurs Delay, Colyandro, and Ellis argue (as did Commissioner Davis in Moore and Baker) that we cannot follow the plain language of the conspiracy statute or the definition of "a felony" in section 1.07 because section 1.03(b) of the Penal Code forbids us from using felonies defined outside the Penal Code as the basis for a conspiracy offense. Section 1.03(b) says no such thing. Nor does it imply any such thing. But to counter that argument one must examine the basic structure of the Penal Code.

The Penal Code is divided into eleven titles. (11) The first three titles set out general provisions which apply to any and all criminal offenses. (12) The rest of the titles-Title 4 through Title 11-define specific criminal offenses. For example, the offense of conspiracy is defined in Title 4; the offense of capital murder is defined in Title 5; the offense of bigamy is defined in Title 6; and so forth. Thus, there are two entirely different portions of the Penal Code: generalities in the first three titles, specific offenses in the rest.

Section 1.03 of the Penal Code is captioned "Effect of Code." Subsection (b) reads:

The provisions of Titles 1, 2, and 3 apply to offenses defined by other laws, unless the statute defining the offense provides otherwise; however, the punishment affixed to an offense defined outside this code shall be applicable unless the punishment is classified in accordance with this code. (13)


This subsection ensures that the general statutory provisions of the Penal Code, such as the defenses to or justifications excluding criminal responsibility (self-defense, insanity, necessity, duress, etc.), party liability for criminal offenses (accomplice liability), and criminal responsibility of a corporation, apply not only to the criminal offenses defined within the Penal Code but to all criminal offenses defined in other Texas statutes. It is an "export" provision: one can cut and paste these three titles onto each and every criminal offense defined outside the Penal Code unless the extra-Penal Code crime statute specifically says otherwise. (14) There is no need to repeat all of these general principles in each and every code that defines a criminal offense. Just export and overlay these three titles onto those provisions.

Messieurs Delay, Colyandro, and Ellis argue that because section 1.03(b) does not mention Title 4, in which the crime of conspiracy is defined, that crime of conspiracy cannot be "exported" and applied to other crimes defined outside the Penal Code. Well, of course not. The crime of conspiracy is a distinct and specific criminal offense, just like murder, burglary, kidnaping, theft, and so forth. It is not a part of the general provisions of the Penal Code applicable to all crimes; it is a specific crime itself.

It would make no sense to say, in section 1.03(b), that the general provisions of Titles 1, 2, and 3, as well as Titles 4-11 defining specific crimes, apply to offenses defined by other laws. Commissioner Davis back in 1976 and 1977 made a grievous, but understandable, mistake. In Baker, he apparently thought that the specific crime of conspiracy was really a general principle provision (15) that could, if the Legislature had so desired, float around and attach itself to other crimes defined outside the Penal Code. It cannot. The crime of conspiracy, like the crimes of murder, burglary, and kidnaping, is firmly anchored in the Penal Code. One cannot "export" it to other crimes.

But what the conspiracy statute explicitly requires one to do is "import" any felony-whether defined as a felony inside or outside the Penal Code-into the crime of conspiracy. When a crime defined in the Penal Code has, as part of its basis, "a felony," then, under the explicit definition of a "felony" under section 1.07(a)(23), one may cut and paste any felony crime defined in any Texas statute into that specific Penal Code offense. That is what section 1.07(a)(23) requires. For example, the crime of conspiracy requires that the person act "with intent that a felony be committed," that he agrees with at least one other person that one of them will commit the felony offense, and that one of them performs an overt act in furtherance of their agreement. (16) As another example, the crime of felony-murder requires the person to commit or attempt to commit a felony (any felony other than manslaughter) and in the course of and in furtherance of committing that felony commit an act clearly dangerous to human life that causes the death of a person. (17) Another example: burglary is the crime of entering another's home without the consent of the homeowner and with the intent to commit a felony (any felony), theft, or assault. (18) One last example: (19) aggravated kidnaping is the crime of abducting a person with the intent to "facilitate the commission of a felony or flight after the attempt or commission of a felony." (20)

Following the logic of Baker, it would not be a crime to abduct a person with the intent to facilitate the commission of a felony that is defined outside the Penal Code because Title 5 (which contains the definition of the crime of aggravated kidnaping) is not mentioned in section 1.03(b) as being applicable to offenses defined outside the Penal Code. This is an absurd result and surely not one intended by the Legislature when it enacted the 1974 Penal Code. In all of these examples, the Legislature obviously meant "any felony" when it used the phrase "a felony." Especially since the definition of a "felony" in section 1.07(a)(23) says exactly that. How much clearer can or should the Legislature be? Section 1.03(b) does not reference any of the Penal Code titles in which these offenses are defined as applying outside the Penal Code and indeed these offenses do not apply outside the Penal Code. But felony offenses that are defined outside the Penal Code surely may be imported into the specific Penal Code crimes that require the commission of "a felony" as part of that crime's definition.

Does the history of the 1974 Penal Code support the notion that only those felonies defined within the Penal Code may be the basis for the crime of conspiracy? No. The Committee Comment to the Final Draft of the Proposed Texas Penal Code explained that the purpose of section 15.02, defining the crime of conspiracy, was to clarify the existing law against criminal conspiracy. It stated:

Criminal conspiracy, a common-law crime, has become firmly established as an offense that serves dual roles in modern criminal jurisprudence. Functioning as an inchoate offense, criminal conspiracy fixes the point of legal intervention at agreement to commit a crime coupled with an overt act. Thus, it reaches further back into preparatory conduct than criminal attempt, Section 15.01, but not as far back as criminal solicitation, Section 15.03. In its second role criminal conspiracy provides a means of striking against the special danger incident to group criminal activity and facilitates prosecution of the group by providing extraordinary evidentiary and procedural advantages. Section 15.02 is essentially a clarification of the present Texas law of conspiracy, Penal Code arts. 1622-1629, emphasizing the inchoate aspect of the offense without interfering with the procedural and evidentiary advantages of the group prosecution aspect of the offense. (21)


Under the common law, the crime of conspiracy applied to any criminal offense, felony or misdemeanor. (22) Indeed, the general conspiracy law in Texas had been on the books since 1884, but it applied only to felony offenses: "The agreement to come within the definition of conspiracy must be to commit one or more of the following offenses, to-wit: Murder, robbery, arson, burglary, rape or any other offense of the grade of felony." (23) And, at least as far back as the 1925 Penal Code, the offense of illegal contributions made by corporations was punishable as a felony. (24) This provision was transferred to the Election Code of 1951. (25) If the crime of making an illegal corporate political contribution was amenable to forming the basis of a conspiracy offense up until the enactment of the 1974 Penal Code, and if the 1974 Penal Code merely clarified the then-existing law of conspiracy, it defies common sense to think that the Legislature intended to wipe out that offense when it enacted the general crime of conspiracy in section 15.02.

C. Common Sense and Public Policy Considerations.

Is there any common-sense reason to think that the crime of conspiracy does or should apply only to offenses defined within the Penal Code itself? If the purpose of the conspiracy law is to deter and punish those who agree to commit a serious crime and take overt steps to accomplish that crime, is there any reason to separate out serious offenses defined within the Penal Code from serious offenses defined outside the Penal Code and declare that one can be prosecuted for conspiring to commit Penal Code felonies but not extra-Penal Code felonies? (26) Are some felonies more felonious than other felonies? More deserving of being deterred and punished before their actual commission? Or are felonies defined in the Penal Code especially heinous "felonies-on-steroids," while their brethren defined outside the Penal Code are puny, half-pint felonies unworthy of being the subject of the crime of conspiracy? I do not think so. There is certainly no reason in either the Penal Code or other legislative enactments to believe that the Texas Legislature has categorized felonies into first-class Penal Code felonies and second-class extra-Penal Code felonies with the first group capable of being the basis for the crime of conspiracy while the second group is not.

One might argue that if the Legislature thought that these extra-Penal Code offenses were "real" felonies deserving of being used as the basis of a conspiracy, felony-murder, burglary, kidnaping, hindering apprehension, or other Penal Code crimes that reference "a felony," then it should have placed them in the Penal Code itself. Maybe it should create a Title 12 section of the Penal Code to contain this miscellany of felony offenses described in twenty or more other codes. Good public policy suggests, however, that these extra-Penal Code offenses are defined in those separate codes because people who are most directly affected by those separate codes would be most likely to find and read them and then conform their conduct to avoid these crimes. For example, the Agriculture Code states that it is a felony for anyone to operate a public grain warehouse without first obtaining a license. (27) This offense is defined in Chapter 14 titled "Regulation of Public Grain Warehouse Operators." This is the proper place for it to be located as it applies only to those who operate public grain warehouses and they are the persons most likely to read this portion of the Agriculture Code and be placed on notice of the existence of this offense. It is most unlikely to think that public grain warehouse operators would go flipping through the Penal Code to see if that code contained any penal provisions relating to their business. The same logic applies to the felony offense of exhibiting a firearm that interferes with the normal use of a school building or bus that is contained in the Education Code, (28) or the felony offense of tampering with an oil or gas well that is contained in the Natural Resources Code, (29) or the felony offense of signing a false statement or affidavit dealing with the payment of taxes on car sales that is set out in the Transportation Code. (30)

Messieurs DeLay, Colyandro, and Ellis would have us believe that the Legislature intended to make it perfectly legal to conspire to commit all of these felonies, but illegal only to actually carry them out. On the contrary, it strains credulity to think that the Legislature intended that persons who conspired to commit these felonies are immune from prosecution for that conspiracy. In fact, some extra-Penal Code offenses are particularly susceptible to the crime of conspiracy and are doubly dangerous because of it. Take, for example, Mr. Big, a drug cartel kingpin who never sullies his own hands with the ten kilos of cocaine that he orders flown across the border into Texas. Instead, he conspires with his henchmen to deliver the goods while he is happily ensconced in his River Oaks mansion. Did the 1974 Penal Code really intend that he be immune from prosecution for the Penal Code offense of conspiracy to deliver cocaine merely because the offense of delivery of cocaine was defined outside the Penal Code? The Legislature intended that the little mule who actually delivers a kilo of cocaine may go to prison for life while the kingpin who conspired (unsuccessfully, for that is what an inchoate crime is-one that is not completed) to get the cocaine into the hands of the mule is immune from prosecution? I think not. (31)

Thus, both common sense and good public policy lead to the conclusion that sections 1.07(a)(23) and 15.02 state that "a felony" is "any felony" regardless of whether it is defined in the Penal Code or in some other statute and that all such felonies may form the basis of a conspiracy offense. And if all such felonies are "real" felonies, so is the Election Code felony of making an illegal contribution and it, too, may form the basis of a conspiracy offense. Thus it was before the 1974 Penal Code was enacted, and thus it should remain absent some legislative action to the contrary.

D. Moore and Baker Are the Sole Support for the Conclusion That a Felony Defined in the Election Code Cannot Be the Basis for a Conspiracy Offense under the Penal Code.

Messieurs DeLay, Colyandro, and Ellis rely almost exclusively upon two 1976 and 1977 cases. These cases should be re-examined. In the first, Moore v. State, (32) Commissioner Davis stated that the specific offense of "criminal attempt" which is defined in section 15.01 of the Penal Code did not apply to the felony offense of obtaining a controlled substance by fraud which was defined in The Controlled Substances Act. (33) He recited Section 1.03(b) which stated that "the provisions of Titles 1, 2, and 3 of this code apply to offenses defined by other laws, unless the statute defining the offense provides otherwise[.]" (34) And he then reasoned, "The general attempt provisions of Sec. 15.01, supra, are contained in Title 4 of the Penal Code and thus Sec. 1.03(b), supra does not apply to Sec. 15.01, supra." (35) But this is a non sequitur. Why would any specific crime defined in the Penal Code (or the title in which it is defined) be mentioned in Section 1.03(b)? Only the general principles of criminal law are exported to extra-Penal Code offenses, not specific Penal Code crimes. None of the offenses defined in the Penal Code are mentioned in Section 1.03(b), but that does not mean that when they require the commission of "a felony" as a part of their definition, that felonies defined outside the Penal Code do not qualify as felonies for purposes of those Penal Code offenses. This was precisely the point made by Judge Douglas in his dissent in Moore. He stated that "Section 15.01(a) is not limited to offenses defined in the code. It states that one must intend to commit 'an offense' to come within the ambit of the attempt provisions." (36) He noted the absurdity of the logic:

It appears that the Legislature intended that an attempt to commit an offense involved in the Controlled Substance Act would not constitute an offense while attempts at all other crimes within the Penal Code would constitute offenses. Such a conclusion would contravene Section 1.05(a) of the Penal Code[.] (37)


Judge Douglas stated that this Court should "effectuate the full legislative intent. We should find that the Penal Code and the Controlled Substances Act are complementary and have no difficulty in construing the statutes together. Accordingly, we should hold that the general attempt provisions set forth in Section 15.01, supra, apply to the Controlled Substances Act." (38) Alas, this Court approved Commissioner Davis's opinion rather than that of Judge Douglas. (39) And then the trouble snowballed. Six months later, Commissioner Davis addressed the applicability of the crime of conspiracy under Section 15.02 to the Controlled Substance Act. In Baker v. State, (40) Commissioner Davis noted that the defendant did not file any brief on appeal, but that he had, on his own, found "fundamental error which we must review in the interest of justice." (41) Commissioner Davis posed the issue thus: "The question before us is whether the criminal conspiracy provisions of the new Texas Penal Code apply to the Controlled Substances Act. We hold they do not." (42) He posed the wrong issue. He should have posed it thus: "The question before us is whether a felony defined in the Controlled Substances Act qualifies as "a felony" for purposes of the crime of conspiracy." The crime of conspiracy does not "apply" to other crimes, just as the crime of felony-murder does not "apply" to other crimes. But any felony crime, whether defined inside or outside of the Penal Code, may form the basis for the crime of conspiracy (or the crime of felony-murder, burglary, and so forth). Commissioner Davis was simply mistaken. He was thinking that attempts and conspiracy were general legal principles rather than specific penal offenses complete within themselves. It is no crime to be mistaken, but this Court, like Judge Douglas, should recognize that mistake. We now have the opportunity to correct it, and we should.

The Legislature obviously did not approve of Commissioner Davis's opinions in either Moore or Baker. It reacted by amending the Controlled Substances Act to explicitly provide that Title 4 of the Penal Code did apply to the Controlled Substances Act. (43) But it did so based on Commissioner Davis's faulty logic that attempts and conspiracy were general legal principles, like those principles set out in Titles 1, 2, and 3 of the Penal Code, rather than discrete criminal offenses. And down through the years it, like this Court, has perpetuated that original mistake of logic by enacting various piece-meal conspiracy provisions in some of the other Texas codes. And, by declining to accept the court of appeals's urgent invitation to revisit the mistaken logic in Moore and Baker, this Court further perpetuates that original mistake. Because this Court made the original mistake, we should repair it ourselves, not foist that responsibility off on the Legislature.

Unfortunately, we compound the original error by ignoring the explicit language of section 1.07(a)(23) that defines the phrase "a felony" for purposes of the Penal Code as "an offense so designated by law or punishable by death or confinement in a penitentiary." (44) Thus, even if the Legislature should take the hint and explicitly amend section 1.03(b) to state "The provisions of Titles 1, 2, and 3 of this Code and the offenses defined in Title 4, apply to offenses defined by other laws . . . ," we would still be left with the problem of having concluded that "a felony" for purposes of the Penal Code means only those felonies that are defined within the Penal Code.

Thus, one true legislative fix might be: "The provisions of Title 1, 2, and 3 of this Code and the offenses defined in Titles 4-11, apply to offenses defined by other laws . . ." But this "fix" is illogical and may have unintended consequences of its own. (45) Another legislative fix might be to amend the definition of "felony" in Section 1.07(a)(23) to read: "'Felony' means an offense so designated by law or punishable by death or confinement in a penitentiary. It includes any felony defined in this code or any other Texas code, and it applies to all offenses defined in all titles within this code, including Title 4." If this seems redundant, it is, but it is necessary given our peculiar interpretation of the present definition.

The citizens of Texas would be well served if this Court admitted the mistake of logic in Moore and Baker and overturned them. Because the Court declines to do so, I respectfully dissent.

Filed: June 27, 2007

Publish

1. 545 S.W.2d 140 (Tex. Crim. App. 1976).

2. 547 S.W.2d 627 (Tex. Crim. App. 1977).

3.
State v. DeLay, 208 S.W.3d 603, 607 (Tex. App. - Austin 2006). The court of appeals stated:

As an intermediate appellate court, we lack the authority to overrule an opinion of the court of criminal appeals. It is the prerogative of the court of criminal appeals alone to overrule its interpretation of a statute. Baker appears to be based on questionable reasoning and is arguably in conflict with the history of the criminal conspiracy offense in Texas as well as the growing legislative trend to propagate felony offenses throughout the various statutory codes. The court of criminal appeals may want to revisit its opinion in Baker. But until that time, Baker is the law and we are not free to disregard it.

Id. (citations omitted).

4.
Boykin v. State, 818 S.W.2d 782, 785-86 (Tex. Crim. App. 1991).

5.
Id. at 785.

6.
Id.

7.
Id. ("Where the statute is clear and unambiguous, the Legislature must be understood to mean what it has expressed, and it is not for the courts to add or subtract from such a statute."); see also Seals v. State, 187 S.W.3d 417, 420 (Tex. Crim. App. 2005); Getts v. State, 155 S.W.3d 153, 155 (Tex. Crim. App. 2005) (stating that Boykin "instructs us to first 'focus our attention on the literal text of the statute in question' because 'the text of the statute is the law.'").

8. Tex. Penal Code § 15.02(a).

9.
Id. § 1.07(a)(23).

10. Tex. Elec. Code § 253.003 (e) (third-degree felony to make or accept an unlawful political contribution in violation of Subchapter D which prohibits certain contributions by corporations or labor unions); Tex. Elec. Code § 253.094(c) (third-degree felony for a corporation or labor union to make an unauthorized political contribution); Tex. Elec. Code § 253.104 (third-degree felony for a corporation or labor union to knowingly make an otherwise authorized political contribution in violation of 60-days before election rule).

11. Title 1 (Introductory Provisions); Title 2 (General Principles of Criminal Responsibility); Title 3 (Punishments); Title 4 (Inchoate Offenses); Title 5 (Offenses Against the Person); Title 6 (Offenses Against the Family); Title 7 (Offenses Against Property); Title 8 (Offenses Against Public Administration); Title 9 (Offenses Against Public Order and Decency); Title 10 (Offenses Against Public Health, Safety, and Morals); Title 11 (Organized Crime).

12. For example, Title 1 contains chapters dealing with the general provisions of the code, the burden of proof, and multiple prosecutions. Title 2 contains chapters dealing with culpability generally, criminal responsibility for the conduct of another, general defenses to criminal responsibility, and justifications excluding criminal responsibility. Title 3 sets out the punishments that apply to criminal offenses.

13. Tex. Penal Code § 1.03(b).

14. The Practice Commentary to Section 1.03 of the 1974 Penal Code states:

The general principles of penal law, for the first time and for the most part comprehensively treated and codified by this code, are designed to provide a framework for the interpretation and application of every law now in effect or later enacted that employs a penal sanction, whether or not it is located in this code.

Tex. Penal Code § 1.03, Practice Commentary.

15. In
Baker, Commissioner Davis may have confused the distinct crime of conspiracy (defined in section 15.02) with the concept of criminal responsibility based upon conspiracy complicity (which is set out in section 7.02(b)). Conspiratorial liability is, of course, contained within Title 2, and it is one of those general provisions of the Penal Code that, under the explicit wording of section 1.03(b), applies to all criminal offenses, regardless of whether those offenses are contained in the Penal Code or another Texas law. But there is an enormous difference between criminal responsibility for the conduct of another under general party liability principles and the commission of the distinct crime of conspiracy. They frequently are, but should not be, confused.

16. Tex. Penal Code § 15.02(a).

17. Tex. Penal Code § 19.02(b)(3).

18. Tex. Penal Code § 30.02(a)(1).

19. Other Penal Code provisions that refer to "a felony" as part of the definition of the crime include enticing a child (Tex. Penal Code § 25.04(b)); burglary of a motor vehicle (Tex. Penal Code § 30.04(a)); coercion of a public servant (Tex. Penal Code § 36.03(b)); hindering apprehension (Tex. Penal Code § 38.05(c)); escape (Tex. Penal Code § 38.06(c)(1)); bail jumping (Tex. Penal Code § 38.10(f)).

20. Tex. Penal Code § 20.04(a)(3).

21. Texas Penal Code, A Proposed Revision, Final Draft, October 1970, § 15.02, committee comment (emphasis added).

22.
See Charles P. Bubany, The Texas Penal Code of 1974, 28 Sw. L. J. 292, 327 & n. 193 (1974) (stating that section 15.02 "is limited to conspiracies that contemplate the commission of a felony" and noting that "[a]t common law, a combination for the purpose of committing any crime or a lawful act by unlawful means could be a conspiracy. Prior Texas law contained the felony limitation with certain exceptions").

23. Texas Penal Code art. 957 (1884).

24. Texas Penal Code art. 213 (1925) (prohibiting political contributions by any bank or corporation "for the purpose of aiding or defeating the election of any candidate for the office of Representative in Congress, or Presidential or Vice-Presidential Electors from this State, or any candidate for any State, district, county or precinct office in this State, or the success or defeat of any political measure submitted to a vote of the people of this State"; punishment included imprisonment "in the penitentiary not less than two nor more than five years").

25. Texas Election Code art. 213 (Texas Sess. Laws 1951, 52
nd Reg. Leg. ch. 492, 1097, 1190 (1951)) (stating that corporations may not give, lend, or pay any money "directly or indirectly to any candidate, campaign manager, assistant campaign manager, or any other person, for the purpose of aiding or defeating the election of any candidate or of aiding or defeating the approval of any political measure submitted to a vote of the people of this State or any subdivision thereof"; punishment included imprisonment of not less than one nor more than five years).

26. As the court of appeals aptly noted in its opinion in this case,

the legislature has created dozens of felony offenses contained in at least twenty statutory codes. In light of the historically broad application of Texas's criminal conspiracy offense, we find it unlikely that the legislature would have intended to eliminate criminal liability for conspiracy in such a panoply of felony offenses.

208 S.W.3d at 606. The court then listed some of the codes that contain felony offenses: Tex. Agric. Code § 14.072(b); Tex. Alco. Bev. Code § 54.12; Tex. Bus. & Com. Code § 35.54(d); Tex. Educ. Code § 37.125(b); Tex. Elec. Code § 253.094(c); Tex. Fam. Code § 261.107(a); Tex. Fin. Code § 33.108(c); Tex. Gov't Code § 302.034; Tex. Health & Safety Code § 481.141(b); Tex. Hum. Res. Code § 35.012(b); Tex. Ins. Code § 101.106; Tex. Lab. Code § 418.001(b); Tex. Loc. Gov't Code § 392.043(d); Tex. Nat. Res. Code § 85.389(b); Tex. Occ. Code § 204.352(b); Tex. Parks & Wild. Code § 66.119(d); Tex. Tax Code § 152.101(b); Tex. Transp. Code § 501.151(c); Tex. Util. Code § 105.024(b); Tex. Water Code § 7.155(c).

27. Tex. Agric. Code § 14.072(b).

28. Tex. Educ. Code § 37.125(b).

29. Tex. Nat. Res. Code § 85.389

30. Tex. Tax Code § 152.101(b).

31. Judge Douglas set out a similar example of the absurdity of the logic in
Moore which dealt with the offense of criminal attempt. He said:

There is no sound reason in policy or logic for the Legislature to intend to omit an attempted provision from the Controlled Substances Act. Such omission would lead to the absurd result that one could be prosecuted if a pharmacist gave him a prohibited substance in reliance on a forged prescription, but not if the pharmacist recognized and frustrated the criminal enterprise before it was completed. The Legislature could not have intended such a result.

545 S.W.2d at 143. Judge Douglas is absolutely correct.

32. 545 S.W.2d 140 (Tex. Crim. App. 1976).

33.
Id. at 141-42 (citing art. 4476-15, V.A.C.S., Sec. 4.09(a)(3)).

34.
Id. at 142.

35.
Id.

36.
Id. at 143 (Douglas, J., dissenting).

37.
Id. at 143-44. Section 1.05(a) provides:

The rule that a penal statute is to be strictly construed does not apply to this code. The provisions of this code shall be construed according to the fair import of their terms, to promote justice and effect the objectives of the code.

Tex. Penal Code § 1.05(a).

38.
Id. at 143. Unfortunately, Judge Douglas followed down Commissioner Davis's linguistic primrose path and mistakenly adopted his "apply to" language. He should have rephrased the issue first, and then he would have concluded: "Offenses defined in the Controlled Substances Act may form the basis of a criminal attempt prosecution under section 15.01 of the Penal Code."

39.
Id. at 142.

40. 547 S.W.2d 627 (Tex. Crim. App. 1977).

41.
Baker v. State, 547 S.W.2d 627, 628 (Tex. Crim. App. 1977).

42.
Id.

43. Tex. Rev. Civ. Stat. art. 4476-15, § 4.052 (added by Acts 1981, 67
th Leg., ch. 268, § 2, eff. Sept. 1, 1981).

44. Tex. Penal Code § 1.07(a)(23).

45. A somewhat more felicitous phrasing might be: "All of the provisions of this Code apply to offenses defined by other laws, unless the statute defining the offense provides otherwise . . . ." But again, there might be numerous unintended and unforeseen consequences with a broad application of every provision of the Penal Code applying to every criminal offense defined in other Texas statutes.

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By Elvia Aguilar (Contact)
Sunday, May 13, 2007
George Gongora/Caller-Times Investor-entrepreneur Mel Klein holds a black and white photo of he and his wife, Annette Grossman, a week before their marriage 31 years ago. When he proposed to her, she told him she wanted to live in Corpus Christi.
George Gongora/Caller-Times Investor-entrepreneur Mel Klein holds a black and white photo of he and his wife, Annette Grossman, a week before their marriage 31 years ago. When he proposed to her, she told him she wanted to live in Corpus Christi.

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Local investor and entrepreneur Mel Klein looks at the largest proposed leveraged buyout in history with the practiced eye of an insider.

He knows that with the strength of the current financial market, buyouts of giant companies such as TXU will continue.

Kohlberg Kravis Roberts (KKR), a private equity firm that has completed record buyouts and transactions, and TPG, another private equity firm, are pursuing purchase of TXU for a record $45 billion. Klein calls KKR dean of the leveraged buyout business. Many an analyst would say the same, but his insight is personal. In 1976, over dinner at Rose & Joes Italian Bakery in New York, Henry Kravis invited Klein to become a partner in KKR. Theyve kept in touch in the intervening years.

The present buyout bonanza is a convergence of a number of factors, Klein said.

Its an extraordinary time in the financial history of the world. There is tremendous liquidity. There is a lot of money all around the world and relatively low interest rates, he said. Private equity firms have been quite successful with a good return on their investments so people are eager to invest in them.

Effectively, almost every public company is for sale.

For months and years now, people have been waiting for this cycle to end, but it hasnt happened, Klein said.

There has been terrorist action, interest rates moving up significantly, a slowing housing economy and other factors, but it hasnt stopped the financial markets, he said. In fact, the market is at record highs. Things are going well with the market.

Klein and H. Swint Friday, associate professor of finance at Texas A&M University-Corpus Christi, said leveraged buyouts are extremely profitable for investment bankers as well as company managers and CEOs.

Some of these people think the valuation of their stock and company is below where it should be, Friday said. They do their best to maximize the value of the company, but sometimes managers recognize a value that Wall Street does not see. The job of the investment banker is to find these under-valued companies and find investors to buy them. If they obtain cooperation from senior management and make an offer that no one can top, they buy it.

Friday said one of the primary benefits of a private equity leveraged buyout for a company is that company officials no longer have to answer to the shareholders.

They can take the company private and no longer have to do the annual reports and dont have to answer to the public about quarterly earnings, Friday said. The thing with management and stakeholders is that everyone works in their own best interest, so you do have to wonder if sometimes these managers intentionally bring down the value of a company for their own financial gain.

The future of leveraged buyouts can be unlimited because the size and scale have grown exponentially in recent times, Klein said.

If they continue to work, theres no reason why they shouldnt continue, he said. If some start to have problems that may require some changes in certain ways, that doesnt mean that legislation wont alter some aspects of the way these deals operate. But I dont see anything on the horizon that would significantly impact the way these companies do business or change the financial landscape.

And just because the company goes private, doesnt mean it cant go public again.

Investors buy these undervalued companies to make money and then as soon as they can, they will sell it or bring it back public, Klein said.

Looking back on that day 31 years ago when he was invited to join KKR, Klein realizes how his life wouldve been much different had he accepted. But the reason he said no -- his wife Annette of 31 years -- was well worth it.

It was a five-hour dinner and Henry and I agreed on everything except where I would be living, Klein said. I had just asked Annette to marry me and I had agreed to stay with her here in Corpus Christi.

Jerome Kohlberg, Jr., and cousins Henry Kravis and George R. Roberts, former Bear Stearns employees, founded KKR later that year. They had met Klein as a young investor on Wall Street during his tenure at Donaldson, Lufkin & Jenrette, an investment bank founded by William H. Donaldson, Dan Lufkin and Richard Jenrette in 1959. Klein and the KKR founders are among the pioneers of leveraged buyouts and private equity funds.

Klein went on to create his own list of accomplishments as founder of Melvyn N. Klein Interests, managing general partner of GKH Partners and president of JAKK Holding Corp.

No, I dont regret it, he said of not joining KKR. Had I done it, I wouldve spent all my time dealing with some of the issues that I imagine Henry and the others are having to go through. On some levels, it wouldve been nice, but it has been a wonderful 31 years with my wife.

The most recent action on the KKR and TPG transaction includes filing to the Public Utility Commission, Texas public utilities regulator, detailing plans for TXU if the takeover deal goes ahead. KKR has completed more than 150 transactions with an enterprise value of more than $279 billion. As of Dec. 31, KKRs equity investments were valued at more than $74 billion on more than $30 billion of invested capital.

TXUs reputation has suffered in recent months, before and after the buyout offer was announced. Its plans to build new coal-fired plants, before the buyout proposal was known, had the backing of the governor but attracted opposition from disparate groups including environmentalists, business leaders and officials in major Texas cities. State investigators recently accused the company of manipulating prices upward during the summer of 2005, prompting legislators to call for stricter regulation of the electric market.

KKR, meanwhile, said many of the things that TXUs detractors -- from the floor of the Legislature to the city halls of those major cities -- wanted to hear. KKR promised a drastic cut in the coal expansion plan -- from 11 plants to three -- and more emphasis on clean, renewable sources. When TXU sought to use its generating capacity as leverage against the states investigation, KKR repudiated it and TXU quickly backed down, saying it was a misunderstanding.

Klein said KKR is the perfect company to take over TXU.

Henry Kravis is a man of tremendous integrity, ability and a person with outstanding values, Klein said. These are people driven to apply the highest standards to everything they do and they do these things well. Putting aside financial success, I have respect for them as people and for maintaining their high standards and maintaining them all these years.

Klein said BECAUSE Kravis is from Tulsa, Okla., and Roberts is from Houston, the two partners have an understanding of the Southwest and probably have researched TXU thoroughly.

KKR has offices in New York, Menlo Park, London, Paris, Hong Kong, and Tokyo.

Contact Elvia Aguilar at 886-3678 or aguilare@caller.com.