..




                                    The Attorney General of Texas
                                                     March 24.     1986
     JIM MAlTOX
     Attorney General


     Supmm. Cowl Bulldin~           Honorable Gerald .A. Fohn                  Opinion No. JM-456
     P. 0. Box 12548                District Attorney
     Aurlln. TX. ?6711- 2548
     SlW752501
                                    Tom Green County #Courthouse               RS: .Constitutlonality      of section
     T*mi Qlom?4-1357               Room 315                                   28.03(c)   of the Texas Penal Code,
     Telecopier 51214750266         San Angelo, Texas    76903                 vhich creates a presumption about
                                                                               the guilt     of a person in whose
                                                                               name utilities    are billed
     714 Jackson. Suite 700
     Dallar. TX. 752024505
     2Wl7428944                     Dear Mr. Fohn:

                                          You have asked several           questions    about     certain    Penal Code
     4824 AiberIa Ave.. Suite 160
                                    provisions     concerning   tampering with public         utility     meters.  YOW
     El Paso. TX. 7-2793
     91515353464
                                    first   question l.s:    “Is the presumption.contained         in section 28.03(c)
                                    of the Texas Penal Code constitutional?”           Section 28.03, which governs
                            .
                                    the offense of “criminal      mischief,”    provides:
     1001 Texar. Suite 700
     Hourlon. TX. 77002-3111                       A ‘qrrson      commits an offense    if.   without   the
     7lY2255886
                                               effective      consent of the owner:

     806 BroWway. Suite 312                         (1)  he intentionally or knowingly damages o,r
     Lubbock, TX. ?9401G?4?9                    destrcys the tangible property of the owner; or
     806n47.5239
                                                    (2)   he Intentionally  or knowingly tampers vlth
     4309 N. Tenth. Suits B                     the tangible     property  of the ovner and causes
     McAllen. TX. 78501.lM5                     pccunj,ary loss or substantial   inconvenience to the
     512m82-4547                                ovner or a third person.

     200 Main Plaza. Suilc 400      .Penal Code 928.Cr3(a).
     San Antonio. TX. 78205.2797
     51212254191                          The statuw  also contains the following  provision.           which creates
                                    a “presumption” regarding identity  and mental state:
     An EqualOpportunity/
     Affirmative Action Employer
                                                   Fox the purposes of this section,     It shall be
                                                presumed that     a person   in vhose   name public
                                                communications, public water. gas, or power supply
                                                is or was last billed     and who is receiving    the
                                                economic benefit   of said communication or supply,
                                                has kmvingly    tampered with the tangible  property
                                                of the owner if the communication or supply has
                                                been :



                                                                 p. 2075
llonorablc   Gerald A. Pohn - Pago 2        (RI-456)




                   (1)  diver%ed          from    PaMitlg      through         a
                metering dev!.ce;    or

                    (2) prevmted   from being correctly               regls-
                tared by a metering device;  or

                    (3) actiwted    by any device Installed    to
                obtain  publ:lc  comunicatlons.  public   weter ,
                gas, or power supply vithout a metering device.

Penal Code 128.03(c).    !!ou ask about.             the   constitutionality       of   the
“presumptloo” set out in t’hat provlsloa.

       The Peoal Code 6~‘:s         out     the   consequences      of   a     presumption
 established by a penal law:

                 When this code or another penal lav establishes
             a presumption sith respect to any fact, it has the
             following   consequences:

                    (1)    if c:here is sufficient   evidence of the
                facts    that give rise to the presumption,      the
                issue of tha existence         of the presumed fact
                must be subriitted to the jury, unless the court
                is    satisfied     that the evidence    as a whole
                clearly     precludes a finding beyond a reasonable
                doubt of thlk presumed fact: and

                    (2)   if the existence     of the presumed fact
                 is subtitttrd     to the jurp,    the court  shall
                 charge the jury.      in terms of the presumption
                 and the spi:cfflc    element to which it applies,
                 as follows:

                        (A) t’hat the facts  giving  rise to the
                    presumptimon must be proven beyond a reason-
                    able doubt;

                        (B) that if such facts are proven beyond
                    a reasonable   doubt the jury may find that
                    the element of the offense      sought to be
                    presumed erisrs,   but it is not bound to so
                    find;

                        (C) t,het even though the jury mny find
                    the existence   of such element. the state
                    must prove beyond a reasonable doubt csch of
                    the other elements of the offense charged;
                    and




                                           p. 2076
..

     Honorable   Gereld A. Pohn - Page 3           (JM-456)




                              (D) ii’ the jurp hes l reasonable doubt
                         as   to the existence   of a fact   or feets
                         giving rlw to the presumption, the presump-
                         tion fail:1 end the jury shall not consider
                         the premmptlw       for   any purpose.

     Penal Code 92.05.

           A true presumption .u:ises when a court directs                   the fectflnder
     that   it must find the p,:esumed fact or that It must do so if the
     defendant does not come forward with rebuttal                evidence.     County Court
     of Ulster      County v.       All~an, 442 U.S.         140 (1979).       A permissive
     inference.    in contrast,      f;       deduction that the factflnder          x   draw
     from the circumstances of the case but one that he Is not required to
     draw.    Sardesty v. State. 656 S.W.Zd 73, 76 (Tex. Grim. App. 1983).
     Section 2.05 of the Penal. Code requires               that when the evidence       in a
     case gives rise to e “presumption” created by a penal statute,                        the
     court must instruct        the :ury that It may find the presumed fact but
     that it is not bound to do so.                The combined effect      of section    2.05
     and section     28.03(c)     is to establish        a permissible     inference   rather
     than a true presumption.            Moses v. State,       633 S.W.2d 5?5, 587 (Tex.
     APP. - Houston [14th Dist.]          1982). overruled on other grounds in Davis
     v. State, 658 S.W.2d 572 (Tex. Grim. App. 1983); see also Rardesi-
     g.         656 S.W.2d 73,          76-77     (Tex.   Grim. App. 1983) -----Y  (en bane
     (explaining      proper     use of        terms    “presumption”      and “permissive
     inference”);     Roberts v. !jtate,         672 S.W.2d 570, 579-80 (Tex. App. -
     Fort Worth 1984. no wri’gTholding                  that courts must use the term
     “circumstance     of guilt” ra,ther thao “presumption” or “inference”               when
     charging jury).       Because different         constitutional     standards apply to
     true presumptions        and permissive        inferences,     we vi11 use the term
     “permissive    inference” in analyzing section 28.03(c) .

           In essence,   then, section     28.03(c)     would permit the foliowing:
     if  the prosecution    shovs that a particular           utility  meter has been
     tampered with in one of th’e three ways described in section 28.03(c),
     the court may, but need t.ot. instruct          the jury that it may find that
     the person in whose nama Ithe utility          is billed     and who is receiving
     the economic benefit    of t’na utility    supply Is the person who tampered
     with the meter and that ha: did so knovlngly.           In other vords, the jury
     may infer identity    end mental state from the fact of tampering.              You
     ask whether this Is const:.tutional.

           We have received     s&era1 briefs    regarding your opinion request.
     All were submitted on behalf of utility        companies.   All conclude that
     the permissive    Inference created by section 28.03(c)     is constitutional
     because,   in the opinion ,,:E the briefwriters,      the facts presumed are
     more likely    than not to :iollow from the facts that give rise to the
     permissive   inference.     These briefs   do not sufficiently    analyze the
     relevant authority.      Although a more-likely-than-not    standard would be
     the appropriate    standard :tor testing this permissive inference      In some



                                              p. 2077
Ronorable   Gerald   A. Fohn -8 Page I        (JM-456)




circumstances,   it would trot be the appropriate standard if the fact of
tampering was the only evidence presented on the issues of Identity
and mental state.

      In order to l      xpla!.n the constitutional           stsnderds     for tebting
permissive     inferences,      it    is first      necess0ry    to explain       certsin
aspects of the constituti.onsl           requirement that a criminal          conviction
be based on proof beyond a reasonable doubt.                Although the requirement
that guilt be proved beylnrd a reasonable             doubt has elweys been part of
American criminal      law, :Lt was not until 1970 that the United States
Supreme Court held that the due process                   clause of the fourttenth
amendment protects        a criminal       defendant agalaet       conviction     “except
upon proof beyond s rwsonable                 doubt of every fact          necessary     to
constitute    the crime vi:h which he ir charged.”                 In re Winshi~. 397
U.S. 358, 361-64 (1970).            The reasonable      doubt standard involves        not
only a fsct question         for the factfinder,         but also a legal question:
whether. after viewing t’w evidence in the light most favorable                     to the
prosecution,     any rational      trier of fact could have found the essential
 elements of the crime beyend a reasonable doubt.                Jackson v. Virginia,
443 U.S. 307, 319 (1971’).              Thus,   insufficiency     of the evidence        to
 prove guilt beyond a reasonable doubt can be, the basis for any entry
 of acquittal    by the tric.1 judge or for reversal of a conviction                 by an
 appellate   court.

       The Supreme Court’ II decisions        regarding     the reasonable     doubt
 standard     gave rise      to questions    about the constitutionality           of
 presumptions      and permissive   inferences.      In County Court of Ulster
 County v. Allen, the Supreme Court set out standards for tesrlng                 the
 constitutionality      of pr~rsumptions and permlsslve        inferences   in light
 of the reasonable doubt standard.         The court pointed out that the rule
 governing the constitutional       validity    of any presumption or Inference
 was that      the presumption      or inference      “must not       undermine the
 factfinder’s     responsibility  at trial,    based on evidence adduced by the
 State, to find the, ultinate      facts beyond a reasonable doubt.”          e,
 442 U.S. at 156.       The court made clear, hwever.         that the question of
 sufficiency     of the evidence to support a conviction         is, in most cases,
 a separate question fron the propriety          of instructing     the jury that it
 may make a certain inference.

       When a permissive     inference    Is not the only evidence       on an
 element of an offense,    the validity    of the permissive inference    is to
 be judged under a more-likely-than-not         standard.  Allen,  442 U.S. at
 164-67.     In .other vordrr,   in such circumstancesrhcre         must be a
 rational   connection between the fact proved and the fact inferred,       and
 the latter     must be more likely     than not to flow from the formtr.
 Allen. 442 U.S. at 165.       Tbe fact proved need not establish     beyond a
 Gnable        doubt the fsct inferred      because the prosecution   can rely
 on all of the evidenca presented to meet its burden of proving the
 issue beyond a reasonabl.c: doubt.     Raaxnontree v. Phelps. 6@5- P.2d i371,
 1374 n.2 (5th Cir. 1979:.



                                            p. 2078
..

     Ronorable     Gerald A. Fohn - Page 5              (m-456)




              The Suprema Court ll.so atatad in Allan that the validity                            of a
     oerminaive
     r-------      -
                      inference
                      --~~------
                                    can
                                    ~-~
                                           cmlv
                                           --~-I
                                                     be
                                                     ~~
                                                           iudnad
                                                          -~~1~
                                                                     a    ia record   of  a pariicular
     case * Allen, 442 U.S. at :L62-63; MOSM V. State, 633 S.W.2d 585, 587
      (Tat. Am.  -Houston           [14tt. Dist.]           1982). overrulad on other grounds In
     Davis v:- State. 658 i.W.Z’i 512 (Tex. Grim. App. 1983).                            UC &mot     say
     whether the pcnsiasivc             infc~rcnce latablishcd by section 28.03(c)                would
     wet       tha more-likely-that.-not                standard in every case In which that
      standard appllad.            Courtcl in several                other jurisdletlons.      howaver,
     have tcatad permissible              inferences            similar to the one established         by
      section      28.03(c)      under the more-likely-than-not                   standard    and have
      found. them to be valid                    in tha circumstances           in vhich     they were
     applied.        See, e.g.,     sr            v. Kriss.       654 P.2d 942 (Kan. 1982); State
     v. Curtis, 372 A.2d 612 (1I.J. Super. Ct. App. Div. 1977).

            The briefs     submitted to us fail       to point out that the more-
     likely-than-not       standard is appropriate        only when the permissive
     inference     “is  not the so1.e and sufficient        basis     for a finding    of
     guilt .‘I Allen,     442 U.S. at 167.     As WC said before,         in such a case
     the fact Gd          need not eistabllsh beyond a reasonable          doubt the fact
     inferred    because the mmecutlon         can rely      on all of the evidence
     preientcd    to meet Its Purim of proving th; issue beyond a reasonable
     doubt.    Rawontrec v. Phe:az, 605 F.2d 1371. 1374 n.2 (5th Mr. 1979).
     If the facts       giving   rise to a permissive         inference     are the only
     evidence introduced -on an element - of an offensa,            hovever , the facts
     provad must be sufficient         to establish     the element of the offense
     inferred beyond a reasonab’le doubt.         Id.    Othervise,     there would be a
     violation      of the constitutional     requirement       that the evidence       be
     sufflc%ent     to prova guilt beyond a reasonable doubt.

           The legal standard for determining whathar evidence is sufficient
     to support     a criminal   conviction   is whether,      after vleving   the
     evidence in the light most favorable      to the prosecution,   any rational
     trier   of fact could have: found the essentiil       claments of -tha crime
     beyond a reasonable doubt.     McGoldrick V. Stata, 662 S.W.Zd 573 (Tex.
     Grim. App. 1985); United St2 taa V. Jackson, 700 F.2d 181. 185 (5th
     Mr. 1, cert. denied7 wu’.S.       842 (1983).    If it appears, as a matter
     of law, that a reisonable-minded       jury- wst    ncce&arily   have had a
     reasonable doubt as to any essential      llament of a crime. a convicrion
     cannot stand.    United Strlt:as v. Bland, 653 F.2d 989. 995 (5th Cir.),
     cert. denied 454 U.S. 105T (1981).

             The Fifth Circuit has held that a conspiracy       conviction   cannot
      stand on evidence      that only places   the defendant in “a climate       of
      activity   that reeks of something foul.”    United States v. Jackson, 700
      F.2d 181, 185 (5th Clr.),     cert. denied 464 U.S. 842 (1983).      We think
      that description     is appL:Lcablc to a situation     in vhich the state
      attempts    to convict    someone of criminal    mischief   on evidence     of
      tampering alone.       Although the person responsible      for paying for
      utility   service  obvtousl:r has a motive for tampering with a utility
      meter. in many cases he L:s not the only person vith a motive.          Often




                                                    p. 2079
Ronorable   Gerald A. Fohn - Page 6        01-456)




other people receive the benefit of utility     service and lharu the coat
even if they are not beLog billed,      and they also have a moclva for
tampering with l meter . Vsndallm      could also account for some meter
tampering.   We think thet evidence of tampering omly would be legally
insufficient   to aupport 4s conviction     of someone aimply because he
received benefit   from the utility  service and was responsible   for the
bill.

      Tour second questioc,      la:

                To be a felony offenae under section 28.03             of
            the    Pens1  Code,   must the    lnterruptlon             or
            impairment of wrvice be substantial?

      The degree of an offense   under the criminal    mischief   statute
depends on the amount of pecuniary       loss  involved.      Penal Code
128.03(b).   Regardless of the amount of pecuniary loss,    however, the
offense of criminal mischief Is a third degree felony if

             the actor   causw     in whole or in part impairment or
             interruption
             transportation  f ” p%Z       wi~‘~~i,onsir         piEZE
             SUPPlY8 or other public       service.    or diverts,   or
             causes to be diverted in whole, in part, or in any
             manner, including    installation      or removal of any
             device    for such purpose,      any public    communica-
             tions, public water, gas, or power supply;

 Penal Code 128.03(b)(4)!8’).

        In your letter   you #state, “[Tlhere    Is apparently     some dictum on
 the part of the courts !Eor the proposition          that such impairment or
 interruption,   to qualify for a felony offense,       must be ‘substantial.“’
 Apparently you arc refwring         to Williams v. State,        596 S.W.Zd 862
 (Tex. Grim. App. 1980).         That ease contains       dictum regarding      the
 relationship   between sej:c:ion 28.03(b) (4) (B) and section        28.03(a) (2),
 which provides that a person commits an offtnsa           if he “intantlonally
 or knovingly     tampers vith    the tangible     property    of the owner and
 causes pecuniary loss or substantial        inconvenience     to the owner or a
 third person.”     The Williams
                        ---        court wrote:

             Since impairment or interruption        of public  com-
             munications 11%a felony of the third degree even
             if no pecunla:?! loss results,    it-is   apparent that
             Subsection (b: (,4)(B) was intended to be a type of
             ‘substantial      inconvenience,’     which   warranted
             greater pcnlllty.

 Id. at     865.  Otherwise,  WC find no case        that   contains    a statement
 zilar      to the one you rusk about. .



                                           p. 2080
.   . .   _   Rouorable   Gerald A. Fohn - Pege 7           (JM-456)




                                                  SUMVARY

                              The combined affect of section 2.05 and section
                          28.03(c)   of the Texas Penal Code ia to establish             a
                          permlaslble     infmence       rather than a true presump-
                          tion. When a permissive           inference Is not the only
                          evidence    of an clament of an offense,             the fact
                          inferred    must lx more-likely-than-not           to follow
                          from the facts Proved. Where the more-likely-than-
                          not standard applies.          the constitutional     validity
                          of a permissive          Inference     must be tested      on a
                          case-by-case      basis.      If tha permissive     inference
                          is the only evid,ence on an element of an offense,
                          however, the facts proved must establish              the fact
                          inferred     beyond a reasonable           doubt.   The per-
                          missive inferenx          established    by section 28.03(c)
                          does not meet that standard.




                                                                J I M MATTOX
                                                                Attorney General of Texas

              JACK HIGHTOWER
              First Assistant Attorney       General

              UARYKELLER
              Executive Asslstant      Attorxy     General

              ROBERTGRAY
              Special Assistant     Attorney     General

              RICK GILPIA
              Chairman, Opinion     Committee

              Prepared by Sarah Woelk
              Assistant Attorney General




                                                           p. 2081
