      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-05-00817-CR
                                      NO. 03-05-00818-CR



                                 The State of Texas, Appellant

                                                 v.

                                 Thomas Dale DeLay, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
                   NOS. D-1-DC-05-900725 & D-1-DC-05-904161,
            HONORABLE WAYNE PATRICK PRIEST, JUDGE PRESIDING



                                          OPINION


               The State has filed this interlocutory appeal challenging the district court’s quashing

of those portions of the indictments against Thomas Dale DeLay that charge him with conspiring to

violate the election code. See Tex. Pen. Code Ann. § 15.02 (West 2003); Tex. Elec. Code Ann.

§§ 253.003, .094, .104 (West 2003). Although the legislature amended the election code in 2003 to

explicitly incorporate a conspiracy offense, the State cannot rely on this amendment because DeLay

is charged with conduct that took place prior to its enactment. See Tex. Elec. Code Ann. § 1.018

(West Supp. 2005). Instead, the State contends that conspiring to violate the election code has

always been an offense and that the 2003 amendment merely clarified the law. Were we writing on

a clean slate, the State’s argument would carry considerable weight because Texas has had a

generally applicable conspiracy offense since the nineteenth century. However, we are bound by
controlling precedent that limits the applicability of the penal code’s conspiracy provision to offenses

found within the penal code. Because the conspiracy provision of the penal code did not apply to

making an illegal contribution under the election code at the time of the alleged criminal conduct,

we affirm the district court’s order.


                                          BACKGROUND

                 DeLay was charged in a series of indictments with money laundering,1 conspiring to

commit money laundering,2 and conspiring to make an illegal contribution.3 DeLay filed motions

to quash the counts in the indictments alleging conspiracy to violate the election code, contending

that they failed to state an offense under Texas law. After a hearing, the district court held that

conspiracy to make an illegal contribution was not an offense at the time of the alleged conduct.

Accordingly, the district court granted DeLay’s motions to quash and dismissed the counts alleging

that he conspired to violate the election code.4 The State now brings this interlocutory appeal. See

Tex. Code Crim. Proc. Ann. art. 44.01(a)(1) (West Supp. 2005).


                                            DISCUSSION

                 The issue is whether section 15.02 of the penal code applies to all felony offenses in

any of the laws of Texas or only to offenses defined in the penal code. Although the State recognizes


        1
            Tex. Pen. Code Ann. § 34.02 (West Supp. 2005).
        2
            Id. § 15.02 (West 2003).
        3
            Id.; Tex. Elec. Code Ann. §§ 253.003, .094, .104 (West 2003)
        4
         DeLay also filed motions to quash the counts of the indictment alleging money laundering
offenses. These motions were overruled.

                                                   2
a line of cases generally restricting the application of the penal code’s criminal conspiracy provision

to offenses under the penal code, it asserts that these cases were wrongly decided. See Moore v.

State, 545 S.W.2d 140, 142 (Tex. Crim. App. 1976); Baker v. State, 547 S.W.2d 627, 629 (Tex.

Crim. App. 1977). Alternatively, the State contends that an examination of the case law and the

legislative history of the election code shows that the legislature intended that conspiring to make

an illegal contribution be a crime prior to the 2003 amendment explicitly incorporating the penal

code’s criminal conspiracy provision.


Moore and Baker

               After the enactment of the 1974 penal code, the court of criminal appeals was called

upon to decide the applicability of the criminal attempt and criminal conspiracy provisions found

in chapter 15, title 4, of the penal code to offenses defined by other laws. In Moore v. State, the

defendant was convicted of attempting to obtain a controlled substance by fraud. See 545 S.W.2d

at 141. The underlying offense was a violation of the controlled substances act, and Moore was

convicted of criminal attempt pursuant to section 15.01(a) of the penal code. See id. Moore argued

on appeal that section 15.01(a) of the penal code did not apply because the underlying felony offense

was located in the controlled substances act, not the penal code. Examining the statute, the court of

criminal appeals focused on the provision of the code governing its applicability to offenses found

outside of the penal code. See id. at 142. Section 1.03(b) of the penal code states:


       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 the code.

                                                  3
Tex. Pen. Code Ann. § 1.03(b) (West 2003). The court noted that the general attempt provision of

section 15.01 is contained in title 4 of the penal code, and thus, would not be applied to the

controlled substances act pursuant to section 1.03(b). Moore, 545 S.W.2d at 142. In addition to its

reliance on the fact that title 4 was not made applicable to offenses defined by other laws, the court

of criminal appeals looked to the legislative history of the controlled substances act. The court

explained that the precursor to the controlled substances act contained an attempt provision, but that

the legislature chose to omit that provision when it enacted the new law in 1973. See id. Reasoning

that the legislature could not have relied on the new penal code’s general criminal attempt provision

enacted the following year, the court of criminal appeals concluded that the legislature had intended

to remove any attempt offense from the controlled substances act. See id.5

               Just a year later, the court of criminal appeals considered whether a conviction for

conspiracy to commit an offense under the controlled substances act constituted fundamental error.6

See Baker, 547 S.W.2d at 628. Following Moore, the court reiterated that section 1.03(b) of the

penal code made title 4 of the penal code, including the section 15.02 conspiracy provision,

inapplicable to offenses defined in laws other than the penal code. Accordingly, the court held that



       5
          The court of criminal appeals’ analysis of the criminal attempt statute is consistent with
the historically limited approach to criminal attempt in Texas law. Prior to the enactment of the
penal code in 1974, an attempt to commit an offense was only illegal if the statute defining an
offense included an attempt provision. See Texas Penal Code, A Proposed Revision § 15.01 cmt.
at 132 (Final Draft October 1970) (“Section 15.01 . . . is a general attempt statute that represents a
new approach to the law of attempt in Texas: the offense of criminal attempt is broadened to apply
in conjunction with all of the offenses defined in the Revised Penal Code.”).
       6
          No brief was filed in the case and the court of criminal appeals reviewed the record in the
interests of justice. See Baker v. State, 547 S.W.2d 627, 628 (Tex. Crim. App. 1977).

                                                  4
“the criminal conspiracy provisions set forth in Sec[tion] 15.02, supra, do not apply to the Controlled

Substances Act.” Baker, 547 S.W.2d at 629; see also Dubry v. State, 582 S.W.2d 841, 844 (Tex.

Crim. App. 1979) (“criminal conspiracy and attempt provisions of the Penal Code do not apply to

violations of the Controlled Substances Act”). In Baker, the court of criminal appeals did not discuss

the legislative history of the criminal conspiracy offense to support its holding. See Baker, 547

S.W.2d at 629. Indeed, the discussion of legislative history in Moore would not have bolstered the

holding in Baker. In contrast with the criminal attempt provision, there had been a generally

applicable criminal conspiracy offense continually in place in Texas for ninety years prior to the

enactment of section 15.02. See Act of Feb. 4, 1884, 18th Leg., 1st C.S., ch. 14, § 1, 1884 Tex. Gen.

Laws 25, 25. Therefore, Baker interpreted section 15.02 of the penal code to have imposed a new

limitation on the application of the criminal conspiracy offense.


Stare Decisis

                The State advances several arguments attacking the reasoning behind Moore and its

extension to the criminal conspiracy provision in Baker. Specifically, the State asserts that the plain

language of section 15.02 and the uninterrupted history of a conspiracy offense in Texas undermine

the holdings in Moore and Baker. Citing authority on the limitations of stare decisis, the State

invites us to reexamine this “deficient precedent.” See Ex parte Townsend, 137 S.W.3d 79, 82 (Tex.

Crim. App. 2004); Hammock v. State, 46 S.W.3d 889, 892-93 (Tex. Crim. App. 2001); Malik v.

State, 953 S.W.2d 234, 236 (Tex. Crim. App. 1997).

                The State’s criticism of Moore and Baker is well taken. The holding in Baker was

a marked departure from the generally applicable conspiracy offense that had been on the books for

                                                  5
ninety years. See 1884 Tex. Gen. Laws at 25 (conspiracy applicable to agreement to commit

“murder, robbery, arson, burglary, rape, or any other offense of the grade of felony.”) (emphasis

added). The holding is also inconsistent with the state bar committee on the revision of the penal

code’s comment that section 15.02(a) was intended to “clarify present law without substantial

alteration.” Texas Penal Code, A Proposed Revision § 15.02 cmt. at 137 (Final Draft October 1970).

               Furthermore, the plain language of the statute indicates that it is generally applicable

to any felony. Section 15.02 defines an offense as such:


       (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 perform an overt act in pursuance of the
                agreement.


Tex. Pen. Code Ann. § 15.02. “Felony” is broadly defined by the penal code as “an offense so

designated by law or punishable by death or confinement in a penitentiary.” Id. § 1.07(a)(23) (West

Supp. 2005). A felony offense is “an offense so designated by law,” whether the offense is created

by the penal code, the controlled substances act, or the election code. Id. We find nothing in section

15.02, especially when read in conjunction with the penal code’s broad definition of “felony,” that

suggests a legislative intent to limit conspiracy to offenses found within the penal code.

               It is only through reference to section 1.03(b) of the penal code that the court of

criminal appeals perceived this restrictive intent in applying sections 15.01 and 15.02. See Baker,

547 S.W.2d at 629; Moore, 545 S.W.2d at 142. While section 1.03(b) explicitly speaks to the

                                                  6
applicability of titles 1, 2, and 3 of the penal code, it does not necessarily limit the applicability of

other provisions. See Tex. Pen. Code Ann. § 1.03(b). Moreover, the legislature has created dozens

of felony offenses contained in at least twenty statutory codes.7 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.8

                Regardless of how we might view the application of section 1.03(b), Moore and

Baker are the established precedent of the court of criminal appeals. As an intermediate appellate

court, we lack the authority to overrule an opinion of the court of criminal appeals. See State Oil Co.

v. Kahn, 522 U.S. 3, 20 (1997); In re Smith Barney, Inc., 975 S.W.2d 593, 597 (Tex. 1998) (quoting

‘21’ Int’l Holdings, Inc. v. Westinghouse Elec. Corp., 856 S.W.2d 479, 486 (Tex. App.—San

Antonio 1993, no writ) (Peeples, J., concurring)). It is the prerogative of the court of criminal

appeals alone to overrule its interpretation of a statute. See Kahn, 522 U.S. at 20.9 Baker appears


        7
         See, e.g., Tex. Agric. Code Ann. § 14.072(b) (West 2004); Tex. Alco. Bev. Code Ann.
§ 54.12 (West Supp. 2005); Tex. Bus. & Com. Code Ann. § 35.54(d) (West 2002); Tex. Educ. Code
Ann. § 37.125(b) (West 1996); Tex. Elec. Code Ann. § 253.094(c); Tex. Fam. Code Ann.
§ 261.107(a) (West Supp. 2005); Tex. Fin. Code Ann. § 33.108(c) (West 1998); Tex. Gov’t Code
Ann. § 302.034 (West 2005); Tex. Health & Safety Code Ann. § 481.141(b) (West Supp. 2005);
Tex. Hum. Res. Code Ann. § 35.012(b) (West 2001); Tex. Ins. Code Ann. § 101.106 (West 2005
pamphlet); Tex. Lab. Code Ann. § 418.001(b) (West 2005); Tex. Loc. Gov’t Code Ann.
§ 392.043(d) (West 2005); Tex. Nat. Res. Code Ann. § 85.389(b) (West 2001); Tex. Occ. Code Ann.
§ 204.352(b) (West 2004); Tex. Parks & Wild. Code Ann. § 66.119(d) (West 2002); Tex. Tax Code
Ann. § 152.101(b) (West 2002); Tex. Transp. Code Ann. § 501.151(c) (West 1999); Tex. Util. Code
Ann. § 105.024(b) (West 1998); Tex. Water Code Ann. § 7.155(c) (West 2000).
        8
          Of the twenty statutory codes creating felony offenses, this Court has found only two that
specifically incorporate the penal code’s criminal conspiracy provision. See Tex. Elec. Code Ann.
§ 1.018; Tex. Health & Safety Code Ann. §§ 481.108, 482.005, 483.053, 485.038 (West 2003).
        9
          It is for this reason we must also reject the State’s argument that the method of statutory
construction detailed in Boykin v. State renders the opinions of court of criminal appeals in Moore

                                                   7
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.


Applicability to the Election Code

               As an alternative to its request that this Court directly overrule Baker, the State

contends that the holding in Baker should be limited in application to the controlled substances act.

In fact, the holding in Moore and Baker has only been applied to the controlled substances act and

the language in both cases is limited to that statute. See Dubry, 582 S.W.2d at 844; Baker, 547

S.W.2d at 629; Moore, 545 S.W.2d at 142. The State argues that differences between the legislative

history of the election code and that of the controlled substances act demonstrate that Moore and

Baker are fundamentally distinguishable and their holding should not be extended to the election

code.




and Baker invalid. See 818 S.W.2d 782 (Tex. Crim. App. 1991). The United States Supreme Court
has explained:

        If a precedent of this Court has direct application in a case, yet appears to rest on
        reasons rejected in some other line of decisions, the Court of Appeals should follow
        the case which directly controls, leaving to this Court the prerogative of overruling
        its own decisions.

Rodriquez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989). Although the
more rigorous approach to statutory interpretation discussed in Boykin may have produced a different
outcome in Baker, this does not alter our obligation to follow controlling precedent.

                                                 8
               The State’s argument focuses on the court of criminal appeals’ analysis of the

controlled substances act in Moore. The State asserts that the reasoning in Moore is inapplicable to

this case because the legislative history of the election code differs from that of the controlled

substances act. However, the discussion of legislative history in Moore was not carried forward by

the court of criminal appeals in Baker. See 547 S.W.2d at 629. The Baker court relied solely on its

interpretation of section 1.03(b) of the penal code to limit the applicability of title 4’s conspiracy

provision to offenses found within the penal code. See id. This holding applies with equal force to

any offense found outside the penal code whether in the controlled substance act or the election code.


                                          CONCLUSION

               The district court correctly held that Baker generally limits the application of the

penal code’s criminal conspiracy provision to felony offenses contained in the penal code.

Accordingly, we overrule the State’s issue and affirm the district court’s order.




                                               Bea Ann Smith, Justice

Before Justices B. A. Smith, Puryear and Waldrop

Affirmed

Filed: April 19, 2006

Publish




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