
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 
NO. 2-03-442-CR
  
  
DAVID 
WAYNE SHAW                                                           APPELLANT
  
V.
  
THE 
STATE OF TEXAS                                                                  STATE
 
 
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FROM 
COUNTY CRIMINAL COURT NO. 7 OF TARRANT COUNTY
 
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OPINION
 
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        The 
trial court convicted Appellant of failure to identify to a peace officer and 
sentenced him to 120 days’ confinement and a $500 dollar fine. Appellant 
brings a single point on appeal, arguing that the trial court erred in denying 
his motion to dismiss and objection to the trial court’s jurisdiction because 
Section 38.02 of the Texas Penal Code violates Article IV, Section 21 of the 
Texas Constitution. Because we hold that the trial court did not err, we affirm 
the trial court’s judgment.
        On 
February 28, 2003, Appellant was a passenger in a car stopped by Officer 
Ferguson. Ferguson testified that he stopped the car because Appellant was 
holding a child that should have been in a seat belt or a car seat. When 
Ferguson asked Appellant for his name, Appellant replied that it was Jason 
Willett. Ferguson was unable to confirm the identification. After Officer Harris 
received consent to search the driver’s purse, he found Appellant’s wallet 
containing his driver’s license in the purse and gave it to Ferguson. Ferguson 
then learned that there was a warrant for Appellant on a parole violation, and 
he arrested Appellant.
        On 
April 28, 2003, Appellant was charged with the offense of failure to identify to 
a peace officer. On June 12, 2003, Appellant filed his pro se motion to dismiss 
on the ground that the court did not have jurisdiction. The trial court denied 
the motion on the same day. At trial, Appellant pled not guilty, waived a jury, 
was found guilty, and was sentenced to 120 days in the Tarrant County Jail.
        Appellant 
argues that the statute providing the elements of failure to identify, section 
38.02 of the Texas Penal Code, is unconstitutional.1  
He contends that although Article IV, Section 21 of the Texas Constitution 
requires the secretary of state to validate all laws,2 
the Texas Penal Code does not contain the required authentication from the 
secretary of state.
        As 
the State points out, the statute in effect at the time of the offense was last 
amended in 1993,3 when the entire Texas Penal Code 
was amended and reenacted. As the State also points out, the Amarillo Court of 
Appeals has addressed the authentication issue in a case transferred by this 
court.4  In Kent v. State, the issue involved 
the driving while intoxicated statute.5  The Kent 
court provided that the required authentication from the secretary of state 
appears “on page II of volume three of the Texas General and Special Laws 
enacted by the 73rd Legislature.”6  
As the State has pointed out and we have confirmed, the statute in effect at the 
time of the offense before us also appears in that volume of session laws.7
        Additionally, 
the First Court of Appeals addressed the authentication requirement in Murphy 
v. State.8  As the Murphy court 
explained, other than the publication of session laws, Texas does not publish an 
official set of its laws similar to the United States Code.9  
Consequently, the secretary of state no longer certifies contents of the 
unofficial annotated statutes and codes published by the West Group, commonly 
known as “Black Statutes.”10  For this 
reason, the required certification appears not in the Black Statutes but in the 
session laws.11  Further, there is no 
requirement that individual codes, such as the penal code, be separately 
authenticated by the secretary of state.12
        Based 
on the above reasoning, we hold that the absence of the secretary of state’s 
certification from the Texas Penal Code does not render section 38.02 
unconstitutional.  The trial court therefore properly denied Appellant’s 
motion to dismiss and objection.  Consequently, we overrule Appellant’s 
sole point and affirm the trial court’s judgment.
  
  
                                                                  LEE 
ANN DAUPHINOT
                                                                  JUSTICE
  
  
PANEL B:   DAUPHINOT, 
GARDNER, and WALKER, JJ.
PUBLISH
DELIVERED: 
August 12, 2004

 
NOTES
1.  
See Act effective September 1, 1994, 73rd Leg., R.S., ch. 900, 
§ 1.01, 1993 Tex. Gen. Laws 3586, 3666 (amended 2003) (current version at Tex. Penal Code Ann. § 38.02 (Vernon 
Supp. 2004)).
2.  
Tex. Const. art. IV, § 21.
3.  
Act effective September 1, 1994, 73rd Leg., R.S., ch. 900, § 1.01, 
1993 Tex. Gen. Laws 3586, 3666 (amended 2003) (current version at Tex. Penal Code Ann. § 38.02).
4.  
Kent v. State, 982 S.W.2d 639 (Tex. App.—Amarillo 1998, pet. ref’d).
5.  
See Tex. Penal Code Ann. § 
49.04.
6.  
982 S.W.2d at 640.
7.  
Act effective September 1, 1994, 73rd Leg., R.S., ch. 900, § 1.01, 
1993 Tex. Gen. Laws 3586, 3666 (amended 2003) (current version at Tex. Penal Code Ann. § 38.02).
8.  
95 S.W.3d 317 (Tex. App.—Houston [1st Dist] 2001, pet. ref’d).
9.  
Id. at 322 n.4.
10.  
Id.
11.  
Id.
12.  
Id. at 321.
