Affirmed and Substitute Opinion on Rehearing filed July 18, 2013.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-12-00877-CR


                 EX PARTE RICHARD DEWAYNE JONES

                   On Appeal from the 405th District Court
                          Galveston County, Texas
                     Trial Court Cause No. 11-CR-3416


   SUBSTITUTE OPINION ON REHEARING

      We issued our original opinion in this case on June 11, 2013. Thereafter,
appellant filed a motion for rehearing. We deny appellant’s motion for rehearing,
withdraw our previous opinion, vacate our previous judgment, and issue this
substitute opinion on rehearing and a new judgment.

      Appellant is charged with evading arrest–use of vehicle, a third-degree
felony. See Tex. Penal Code Ann. § 38.04 (West Supp. 2012). In a pre-trial
application for writ of habeas corpus, appellant argued he is illegally restrained
because the legislative bill which amended punishment for his offense violated the
“single-subject rule” of the Texas Constitution. See Tex. Const. art. III, § 35.
Specifically, appellant contends that, because the subject of Senate Bill 1416 (“SB
1416”) was tire deflation devices, the inclusion of an additional subject in the
bill—amending punishment for evading arrest–use of vehicle—violated the single-
subject rule. The trial court denied appellant’s application, and appellant filed this
accelerated appeal. See Tex. R. App. P. 31.2. We affirm.

             PRE-TRIAL APPLICATION FOR WRIT OF HABEAS CORPUS

A. Standard of Review

      We review for abuse of discretion a trial court’s decision to grant or deny an
application for writ of habeas corpus. Phuong Anh Thi Le v. State, 300 S.W.3d
324, 327 (Tex. App.—Houston [14th Dist.] 2009, no pet.). The trial court has no
discretion to analyze the law incorrectly; thus, when the trial court’s ruling turns on
the constitutionality of a statute, we review the ruling de novo. See Rivera v. State,
363 S.W.3d 660, 666 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (reviewing de
novo trial court’s ruling on pretrial application for writ of habeas corpus in which
accused asserted ordinance was unconstitutional). When the constitutionality of a
statute is challenged, we presume the statute is valid. Rodriguez v. State, 93
S.W.3d 60, 69 (Tex. Crim. App. 2002). The burden rests upon the individual who
challenges the statute to establish its unconstitutionality. Id.

B. Single-Subject Rule

      The Texas Constitution contains the following single-subject rule:

      (a) No bill, (except general appropriation bills, which may embrace
      the various subjects and accounts, for and on account of which
      moneys are appropriated) shall contain more than one subject.
      (b) The rules of procedure of each house shall require that the subject

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      of each bill be expressed in its title in a manner that gives the
      legislature and the public reasonable notice of that subject. The
      legislature is solely responsible for determining compliance with the
      rule.
      (c) A law, including a law enacted before the effective date of this
      subsection, may not be held void on the basis of an insufficient title.

Texas Const. art. III, § 35.

      The purpose of the single-subject rule is to prevent log-rolling—the
inclusion in a bill of several subjects having no connection with each other in order
to create a combination of various interests in support of the whole bill. LeCroy v.
Hanlon, 713 S.W.2d 335, 337 (Tex. 1986). A bill satisfies the rule, “even if it
contains numerous provisions, however diverse, as long as these provisions relate
directly or indirectly to the same general subject and have a mutual connection.”
Id.; Dudley v. State for Dudley, 730 S.W.2d 51, 53 (Tex. App.—Houston [14th
Dist.] 1987, no writ).

C. Analysis

      Appellant correctly notes that, as originally introduced in March 2011, SB
1416 did not contain any revisions to the evading arrest statute:

                           A BILL TO BE ENTITLED
                                      AN ACT
      relating to the creation of the offense of possession, manufacture,
      transportation, repair, or sale of a tire deflation device; providing
      criminal penalties.
             BE IT ENACTED BY THE LEGISLATURE OF THE STATE
      OF TEXAS:
             SECTION 1. Section 46.01, Penal Code, is amended by adding
      Subdivision (17) to read as follows:
                    (17) “Tire deflation device” means a device, including a
      caltrop or spike strip, that, when driven over, impedes or stops the
      movement of a wheeled vehicle by puncturing one or more of the
      vehicle’s tires.

                                          3
              SECTION 2. Section 46.05, Penal Code, is amended by
       amending Subsection (a) and adding Subsection (b-1) to read as
       follows:
              (a) A person commits an offense if the person [he]
       intentionally or knowingly possesses, manufactures, transports,
       repairs, or sells:
                     (1) an explosive weapon;
                     (2) a machine gun;
                     (3) a short-barrel firearm;
                     (4) a firearm silencer;
                     (5) a switchblade knife;
                     (6) knuckles;
                     (7) armor-piercing ammunition;
                     (8) a chemical dispensing device; [or]
                     (9) a zip gun; or
                     (10) a tire deflation device.
              (b-1) It is a defense to prosecution under this section that the
       actor’s conduct was incidental to dealing with a tire deflation device
       solely for the purpose of making the device available to an
       organization, agency, or institution listed in Subsection (b).
              SECTION 3. This Act takes effect September 1, 2011.

SB                     1416                      (introduced                       version),
http://www.capitol.state.tx.us/tlodocs/82R/billtext/html/SB01416I.htm (last visited
July 2013).1 Nothing in the introduced version of SB 1416 refers to evading arrest,
use of a vehicle, or Penal Code section 38.04.

       However, SB 1416 was amended in May 2011 and ultimately approved and
signed into law to include the following modifications to section 38.04:

             [SECTION 3. Subsections (b) and (c), Section 38.04, Penal
       Code, are amended to read as follows:]
             (b) An offense under this section is a Class A misdemeanor,
       except that the offense is:
                     (1) a state jail felony if[:

       1
        Proposed text is underlined, and proposed deletions are struck through and surrounded
by brackets.

                                             4
                      [(A)] the actor has been previously convicted
under this section; [or
                      [(B) the actor uses a vehicle while the actor is in
flight and the actor has not been previously convicted under this
section;]
              (2) a felony of the third degree if:
                      (A) the actor uses a vehicle while the actor is in
flight [and the actor has been previously convicted under this section];
[or]
                      (B) another suffers serious bodily injury as a
direct result of an attempt by the officer from whom the actor is
fleeing to apprehend the actor while the actor is in flight; or
                      (C) the actor uses a tire deflation device against
the officer while the actor is in flight; or
              (3) a felony of the second degree if:
                      (A) another suffers death as a direct result of an
attempt by the officer from whom the actor is fleeing to apprehend the
actor while the actor is in flight; or
                      (B) another suffers serious bodily injury as a
direct result of the actor’s use of a tire deflation device while the actor
is in flight.
        (c) In this section:
              (1) “Vehicle”[, “vehicle”] has the meaning assigned by
Section 541.201, Transportation Code.
              (2) “Tire deflation device” has the meaning assigned by
Section 46.01.
        [SECTION 4.] Section 38.04, Penal Code, as amended by this
Act, applies only to an offense committed on or after the effective
date of this Act. An offense committed before the effective date of
this Act is governed by the law in effect on the date the offense was
committed, and the former law is continued in effect for that purpose.
For purposes of this section, an offense was committed before the
effective date of this Act if any element of the offense occurred before
that date.




                                    5
SB                                   1416                                    (amendment),
http://www.capitol.state.tx.us/tlodocs/82R/amendments/html/SB01416H21.htm
(last visited July 2013).2

       Therefore, in the enacted version of SB 1416, section 38.04 was amended to
include certain uses of a tire deflation device as third- and second-degree-felony
forms of evading arrest. Additionally, section 3 amended the third-degree-felony
form of evading arrest–use of vehicle by removing the requirement that the
defendant must have been previously convicted under section 38.04.

       We agree with appellant that the enacted version of SB 1416 did not pertain
solely to criminalizing possession of tire deflation devices. Nevertheless, liberally
construing the bill in favor of constitutionality, we conclude the overarching
subject of the bill was criminal offenses related to vehicles. As the device name
suggests, the Legislature decided to criminalize possession of tire deflation devices
because individuals use the devices to stop vehicles. The Legislature also decided
to address other vehicle-related offenses, namely evading arrest–use of vehicle and
evading arrest–use of tire deflation device. The common theme of these topics is
criminal behavior related to vehicles—behavior that has recently become more
problematic in South Texas. See SB 1416 (bill analysis for introduced version),
http://www.capitol.state.tx.us/tlodocs/82R/analysis/html/SB01416I.htm                   (last
visited July 2013) (“Recently, law enforcement officials in South Texas, when in
pursuit of suspects, have had to deal with the suspects throwing ‘tire deflation
devices’ at law enforcement officials’ vehicles and then evading arrest as a
result.”). We hold that the provisions of SB 1416 “relate directly or indirectly to
the same general subject and have a mutual connection.” LeCroy, 713 S.W.2d at

       2
        Proposed text is underlined, and proposed deletions are struck through and surrounded
by brackets.

                                             6
337; see also Dellinger v. State, 28 S.W.2d 537, 539 (Tex. Crim. App. 1930)
(“[W]here the provisions are germane in any degree, the law will be upheld.”).3

       Appellant relies on the Court of Criminal Appeals’s decision in White v.
State. 440 S.W.2d 660 (Tex. Crim. App. 1969). In White, the title of a bill stated
the bill’s purpose was to add certain drugs to the list of “dangerous drugs” but did
not mention the bill was amending penalty provisions of the Dangerous Drug Act.
Id. at 662–63. The White court held the title did not afford readers of the bill fair
notice that penalty provisions were being amended and thus violated article III,
section 35. Id. at 665–67. The holding in White is not instructive here because it
was based on the title-sufficiency rule of article III, section 35, not on the single-
subject rule. Article III, section 35 was amended in 1986 and no longer authorizes
courts to declare a bill is void based on the title-sufficiency rule. See Tex. Const.
art. III, § 35(c); Baggett v. State, 722 S.W.2d 700, 701–02 (Tex. Crim. App. 1987)
(“[A]s a result of the recent amendment this Court no longer has the power to
declare an act of the legislature unconstitutional due to the insufficiency of its
caption.”); Dudley, 730 S.W.2d at 53 (same).

       Appellant also cites State Board of Insurance v. National Employee Benefit
Administrators, Inc., in which the Third Court of Appeals concluded a bill violated
the single-subject rule, recognizing the bill’s title referred to “third party
administrators” and “nonprofit subscription programs” as distinct concepts by
separating the phrases with the conjunction “and.” 786 S.W.2d 106, 109 (Tex.
App.—Austin 1990, no writ). The court also noted sections 1 through 3 of the bill

       3
          Appellant argues the portions of SB 1416 pertaining to punishment changes for evading
arrest were part of a separately introduced bill that failed. He also notes that, when discussing
SB 1416, legislators mentioned the importance of prohibiting tire deflation devices but did not
express concerns about evading arrest by using a vehicle. However, even if correct, these facts
are irrelevant in our single-subject rule analysis because the common subject of SB 1416’s
provisions is offenses related to vehicles.

                                               7
pertained solely to “third party administrators” whereas section 4 pertained solely
to “nonprofit subscription programs.” Id. We decline to follow State Board of
Insurance. As explained in the previous paragraph, we may not void an act for
title deficiencies. Additionally, the State Board of Insurance court determined the
bill’s sections contained separate subjects because administrative rules were
promulgated under the three related sections but not the unrelated section, and the
unrelated section became effective on a different date. Id. at 109–10. Neither of
these factors is present in our case.

      Accordingly, we overrule appellant’s sole issue and affirm the trial court’s
denial of appellant’s pre-trial application for writ of habeas corpus.




                                        /s/       John Donovan
                                                  Justice



Panel consists of Justices Frost, Boyce, and Donovan.
Publish — Tex. R. App. P. 47.2(b).




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