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                       &ITORNEX             GENERAL

                            OF    ?&XKAS

                        Ars-rm,   Texam    78711


                              December 17, 1968

Honorable Stanley C. Kirk                   Opinion No. M-322
District Attorney
Wichita County                              Re:    Constitutionality of
Courthouse                                         Article 1436b, Section
Wichita Falls, Texas                               3, as amended, Vernon's
                                                   Texas Penal Code, Acts
                                                   of the 58th and 60th
                                                   Legislatures
Dear Mr. Kirk:
       In your opinion request you inquire whether the present
Article 1436b, Section 3, as amended, Vernon's Texas Penal Code,
is constitutional?
        In Marney v. State, 168 Tex.Cr. 567, 330 S.W.2d 623 (1960),
the Texas Court of Criminal Appeals held that Section 3 of
Article  1436b, as it then appeared, was clearly an unreasonable
restriction upon the use and enjoyment of a lawful commodity
which is not per se contraband, and it was therefore unconstitu-
tional. Tex. Const. Art. 1, Sec. 19; U. S. Const. Amend. 14,
the "due process clauses".
       During the Fifty-eighth and Sixtieth Legislatures, at
their regular sesaions, Chapter 426, page 1100, and Chapter 269,
page 595, respectively, Article 1436b of Vernon's Texas Penal
Code was amended so that Section 3 of the Article now appears
as follows:
         Section 3:
               "Any person who may be found in any
               county in this state with more than
               one (1) pound of mercury in his
               possession and who has not in his
               possession a bill of sale, or other
               written evidence of title to said
               mercury and is unable to produce
               such evidence without unnecessary
               delay, shall be guilty of a felony,
               and upon conviction thereof, shall
               be confined in the penitentiary for

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Hon. Stanley C. Kirk, Page 2   (M-322)


            a term of not less than one (1) year
            nor more than five (5) years, or
            shall be confined in the county jail
            for not less than ninety (90) days
            nor more than two hundred (200) days,
            or shall be fined not less than One
            Hundred Dollars ($100) nor more than
            Five Hundred Dollars ($500), or both
            such fine and jail imprisonment."
       Section 3 (a):
            "It shall be prima facie evidence
            that a person is illegally in pos-
            session of mercury in excess of
            one (1) pound if at such time he
            does not have in his possession
            a bill of sale or other written
            evidence of title to such mercury
            and is unable to produce such
            evidence without unnecessary
            delay."
       Section 3 (b):
            "It shall be a defense to any charge
            under Section 3 that the person so
            charged show, (1) that he actually
            is engaged in the business of mining
            or processing of mercury, or (2)
            that the mercury is an integral part
            of a tool, instrument, or device
            used by him for a beneficial purpose,
            or (3) that he is an officer dis-
            charging his official duties."
       The present Section 3 of Article 1436b, as amended,
clearly prohibits any person from having more than one
                                                   --P
pound of mercury in his possession without a bill of sa e
or other written evidence of title or without being able
to produce such evidence within a reasonable time when properly
demanded. Furthermore, it provides a complete defense to the
charge for all persons who may show that they are engaged in the
business of mining or processing mercury, or that they possess
the commodity as an integral part of some device which they use
for a beneficial purpose or in connection with their duties, or
that an officer of some entity possesses the mercury in the
discharge of official,duties.

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Hon. Stanley C. Kirk, Page 3   (M-322)



        Under the present statute, it is not a felony per se to
have ,any amount of mercury in your possession, as it was prior
to the amendment. The requirement for anyone having possession
of more than one (1) pound of mercury to produce written evi-
dence of title under the present law is not unreasonable.
Such a statutory pattern finds reason and precedent in similar
time-honored requirements of our statutes for a bill of sale
to accompany the sale or transferof livestock (Art. 6903, 6983,
V.C.S.), and making the absence of such written conveyance
prima facie evidence of illegal possession b the person
charged with the theft of such stock (Art. 1%45, P.C.); also,
in the requiring of certificates,of title for motor vehicles
for the announced purpose of lessenin and preventing the
theft of motor vehicles, etc. (Art. le36-I., P.C.).
       Moreover, under Section 3 (b) the defenses added to
the act to prevent it from imposing unreasonable restrictions
on the use and enjoyment of a definite and substantially
greater quantity of mercury have cured the vice of unreason-
ableness in the original enactment of Section 3.  Our courts
will take common knowledge of the fact that, absent the
defensive possessions permitted by the statute, few persons,
if any, would have occasion to possess legally more than one
(1) pound of mercury and be unable to produce written evidence
of title without unnecessary delay.
       In Ex parte Hensley 162 Tex.Cr. 348, 285 S.W.2d 720
119561. the Court decided Chat a statute which is held to be
unconstitutional did not lose its existence for purposes of
amendment; that the amended statute might operate in the
future if it were made to conform to the constitutional re-
quirements.
       Section 3 (a), providing that it shall be "prima facie
evidence" that a person is illegally in possession when he
cannot produce written evidence of title without unnecessary
delay, is not unreasonable. Our courts have held that in
prosecutions for possession of whiskey in a dry area, the
state may make out a prima facie case upon a showing that
the defendant possessed a sufficient quantity of whiskey to
raise a oresumotion thathe                         n vlola-
tion of the law. Shawhartv: State, 163 Tex.Cr. 199, 289
S.W.2d 601       ; Templin v. State, 167 Tex.Cr. 605, 321
S.W.2d 877       . While liquor possessed for sale in a
dry area is.contraband, its mere possession there is not
unlawful.



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Hon. Stanley C. Kirk, Page 4    (M-322)


       The law requiring the sale or transfer of livestock
to be accompanied by a written bill of sale, absent which is
prima facie evidence of illegal ossession by one accused of
theft of any such animal (Art. 1E45, P.C.), presents a very
close analogy. It was early held by our state Supreme Court
that this act regulating the sale of livestock was not render-
ed unconstitutional by reason of its provision that the ab-
sence of a written conveyance shall be prima facie evidence
of illegal possession on trial of right of property or a
charge of theft of such livestock. 2. Faith v. State, 32
Tex. 355 (1869 . In any event, the provisions of Section 3
of Article 143ib are not dependent upon the validity of
Section 3 (a) thereof.
       Therefore, since a court will presume the validity
of the statute and resolve any doubt in favor of validity
(16 Tex.Jur.2d 93, Criminal Law, Sec. 4), it is the opinion
of this office that any person having possession of more
than one (1) pound of mercury is properly on notice of the
requirement to produce the written evidence of title or
else qualify under one of the three defenses stated in
Section 3 (b). The statute, as amended, in constitutional.
However, it is cautioned that an abstract charge upon the
provisions of Sec. 3 (a) of said statute in regard to
prima facie evidence of guilt might be erroneous under the
reasoning set out in Reed v. State, 113 Cr.R. 366, 21 S.W.2d
684 (1929).
       The statute, as amended, in constitutional.

                      SUMMARY
            Article 143613,Vernon's Texas Penal
            Code, as amended by the Legislature,
            is constitutional and does not im-
            pose an unreasonable restriction
            on the use or enjoyment of mercury
            as a lawful commodity.




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Hon. Stanley C; Kirk, Page 5   (M-322)


Prepared by Robert Darden
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kern8 Taylor, Chairman
R. L. Lattimore
0. J. Floyd
James Elder
John Grace
Hawthorne Phillips
STAFF LEGAL ASSISTANT




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