Franks v. State of Texas ( 1985 )

TEAGUE, Judge,

dissenting.

In part, Art. 21.09, V.A.C.C.P., expressly provides that “If the property be real estate, its general locality in the county, and the name of the owner, occupant or claimant thereof, shall be a sufficient description of the same.” I believe that to any intelligent person this statute is clearly written and its wording or meaning should not be subject to debate. Indeed, over 70 years ago, in Haworth v. State, 74 Tex.Cr.R. 488, 168 S.W. 859 (Tex.Cr.App.1914), this Court held that a motion to quash the indictment in that cause should have been sustained because the indictment, which attempted to allege the offense of entering upon land owned by the County of Commanche and removing therefrom earth and sand without lawful consent, failed to describe the alleged real estate by showing in what part of the county the property could be found. Also see Lane v. State, 621 S.W.2d 172 (Tex.Cr.App.1981).

Today, however, a majority of this Court not only rewrites the statute but redefines the legal term “real estate,” by stating, without any supporting lawful authority, or any meaningful legal discussion, that “Art. 21.09 applies to real estate alleged qua object of the offense, but not to real estate alleged only qua situs of the offense.”

When most, but, of course, not all, of us attended law school and studied the law of real estate or real property, we were taught that the term “real estate” is usually defined to mean the following: “Land and anything permanently affixed to the land, such as buildings, fences, and those things attached to the buildings, such as light fixtures, plumbing and heating fixtures, or other such items which would be personal property if not attached.” 1137 Black’s Law Dictionary (1979 Edition). Thus, that part of the statute, which states that “[i]f the property be real estate,” simply means that if the gist of the offense concerns some type of “real estate,” “its general locality in the county” should be stated in the indictment, and, if it is not stated therein, the indictment is subject to a motion to quash for failure to give the accused notice of the accusation.

I have spent several hours going through many legal works that discuss the law of real estate or real property, including legal works that go back to the Common Law, and have yet to find such phrases as “real estate qua object of the offense” or “real estate qua situs of the offense,” which the majority uses in its opinion. Nor does the majority cite any authority where one might find such phrases.¹

I do not believe that appellate court judges are entitled or empowered to disagree with what the Legislature has clearly mandated. But to write a legal opinion that does what only the Legislature is empowered to do is not acting judicially, but, in fact, is acting legislatively. In reaching what to many might appear to be an acceptable result, the majority usurps the function of the Legislature, and poaches upon territory that is Constitutionally reserved for another branch of our Government-the Legislature. This is not only impermissible, it is unlawful assumption of power that this Court does not have the right to assume.

Therefore, I respectfully dissent not only to the erroneous holding the majority makes in this cause, but to the wound that it inflicts upon the law of real estate or real property.

1 . Nor have I found such phrases described in any treatises on Criminal law.