Fogo v. State

ELLIS, Justice,

dissenting.

Finding myself in disagreement with the majority members of the panel, I record my respectful dissent. I would find that the Election Code does not clearly state that the giving of a political contribution, in one reporting period, in cash, in excess of one hundred dollars ($100) is a crime; therefore, it is unconstitutionally vague. I would order the trial court to enter an order dismissing the indictment.

This is an appeal from a conviction for making a political contribution in one reporting period, in cash, to an office holder in excess of $100.00 for which appellant received a $250.00 fine.

In his first point of error, appellant asserts the court erred in failing to grant his Motion to Quash the indictment charging him with knowingly making a contribution in cash to an office holder in excess of one hundred dollars in a reporting period. Appellant contends no specific statute clearly and expressly prohibits such a contribution and thus the statute is unconstitutionally vague. In his second point of error, appellant submits the court erred in failing to grant his Motion to Quash the indictment because knowingly making a cash contribution to an office holder in excess of $100.00 is not an offense under the laws of Texas.

The indictment in this case was derived by combining two sections of the Election Code, to wit, Sec. 253.003(a) and Sec. 253.-033 (Vernon Supp.1990). Section 253.003 of the Election Code provides in part: “(a) A person may not knowingly make a political contribution in violation of this chapter ...” Section 253.033 of the Election Code provides, in part: “A candidate, office holder, or specific-purpose committee may not knowingly accept from a contributor in a reporting period political contributions in cash that in the aggregate exceed $100.00

Nowhere in either section of the Texas Election Code is it clearly stated that the giving of a contribution in excess of $100.00 cash constitutes a violation of the statute. There is no express prohibition in the Election Code against an individual donating to a candidate for office a sum in cash exceeding $100.00.

The Legislative history of the attempt by the State to regulate political campaigning as it relates to this matter is summarized as follows:

1) Title 50, Revised Civil Statutes of 1925, contained no prohibition against a cash contribution to a candidate exceeding $100.00.

2) The Texas Election Code of 1951 was enacted by the 52nd Legislature, Ch. 492, and that particular Election Code contained Sections 14.03(a) and 14.-03(b).

Section 14.03(a) prohibited the giving of a “single political contribution in cash that exceeded $100.00” to a candidate. The latter section prohibited the receipt of a similar contribution.

3) In 1975, the 64th Legislature repealed Article 14.03 along with several other articles, and it ceased to be a criminal violation to give or receive a cash contribution exceeding $100.00 to a candidate after 1975.

4) The Legislature, in 1981, apparently-realized that there was no prohibition against a candidate receiving cash contributions up to any sum, amended Article 14.01, known earlier as Section 237(a) of the Texas Election Code, and made it “Unlawful for a person except a general purpose political committee to accept a single contribution from a person in the form of cash that exceeds $100.00.” The 67th Legislature did not make it an offense to give a cash contribution in excess of $100.00, but rather only to receive such a contribution.

5) In 1985, the 69th Legislature, Chapter 211, Section 8, effective January 1, 1986, transferred to the Election Code, Sections 14.01 to 14.07c, and in the “transfer”, renumbered these sections 251.001 and 251.014.

In the transfer, the prohibition involving a cash contribution was and is still located in 251.004, wherein it is made “unlawful for a person except a general purpose political committee to accept a single contribution from a person in the form of cash that exceeds $100.00.”

6) Subsequently, in 1987, the 70th Legislature enacted Section 253, entitled “Restrictions on Contributions and Expenditures”. In this section several redundant articles are found that duplicate restrictions and requirements found in other portions of the Election Code. Essentially, the 70th Legislature provided in Section 253.033 that “a candidate, office holder or specific/purpose committee may not knowingly accept from a contributor in a reporting period political contributions in cash that exceed $100.00.”

In moving this prohibition from § 251.004 to § 253.033, the Legislature did not expressly adopt the old language of Article 14.03(a), prohibiting the making of a contribution, but rather only made it an offense to receive a cash contribution in excess of $100.00. The only other modification was the addition of the requirement that in each reporting period a candidate may receive up to $100.00 in cash.

By adding the exceptions covering each reporting period, it is apparent why the Legislature did not make it an offense for an individual to give more than $100.00 in cash in such time frames. Since there are potentially six or eight different reporting periods for each candidate, depending on whether the candidate is opposed or unopposed, an incumbent or non-incumbent, it would be impossible for a contributor to know when each reporting period commenced and ended for each candidate.

It was the purpose and intent of the Legislature to clearly place the burden of conducting campaign financing in a fair and equitable manner on the candidate and not attempt to pass this burden onto the general public.

To infer criminal liability when no clear and specific prohibition exists violates the foundation of our law. A statute which “either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application,” fails to meet the standards required by due process of law. Connolly v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926).

Art. I Sec. 10 of the Texas Constitution (Vernon 1955) provides that the accused shall have the right to know the nature of the accusation against him; Art. I Sec. 19 of the Texas Constitution (Vernon 1955) provides that no citizen of this State shall be deprived of life liberty, property, privileges or immunities, except by the due course of the law of the land. The Fourteenth Amendment to the United States Constitution provides that no state may deny a person life, liberty or property without due process of law.

Texas courts have consistently followed the rule laid down by the Supreme Court of the United States that “a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must guess as to its meaning and differ as to its application lacks the first essential of due process of law.” Ex parte Chernosky, 153 Tex.Cr.R. 52; 217 S.W.2d 673 (1949); See Ex parte Wilmoth, 125 Tex.Cr.R. 274; 67 S.W.2d 289 (1933); State v. Shoppers World, Inc., 380 S.W.2d 107 (Tex.1964).

I find that there is no statute that clearly and specifically forbids the action of the State. Therefore, the indictment is unconstitutionally vague and the conduct alleged is not an offense under the Penal Statutes of the State of Texas. Accordingly, the trial court erred in not granting the Motion to Quash the indictment.

I would sustain appellant’s points of error one and two and order the trial court to enter an order dismissing the indictment.