The state prosecuting attorney has joined the Travis County District Attorney in filing a motion for rehearing in the Tom DeLay case. (The lead defendant is actually John Colyandro.) The current status of the case is that the Court of Criminal Appeals threw out the conspiracy indictment against DeLay and his codefendants Colyandro and John Ellis. The decision was even closer than the 5-4 margin appeared, because one of the judges who joined the majority, Tom Price, agreed with the legal reasoning in the dissenting opinion by Cathy Cochran but declined to apply it to the DeLay case because it would have overruled a longstanding (though much criticized) precedent and thus violated the defendants’ right to due process by changing the law ex post facto.

This is a significant development. The office of the state prosecuting attorney represents the state before the Court of Criminal Appeals, just as district attorneys represent the state in district courts. In addition to handling oral arguments before the Court, the office enters cases of jurisprudential significance as amicus curiae. Apart from its political significance, the DeLay case has jurisprudential significance because the holding by the majority reaches the curious conclusion that the state’s general conspiracy statute does not apply to crimes that are not enumerated the Penal Code. DeLay’s alleged offense with regard to count one of the indictment was to conspire to violate the Election Code in the 2002 election. At the time, conspiracy to violate the Election Code was not a specific crime; the Legislature changed the law in 2003 to add conspiracy to the Election Code. Of course, DeLay could not be convicted of violating a statute that did not exist at the time of his offense.

However, Travis County DA Ronnie Earle took the position that the general conspiracy statute, which has been on the books for more than a century, applied to DeLay’s conduct in the 2002 elections. In rejecting this argument, the Court applied Section 103(b) of the Penal Code: “[T]he provisions of Titles 1, 2, and 3 apply to offenses defined by other laws [that is, those outside the Penal Code], unless the statute provides otherwise….” Titles 1, 2, and 3 of the Penal Code are general provisions; Titles 4-11 define crimes. Since the general conspiracy statute is in Title 4, the Court said it did not apply to Election Code violations. This meant that DeLay could be prosecuted for violating the Election Code, but not for conspiring to violate the Election Code. This has serious public policy implications, because the Legislature in recent years has created more and more felonies that are not included in the Penal Code. Many of them are white collar crimes–for election violations, for environmental violations, and other socially undesirable conduct. The Court’s ruling in the DeLay case makes prosecution for conspiracy off limits for all of these crimes, unless the statute specifically makes conspiracy a crime.

In order to reach this result, the majority relied on Moore v. State, one of two similar cases from the 1970s. Both involved violations of the Controlled Substances Act. Moore had challenged his conviction for criminal attempt to acquire a controlled substance by fraud. He argued, and the Court agreed, that Section 103(b) of the Penal Code should be read to say that ONLY (emphasis added) Titles 1, 2, and 3 applied to offenses outside the Penal Code. Since the offense of criminal attempt was in Title 4, it could not be applied to the Controlled Substances Act. A second case, Baker v. State, reached the same conclusion about a conviction for conspiracy to sell marijuana.

The Moore and Baker decisions drew vigorous dissents when they were first announced, as did the decision in the DeLay case. The dissenters argued that Moore misinterpreted 103(b) by reading “only” into a statute in which that word did not appear. Critics of the Moore and Baker decisions argue that the interpretation of the statute in those cases, perpetuated by the DeLay decision, is totally without foundation. Here is what the state prosecuting attorney says in his brief:

[T]he plain language of Sec. 103(b) does not render Title 4 of the Penal Code inapplicable to offenses defined outside the Penal Code. That section does not read, ‘The provisions of Title 4 do not apply to offenses defined by other laws,'” which would be the normal way to say what the Court in Moore inferred….”The majority opinion incorrectly views Sec. 103(b) as a statute of…exclusion, which is the very opposite of what the plain meaning of the statute provides. All the statute does on its face is to include Titles 1, 2, and 3 [in laws outside the Penal Code]. It does not mention Title 4 or any subsequent title.”

When the state prosecuting attorney says that the plain language of Section 103(b) does not render Title 4 of the Penal Code inapplicable to offenses defined outside the Penal Code, he means this: The general conspiracy statute in Title Four applies to all felonious conduct. If two or more people agree to engage in conduct that violates any statute, they have entered into a criminal conspiracy, regardless of whether the crime was defined inside or outside the Penal Code. “The provisions of the Election Code were imported into Penal Code Sec. 15.02,” [the general conspiracy statute] wrote the state prosecuting attorney in his brief. “The provisions of Sec. 15.02 were not exported to the Election Code.”

I believe that the state prosecuting attorney is correct, on both legal and policy grounds. However, one other issue that led the Court to throw out the conspiracy indictment against DeLay must be addressed: whether, by overruling the Moore and Baker cases, the Court is changing the law after the alleged crime was committed, thereby violating the due process rights of DeLay and his codefendants.

Tom Price was the swing vote in the DeLay case, and although he agreed with Cathy Cochran’s analysis of the law, he joined the majority because of due process concerns. This is what he said in his concurring opinion:

“Were we writing on the proverbial pristine slate, construing the
statutory scheme for the first time, I would be persuaded by Judge Cochran’s
dissenting opinion to a different view. She makes a compelling case
why Moore and Baker were wrongly decided. But, in the final analysis, it
should take more than an argument … that precedent is wrong to
justify overruling it…. This is especially true … with respect to
construing penal provisions, in which context the necessity for notice and
predictability is paramount. The holdings of Moore and Baker are not so
unreasonable and outlandish that we should have expected [DeLay] to
realize that they could not rely upon them in gauging the lawfulness of
their conduct.”

The state prosecuting attorney addresses this argument in his amicus curiae brief in support of the state’s motion for rehearing:

The concurring opinion[s]…express concern that Baker and Moore were the law at the time the defendants engaged in the conduct for which they were indicted, and that retroactive application of a contrary and more expansive interpretation of the conspiracy statute would violate the defendants’ right to fair warning of what constitutes criminal behavior….

But we must recognize that criminal conspiracy is a different nature of offense than most criminal offenses in the sense that an element of the conspiracy offense is a separate object offense….So, one does not enter into an agreement that constitutes a violation of Sec. 15.02 [the conspiracy statute] for the mere sake of the agreement itself. One does so only with intent that the object felony offense ultimately be committed.

Therefore, all of the notice and fair warning that should be necessary for a person who engages in conduct that constitutes criminal conspiracy is notice that the agreed-upon, intended ultimate conduct constitutes a criminal offense.”

The example that the state prosecuting attorney gives is burglary. “If two individual agree to commit a burglary, and one or both perform overt acts in pursuance of the agreement, the fact that the two individuals have fair warning that burglary constitutes criminal conduct should be all that is constitutionally required to also give them fair warning that the conspiracy is an agreement and an intent to ultimately engage in criminal conduct.” In short, no one enters into a conspiracy to violate the conspiracy statute. They enter into a conspiracy to commit a particular criminal act that they should have reason to know is illegal.

Buttressing his argument, the state prosecuting attorney cites Lomax v. State, a case decided on the same day as the DeLay case. The Court ruled that a felony DWI could be the underlying felony offense in a prosecution for felony murder. The court overruled a portion of its holding in a prior case to reach this result, saying that its new construction did not violate due process, because the felony-murder statute “unambiguously apprises an ordinarily intelligent person, with two prior felony convictions and two prior DWI convictions that he could be convicted an sentenced to 55 years in prison if he causes the death of a person during the commission of a DWI.” He had fair notice.

The state prosecuting attorney ends his brief with this dramatic statement: “If Lomax had fair warning, so did Colyandro, Ellis, and DeLay.”

Motions for rehearing are always longshots. But the Court’s reasoning in the original Moore and Baker cases was so flawed, and the potential policy repercussions of tying the state’s hands in conspiracy prosecutions are so serious, and the argument that the change of law in the Lomax case did not violate the defendant’s right to fair notice is so sound, and the margin in the first case was so narrow, that the motion for rehearing has a better chance than most of being granted.