Second Court of Appeals

Summaries of Civil Opinions and Published Criminal Opinions Issued - Week of August 01, 2016.

NOTE: Summaries are prepared by the court's staff attorneys and law clerks for public information only and reflect his or her interpretation alone of the facts and legal issues. The summaries are not part of the court's opinion in the case and should not be cited to, quoted, or relied upon as the opinion of the court.

Links to full text of opinions (PDF version) can be accessed by clicking the cause number.

State v. Empey, No. 02-14-00407-CR (Aug. 4, 2016) (Livingston, C.J.; Dauphinot, J., dissents with opinion; Sudderth, J., concurs with opinion).

Held:  Section 31.03(e)(4)(F) of the Texas Penal Code, which makes theft of certain metals a state jail felony (when the theft might otherwise constitute a less serious offense when measured by the value of the metals), is not facially unconstitutional merely because a prosecutor may choose between pursuing alternative but clearly defined penalties that may apply to the same act of theft.

Dissent:  Section 31.03(e)(4)(F) of the penal code is facially unconstitutional and void for vagueness because it does not provide adequate notice to citizens of the forbidden conduct or sufficient guidance to law enforcement to prevent its arbitrary or discriminatory enforcement.  Due process demands that this court affirm the trial court and that the legislature revise the statute so that it does provide adequate notice and guidance.

Concurrence:  Appellant did not establish that the statute always operates unconstitutionally as required to sustain a facial challenge to constitutionality, and the facts and circumstances in this case do not otherwise present an opportunity to address the concerns about the statute raised by the trial court’s findings of fact and conclusions of law and the dissenting opinion.