Ex Parte Rubin

362 S.W.2d 331, 1962 Tex. Crim. App. LEXIS 802

• Court: Court of Criminal Appeals of Texas
• Decided: October 10, 1962
• Docket: 34887
• Status: Published

Opinions

MORRISON, Judge.

Relator, who is in the custody of the Sheriff of Tarrant County, challenges the validity of such restraint on the grounds that the statute (Article 1436-2, Vernon’s Ann.P.C.) under which he is charged is unconstitutional. The statute reads as follows :

“Any person, association of persons, corporate or other, who customarily engage in the business of obtaining motor vehicles for scrap disposal or resale of parts therefrom or any other form of salvage, shall immediately remove any unexpired license plates from such motor vehicle and place the same under lock and key. An inventory list of such plates showing the license number and the make and motor number of the motor vehicle from which such plates were removed shall be maintained on forms to be furnished by the State Highway Department. Upon demand the license plates and inventory lists shall be surrendered to the State Highway Department for cancellation. It is further provided that all Certificates of Title covering such motor vehicles obtained for scrap disposal, resale of parts or any other form of salvage shall, upon demand, be surrendered to the State Highway Department for cancellation. It shall thereafter be the duty of the State Highway Department to furnish a signed receipt for the surrendered license plates and Certificates of Title. Any person violating any provision of this Act shall be deemed guilty of a misdemeanor and upon conviction shall be fined not less than One Hundred Dollars ($100) nor more than One Thousand Dollars ($1,000), or by confinement in the county jail not less than ten (10) days nor more than one (1) year, or by both such fine and confinement.”

His attack upon the statute is phrased as follows:

“Said Statute is so vague and indefinite that it cannot and does not apprise the defendant of the nature of the charges against him, and said Statute is too uncertain and unclear in regard to setting out what persons are within the scope of the Statute, in violation of Article 1, Section 10, of the Constitution of the State of Texas, and deprives Relator of due process of law, in violation of the 14th Amendment to the Constitution of the United States and of Article 1, Section 19, of the Constitution of the State of Texas and Article 6 of the Penal Code of the State of Texas.”

We shall first discuss his contention that a charge under such, a statute deprives him of due process under the Federal Constitution. In the .relatively recent opinion (1957) of the Supreme Court of the United States in Roth v. U. S., 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, and which we ■conclude is here controlling, we find the following:

“This Court, however, hag consistently held that lack of precision is not itself offensive to. the requirements of due process. ‘ * * * [T]he Constitution does not require impossible standards’; all that is required is that the language 'conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.’ ”

As to his contention that the statute is so indefinite as to be inoperative under Article 6, Vernon’s Ann.P.C., and the Texas Constitution, we call attention to the holding of this Court in Creech v. State, 70 Tex.Cr.R. 229, 158 S.W. 277, where this Court held that one was engaged in an occupation or business if he pursued the same whenever an opportunity presented itself. Attention is further directed to the' holding of the Court in Ex parte Trafton, 160 Tex.Cr.R. 407, 271 S.W.2d 814 (1953), wherein we held the use of the term “excessive and unusual” not to be so indefinite as to render the statute inoperative. See also the cases cited therein.

Reliance is had, among other cases, upon Cogdell v. State, 81 Tex.Cr.R. 66, 193 S.W. 675 (1917), and Wilson v. State, 123 Tex. Cr.R. 415, 59 S.W.2d 399 (1933). In Cog-dell, it was held that a statute which makes it unlawful to offer for sale commercial feeding stuff bearing a label stating that the product contained “substantially a larger percentage of * * * ” was inoperative by virtue of Article 6, V.A.P.C., because the same was so indefinite and of such doubtful construction that it could not be understood. The statute in Cogdell sought to protect the public from being misled by a label which did not accurately describe the ingredients of a feeding stuff offered for sale. In the case at bar, a class of persons who “customarily” or “usually” engage in a certain business are required, for the protection of the public, to comply with certain rules. We conclude that while the phrase “substantially a larger percentage” may be indefinite, one who “customarily” or “usually” engages in a certain business “conveys sufficiently definite warning as to the proscribed conduct when measured ■ by common understanding and practices.” Roth v. U. S., supra. See also Fuller Brush Co. v. Industrial Commission, 99 Utah 97, 104 P.2d 201, 129 A.L.R. 511; Smith v. Title Guarantee & Trust Co., 287 N.Y. 500, 41 N.E.2d 72; and Wolfe v. Bryant, 181 Tenn. 357, 181 S.W.2d 343; 25 C.J.S. Customarily 72.

In Wilson, the statute made unlawful the operation of an automobile by a person who was intoxicated or in any degree under the influence of intoxicating liquor. We agree that the absence of any standard whatsoever in this statute renders the same indefinite but for the reason set forth above conclude that such case is not here controlling.

We further overrule appellant’s contentions that the phrases “any other form of salvage” or “such motor vehicle”1 are too indefinite to be operative.

Relator next contends that Article 1436-1, Section 37, V.A.P.C., and Article 1436-2, supra, both denounce the same conduct and, since they proscribe different penalties, are both inoperative. We answer this contention ' by 'pointing out that the first statute relates to certificates of title only while the second relates to both license plates and certificates of title, and therefore they do not relate to.the same conduct.

Relator’s last contention is that this statute is. unconstitutional since it discriminates against the cipas of persons “who customarily engage in -the business of obtaining motor -vehicles for .pcrap disposal * * A law is not'.unconstitutional so long, as the unequal. treatment of persons is based upon a reasonable and substantial classification of such persons. Rucker v. State, Tex.Cr.App.; 342 S.W.2d 325. Clearly,.. a salvage lot is entirely different from a used car lot alluded to by appellant because the inspection1 of the individual units in. the first is ;far less frequent-and less carefully made, than in the latter, thus rendering the discovery of the loss of .stolen license plates far less likely. We hold that tlie Legislature was clearly empowered to make this distinction, and rely upon Hall v. Gieger-Jones Company, 242 U.S. 539, 37 S.Ct. 217, 61 L.Ed. 480, as authority.

The‘writ of habeas'‘horpus is denie'd.",