Second, I'm a lawyer, but I'm not a Texas lawyer. I'm just gleaning what I can from the relevant statutory history. I also haven't looked at Texas case law to see if this issue has been discussed in the Texas courts. I will add, however, that in the FLS diary above (and in the TPM link before the jump) there are quotes from some Texas law professors who reach the same conclusion I do. I'm just trying to give you folks a little more detail on why we reach that conclusion. If any persons more knowledgeable than I on Texas law want to chime in and add or correct something I've said, please do so.
OK, let's go. First thing you need to know is, Texas statutes are scattered among several "codes", each on a different topic. There's an Agriculture Code, an Education Code, a Da Vinci -- no, not quite -- and many more, including my favorite, the Alcoholic Beverage Code. You can find them all here. The two relevant codes to the DeLay indictment are the Election Code and the Penal Code. (Fans of Kentucky Fried Movie will remember a courtroom scene with a prosecutor holding up a dildo and asking the witness if he was "aware of the Penal Laws of this state!")
The indictment (the first indictment, of course), charges DeLay and his codefendants (John Colyandro and James Ellis) and an unindicted coconspirator, TRMPAC, with conspiring to "engage in conduct that would constitute the offense of knowingly making a political contribution in violation of Subchapter D of Chapter 253 of the Texas Election Code, a violation of sections 253.003 and 253.094 and 253.104 of the Election Code...."
Now, although the object of the conspiracy was a violation of the Election Code, the crime of conspiracy itself is defined as a violation in Title 4 of the Penal Code:
Sec. 15.02. CRIMINAL CONSPIRACY.
(a)A person commits criminal conspiracy if, with intent that a felony be committed:
(1)he agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense;and
(2)he or one or more of them performs an overt act in pursuance of the agreement.
Well, so far, so good: the indictment charges the defendants with an agreement to engage in conduct that would constitute "the offense" -- i.e., the "felony" that is intended to be committed. The question is, is the violation of Subchapter D of Chapter 253 of the Election Code a "felony" as defined by the Penal Code? Here's the definition, from Penal Code 1.07(a)(23):
"Felony" means an offense so designated by law or punishable by death or confinement in a penitentiary.
Well, let's turn to the Election Code, then. Is the violation of Subchapter D of Chapter 253 designated as a felony? Sure is. Election Code 253.003 (referenced in the indictment) says:
Sec.253.003.UNLAWFULLY MAKING OR ACCEPTING CONTRIBUTION.
(a)A person may not knowingly make a political contribution in violation of this chapter.
(e)A violation of Subsection (a) or (b) is a felony of the third degree if the contribution is made in violation of Subchapter D.
So, unless the term "offense" under the Penal Law is supposed to only mean offense defined in the Penal Law itself, it's pretty clear it applies. And there is plenty of evidence that the Penal Law does not so limit itself. To wit (as we lawyers say):
- The definition of "law" (remember, a "felony" is one so designated by "law") is "the constitution or a statute of this state or of the United States, a written opinion of a court of record, a municipal ordinance, an order of a county commissioners court, or a rule authorized by and lawfully adopted under a statute." (Penal Code 1.07(a)(30).)
- The Penal Code also says (mirroring the above definition of "law") that "Conduct does not constitute an offense unless it is defined as an offense by statute, municipal ordinance, order of a county commissioners court, or rule authorized by and lawfully adopted under a statute." (Penal Code 1.03(a).)
The provisions of Titles 1, 2, and 3 apply to offenses defined by other laws, unless the statute defining the offense provides otherwise; however, the punishment affixed to an offense defined outside this code shall be applicable unless the punishment is classified in accordance with this code.
Notice, DeLay will say, that Title 4 -- which includes conspiracy -- is not mentioned. Aha! So doesn't this mean, he'll say, that by implication, anything other than Titles 1, 2, and 3 is therefore not applicable to "offenses defined by other laws" -- i.e., including those defined by the Election Code? Now, this line of reasoning -- also known as expressio unius--can be valid. But not so much here. Titles 1, 2 and 3 lay out general principles -- definitions, principles of culpability, and punishment -- that apply to all offenses, while Titles 4 forward each define specific offenses. So talking about Titles 1-3 as a group (and not including the other titles) makes logical sense, and any inference one could draw about the remaining titles from their absence is extremely weak.
Notice, also, that it doesn't say that Titles 4+ don't apply. And notice also that it Section 1.03(b) clearly contemplates that an "offense" may be "defined outside this code." Taken as a whole, then, I'd say the plain language of the Penal Code contemplates that a conspiracy to commit an offense defined outside the code is punishable, and far outweighs any weak contrary inference that can be drawn from 1.03(b).
Now, the foregoing all deals with the language that was in place prior to 2003 -- i.e., when DeLay committed his crime. Sorry, "alleged" crime. But in 2003 the Texas Legislature amended the Election Code to specifically state that Title 4 would apply to Election Code offenses:
Sec.1.018. APPLICABILITY OF PENAL CODE.
In addition to Section 1.03, Penal Code, and to other titles of the Penal Code that may apply to this code, Title 4, Penal Code, applies to offenses prescribed by this code.
(This was added by HB 54; ch. 393 of the 2003 Acts.) The effective date of this statute was 9/1/2003. So clearly it does not apply to DeLay. But as we've seen, one doesn't need it to find DeLay culpable. The language of the pre-2003 statutes already made conspiracy to violate Subchapter D of Chapter 253 of the Election Code a crime. So why did Texas add this?
Well, it's possible that, for the reasons we already stated, there was some doubt among the legislators in the 2003 Texas leg as to whether conspiracy applied to the Election Code as written. It's even possible that they thought it clearly didn't apply. But none of that is terribly important. What's important is what the courts think the Penal Code said, and for that they will look to the language, and possibly to the legislative history when that language was passed, but what they really will not find terribly persuasive are the (implied) opinions of later legislatures.
Given all of this, I certainly don't blame Ronnie Earle for adding the new indictment yesterday, just to be sure. But I think his original indictment was on pretty solid ground. He's a smart prosecutor, and he wouldn't have made as serious an error as DeLay and DeGuerin are claiming.