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Click here for the full text of this decision FACTS:In 2005, two Travis County grand juries presented indictments charging John Dominick Colyandro, James Walter Ellis and former Rep. Tom DeLay, R-Sugar Land, with, among other things, conspiracy to violate the Texas Election Code. In the third count of an indictment returned by a grand jury to the 147th Judicial District Court on Sept. 13, 2005, authorities charged Colyandro and Ellis with conspiracy to make an unlawful political contribution in violation of Texas Penal Code �15.02 and Texas Election Code ��253.003(a), 253.094(a), and 253.104 on or about Sept. 13, 2002. The same grand jury returned a second version of the same indictment on Sept. 28, 2005. A different grand jury returned a two-count indictment on Oct. 3, 2005, to the 403rd Judicial District Court. The first count of that indictment, which presented two charges, alleged in part that Colyandro, Ellis and DeLay conspired to make an illegal political contribution to a candidate for the Texas House of Representatives in violation of �15.02 and Subchapter D of Chapter 253 of the Election Code between Sept. 6, 2002, and Oct. 4, 2002. Colyandro, Ellis and DeLay moved to quash the charges, contending that they did not allege an offense under Texas law. Relying on the CCA’s 1976 and 1977 decisions, respectively, in Moore v. State and Baker v. State, the defendants argued that �15.02 � the criminal conspiracy statute � did not apply to Texas Election Code violations in 2002. The trial judge agreed and quashed the charges. The state appealed. The 3rd Court of Appeals, bound by the CCA’s previous holdings, affirmed the trial judge. The state then petitioned the CCA for review. HOLDING:Affirmed. In Moore, an appellant convicted in 1975 of “attempting to obtain a controlled substance by fraud” claimed on appeal that the indictment was fatally defective, because the Texas Penal Code’s criminal attempt provision, �15.01(a), located in Title 4, did not apply to the Controlled Substances Act. Finding that Texas Penal Code �1.03(b) specified that only Titles 1, 2, and 3 of the Penal Code were applicable to offenses defined outside the Penal Code, the CCA held that the attempt statute did not apply to the Controlled Substances Act. Similarly, in Baker, the CCA held that the Texas Penal Code’s criminal conspiracy statute did not apply to the Controlled Substances Act. Shortly after the Moore-Baker line of cases was issued, the Legislature added �4.011 to the Controlled Substances Act in 1981. When enacted, �4.011 provided that “[t]he provisions of Title 4, Penal Code, apply to Section 4.052 and offenses designated as aggravated offenses under Subchapter 4 of this Act. . . .” In 2003, the Legislature added a similar provision to the Election Code, �1.018, titled “Applicability of Penal Code.” Section 1.018 states: “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.” The state argued that Moore and Baker are distinguishable, because they addressed the Controlled Substances Act, not the Election Code, and, in the alternative, were wrongly decided. But the CCA stated that its interpretation of Texas Penal Code �1.03(b) in Moore and Baker yielded “broad implicit holdings” that the inchoate offenses contained in Title 4 did not apply to offenses defined outside the Penal Code. Therefore, the CCA held that the 3rd Court did not err in extending Moore and Baker to criminal offenses defined in the Election Code. The CCA also declined to overrule its precedents. It held that �1.03(b) controlled the application of Texas Penal Code provisions to criminal offenses defined outside the Penal Code. Section 1.03(b), the CCA stated, directed the export of the provisions contained only in Titles 1, 2 and 3 of the Penal Code to criminal offenses defined outside the Penal Code and contemporaneously bars the import of extra-Penal Code offenses to offenses defined in Titles 4 through 11 of the Penal Code. The offenses defined in Title 4 of the Penal Code, the CCA continued, apply to offenses defined outside the Penal Code only where the Legislature has designated that Title 4 is applicable via legislative action like the amendments made to the Controlled Substances Act, the Simulated Controlled Substances Act, the Dangerous Drugs Act, the Abusable and Volatile Chemicals Act and the Election Code. The CCA concluded that because Title 4 of the Penal Code and therefore the Penal Code’s criminal conspiracy statute did not apply to offenses defined in the Election Code prior to the inclusion of Texas Election Code �1.018 in 2003, the 3rd Court did not err in affirming the trial judge’s decision to quash the Election Code-based conspiracy charges against Colyandro, Ellis and Delay. OPINION:Keasler, J., delivered the opinion of the court in which Keller, P.J., and Price, Womack, and Hervey, JJ., joined. CONCURRENCES:Keller, P.J., filed a concurring opinion in which Price, J., joined. “[E]ven if the dissent were correct in concluding that Baker and Moore should be overruled, the new interpretation could not be applied to these defendants. Due process prohibits a court from retroactively applying a more expansive interpretation of a criminal offense provision that is”unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.’” Price, J., also filed a concurring opinion. “I agree that we should not presently overrule the opinions in Moore v. State and Baker v. State. The Court’s opinion convincingly demonstrates the legislative ratification of the construction of the statutory scheme that those cases endorsed. . . . 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.” DISSENT:Cochran, J., filed a dissenting opinion in which Meyers, Johnson, and Holcomb, JJ., joined. “In this case we are asked if any and all felony offenses, whether defined in the Penal Code or in some other Texas statute, may form the basis of a conspiracy charge under Section 15.02 of the Penal Code. Were it not for two wayward 1976 and 1977 opinions written by Commissioner Davis over the strong dissent of Judge Douglas, the answer to this question would be obvious. Yes, any felony offense is subject to the Penal Code conspiracy provision. Thus, a person may be prosecuted for conspiring to commit any felony offense, whether that felony is defined in the Penal Code or elsewhere in Texas law. . . . [Moore and Baker are] poorly reasoned [and] carry the potential to cause untold mischief to many other provisions in the Penal Code.”

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