No. JM-0456 (1986).

• Case Date: March 24, 1986
• Court: Texas

Texas Attorney General Opinions 1986. No. JM-0456 (1986). March 24, 1986Opinion No. JM-456Mattox Opinion No. JM-456Office of the Attorney General State of TexasHonorable Gerald A. Fohn District Attorney Tom Green County Courthouse Room 315 San Angelo, Texas 76903Opinion No. JM-456Re: Constitutionality of section 28.03(c) of the Texas Penal Code, which creates a presumption about the guilt of a person in whose name utilities are billed Dear Mr. Fohn: You have asked several questions about certain Penal Code provisions concerning tampering with public utility meters. Your first question is: "Is the presumption contained in section 28.03(c) of the Texas Penal Code constitutional?" Section 28.03, which governs the offense of "criminal mischief," provides: A person commits an offense if, without the effective consent of the owner: (1) he intentionally or knowingly damages or destroys the tangible property of the owner; or (2) he intentionally or knowingly tampers with the tangible property of the owner and causes pecuniary loss or substantial inconvenience to the owner or a third person. Penal Code s 28.03(a). The statute also contains the following provision, which creates a "presumption" regarding identity and mental state: For the purposes of this section, it shall be presumed that a person in whose name public communications, public water, gas, or power supply is or was last billed and who is receiving the economic benefit of said communication or supply, has knowingly tampered with the tangible property of the owner if the communication or supply has been: (1) diverted from passing through a metering device; or (2) prevented from being correctly registered by a metering device; or (3) activated by any device installed to obtain public communications, public water, gas, or power supply without a metering device. Penal Code s 28.03(c). You ask about the constitutionality of the "presumption" set out in that provision. The Penal Code sets out the consequences of a presumption established by a penal law: When this code or another penal law establishes a presumption with respect to any fact, it has the following consequences: (1) if there is sufficient evidence of the facts that give rise to the presumption, the issue of the existence of the presumed fact must be submitted to the jury, unless the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact; and (2) if the existence of the presumed fact is submitted to the jury, the court shall charge the jury, in terms of the presumption and the specific element to which it applies, as follows: (A) that the facts giving rise to the presumption must be proven beyond a reasonable doubt; (B) that if such facts are proven beyond a reasonable doubt the jury may find that the element of the offense sought to be presumed exists, but it is not bound to so find; (C) that even though the jury may find the existence of such element, the state must prove beyond a reasonable doubt each of the other elements of the offense charged; and (D) if the jury has a reasonable doubt as to the existence of a fact...