May 31, 2019

Texas Courts of Appeals

State v. Wood

No. 03-18-00839-CR        5/23/19


Does disposing of a lit cigarette (which did not start a fire) constitute an offense under Health & Safety Code §365.012(a)?


Yes. The offense of littering is set out in §365.012(a), which generally prohibits an individual from disposing of litter in locations not designated for that purpose. Section 365.012(a-1) provides an increased penalty for disposing of lit items such as matches or cigarettes that result in a fire; however, a person who improperly discards an item listed in this subsection that does not result in a fire may still be punished under the general littering statute. In this case, the officer had reasonable suspicion to initiate a traffic stop after the defendant threw a lit cigarette out the car window, although no fire occurred. Read opinion.


This case makes more sense when you read the statute as a whole rather than as parsed out in the opinion. Viewed in context, the Legislature created an increased penalty for disposing of a cigarette resulting in a fire, rather than limiting the general offense of littering involving a cigarette. The court’s construction is consistent with the legislative history, although the court does not go behind the statutory text in reaching its holding. As courts become more focused on statutory text—properly so—prosecutors must ensure that courts read provisions in context to ensure that each provision has meaning.

Texas Attorney General Opinions

KP-0254                                5/24/19


Are civil remedies still available for violations of the Texas Open Meetings Act following State v. Doyal?


Yes. If a quorum of a governmental body deliberates about public business within the jurisdiction of the body outside of a meeting authorized by the Texas Open Meetings Act, through multiple communications each involving fewer than a quorum, the governmental body has violated the Act. Action taken by a governmental body in violation of the Act is voidable. In addition, any interested person may bring an action by mandamus or injunction to stop, prevent, or reverse a violation or threatened violation of the Act by members of a governmental body. If the Texas Education Agency conducts an investigation as authorized by Education Code §39.057 and concludes that members of a school district board of trustees violated their duty to comply with the Act, it could take appropriate civil action authorized by Education Code §39.057(d). Read opinion.

[Editor’s Note: SB 1640, currently before the governor, attempts to fix the criminal sanctions portion of the “walking quorum” prohibition at issue in Doyal.]


Expect the legislative fix to face a court challenge. Civil enforcement may be the only game in town until the courts can construe the new statute.


Legislative Update Seminars

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TDCAA is pleased to offer these unique case summaries from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Texas Court of Criminal Appeals, the Texas Supreme Court, the Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The commentaries expressed in these case summaries are not official statements by TDCAA and do not represent the opinions of TDCAA, its staff, or any member of the association. Please email comments, problems, or questions to [email protected]