That's Just How We Roll

 Posted on October 06, 2011 in Uncategorized

Until recently, Texas Penal Code § 31.03 provided that theft is "a state jail felony if," among other things, "the value of the property stolen is less than $20,000 and the property stolen is insulated or noninsulated tubing, rods, water gate stems, wire, or cable that consists of at least 50 percent: (i) aluminum; (ii) bronze; or (iii) copper." But the new statute deletes the text from "insulated" to "50 percent," so that the new version now makes theft a felony when "the value of the property stolen is less than $20,000 and the property stolen is... (i) aluminum; (ii) bronze; (iii) copper; or (iv) brass."

(Volokh)

This is not the first time that the Texas Legislature has incompetently written a penal statute. It won't be the last time. Texas legislators are, after all, mostly products of Texas's public education system, and most of them were highly stupid to begin with. When the Texas Legislature manages to get it right, it's the exception rather than the rule. Sometimes it even passes statutes intending to do one thing but doing the exact opposite.

Yes, it really is a felony to steal an aluminum can in Texas. And yes, some Texas prosecutor will file felony charges against someone for stealing an aluminum can (keep an eye on John Bradley). The defendant might plead guilty to a misdemeanor to avoid the felony (the general point of overcharging), but if he goes to trial, he'd better hope for a jury that knows about nullification, because if he's convicted, he's screwed. No court of appeals in Texas is going to disregard the plain language of the statute, no matter how ludicrous. Ludicrous is pretty much par for the course.