Elements Stated in Criminal Complaint and Related Charging Instrument(s) are Insufficient to Charge an Offense and Provide Notice of Same.
Respondent has never seen an accused individual in any alleged criminal offense that was allegedly perpetrated under the statutory scheme of the “transportation” code, including him/herself, provided with proper, sufficient and timely Notice of the allegations being made nor of the necessary individual elements that s/he must understand and plead to for each charge. Each element of which STATE must also prove at trial in relation to that specific charge. Respondent has never seen a criminal complaint filed in such cases that complies with Respondent’s fundamental right to procedural and substantive due process by providing Notice in the aforementioned required manner. Making this not merely a case of unintentional appealable error, but a knowing and willful violation of Respondent’s right of due process through willful failure by the prosecution to provide proper, sufficient and timely Notice of the allegations and their individual elements amid the courts colluding with the prosecution to deny that right to each individual forcibly compelled under threat, duress and coercion to appear before it.
In the appeal and habeas petition relating to the 2nd degree murder case of Henderson v. Morgan, 426 U.S. 637, 1976, the United States Supreme Court stated, “The question presented is whether a defendant may enter a voluntary plea of guilty to a charge of second-degree murder without being informed that intent to cause the death of his victim was an element of the offense.”
Henderson argued that, since he was never informed of what specific criminal elements he was actually admitting to by his submitting of a plea, and that those omitted elements were a requisite of the offense charged, he could not have possibly made an informed, and, thus, voluntary plea. Which begs the question, how is it constitutionally possible to provide the Accused in any lesser Class of criminal allegation with actual due process when the STATE is allowed to provide Notice of only a portion of the required elements in the complaint(s) and charging instrument(s), and then be held responsible at trial to prove only those elements that STATE chose to allege rather than all that are required to exist before there could even be an offense committed? This is assuming of course that the prosecution actually ever provided Notice at all.
This denial of due process is then compounded by the court itself through its own intentionally misleading statements to Respondent and others similarly situated as to the nature and cause of the allegations. The court has almost always begun with the false assertion that the nature of the allegations against Respondent are “criminal.” This is, and is easily proven to be, an outright lie being propagated by the judge him/herself, because any actual crime requires two things that Class C fine-only misdemeanor cases apparently aren’t required to have, actual willful intent to commit the crime (criminal intent, i.e. mens rea), and an actual or intended injured party (corpus delicti) as a result of the crime. The standard common law test requiring a culpable mental state for criminal liability to attach is usually expressed in the Latin phrase, actus reus non facit reum nisi mens sit rea, which means “the act is not culpable unless the mind is guilty.” Thus, from the very beginning, the right to Notice and a fair and impartial trial has been fully denied by the false assertions of fact and the related procedural improprieties of the court itself.
Furthermore, when Respondent refused to accept this blanket explanation and actually continued pressing the court about these due process discrepancies, the court eventually changed its original position and story by finally admitting to Respondent that the nature of the allegations is actually something called “quasi-criminal.” Respondent has never knowingly or willingly consented to nor accepted any legal duty or liability relating to some alleged “quasi-criminal” jurisdiction that is not specifically authorized by law to even exist. Respondent has been unable to identify any lawful authority whatsoever for any such jurisdiction as that of “quasi-criminal,” or any written and accessible rules and procedures governing any such procedural or jurisdictional capacity. Respondent understands this to be the equivalent of being forced to play a game with either no set rules and procedures at all, or a set that is available and usable only by the prosecutorial side of the game.
The only statutory and constitutional evidence Respondent can find makes it clear that Texas courts such as this one are invested only with “criminal” jurisdiction, not “quasi-criminal,” and then only for specifically defined acts that are allegedly codified as “crimes” but don’t actually authorize incarceration as a consequence of judgement, and despite the failure of the Legislature to abide by common law principles requiring the statutes and the prosecution to include the necessary elements of an actual crime. Furthermore, by law, Texas municipal courts lack civil jurisdiction of any kind, except in cases hearing administrative appeals relating to red light camera suits, which themselves are constitutionally outlawed as non-judicial punishments constituting a forbidden Bill of Pains and Penalties. Instead, they are rubber-stamping these ‘civil notices’ as “citations,” and then using them to illegally conduct administrative-only tribunals in place of the civil lawsuit that is statutorily mandated in pursuit of collecting for an alleged “red light camera” violation.
Thus, Respondent has reason to believe and does believe that, by making such an admission, the court is actually confessing that the Legislature knowingly conspired to create the false and fraudulent appearance and public perception that these alleged malum prohibitum statutory offenses are actual “crimes.” It must also be acknowledged that, if this assertion is accurate, and Respondent fully believes that it is, it would be inconceivable that the Legislature is not also knowingly allowing the courts and prosecutors to intentionally mislead and violate the rights of Respondent and all others similarly situated by their willful misrepresentation of the nature of the allegations as being “criminal,” while actually knowing them to be something else of a heretofore entirely unknown and undisclosed nature and jurisdiction called “quasi-criminal.” Which Respondent also believes consequentially allows the courts to completely fabricate or cherry-pick whatever procedural rules they wish to actually apply and use to control the adjudicatory process for this new class of jurisdiction, while also enabling them to completely ignore all of those that actually do exist so as to ensure the rule of law, a fair and impartial proceeding, and the protection of the due process rights of Respondent and others similarly situated. Leaving Respondent wondering, can you call this anything other than an “ongoing criminal enterprise,” because it certainly isn’t a justice system?
These facts make it inarguable that this process is intentionally engineered and manipulated to function in this way, and that it is fully intended to deny Respondent and others similarly situated in their right and ability to know what the actual rules of the system really are, thus, making it impossible for Respondent and others similarly situated to properly reference and utilize those rules to defend themselves against such allegations. This gross manipulation of the adjudicatory process in such proceedings is both completely unconstitutional and unconscionable, as it is nothing less than a total violation of every single aspect of Respondent’s fundamental rights necessary to provide proper due process.
Which then leads us to another question of Respondent’s alleged legal liability pertaining to an alleged offense for failure to perform an alleged legal duty codified in a malum prohibitum statute. How can any offense under a malum prohibitum statute be alleged without specifically stating the factual elements asserting that the Accused was actively engaged in the primary regulated subject matter as statutorily required before the actual offense and its other related elements can legally exist and be charged? For example, an individual cannot be charged with a violation of a commercial fishing statute unless the state can assert and prove, first and foremost, that the individual was actually engaged in the regulated activity of commercial fishing. This element must be alleged in the complaint and charging instrument, that the individual was so engaged, and then it must be proven at trial. Without the existence of this activity and its allegation as a necessary fact element, then any alleged offense subordinate to that activity is being falsely asserted and charged in the complaint and charging instrument(s), is actually impossible to prove at trial, even in conjunction with the other elements of the actual offense. Anything else is a failure to allege and prove all of the necessary fact elements required to be alleged and proven, a fundamental denial of the right to Notice so as to make an informed plea and a diligent defense, and a denial of due process in its most basic sense.
Which exposes yet another due process issue within Texas Courts in relation to the Code of Criminal Procedure, that of allowing the court to enter a default plea of “not guilty” for Respondent and others similarly situated. This court has stated its intent to enter such a plea on behalf of Respondent and others similarly situated despite the fact that Respondent was never given proper, sufficient and timely Notice of the charges due to the prosecutions failure to state all of the required individual elements of each charge so that Respondent and those similarly situated are able to make any sort of informed and voluntary plea. A procedure that this court appears to routinely practice by intentionally misconstruing an accused individual’s conditional declination to enter an uninformed and, therefore, unconscionable plea, as an outright refusal to enter an informed plea.
The court willfully and intentionally chooses to ignore these facts and proceeds forward in the matter, despite Respondent clearly stating that the reason s/he cannot make an informed plea, rather than an unconscionable one, is because his/her right to proper, sufficient and timely Notice of the allegation(s) and their respective elements have not been complied with by the STATE. And despite being advised of this, this court invariable chooses to abrogate and derogate the due process right of Respondent to have proper, sufficient and timely Notice as an ‘inconvenience’ to its procedures, rather than as a fundamental right of Respondent. Furthermore, when Respondent or others similarly situated object, and demand that the plea be withdrawn as having been entered by the court unconscionably, the court resorts to veiled or overt threats of charging Respondent or those similarly situated with contempt and incarceration in an effort to ensure that no objections to its rights-depriving actions are made for the record.
Respondent believes that the courts wage this war on his/her fundamental rights in a combination of ways, usually beginning with conspiracy and collusion between the judge and the prosecutor to intentionally circumvent or outright refuse to comply with the mandatory provisions of §45.018(b), Code of Criminal Procedure. The language of §45.018(b) certainly appears to be creating a statutory right in favor of Respondent, one requiring the STATE and the court to comply with its provisions. At least, that is how Respondent interprets the provisions of §311.016(4), Texas Government Code, in relation to language of “is entitled to.”
However, if Respondent’s prior assertions relating to the court’s claim of a “quasi-criminal” jurisdiction is even remotely accurate, it would make complete sense that the court and prosecution would ignore this procedural requirement and statutory right of the Accused as relating only to a “criminal” proceeding and not a “quasi-criminal” proceeding. Which appears to be exactly what this court has done by its refusal to dismiss the case or to make any entry of such findings of fact and conclusions of law into the record of the proceedings, which a due process violation of such an egregious nature demands be done.
Despite this fact, these courts and prosecutors routinely fail to provide a copy of the complaint to the Accused until the actual day of trial, or only after it has been demanded, and then only if the Accused is knowledgeable enough to know that they have a right to it and should demand it. However, the prosecution virtually never provides a proper charging instrument in the form of an indictment or information as is required by Texas Constitution Art. 5, §12(b) or §§2.04-.05 and Chapter 21, Code of Criminal Procedure. Even more disconcerting is the fact that the primary case law on this subject says the prosecution and the court don’t have to comply with either the constitutional or statutory requirement because of a previous completely incorrect reading and understanding of another related constitutional provision and the requirements codified in §§2.04-.05 of the Code of Criminal Procedure, which the controlling case opinion completely ignores and conflicts with. This failure to provide Notice is fairly routine, despite the court and the prosecution being specifically directed in that the Accused has a right to be served with the complaint “… not later than the day before the date of any proceeding in the prosecution of the defendant under the complaint.”
Art. 45.018. COMPLAINT.
(a) For purposes of this chapter, a complaint is a sworn allegation charging the accused with the commission of an offense.
(b) A defendant is entitled to notice of a complaint against the defendant not later than the day before the date of any proceeding in the prosecution of the defendant under the complaint. The defendant may waive the right to notice granted by this subsection.
Furthermore, the prosecutors in many jurisdictions simply disregard this failure to provide service of the complaint as the fault of the Accused themselves, by alleging that, on some past date, on some web site that is totally unknown to the Accused, the prosecutor allegedly posted a copy of the complaint. The prosecutor then makes the claim that they have no liability to provide service, and, therefore, are in no way responsible for the denial of the right of due process by his or her failure to provide proper, sufficient and timely Notice in one of the legally valid methods prescribed by law.
This lack of Notice and the subsequent deprivation of Respondent’s rights that cascade from it is then ignored and upheld by the court, even though the prosecution has readily admitted that, at no time was the Accused ever actually provided with the necessary case file or web site information, or even its online location, so as to access this copy of the complaint. The court does all of this while wholly ignoring that this manner of service is not authorized by law in any way whatsoever, and is legally invalid. But, since the court controls the record, it makes all the necessary entries to cover up all of these rights violations precipitated by the prosecutor’s misconduct, as well as its own.
However, service by the STATE on the day of trial denies the Accused in the exercise of other rights to which s/he is rightfully entitled as a matter of both procedural and substantive due process. One such right is the right to challenge the form and substance of the complaint and that of any other charging instrument, as that right would be automatically denied as an operation of law pursuant §45.019(f), which reads:
(f) If the defendant does not object to a defect, error, or irregularity of form or substance in a charging instrument before the date on which the trial on the merits commences, the defendant waives and forfeits the right to object to the defect, error, or irregularity. Nothing in this article prohibits a trial court from requiring that an objection to a charging instrument be made at an earlier time.
By making the argument that STATE’s failure to comply with the provisions of §§2.04-.05 and §45.018(b) of the Code of Criminal Procedure (by not creating a proper charging instrument based upon the complaint and not performing actual service of the complaint and charging instrument upon the Accused) is neither relevant nor required in a “quasi-criminal” matter, the court puts forth the concept that the STATE is not required, and bears no legal duty, to provide proper, sufficient and timely Notice of the allegations to Respondent or those similarly situated. Nor, apparently, is STATE required to fully disclose or prove the individual elements of each charge, either in whole or in part, in a “quasi-criminal” matter, because the prosecution and the court do not consider this to actually be a “criminal” matter or proceeding to which the rights and rules of actual “criminal” procedure apply. Thus creating the appearance, at least in Respondent’s mind, that the court and the prosecution both fully believe that proper, sufficient and timely Notice isn’t necessary or required in “quasi-criminal” proceedings, because the game has already been rigged to this point so that the Accused couldn’t possibly win anyway due to being denied any actual knowledge or access to the full plethora of whatever conjured rules and procedures truly apply and control the process.
Furthermore, the likelihood of the Accused properly and timely perfecting and following through with an appeal, while complying with the intentionally misleading and disparate rules and procedures for doing so, and depending upon whether the trial was held in a court of record versus a court of no record, is relatively small. After all, there are apparently no written rules available for a “quasi-criminal” jurisdiction and proceeding to which the Accused has any access to or even knowledge of. Thus, s/he will have no idea how to properly and successfully prepare their appeal in such cases, considering that the normal “criminal” or “civil” procedure rules governing such matters aren’t being followed or applied by the prosecutors or the courts, which Respondent can only interpret to mean that those codified procedural rules must not be considered to actually apply in “quasi-criminal” proceedings.
Therefore, since the action is actually “quasi-criminal” rather than “criminal,” why should the prosecution and the court be required to comply with the statutory and due process rights of the Accused as written into the Texas Constitution’s Bill of Rights or the Code of Criminal Procedure, both of which would be required to be followed for every other form of allegedly “criminal” case, but neither of which the courts consider as having any applicability to the rights of Respondent and others similarly situated in such “quasi-criminal” proceedings. Which actually makes sense considering that in every single instance where Respondent has attempted to raise the issue of state and federal constitutional protections, the judge of the court invariably bangs their gavel and literally screams out that neither constitution, nor their particular individual protections, ever apply or matter in their courtroom! Respondent sees this as an everyday example of the judicial and governmental corruption and destruction of the People’s unalienable rights at its finest, rig the game, fix the outcome, then just sit back and reap the windfall profits from the fraudulent con, all based upon a Bill of Pains and Penalties form of adjudication that has been constitutionally outlawed and forbidden for more than two centuries.
Respondent believes this to be nothing less than treason against the people, as Arts. 1, §29 and Art. 3, §62(a) the Texas Constitution forbids the suspension of the People’s Bill of Rights for any reason, or by any department of government. In pertinent part, §3, §62(a) reads “… Article I of the Constitution of Texas, known as the “Bill of Rights” shall not be in any manner affected, amended, impaired, suspended, repealed or suspended hereby.” Which means that there can be no such law that would authorize such a declaration of suspension or removal by the legislature at all, much less the courts, who cannot make law. Leaving the only reasonable conclusion to be that the courts have created and usurped for themselves a completely unconstitutional and unconscionable power to suspend Respondent’s ability to invoke and demand obedience to his/her Bill of Rights and its protections.
Sec. 29. PROVISIONS OF BILL OF RIGHTS EXCEPTED FROM POWERS OF GOVERNMENT; TO FOREVER REMAIN INVIOLATE.
To guard against transgressions of the high powers herein delegated, we declare that everything in this “Bill of Rights” is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void.
In Henderson, ibid, the court went on to say “Held: Since respondent did not receive adequate notice of the offense to which he pleaded guilty, his plea was involuntary and the judgment of conviction was entered without due process of law. The plea could not be voluntary in the sense that it constituted an intelligent admission that he committed the offense unless respondent received “real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process. Smith v. O’Grady, 312 U.S. 329, 334.” (Internal quotations omitted, emphasis added).
When Respondent, or those similarly situated, has not been provided proper, sufficient and timely Notice, and the complaint and charging instruments are facially devoid of any of the elements constituting an actual “crime” as well as any allegation stating the actual existence of the primary subject matter element upon which the malum prohibitum allegation itself must rely in order to be valid and subsequently invoke the jurisdiction of this or any other court, there should be no question whatsoever that due process has been denied and that a conviction is invalid upon its face and must be overturned. This is precisely the issues that exist in every “transportation” related prosecution that Respondent has ever witnessed or been a victimized party of by being forcibly compelled to participate against his/her will and consent.
Respondent fully believes that the logic as to what elements must be asserted in the charging instrument(s) and then proven at trial in a “transportation” case is not difficult to understand. But having to clearly identify and inform the Accused of each and every one of the necessary elements is extremely inconvenient and detrimental for the STATE’s case, even though the right of due process in the form of Notice and evidentiary proof of the alleged offense demands and requires it. Why would providing proper, sufficient and timely Notice of every required element of the allegation to the Accused not only make it difficult, but actually prejudice the STATE’s case? Because it would provide the Accused with an undeniable and absolute affirmative defense against prosecution in such cases, especially when the STATE cannot assert and prove that the Accused actually committed a “crime” or was ever knowingly and voluntarily engaged in the regulated subject matter of “transportation.”
Respondent further believes that STATE’s fear in these cases is that such an affirmative defense would surely have the subsequent effect of virtually drying up the STATE and local political subdivision’s generation of obscene amounts of revenue through knowing and intentional perpetration of extortion and fraud upon the People by a willful misinterpretation and misapplication of the “transportation” code created by SB 971. And it undoubtedly would, but so what? Why should the STATE and its political subdivisions be allowed to profit from defrauding and extorting the public?
The Legislature made it very clear in the Title of SB 971 that the statutory scheme created by it related to one subject and one subject only, “transportation!”
The Bill Title of SB 971 reads:
“AN ACT relating to the adoption of a nonsubstantive revision of statutes relating to transportation, including conforming amendments, repeals, and penalties.”
The evidence supporting the assertion that this is and can be the one and only subject matter intended to be regulated by the Legislature is found in Art. 3, §35, Texas Constitution:
Sec. 35. SUBJECTS AND TITLES OF BILLS.
(a) No bill, (except general appropriation bills, which may embrace the various subjects and accounts, for and on account of which moneys are appropriated) shall contain more than one subject.
(b) The rules of procedure of each house shall require that the subject of each bill be expressed in its title in a manner that gives the legislature and the public reasonable notice of that subject. The legislature is solely responsible for determining compliance with the rule.
(c) A law, including a law enacted before the effective date of this subsection, may not be held void on the basis of an insufficient title.
(Subsec. (a) amended and (b) and (c) added Nov. 4, 1986.)
Anyone without an unlawful agenda and ulterior motive can see that the plain language of this constitutional provision tells us, just as the language in the Title of SB 971 tells us, that the only subject matter stated in the Title as being intended to be regulated by SB 971 is that of “transportation.” Under the separation of powers clause of Art. 2, Texas Constitution, neither the courts nor the executive departments of Texas government have any authority to either interpret or enforce the provisions of SB 971 in a manner intended to expand the regulated subject matter beyond that of “transportation” as declared by the Legislature. The United States Supreme Court has even ruled that “The title of a statute or section can aid in resolving an ambiguity in the legislation’s text.” INS v. National Center for Immigrants’ Rights, Inc., 502 U.S. 183, 189 (1991).” The courts of Texas are no freer to rewrite the laws of the Legislature than the federal courts are to rewrite those of Congress. The courts must interpret the laws and statutes based upon the language in them, not upon their own opinion or interpretation outside of or in complete disregard of that language. “The question ….is not what Congress would have wanted but what Congress enacted.” Argentina v. Weltover, Inc., 504 U.S. 607, 618 (1992).
Every single offense created and codified into the “transportation” code by SB 971 that can be alleged against an individual thereunder falls within and subordinate solely to the subject matter of “transportation.” Thus, making the primary element required to be stated in the complaint and charging instrument(s) relating to any such alleged offense, the clear assertion that the offense was committed while the Accused individual was engaged in an act of “transportation” at the time. Why? Because the due process right of Notice and the fact that the STATE bears the burden of proving every element of an alleged offense demands that it be so, and because it is impossible to commit a “transportation” related offense if an individual was never engaged in “transportation” in the first place, just like it is impossible for someone to commit a “commercial fishing” offense without first being engaged in “commercial fishing.”
The court also concluded in Henderson that “… his guilty plea was involuntary because, inter alia, he was not aware that intent to cause death was an element of second-degree murder.” Henderson, ibid.
Again, follow the logic; the terms “driver” and “operator” are legal terms and capacities created by the statutory scheme of SB 971, which, as we have already seen, relates solely to the subject matter of “transportation,” and everything within the “transportation” code must be subordinately related to that subject matter as a matter of constitutional requirement, and, therefore, so must the law and statutes themselves. The same holds true for all the other legal terms defined by SB 971 relating to any alleged legal duty, processes, objects, devices, and other actions within the statutory scheme created by SB 971. They all must relate solely to the subject matter of “transportation” in order to comply with the provisions of Art. 3, §35, Texas Constitution.
Therefore, logic and reason dictates that no individual, including Respondent, can be legally termed and presented to a court in a criminal complaint as a “driver” or “operator” unless the individual is first and foremost asserted and presented as having been engaged in the business of “transportation” for the private profit or gain of either himself or some third-party employer as a “carrier” doing business for compensation or hire at the time of the alleged offense.
Further, logic and reason would also dictate that no individual, including Respondent, can be legally termed and presented to a court in a criminal complaint as a “driver” or “operator” unless the individual is first and foremost asserted and presented as having been engaged in “transportation” at the time of the alleged offense, as “transportation” alone is the primary subject matter of SB 971 and the “transportation” code created by it. And it is within this subject matter only that all of these legal terms, phrases, objects, devices, procedures, and subordinate ancillary subjects and offenses are created and applicable. In short, there is no offense unless it is first asserted and proven that “transportation” was being engaged in by Respondent or others similarly situated at the time of the alleged offense.
Further still, logic and reason also dictates that no device propelled by a motor, engine, or other method of self-propulsion, including Respondent’s private conveyance of choice, can be legally termed and presented to a court in a criminal complaint as a “commercial/ motor/ vehicle/ motorcycle/ moped,” unless the individual is first and foremost asserted and presented as having been engaged in the regulated subject matter of “transportation” at the time of the alleged offense, as “transportation” alone is the primary subject matter of SB 971 under which all of these legal terms, phrases, objects, devices, procedures, and subordinate ancillary subjects and offenses are created and applicable. In short, there is no offense unless it is first proven that “transportation” was being engaged in by Respondent or others similarly situated at the time of the alleged offense.
And lastly, logic and reason would necessarily dictate that no device propelled by a motor, engine, or other method of self-propulsion, including Respondent’s private conveyance of choice, can be legally termed and presented to a court in a criminal complaint as a “commercial/ motor/ vehicle/ motorcycle/ moped,” unless the individual is first and foremost asserted and presented as having been engaged in the regulated subject matter of “transportation” at the time of the alleged offense, as “transportation” alone is the primary subject matter of SB 971 under which all of these legal terms, phrases, objects, devices, procedures, and subordinate ancillary subjects and offenses are created and applicable. In short, there is no offense unless it is first proven that “transportation” was being engaged in by Respondent or others similarly situated at the time of the alleged offense.
In which case, Respondent is left with the conclusion that the court can be invested with subject matter and in personam jurisdiction in a “transportation” case only if “transportation” is relevant to the case as a matter of law. If there is no allegation and evidence of Respondent or any other similarly situated Accused individual having been engaged in “transportation” at the time of the alleged offense, then there is no subject matter involvement, and, thus, no offense by which the court can be invested with jurisdiction of the cause. Therefore, Respondent puts forth the logical assertion of law that if STATE fails to assert and plead the existence of the governing subject matter of “transportation” and its elements in the complaint and charging instrument(s), the court’s jurisdiction is never invoked, and no justiciable issue exists before it.
In fact, Respondent has reason to believe and does believe that the making of false and unsubstantiated assertions of fact in a criminal complaint that a “transportation” offense has allegedly been committed by Respondent or any other similarly situated individual, while failing to assert within the body of the complaint and charging instrument(s) the necessary elements of both an actual “crime” and that the Accused was engaged in “transportation” at the time, and then proceeding to file that complaint and charging instrument in a court, is actually a crime of SIMULATING LEGAL PROCESS under §32.48, Penal Code.
The facts and law supporting Respondent’s assertions and allegations herein should be obvious to even the most basically educated layperson, much less to an actual attorney or judge. Respondent can be a “driver” or “operator” only if Respondent is actually engaging in the regulated subject matter activity of “transportation,” just as an automobile or other conveyance legally becomes a “device” that can then be defined as a “commercial/ motor/ vehicle/ motorcycle/ moped” only when being “used” by a “driver” or “operator” to engage in “transportation,” which s/he could only do while also acting as a “carrier” that is “operating” a business for “compensation or hire.”
For the prosecution or the court to mutually argue and conclude that it is completely unnecessary to allege and prove that Respondent or any other similarly situated individual was actually engaged in “transportation” as an element of the alleged offense, is to argue that each and every one of these subordinate legal terms, phrases, objects, devices, procedures, and ancillary subjects, objects, and offenses, are somehow completely independent and totally unrelated and irrelevant to the legislatively mandated subject matter of “transportation,” thus, they are denying all the readily available facts, law, logic, and reason, in a manner that spits in the proverbial face of the one subject provision of Art. 3, §35, Texas Constitution.
Furthermore, as the engaging in of the regulated subject matter activity of “transportation” is entirely voluntary, it follows that an individual must so engage willfully and knowingly, and not accidentally and without intent. Thus, the statutory scheme would almost certainly fail the “vague and ambiguous” test in that it not does not define the individual terms of either “transportation” or “carrier.” But, it would also fail constitutional and common law due process muster in that the voluntary, knowing and willful nature of engaging in the regulated activity of “transportation” would actually require the statutory scheme to include both mens rea and corpus delicti elements in the offense rather than simply being a “strict liability” statute where the Accused’s actual activity, state of mind, and intent, are not considered and required to be issues relevant to the elements of the charge. Thus, in Respondent’s opinion, making any such allegation of an offense a wholly unconstitutional and unlawful Bill of Pains and Penalties.
No court can change these facts, no matter how it may rule, as that would be tantamount to not only legislating from the bench, but also singlehandedly altering the very foundational basis of all criminal law since the beginning of the time of man. And no executive action could do it for not only these same reasons, but also because any executive actions must comply with the law as written, as long as the person(s) in the executive department believe the law to be completely constitutional, which, if they did not, they would have a duty to refuse to enforce it at all or personally suffer the consequences for doing so.