Oliver v. State

¶1concurring.

¶2The contretemps engendered by an obvious clerical error in producing the information in Cause No. 116-83 (Case No. 0157593 in the trial court) — in companion Case No. 0157592 (our Cause No. 115-83) the information is not similarly flawed — is somewhat reminiscent of the anachronism recently interred by this Court in Culpepper v. State, 668 S.W.2d 712 (Tex.Cr.App.1984).1

¶3Though the majority does, I would not invoke the excusatory dictum of Article 21.17, V.A.C.C.P. to determine whether failure of the information to give the full name of the State Board of Dental Examiners renders this information fundamentally defective. For me the exercise really begs the question decided by the Fort Worth Court of Appeals, viz:

“An essential element of the offense of practicing dentistry without a license is that the accused does not have a license from the Texas State Board of Dental Examiners.”

¶4Oliver v. State, 644 S.W.2d 135, 143 (Tex.App.—Fort Worth 1982). Thus the ques*716tion is whether the full name of the licensing agency is an “essential element” of the offense sought be alleged. In this cause the answer is in the negative.

¶5Like most enactments essentially regulatory in nature, so here the Legislature customarily has prescribed excruciatingly redundant details in its prohibition against practicing dentistry without a license. See Historical Note and annotations 1 and 2 following Article 4548a, V.A.C.S., and see also provisions of Chapter Nine, 1985 Cum. Ann. Pocket Part. Yet, as the State contends, the critical element of the offense is to practice dentistry “without first having obtained a license,” and in Mayo v. State, 123 Tex.Cr.R. 315, 58 S.W.2d 821 (1933), the Court succinctly stated that to be the case: “It is necessary to sustain a conviction that the proof show that the accused had no license to practice dentistry.”

¶6The Fort Worth Court of Appeals cited Articles 21.03 and 21.23, V.A.C.C.P., after its comment that an information “must state all the elements of the offense charged.” While it is true that only the State Board of Dental Examiners is authorized to grant a license to practice dentistry in Texas, Article 4544, Y.A.C.S. and, therefore, that requisite proof of the negative fact of no license may come from records of that state board, it does not follow from those facts that the complete name of the board is, as the court found, an “essential element” of the offense charged within contemplation of the definition of “element of offense” under V;T.C.A. Penal Code, § 1.07(a)(13).2

¶7The gravamen of “forbidden conduct” proscribed by Article 4548a, supra, is practicing dentistry without a license. That an accused did not obtain one from the state regulatory board solely authorized to grant it is a matter of evidence, not an essential element of the offense. See, e.g., Mayo v. State, 166 Tex.Cr.R. 470, 314 S.W.2d 834 (1958), cert. denied 357 U.S. 935, 78 S.Ct. 1385, 1 L.Ed.2d 1550 (1958); Gross v. State, 169 Tex.Cr.R. 454, 334 S.W.2d 809 (1960) and Doyle v. State, 65 Tex.Cr.R. 300, 143 S.W. 630 (1912).

¶8Furthermore, Article 21.18, V.A.C.C.P., expressly provides that “matters of which judicial notice is taken (among which are included the authority and duties of all officers ... appointed under the General Laws of this State) need not be stated in a indictment.” Accordingly, for all relevant purposes the trial court below was entitled to take judicial notice of the fact that a license to practice dentistry is granted only by the Texas State Board of Dental Examiners. Carrillo v. State, 566 S.W.2d 902, 909-910 (Tex.Cr.App.1978) and Meredith v. State, 79 Tex.Cr.R. 277, 184 S.W. 204 (1916).

¶9For the reasons given I join the judgment of the Court.