The STATE of Texas, Appellant, v. Guadalupe SALINAS, Appellee, 982 S.W.2d 9

OPINION ON MOTION FOR REHEARING ANDELL, Justice. This Court granted the State’s motion for rehearing and heard oral argument. We withdraw our previous opinion and substitute this opinion in its place. The State complains the court erred in quashing three indictments against appellee. We affirm. Appellee, an elected Harris County District Judge, was indicted by a grand jury for six offenses in connection with his original and amended reports of contributions and expenditures, including three counts of misdemeanor perjury.

The perjury indictments charged appellee with (1) falsely claiming he did not receive a series of blank checks from his bank, when in truth he did receive them and used them to spend more than $2000, (2) falsely swearing his contributions and expenditures report was true and correct, and (3) falsely claiming he bought flowers for his staff, when in truth the flowers were delivered to his wife. While the causes were pending before the trial court, the Court of Criminal Appeals refused both parties’ petitions for discretionary review in State v.

Eversole, 889 S.W.2d 418 (Tex.App.—Houston [14th Dist.] 1994), pet. ref'd, 899 S.W.2d 204 (Tex.Crim.App.1995), which holds the Election Code, not the Penal Code, governs punishment for public officials who violate the contributions and expenditures report requirements. Citing Eversole, the trial court ordered the three perjury indictments quashed and dismissed. In point of error one, the State argues the trial court erred in dismissing the indictments because it could have prosecuted ap-pellee either under the Penal Code or the Election Code, at its option.

The State also argues its references in the indictments to the Election Code were surplusage, and it could reindict appellee for perjury by eliminating any such reference. We disagree. Whether one statute precludes another is a matter of statutory construction, and statutory construction is a question of law. We review questions of law de novo, without deference to the trial court’s conclusions. See State v. Heal, 917 S.W.2d 6, 9 (Tex.1996).

Perjury, a Class A misdemeanor, occurs when: (1) a person; (2) makes a false statement; (3) under oath; (4) with intent to deceive; and (5) with knowledge of the statement’s meaning. Tex. Penal Code Ann. _ 37.02 (Vernon 1994). Violation of Election Code

section 254.041, Criminal Penalty for Untimely or Incomplete Report, is a Class C misdemeanor and occurs when: (1) a candidate or officeholder; (2) knowingly fails to include required information; (3) in a report of contributions and expenditures. Tex. Elec.Code Ann. _ 254.041 (Vernon Supp. 1998). Additionally, the Election Code requires that all reports bear an affidavit swearing that the report is true and correct and includes all information required to be reported. Tex. Elec.Code Ann. _ 254.036 (Vernon Supp.1998) Several elements of perjury and a

section 254.041 violation are the same. Perjury punishes false statements, and

section 254.041 punishes knowing failure to include required information, which necessarily makes false the accompanying sworn statement that the report is true, correct, or complete. Perjury requires intent to deceive, while

section 254.041 requires knowing failure to include all required information in spite of an oath to the contrary: Though not stated in the same words, both statutes clearly require intent to deceive. Additionally, perjury requires knowledge of the statement’s meaning, an element that is the very basis of the Election Code’s affidavit requirement. Finally, both statutes require that the prohibited conduct take place under oath. Up to this point, the statutes prohibit the same conduct; the remaining two elements differ only because

section 254.041 is more narrowly tailored. Perjury applies to any person, whereas

section 254.041 punishes a particular class of persons—candidates and public officials. Likewise, perjury relates to any sworn statement, but

section 254.041 is limited to contributions and expenditure reports. Where one statute has broadly defined an offense, and a second makes a more narrow definition, complete within itself, the narrow statute prohibits conduct that would otherwise meet every element of, and hence be punishable under, the broader provision. Mills v. State, 722 S.W.2d 411, 414 (Tex. Crim. App. 1986).

Where, as here, the narrow provision provides for a lesser range of punishment than the general, an irreconcilable conflict exists, and due process and due course of law dictate that an accused be prosecuted under the special provision, in keeping with the presumed legislative intent. Id. Where the conflict between the general provision and the special provision is irreconcilable, the special provision prevails as an exception to the general provision, unless the general provision is the later enactment and the manifest intent is that the general provision prevail. Tex. Gov’t Code Ann. _ 311.026 (Vernon 1988).

The perjury statute was enacted in 1973;

section 254.041 was not enacted until 1987. Finally, the Election Code provides: “This code supersedes a conflicting statute outside this code unless this code or the outside statute expressly provides otherwise.” Tex. Elec.Code Ann. _ 1.002(b) (Vernon 1986). Because neither the Election Code nor the perjury statute expressly provides otherwise, the Election Code supersedes the perjury statute. We overrule point of error one. In point of error two, the State contends the trial court erred in dismissing the indictments because the ruling constituted a premature determination of the sufficiency of the evidence.

We disagree. The appellant did not challenge the sufficiency of the evidence in his motion, and the court did not address evidentiary sufficiency. The court dismissed the indictments because they did not state a lawful charge. We overrule point of error two. Finally, the State argues that the legislature decisively repudiated the decision in Ev-ersole by promulgating a new statute, Tex. Gov’t Code Ann. _ 571.077 (Vernon Supp. 1998). The statute reads: § 571.077 Statements, registrations, and reports considered to be verified (

a) A statement, registration, or report that is filed with the commission is considered to.be under oath by the person required to file the statement, registration, or report regardless of the absence of or defect in the affidavit of verification, including a signature. (

b) A person required to file a statement, registration, or report with the commission is subject to prosecution under

Chapter 37, Penal Code, regardless of the absence of or defect in the affidavit of verification. (

c) This

section applies to a statement, registration, or report that is filed with the commission electronically or otherwise. Tex. Gov’t Code Ann. _ 571.077 (Vernon Supp.1998) (emphasis added). The State argues the statute demonstrates the legislature’s intent that politicians who knowingly make misrepresentations in their financial reports be liable for perjury. However, the State concedes that

section 571.077 does not apply to appellee, who is an elected judge of a single-county district, and is, therefore, required to file his reports only with the county clerk and not the State Ethics Commission. Tex. Elec.Code Ann. § 252.005(1), (2) (Vernon Supp.1998). We overrule the State’s third point of error. We affirm. TAFT, J., dissents. . We respectfully suggest that the Eversole court stated the wrong standard of review. One factor creating confusion in the case law is the failure to distinguish between a motion to quash and a motion to dismiss.

The Code of Criminal Procedure uses the terminology "motion to set aside” rather than "motion to quash" and "motion to dismiss,” even though these designations are common in practice. A motion to quash may contend that the indictment is too vague to give adequate notice of the defendant’s alleged conduct. See, e.g., Thomas v. State, 621 S.W.2d 158, 163 (Tex.Crim.App.1981) (stating motion to quash will be granted where language concerning defendant’s conduct is so vague or indefinite as to deny effective notice of alleged acts). This is an exception to the form of an indictment. See Tex.Code Crim. P.

Ann. art. 27.09(2) (Vernon 1989). A motion to dismiss, however, is generally directed at a defect of substance that precludes prosecution altogether. See Tex.Code Crim. Proc. Ann. art. 27.02(1) (Vernon 1989). Appellee filed both motions to quash and to dismiss in the present situation, and the trial court’s order both quashed and dismissed the indictments. Rather than say the standard of review on a motion to quash is abuse of discretion, while a motion to dismiss requires de novo review, it is more prudent to determine whether the issue involved in the motion is one of fact or law.

Here, the issue is which statute applies, a question of law requiring de novo review. The Eversole court actually conducted de novo review with an unnecessary overlay of the abuse of discretion standard. We feel the court's reasoning was unaffected by the error; however, we use our own analysis to reach the same result. . Election Code sections 252.005, subsections (1) & (2), states: An individual must file a campaign treasurer appointment for the individual’s own candidacy with: (1) the commission, if the appointment is made for candidacy for: (

A) a statewide office; (

B) a district office filled by voters of more than one county; (

C) state senator; (

D) state representative; or (

E) the State Board of Education; (2) the county clerk, if the appointment is made for candidacy for a county office, a precinct office, or a district office other than one included in Subdivision (1). Tex. Elec.Code Ann. § 252.005(1) & (2). (Vernon Supp.1998).