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Drug Taxes and Prosecution Are Double Jeopardy, Says Texas High Court


November 1996

On October 16, the Texas Court of Criminal Appeals ruled in a 5-4 decision that prosecuting drug dealers and imposing punitive taxes on their confiscated drugs violates the constitutional ban against double jeopardy (Mark Stennett v. State (Texas), 1996WL591108, (October 16, 1996); UPI, "Court rules against illegal-drug tax," <>, October 16, 1996; Kathy Walt, "It's time or taxes for drug dealers," Houston Chronicle, October 17, 1996, p. 21A; Christy Hoppe, "Combining drug taxes, prosecution ruled improper," Dallas Morning News, October 17, 1996, p. 1A).

The case involved Mark Stennett, who was arrested in Houston in 1993 and was indicted on charges of possession with intent to distribute less than 50 pounds of marijuana. The district attorney in Harris County pursued criminal prosecution and referred the case to the state comptroller, which assessed $49,070 in unpaid taxes on the confiscated marijuana. Stennett subsequently paid $100 of his drug tax bill and filed an application for habeas corpus, arguing that his partial payment of the tax barred him from further criminal prosecution.

The trial judge, the 14th Circuit Court of Appeals in Houston, and the Texas Court of Criminal Appeals denied Stennent's case. However, the U.S. Supreme Court (Mark Stennent v. State (Texas), 115 S.Ct. 307, (October 11, 1994)) ordered state courts to reconsider the case in light of a similar Montana case, (Department of Revenue of Montana v. Kurth Ranch, 114 S.Ct. 1937, (June 6, 1994)) , in which the Supreme Court ruled that imposing Montana's marijuana possession tax following a criminal conviction violated double jeopardy. Relying on the Supreme Court's ruling, Texas' highest criminal court found that the state's tax of $98 per ounce of marijuana and $200 per gram of controlled substance was so high as to be punitive. The court found that because Mr. Stennett had already been punished by "imposition and partial collection of a tax," further criminal prosecution would be improper double punishment.

The decision could lead to the review of other drug cases in which both criminal sanctions and taxes were assessed. "Presumably, if they've been referred for collection and paid some [taxes], and then were prosecuted, they could come in and claim [double] jeopardy," said Sue Korioth, head of the Dallas County district attorney's appellate section. Dan McCrory, an assistant district attorney for Harris County called the ruling "a pretty good get-out-of-jail-free card."

"Our reading [of the case] is that you can't prosecute someone for the drug offense and also levy the tax," said Ward Tisdale, a spokesman for Texas Attorney General Dan Morales. He added, "The legislature didn't envision it would replace criminal prosecution." State Representative Billy Clemons (R-Pollock), who wrote the drug tax bill, said he intends to "fine-tune" the law in the next legislative session, and promised to make "a state-wide issue" out of the appellate judges who sided on the majority.

The legislature intended the drug tax law to be an additional weapon for law enforcement to use in their anti-drug efforts. Andy Welch, a spokesman for the comptroller's office, said that the law provided for the comptroller's office to sell drug tax stamps. Since the law took effect on September 1, 1989, the office has generated $16,552 from the sale of drug tax stamps and more than $2.3 million from tax deficiency notices, according to Welch.

Tom Moran, a Houston attorney representing Stennett, said he now expects prosecutors to drop the charges against his client. McCrory confirmed, saying, "We can't try him right now because he paid part of his tax."

A lower court in Arizona has come to a similar conclusion (State v. Wilson, No. 95-02094 (Northwest Phoenix Justice Court, November 1, 1995); "Arizona Judge Finds Prosecution for Marijuana After Defendant Purchased Tax Stamps To Be Double Jeopardy," NewsBriefs, January 1996).