Obscure sources of Texas law, legal interpretation—and beyond!

By Douglas Norman
Assistant District Attorney in Nueces County

If you live in the city like I do, you’re lucky on a dark night if you can make out much more than the moon, a few planets, and a handful of stars.

But travel into the country, especially to one of the “dark sky parks” scattered around Texas, and you can easily make out the Milky Way and the millions of stars actually out there.
            Like the night sky in the city, sources of law may generally seem to be pretty evident. As criminal practitioners, we are all familiar with the Penal Code, the Code of Criminal Procedure, the Rules of Evidence, and basic caselaw research through the Texas and federal appellate court systems. But if you dare to venture down the deserted country road of obscure legal research, you will find a wealth of lesser-known sources and smaller and softer lights, some of which are easy to find and access—others less so. Like stars in a dark sky park, they are there in the background waiting to be found behind the glaring brightness of the better-known sources.
            This article is not intended to be a comprehensive listing of these obscure sources, but rather a taste of what’s out there. With that understanding, the following sources may prove helpful, interesting, or just plain nerdy, depending upon your needs and disposition.

Texas Legislature Online
http://www.capitol.state.tx.us
This site has a search engine to access bills by legislative session and bill number. Once in the file, you can obtain bill analyses and recordings of committee hearings. Unfortunately, it covers legislation only from 1989 onward.

Texas Legislative Reference Library
https://lrl.texas.gov/legis/billSearch/index.cfm
The Legislative Archive System provides easy access to online resources linked to a particular bill number. Results include links to scanned bill files, bill analyses, bill histories, and other documents. This collection covers legislation as far back as 1871. It can also show you, by legislative session back through 1995, which House and Senate bills amended each Texas code. The “index to sections affected” tool can be found at https://lrl.texas.gov/legis/ISAF/lrlhome.cfm.

Compiling Texas Legislative History (Texas Legislative Reference Library)
http://www.lrl.state.tx.us/legis/legintent/LegIntentBrochure.pdf
This is a really helpful brochure for those who, like me, do a legislative history only once in a blue moon. Staff at the legislative reference library are also very helpful in providing additional materials that may be in a bill file and answering questions about how to obtain materials online.

Penal Code Collection
https://lrl.texas.gov/collections/PenalCodeIntro.cfm
This guide has information on legislative intent research for the Texas Penal Code as enacted in 1973. That enactment was the culmination of a substantial revision by the Texas Penal Code Revision Project, a collaborative effort by the Texas Bar Association and Texas Legislative Council from 1965 to 1973. It was the first full recodification since the Code’s previous enactment in 1856.

Code of Criminal Procedure Collection
https://lrl.texas.gov/collections/CriminalProcedureIntro.cfm
This guide includes sources for legislative intent research for the Texas Code of Criminal Procedure as enacted in 1965. The legislation, introduced as SB 107 during the 59th Legislature, marked the culmination of six years of study by the State Bar Committee for Revision of the Code of Criminal Procedure and Penal Code. Finally passed after four years of legislative effort over two sessions, the Code represented the first full-scale revision of criminal procedure in more than 100 years.

Texas Practice Commentaries in the 1974 Penal Code
When the 1974 Penal Code was adopted, the original publication in the “Black Statutes” included commentary by Seth S. Searcy III and James R. Patterson, which followed each section of the new code with an explanation of the intention of the committee that had drafted it and presented it to the Texas Legislature. It is frequently cited and generally accepted as a legitimate source of legislative history. It also includes the source of the law, which is often the Model Penal Code or McKinney’s New York Penal Code.[1]
            The only real problem is getting your hands on an original 1974 edition of Vernon’s Texas Penal Code, which is becoming rarer and harder to find by the year. If your office has one, by all means keep it! If your office doesn’t, see if you can find it in your county or local college library.

Old Texas Laws (Texas State Law Library)
http://www.sll.texas.gov/library-resources/collections/historical-texas-statutes-(1879-1925)
This resource, maintained by the Texas State Law Library, includes Texas Penal Codes and Codes of Criminal Procedure back to 1856. (By comparison, Westlaw historical statutes go back only to 1987.) Old law is not only of historical interest, but it can also provide a valuable resource to interpret current law with a view to the way the same or similar offenses and concepts were set out in prior law. For example, in a recent case involving the statute of limitations for intoxication manslaughter, it was extremely helpful to trace the relevant Penal Code and limitations provisions in question back to early Texas law to show how the statutes had evolved, which in turn cast light on how the present statute should be interpreted.

Older Texas laws (Paschal’s Digest)
https://lrl.texas.gov/collections/Paschal.cfm
A Digest of the Laws of Texas is an unofficial compilation of Texas laws first published by George W. Paschal in 1866. The most successful of the early compilations of Texas statutes, this work is commonly referred to as Paschal’s Digest. The Fifth Edition, published in 1875, significantly influenced the development of the 1879 Revised Statues of Texas. It amounts to a compilation of statutes and annotations of cases applying them, according to the best efforts of the author. The excerpt concerning Assault and Battery, below, offers a taste of what you will find in this resource.

A page out of Paschal’s Digest.

Texas Crimes, written by Diane Burch Beckham and published by TDCAA
https://www.tdcaa.com/product/texas-crimes-preorder-2019-21/
Transitioning to current Texas Penal Laws, this is the only single-volume source for all 2,000 crimes found outside the Penal Code. It lists each code alphabetically, includes a separate cite for each crime statute, describes the criminal conduct, and gives the punishment range.

Government agency publications and handbooks

Texas Driver Handbook
https://www.dps.texas.gov/internetforms/Forms/DL-7.pdf
The Texas Driver Handbook is one of many such government manuals and publications maintained online, usually as a PDF.

Traffic Safety Facts
https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/812780
This online publication of the National Highway Traffic Safety Administration provides helpful data concerning the percentage of alcohol-related fatal crashes, which proved useful in a recent appeal involving probable cause to obtain a blood warrant after a fatal crash.

Municipal codes
https://www.sll.texas.gov/law-legislation/municipal-laws-and-ordinances
The State Law Library has a link to other sources which maintain databases for the municipal codes of all of the major Texas cities.

Building codes
https://www.sll.texas.gov/law-legislation/building-codes
The State Law Library also has a link to various building codes that have been adopted or incorporated by state or local authorities.

“Court Rules” volumes of the Southwestern Reporter (obscure and superseded court rules)
For example, Texas Rules of Post Trial and Appellate Procedure in Criminal Cases, Southwestern Reporter, Texas Cases, Vol. 617-618 S.W.2d, p. XXXVII et seq. Tucked away in this volume of S.W.2d is a little-known set of rules that briefly governed criminal appeals until it was superseded by the Texas Rules of Appellate Procedure. Whenever a volume in the Southwestern Reporter system contains a “Court Rules” tab on the spine, it indicates adoption, amendment, or some other change to court rules. Most of these can be found as well in Westlaw, Lexis, or other publications commonly available, but some of the more obscure rules may not be so easy to find. If you have the date when the rule or amendment was adopted and you have access to the bound volumes of the Southwestern Reporter, you should be able to find the text in question.

Secondary authorities and learned treatises
LaFave on Search and Seizure, Criminal Procedure, and Defenses; Model Penal Code; Sutherland on Statutory Construction; McCormick on Evidence
In addition to better-known resources such as the Texas Practice Series (including the criminal volumes written by George Dix and Robert O. Dawson) and Texas Jurisprudence, there are a number of other texts and treatises that tend to be given some weight by Texas courts. As with everything else in this article, the list is not meant to be exhaustive, but merely illustrative. When you find an ambiguity in a statute or rule, or an interesting question that seems to be an issue of first impression in Texas, sources like these may be especially valuable.

Dictionaries
In addition to traditional law and common lay dictionaries, grammar and usage dictionaries may also be consulted when something more structural than a mere definition of terms is needed.[2]
Law: Black’s Law Dictionary and Ballentine’s Law Dictionary.
Lay: Webster’s Third New International Dictionary, Webster’s Encyclopedic Unabridged Dictionary of the English Language, Webster’s Ninth New Collegiate Dictionary, Webster’s New Twentieth Century Dictionary; online at http://www.merriam-webster.com/dictionary.
Grammar and usage: The American Heritage Book of English Usage and The Oxford Dictionary of American Usage and Style.

Classic and historical works
These and other online collections include a wealth of legal history and thought. In The Avalon Collection at Yale at https://avalon.law.yale.edu/default.asp, you can find Blackstone’s Commentaries on the Laws of England and The Federalist Papers. The Gutenberg Collection at https://www.gutenberg.org/wiki/United_States_Law_(Bookshelf) contains the Magna Carta and Oliver Wendell Holmes’s The Common Law.

The Bible
Although it may be controversial to cite the Bible for anything directly, it does contain a wealth of information that has shaped our culture and in some cases the origin of certain legal concepts, including “The Rule.”
            Chapter 13 of the Book of Daniel tells the story of Susanna, a beautiful young wife, who was accused by two elders, who themselves lusted after her, of committing adultery in her private garden with a young man who ran off. The crowd who gathered to judge this matter believed the elders over Susanna and were about to stone her to death, when Daniel showed up and instructed them as follows:
            “Separate these two [witnesses] far from one another, and I will examine them.”
            After they were separated from each other, he called one of them and said: “Now, then, if you were a witness, tell me under what tree you saw them together.”
            “Under a mastic tree,” he answered.
            Putting him to one side, he ordered the other one to be brought. “Now, then, tell me under what tree you surprised them together.”
            “Under an oak,” he said.
            Susanna was thereupon acquitted of the charges, and the two witnesses were themselves stoned to death for perjury. If nothing else, the story of Susanna’s acquittal provides a colorful way of showing the longstanding value of the rule for sequestering witnesses and of effective cross-examination.

Texas State Law Library
https://www.sll.texas.gov
The State Law Library serves the legal research needs of the Texas Supreme Court, the Court of Criminal Appeals, the Office of the Attorney General, other state agencies and commissions, and the citizens of the state. It is a public law library with many additional resources too numerous to list in this article.

Links to other libraries
https://lrl.texas.gov/genInfo/otherLibraries.cfm
This link lists other libraries, including many general and law-related online libraries throughout Texas.

Conclusion
I’m sure that there remains a great deal out there that I have missed. My telescope can only focus on so much of the universe of sources at one time—and there’s so much more out there. The adventure is in finding it!

Endnotes

[1] It is a generally accepted rule of statutory construction that when the Legislature adopts a “foreign” statute, it also adopts the construction of that statute by the foreign jurisdictions occurring prior to the Texas enactment. State v. Moreno, 807 S.W.2d 327, 332 (Tex. Crim. App. 1991).

[2] See Ex parte Hood, 211 S.W.3d 767, 774 (Tex. Crim. App. 2007) (citing The American Heritage Book of English Usage to explain the structure of adverbial prepositional phrases in a statute).