Texas-style sausage-making: gleaning legislative history and legislative intent

John Stride

TDCAA Senior Appellate Attorney

If you’ve ever read TDCAA’s Legislative Update book or our Annotated Criminal Laws of Texas, you’ve probably noticed the authors’ personal notations on many pages. Although some statutes can stand on their own words without explanatory notes, many demand clarification. Notes call attention to how a new statute contradicts an existing one, muddies the waters over how to implement it, or simply doesn’t make sense. It’s all part of a legislative sausage-making process that can be the subject of ridicule, but prosecutors are still charged with enforcing those laws that can confound us.

    And prosecutors aren’t the only ones struggling to ascertain what lawmakers mean when they write certain laws—the lawmakers themselves even wrangle with their own creations. In 2012, the Texas House of Representatives’ Committee on the Judiciary and Civil Jurisprudence revealed with alarming defeatism that the legislature itself remains frozen in its inability to further assist in determining legislative intent: “While members of the committee may individually have a desire for additional legislation to help define legislative intent, there was no consensus for such. … The committee makes no specific recommendations for defining or clarifying ‘legislative intent.’”2

    If legislative committee members have abandoned the project in disagreement, what should those who must implement the legislature’s handiwork do? Somehow we who live and breathe the law everyday must interpret legislation and, occasionally, discern legislative intent. Besides the host of sometimes poorly drafted statutes we must construe, we must also attempt to reconcile provisions where the legislature passes multiple bills on the same topic, as happened last session with the offense of evading arrest and with the expansion of protective orders to victims of human trafficking and stalking.

    Notwithstanding the recent legislative committee admitting defeat, we do have some tools to ply our trade. When trying to ascertain the meaning of legislation, conscientious readers will always check the initial provisions of a particular code and the introductory provisions for each chapter. Directions on methods of construction, interpretation, and definitions are sometimes listed. The Penal Code illustrates this admirably: Early sections provide instructions on how to construe the code and definitions of terms used generally.3 Further enlightenment on a statute’s meaning may sometimes be obtained by looking at issue-specific provisions in the same chapter or code. For example, we learn that “a single criminal transaction” is something different from a “criminal episode.”4

    If those methods come up short, we are fortunate to have a few other tools at our disposal: 1) the Code Construction Act, 2) the state constitution and civil statutes, 3) publications from the Texas Legislative Council, and 4) the appellate courts. Now let’s examine in greater detail how these resources help to divine the meaning of a confusing statute.

Code Construction Act (CCA)

The following list is a summary, without all the statutory clutter, of some of the CCA’s most important provisions.5 The code sweeps broadly but is not exhaustive. It applies to all codes enacted since 1967 and to any subsequent amendments, repeals, revisions, and re-enactments. It also covers rules adopted under those codes.6 While the rules under the CCA are not exclusive, they are intended to “describe and clarify common situations in order to guide the preparation and construction of codes.”7

Overarching provisions
Here are the basic rules for statutory construction. Statutes are presumed:

•    to be in compliance with the state and federal constitutions;
•    to be effective in their entirety;
•    to afford a just and reasonable result;
•    to have a result feasible of execution;
•    to favor public over private interests;8 and
•    to be prospective unless expressly retroactive.9

    Headings of titles, subtitles, chapters, subchapters, and sections do not restrict or expand the statutory meaning.10 For example, while the heading of Code of Criminal Procedure Article 38.141 refers to “Testimony of Undercover Peace Officer or Special Investigator,” the text of the article requires corroboration of only confidential informants who are not peace officers or special investigators—the exact opposite of what one might expect from the heading. Similarly, the legislature will sometimes use the same language in statutory headings to describe different things. A “mechanical security device” under Penal Code §16.01, for example, is something used to improperly open locks, e.g., lock picks, but under Occupations Code §1702.234 it is, far more logically, a device that also includes locks or deadbolts.

    Words and phrases shall be “read in context” and understood according to “the rules of grammar and common usage.” But those words and phrases that have acquired a “technical or particular meaning”—by “legislative definition or otherwise”—are understood in their technical or particular sense.11 Thus, the term “possess” as employed in TPC §25.07 creates a potential problem in cases involving violations of a protective order relating to a protected pet. The term has a particular meaning as defined by Penal Code §1.07(39) and so may prevent application of §25.07 to an intended victim who has already vacated the premises and left behind any pets to flee the offender, even though that was the stated intent of the provision.12

    A short list of universal definitions is given, including of the terms “oath,” “person,” “property,” “rule,” “State,” “written,” and “year.” Of note, “includes” and “including” are terms of enlargement, not limitation, and they create no presumption that components not expressed are excluded. In other words, “including” always means “including but not limited to”—which is a question we at TDCAA get all the time. But remember that for all these listed words, another definition may apply if another statute, or the context in which a word or phrase is used, requires one.13

A code’s internal references

References to “titles,” “chapters,” and “sections” refer to those in the code, and references to their subparts—with all their various labels—are a reference to “a unit of the next larger unit” of the same code.14

    Words in the present tense include the future tense, words of one gender include the other gender, and the singular and plural include each other.15 This is illustrated by the Penal Code’s use of the masculine singular pronoun “he” and “him” when the provision applies to people of both genders.16

    When computing a period of days, the first day is included but the last day excluded; if the last day of a period falls on a weekend or legal holiday, the period is extended to the next day that is not on the weekend or a legal holiday. So, if a trial court happens to order pre-trial disclosure of Brady material in 10 days and the 10th day falls on a Sunday followed by a legal holiday on Monday, the material must be disclosed no later than the Tuesday immediately following the holiday. When counting months, the period starts and ends on the same numerical day of the different months—but if the concluding month is not long enough, the last day of that month.17

    Verbs are of particular significance in statutes, so much so that various helping verbs and verb phrases are defined:

•     “may” creates a discretionary authority or grants permission or a power;
•    “shall” imposes a duty;
•    “must” imposes a duty that creates or recognizes a condition precedent. The difference between “must” and “shall” is demonstrated in CCP art. 6.09(c) (as created by SB 407, 82nd R.S., 2011), where a county court handling a minor’s sexting case “must” take the minor’s plea but “shall” issue a summons for the defendant’s parent;
•    “may not” imposes a prohibition and is synonymous with “shall not” (even though “may” and “shall” are not synonymous!);
•    “is entitled to” creates or recognizes a right;
•    “is not entitled to” negates a right; and
•    “is not required to” negates a duty or condition precedent.18

Multiple bills that change the same statute

Unfortunately, even with all of these rules at one’s disposal, the legislature still manages to pass multiple, sometimes confusing acts of legislation that cannot be easily deciphered.

    When amendments to the same statute are enacted in the same legislative session without reference to each other, the amendments shall be harmonized so that effect can be given to each. The most recent example of such harmonizing came during the 82nd Regular Session in 2011, where three different bills changed the evading statute in §38.04 of the Penal Code. Though the three bills did not conflict, there was enough confusion that we at TDCAA (by “we” I really mean Shannon Edmonds and Clay Abbott) were called upon to untangle the mess.

    Until September 1, 2011, §38.04 contained four subsections:

    (a)    laying out the elements of the offense of evading from peace officers;
    (b)    classifying the punishment as Class A misdemeanor, state jail felony, third degree felony, or second degree felony;
    (c)    instructing on the meaning of a vehicle;  and
    (d)    permitting prosecution under this and/or other provisions.

    But during the biennial legislative session earlier that year, three bills were passed:

• House Bill 3423 added federal special investigators to subsection (a), subsection (b)(2)(B), and subsection (b)(3).
•    Senate Bill 496 added watercraft to subsection (b) and instructed on the meaning of the term in subsection (c)(2).
•    Senate Bill 1416 created liability for using tire deflation devices by adding subsection (b)(2)(C) and (b)(3)(B) and instructed on the meaning of the term in subsection (c)(2). This bill also deleted subsection (b)(1)(B) and the “previous conviction” language from subsection (b)(2)(A).

    Adding federal special investigators and watercraft to the evading statute allowed for no interpretative problem—it just created additional exposure (post-September 1, 2011) for evading involving either tire deflation devices or watercraft—so these provisions are easily harmonized.

    One legislative oversight, however, was the failure to include federal special investigators within SB 1416’s version of subsection (b)(2)(C). Thus, there is no offense under §38.04 for using tire deflation devices—often known as caltrops—against federal investigators. So as you knew, the legislature is far from perfect.

    But the principal problem with the amendments arose because under the pre-September 1, 2011, statute, evading using a motor vehicle when not previously convicted was a state jail felony. But along came SB 1416 that made all cases of evading while using a vehicle a third-degree felony. (And by virtue of SB 496, evading while using a watercraft is also now a third-degree felony.) This change created no conflict; the bill simply replaced the former law and took some application to comb our way through the fur-ball. Crisis averted! 

    However, various publishers of the Penal Code—including the state’s own website19—decline to apply the CCA to these multiple changes. As a result, lawyers and judges who do not have TDCAA publications are left adrift to reconcile these bills for themselves, oftentimes without success. Short of mandating that all lawyers purchase TDCAA publications (now wouldn’t that be some good lobbying!), the legislature is left with the option of re-enacting the changes wrought by these three bills in a more digestible manner—which was the goal of HB 2130 (83rd R.S.).20 However, the vagaries of the legislative process resulted in this bill not passing, so prosecutors will continue to have to educate those around them on the proper interpretation of §38.04 with the help of the Code Construction Act.

Irreconcilable conflicts

If conflicts exist between provisions, the reader is to apply the provision enacted last.21 The date of enactment is the date the last legislative vote is taken on the bill enacting the statute.22 Determine these dates by tracking down a bill’s legislative history at the Capitol’s website, www.capitol.state.tx.us. (A note: Legislative history differs from legislative intent in that the former is an objective, quantitative analysis of what happened when, while the latter is a sometimes subjective, more qualitative analysis of why the legislature did what it did. People often confuse these terms or use them interchangeably, but they are quite different.)

    One example of such a conflict was with HB 290 and HB 2014, both passed during the 82nd Regular Session in 2011. The former bill made the first offense of employment harmful to children a Class A, the second a state jail felony, and third and subsequent offenses a third degree, while the latter bill increased the penalty for all offenses to a second-degree felony (first-degree where victims are under age 14). Because these two punishment schemes are irreconcilable, we turn to the date of the last legislative vote to determine our winner:  HB 290 was passed on May 27, while HB 2014 on May 19. Therefore, HB 290, with its less-harsh penalties, controls.23

    When the latest date of enactment of two conflicting bills is not clear from legislative records, the date of enactment is determined by, respectively:

•    first, the date the last presiding officer signed the bill;
•    second, the date the governor signed the bill; and
•    third, the date when by operation of law the bill became law.24

    When general and specific/local provisions conflict, effect shall be given both if possible. But if they are irreconcilable, the special/local provision prevails—unless the general provision was later enacted and the manifest intent of the general provision is that it shall prevail.25 As an example, in the rather bizarre case of Azeez v. State, the defendant received a citation for speeding and failed to appear in municipal court.26 He was charged with failing to appear. At his trial on the latter offense, however, the city prosecutor argued that he was proceeding with a charge under a City of Houston ordinance, the trial court thought the charge was grounded in the Penal Code, and the defendant asserted the proper charge was one under the Transportation Code! 

    Judge Holcomb, writing for the unanimous court (Judge Meyers not participating), held that the offense was under the Penal Code, but the court also held that the special Transportation Code provision relating to sentencing—and applied by the court of appeals—was in “irreconcilable conflict” with the general Penal Code sentencing provision. Under the doctrine of in pari materia, the special statute controls over the general statute, and as the defendant had been tried under the general statute, he suffered a due process violation from his greater exposure under the Penal Code than he should have suffered under the Transportation Code.27 To limit such gnarly legal dilemmas in the future, the legislature is increasingly placing “anti-in para materia” clauses in various new or amended offenses, as when it provided in new Penal Code §32.53(d) that “a person subject to prosecution under both this section and another section of this code may be prosecuted under either or both sections.”28

Ambiguity

If statutes are ambiguous, prosecutors and courts can consider such things as:29

•    the object sought to be obtained;
•    circumstances of enactment;
•    legislative history;
•    common law or former statutory provisions, including laws on the same or similar subjects;
•    consequences of a particular construction;
•    administrative construction of statute; and
•    title (caption), preamble, and emergency provision.30

    If a provision of a statute or its application to a person or circumstances is held invalid, other provisions or applications of the statute remain unaffected so long as they can be given effect without the invalid provision. Thus, the provisions of a statute are severable, but the courts can determine the legislative intent regarding the severability of a statute.31

    Severability and non-severability provisions included in statutes prevail in construing the statutes. But there is severability for statutes without such provisions: If a provision or its application to a person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the statute that can be given affect.32 This severability was temporarily demonstrated when the Second Court of Appeals held a portion of the harassment statute—Penal Code §42.07(a)(7), relating to telephonic harassment—unconstitutional.33

Constitution and civil statutes

One place that may not be immediately thought of for assistance with legislative interpretation is the Texas Constitution. It tells us, for instance, that weak titles do not invalidate laws: A law may not be held void for an insufficient title.34

    But if something becomes offensive enough, the legislature has amended the Constitution. We saw this with preserving indictment and information error.35

    Also, be aware that a number of other provisions not covered here apply specifically to the construction of civil statutes.36 Some of the sections, however, are similar to those above.

Texas Legislative Council books

Further enlightenment on what particular legislation means may be obtained by reviewing two publications of the Texas Legislative Council.37 The council issues a guide on Reading Statutes and Bills38 and a Drafting Manual.39 The former might be a little basic for most lawyers but serves as a refresher to a distant law school legal-writing class. It contains some tips to get around the sheaves of paper quickly. The latter is lengthy and highly detailed—at times even reminiscent of the all-too-pedantic BlueBook—but it explains the conventions and preferred language in drafting legislation. Most helpful is the chapter “Style and Usage” and its subchapters “Rules of Style” and “Drafting Rules.” If the reader understands these tools for creating legislation, they should also assist with interpreting it.

The courts’ contribution

When all of these guides fail to provide clarity, the courts must step in. And really, the courts have demonstrated considerable self-restraint. Statutory construction is a question of law, not fact.40

    The courts presume that the legislature intended for the entire statutory scheme to be effective.41 They also “presume that every word in a statute has been used for a purpose and that each word, phrase, clause, and sentence should be given effect if reasonably possible.”42

    When interpreting statutes, courts must “seek to effectuate the ‘collective’ intent or purpose of the legislators who enacted the legislation.” They focus their “attention on the literal text of the statute in question and attempt to discern the fair, objective meaning of that text at the time of its enactment.”43

    Absent any ambiguity in statutory language, a court must construe the language as written unless doing so would lead to an absurd result.44 Ambiguity exists when a statute may be understood by reasonably well-informed persons in two or more different senses; conversely, a statute is unambiguous where it reasonably permits no more than one understanding.45 Increasingly, the legislature—with some helpful prompting—is including language in statutes prescribing conduct that allow prosecution under other applicable laws. So the massive confusion/ambiguity generated by the advent of the sexting statute, Penal Code §43.261, in the 2011 regular session may be avoided altogether thanks to subsection (g) of that offense, and the courts may never have to decipher the mess.

    Where application of a statute’s plain language would lead to absurd consequences or where “the language is not plain but rather ambiguous,” a court may consider such extra-textual factors as those listed in the Code Construction Act,46 which we discussed above. But the courts resort to these sources only “out of absolute necessity” and only insofar as they do not “add [to] or subtract from [the] statute.” When searching beyond the text to find meaning, the court must take care not to substitute its judgment for that of the legislature in giving effect to a statutory provision.47

Conclusion

As this article is written, the 83rd Legislature is in a Special Session.  And many of the conflicts discussed in this article were resolved by the legislature this session. Like the product or not, as prosecutors and their staff, we must work with it. To assist you, this summer—by way of a publication and numerous regional updates—the legislative team at TDCAA will be diligently dissecting and actively disseminating its gourmet review of the new batch of sausage. Bon appétit!

Endnotes

1 This article would not have been completed without the significant contributions of my TDCAA colleagues Shannon Edmonds and Sarah Wolf. I extend my gratitude to them.
2 Interim Report to the 83rd Texas Legislature, at 17. The entire report can be accessed at http://www.house.state.tx.us/_media/pdf/committees/reports/82interim/House-Committee-on-Judiciary-and-Civil-Jurisprudence-Interim-Report-2012.pdf.
3 See Tex. Pen. Code §§1.05, 1.07, and 3.01.
4 See Tex. Pen. Code §3.02.
5 Readers should turn to the statutory provisions themselves for the precise language. I have simply attempted to convey their meaning as succinctly as possible. Unless otherwise noted, all statutory references are to the Texas Government Code.
6 Tex. Gov’t Code §311.002.
7 Id. at §311.003.
8 Id. at §311.021.
9 Id. at §311.022.
10 Id. at §311.024.
11 Id. at §311.011.
12 SB 555 (83rd R.S., 2013), signed by the governor as this article went to print, remedies this confusion by specifiying that such “possession” of a pet can be actual or constructive.
13 Tex. Gov’t Code §311.005.
14 Tex. Gov’t Code §311.006.
15 Tex. Gov’t Code §311.012.
16 Tex. Penal Code §1.04 is one example. But this usage is decreasing because the Texas Legislative Council will frequently make non-substantive gender-neutral substitutions of “person” for “his,” etc., in bills making other substantive changes.
17 Tex. Gov’t Code §311.014.
18 Tex. Gov’t Code §311.016.
19 www.statutes.legis.state.tx.us/Index.aspx.
20 www.capitol.state.tx.us/BillLookup/History .aspx?LegSess=83R&Bill=HB2130.
21 Tex. Gov’t Code §§311.025(b) and 312.014(b).
22 Tex. Gov’t Code §312.014(d).
23 Which simply won’t do, of course, so HB 8 (83rd R.S.) has been sent to the governor to, among other things, restore the harsher penalty range that was passed last session as HB 2014 but trumped by lesser punishments of HB 290 (82nd R.S.).
24 Tex. Gov’t Code §312.014(e).
25 Tex. Gov’t Code §311.026.
26 Azeez, 248 S.W.3d at 182.
27 In the interest of relating the story so it could be easily understood (I hope), I may have oversimplified. But this case is quite the tangled web that would otherwise take up more space than deserved in this general article.
28 SB 688 (82nd R.S., 2011).
29 Visit the Texas Legislative Reference Library’s website at www.lrl.state.tx.us/legis/legintent/typicalMaterials.cfm for more information on legislative intent.
30 Tex. Gov’t Code §311.023.
31 Tex. Gov’t Code §312.013.
32 Tex. Gov’t Code §311.032.
33 Karenev v. State, 258 S.W.3d 210 (Tex. App.—Fort Worth 2008), rev’d, 281 S.W.3d 428 (Tex. Crim. App.  2009).
34 Tex. Const. art. III, §35(c).
35 See Tex. Const. art. V, §12, implemented by Tex. Code Crim. Proc. art 1.14(b).
36 Tex. Gov’t Code §§312.001–008.
37 The council states that its mission is “to provide professional, nonpartisan service and support to the Texas Legislature and legislative agencies. In every area of responsibility, we strive for quality and efficiency.”
38 Available at www.tlc.state.tx.us/pubslegref/ readingabill.pdf.
39 Available at www.tlc.state.tx.us/legal/dm/draftingmanual.pdf.
40 See Mahaffey v. State, 364 S.W.3d 908, 912 (Tex. Crim. App. 2012).
41 Id., at 913.
42 State v. Hardy, 963 S.W.2d 516, 520 (Tex. Crim. App. 1997).
43 Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
44 Garrett v. State, 377 S.W.3d 697, 703 (Tex. Crim. App. 2012).
45 State v. Neesley, 239 S.W.3d 780, 783 (Tex. Crim. App. 2007).
46 Boykin, 818 S.W.2d at 785.
47 Cornet v. State, 359 S.W.3d 217, 221 (Tex. Crim. App. 2012).