Weekly Case Summaries: November 21, 2008

Texas Courts of Appeals

State v. Wiseman - 3rd COA

11/13/08 : Cite No. 03-07-00661-CR : In pari materia

Issue

Was the trial court in error when it quashed indictments after it concluded that, under the doctrine of in pari materia, the prosecutions must be brought under Labor Code §418.002(a), which criminalizes fraud in obtaining workers' compensation insurance, and not under Texas Penal Code §32.46(a)(1) and (b)(7) (securing execution of documents by deception)?
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Holding

Yes. The two statutes do not have the same purpose or objective. Instead, they were intended to cover different situations and protect different interests. Although the same conduct may sometimes violate both statutes, the statutes are not in pari materia.

Commentary

Another reversal for Travis County Judge Charlie Baird, a former CCA judge and the object of some local controversy for his frequent pro-defendant rulings. The in pari materia doctrine is like obscenity: We only know it when we see it. Perhaps, someday, the Legislature will write a statute just abolishing the doctrine. Prosecutors should have discretion to charge the specific or general crime.

Texas Attorney General Opinions

Attorney General Opinion GA-0683

11/13/08 : Opinion No. GA-0683 : Electronic Monitoring

Issue

May the McLennan County Commissioners Court establish an electronic monitoring program, separate from a program established by the local community supervision and corrections department, that may be imposed as a component of house arrest under Code of Criminal Procedure art. 42.035(b)?
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Holding

No. The statute does not authorize a county commissioners court to establish an electronic monitoring program separate from that established by a community supervision and corrections department.

Commentary

Seems strange that the county commissioners would want to establish a house arrest alternative to jail apart from the program authorized in the probation department. Probably a good idea to have some oversight through the judges and a statewide agency rather than county commissioners.

Requests for Attorney General Opinions

Opinion Request from the 216th District RQ-0757-GA

Issue 

Is flooring purchased and installed in offices owned or rented by a police department considered a "law enforcement purpose" if the offices are used by investigators during the course and in the scope of their employment as investigators with the police department?
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Anyone with input on these issues may contact the Attorney General's Office.

Commentary

The answer may depend on how "direct" the use must relate to a law enforcement purpose. On the other hand, you can't very well investigate a case without a floor in your office. The statutory limitation for expenditure of prosecutor funds does not include a list of examples that might narrow the meaning of the purpose.

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