As somebody pointed out, it's probably not important whether sec 24 is still good law. Nonetheless, I think it is. For cases dealing with references in one statute to a second statute that has been repealed or moved look at.

Ex parte Dowling, 962 S.W.2d 306 (Tex.App. -- Fort Worth, 1998, no pet.) (where statute incorporates list in another statute, repealing of incorporated statute not important);
Rose v. State, 724 S.W.2d 832, 838-39 (Tex.App -- Dallas 1987) (where statute refered to subsection of another statute that had been moved, court would construe the reference as being to the moved provision) aff'd 752 S.W.2d 529 (Tex. Crim. App. 1987); see also TEX GOV'T CODE sec. 311.027.

At least two cases have held (albeit with little explanation) that section 24 remains good law. Cooper v. State, 961 S.W.2d 222 (Tex.App. Houston [1st Dist.] 1997, pet. ref'd); Hazelwood v. State,
1999 WL 215776, No Publication, Tex.App.-Beaumont
Apr 14, 1999, no pet.).

David: check our Government Code 311.027. A reference to any prtion of a statute applies to all reenactments, revisions, or amendments to the statute.

Does that help?

I disagree that videos aren't helpful from a prosecutorial standpoint.

Having been a defense attorney before I became a prosecutor, I can assure you that some defendants plea guilty to DWI based on the video tape. From my perspective now as a prosecutor, I think it likely that some do so before I've even watched the video myself. That saves me time.

Cooper did not involve an interpretation of the language of Sec. 24 and thus is of no direct importance to this discussion. It is immaterial whether or not Sec. 24 was repealed in 1993, though I would have to argue that it was. See 67 Tex.Jur.3d Statutes sec. 74 ("parts of the original act that are omitted from the new legislation are to be considered as annulled.")

The idea that the language incorporates the reenactments of the DWI law is an interesting one. The Code Construction Act appears to support such a claim, with the key being exactly what are "reenactments, revisions, or amendments of" a statute and whether art. 49.04 of the Penal Code has the qualifying relationship to former art. 6701l-1. I take "reenactment" to be the passage of a law that is complete and perfect in itself, covering the same subject matter of a former act. Yet, we know that: "When the referenced statute is repealed, the meaning and scope of the referencing statute do not change, absent clear legislative intent to the contrary." In re RJJ, 959 S.W.2d at 186. But, what happens when the referenced statute is repealed, yet arguably reenacted? Especially if the reenactment omits the provision in question? This is a much more complicated question than it may appear on initial examination. I think the laws become too vague when you must answer such difficult issues just to know what the statute says. Given a literal reading, no one has proposed the statute still affects DWI arrestees. We might also talk about whether the 1994 code was a true revision of the 1974 code. If so, then its provisions (which have nothing approaching sec. 24) constitute "the law" and it supercedes previously existing laws that are omitted therefrom so that we may look to the revision with safety and confidence.

I can't recall the last time I say any court relying on Tex. Jur. for support.

John, I could send you a long list, but one of the more recent ones was Fraud-Tech, No. 02-01-347-CV (03/27/03) in fn. 73. Some judges say TJ can be misleading, but it has not fallen entirely out of use. I usually prefer to cite the cases cited in TJ (and I always read them first).

But I can already tell that regardless of what I cited on this topic I could not persuade you.

And may I say, Terry, that with a better script I think one could make the videos work for you. I don't think my sheriff's offices ever gave it that much thought.

Sorry, Martin, civil cases don't count, especially one with over 73 footnotes.

I've had a couple of our Troops ask whether they can read the required statutory warnings, ask for the test, and do the DWI interview while still at the scene by taking it with their in-car video system. Their rationale is that between the time it takes to get a wrecker to the scene and the wait at the jail on a busy Friday or Saturday night (up to an hour in some cases), it saves time to do the preliminaries in the field while waiting for a wrecker to arrive. That way when they get to the jail, if the Trooper is also the breath test operator, he or she can proceed directly to the Intoxilyzer. Would this comply with the taping requirement??

Janette Ansolabehere
DPS

Absolutely. We request all of our officers to ask the "extrapolation questions" on videotape after the legal warnings are given.

AND, if the officer is organized enough to ask those question at the scene before making an arrest, he does not have read read Miranda Warnings. A roadside stop, at least until it ripens into an arrest, is not the sort of custody that requires Miranda Warnings before interrogation.

I'm restarting this thread because I have a defense attorney who's intending to press the matter in a fairly weak DWI case (BTR, no video). The AG has recently released an opinion that states that the law IS still good and in force.

http://www.oag.state.tx.us/opinions/opinions/50abbott/op/2009/htm/ga-0731.htm

That being said, I don't think that it really matters. The CCA made it clear in State v. Lyons, 812 S.W.2d 336 (1991) that the only remedy available is admitting into evidence the fact that no video tape was made. And since I would hope that would be admitted in trial anyway, essentially no remedy is provided.

Now, my only question is if the statutory remedy is satisfied merely by an admission that no tape was made, or if defense counsel can make reference to the duty to tape under the statute.

The Texas AG thinks the statute is still applicable. GA-0731 (July 23, 2009)

Turns out to be a pretty moot point for me in this particular case, anyway. I had enough problems with it being a BTR, and not having a video (come to find out the South Texas sun baked the motherboard of the camera prior to the video being pulled off). Now I've further found out that the DPS Trooper who administered the field sobriety tests has been recently deployed to Iraq, and isn't expected back for at least a year.

Any bright bulbs out there with an good idea, other than pleaing this defendant down to running a stop sign? The only thing I've got to work with is a Trooper sitting passenger, who at least saw the traffic violation and smelled alcohol, but didn't administer the FSTs.

The forces stacked up against you in this case would point towards you getting what you can.