The governor today signed (http://www.governor.state.tx.us/divisions/press/bills/hb_results?start:int=660 )

HB 2884
http://www.capitol.state.tx.us/tlodocs/80R/billtext/pdf/HB02884F.pdf

These strike me as some of the noteworthy positive portions of the bill (sorry it's too much trouble on this site to preserve the underscores which indicate what was inserted in the old text):

51.0412. JURISDICTION OVER INCOMPLETE PROCEEDINGS. The court retains jurisdiction over a person, without regard to the age of the person, who is a respondent in an adjudication proceeding, a disposition proceeding, [or] a proceeding to modify disposition, or a motion for transfer of determinate sentence probation to an appropriate district court if: (1) the petition, [or] motion to modify, or motion for transfer was filed

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Section 51.17(c):
Except as otherwise provided by this title, the Texas Rules of Evidence apply [applicable] to criminal cases and Articles 33.03 and 37.07 and Chapter 38, Code of Criminal Procedure, apply in a judicial proceeding under this title.

This was an obvious attempt to overrule In re C.J.M., 167 S.W.3d 892 (Tex.App. -- Fort Worth 2005, pet. denied). Presumably the typo (“apply” will not be a problem – especially in light of the amendment to sec. 54.04(b) noted below.

Section 51.17(h):
Articles 57.01 and 57.02, Code of Criminal Procedure, relating to the use of a pseudonym by a victim in a criminal case, apply in a proceeding held under this title.

Section 51.17(i):
Except as provided by Section 56.03(f), the state is not required to pay any cost or fee otherwise imposed for court proceedings in either the trial or appellate courts.

Hurray!, no more fees – I’ve always hated sending an appellate court $10 for an extension motion. See
https://tdcaa.infopop.net/eve/forums?a=tpc&s=347098965&f=6050918821&m=7691084441&r=3221094441#3221094441

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Section 53.045(a)(17):
Section 15.02, Penal Code (criminal conspiracy), if the offense made the subject of the criminal conspiracy includes a violation of any of the provisions referenced in Subdivisions (1) through (16).

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Section 54.04(a)
There is no right to a jury at the disposition hearing unless the child is in jeopardy of a determinate sentence under Subsection (d)(3) or (m), in which case, the child is entitled to a jury of 12 persons to determine the sentence, but only if the child so elects in writing before the commencement of the voir dire examination of the jury panel. If a finding of delinquent conduct is returned, the child may, with the consent of the attorney for the state, change the child's election of one who assesses the disposition.

Section 54.04(b):
At the disposition hearing, the juvenile court, notwithstanding the Texas Rules of Evidence or Chapter 37, Code of Criminal Procedure, may consider written reports. . . .

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Section 55.45, Family Code, is amended by adding Subsection (c) to read as follows: (c) If the referred child, as described in Subsection (b), is alleged to have committed an offense listed in Section 3g, Article 42.12, Code of Criminal Procedure, the administrator of the residential care facility shall apply, in writing, by certified mail, return receipt requested, to the juvenile court that ordered commitment of the child or that referred the case to a court that ordered commitment of the child and show good cause for any release of the child from the facility for more than 48 hours. Notice of this request must be provided to the prosecuting attorney responsible for the case. The prosecuting attorney, the juvenile, or the administrator may apply for a hearing on this application. If no one applies for a hearing, the trial court shall resolve the application on the written submission. The rules of evidence do not apply to this hearing. An appeal of the trial court's ruling on the application is not allowed. The release of a child described in this subsection without the express approval of the trial court is punishable by contempt.

This was an obvious effort to get some control over the Mexia people. See
https://tdcaa.infopop.net/eve/forums?a=tpc&s=347098965&f=5253022042&m=2043085747&r=8923097657#8923097657

quote:

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Originally posted by david curl:
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Section 51.17(c):
Except as otherwise provided by this title, the Texas Rules of Evidence apply [striking "applicable"] to criminal cases and Articles 33.03 and 37.07 and Chapter 38, Code of Criminal Procedure, apply in a judicial proceeding under this title.

This was an obvious attempt to overrule In re C.J.M., 167 S.W.3d 892 (Tex.App. -- Fort Worth 2005, pet. denied). Presumably the typo will not be a problem, especially in light of the amendment to sec. 54.04(b) noted below.

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David:

In summarizing this legislation for inclusion in our Legislative Update, it strikes me that dispensing with this "typo" to which you refer may be more of a problem than you let on, don't you think?

There is no legislative intent behind the change, nor anything to help explain why the change was made. If, in fact, this section was amended to respond to a court case (which is no doubt true, but is nowhere documented or recorded in the legislative record), who is to say the Legislature did not mean exactly what it said--namely, that the Rules of Evidence no longer apply to juvenile proceedings? In fact, that is exactly what the changes in Sec. 54.04(b) do on a smaller scale -- it excludes the TREs from applying to those proceedings. Who is to say that change is not in addition to, instead of in lieu of, the change made to Sec. 51.17? The Legislature uses a belt-and-suspenders approach all the time.

I'm playing the devil's advocate here to some extent, but I'm curious to hear others' two cents on this change; this seems like an area ripe for litigation over the next two years. And who knows, if you're really persuasive, your opinion might make it into my presentation ...

I don't think your suggested reading is plain.

I don’t think your suggested reading fits well with the literal text. First, the fact that the provision begins with "Except as otherwise provided by this title," shows that the provision is not trying to begin with a declaration that the Rules of Evidence apply to criminal cases. Surely, their not telling us that somewhere in the Juvenile Justice Code we will learn that the Rules of Evidence don't always apply to CRIMINAL CASES. Second, the comma before "apply in a judicial proceeding under this title" shows that the final clause is not just modifying the "Articles" phrase. Third, the fact that this was not two sentences indicates that "Rules of Evidence" and "Articles . . ." are being lumped together to modify "apply in a judicial proceeding under this title" and "except as provided by this title."

To me it's clear that the provision is trying to say that (1) the Rules of Evidence for criminal cases and (2) Articles 33.03 and 37.07 and Chapter 38, "apply in a judicial proceeding under this title." I think if they had wanted to draft the bill to mean what you suggest, it would have looked like this:

"Except as otherwise provided by this title, the Texas Rules of Evidence apply to criminal cases. Articles 33.03 and 37.07 and Chapter 38, Code of Criminal Procedure apply in a judicial proceeding under this title."

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Even if your suggested reading was plain it should be rejected as producing an absurd result.

Even if your reading was technically stronger, it should be rejected as it produces an absurd result. Under your suggested reading, the statute says:

(1) "the Texas Rules of Evidence apply to criminal cases" and

(2) "Articles 33.03 and 37.07 and Chapter 38, Code of Criminal Procedure, apply" in a proceeding under the Juvenile Justice Code.

But that is an absurd result as:
(1) the Family Code doesn't involve criminal cases so why would they be telling us about the rules for criminal cases, see TEX. GOV'T CODE 311.021(2) ("the entire statute is intended to be effective"); and
(2) we already know from TEX. R. EVID. 101(b) that the Rules of Evidence apply to criminal proceedings, -- so again, your reading makes that part of the provision pointless, see 311.024(2); and
(3) they couldn't possibly have meant for ONLY 33.03 and 37.07 and Chapter 38 to apply to juvenile cases.
Indeed, the very same bill acknowledges in (1) 54.04(b) and (2) 55.45 that the Rules of Evidence do generally apply to juvenile cases.

There are also numerous parts of the Juvenile Justice Code that presume or expressly state that the Rules of Evidence apply. See TEX. FAMILY CODE 54.03(d) ("only material, relevant, and competent evidence in accordance with the Rules of Evidence applicable to criminal cases and Chapter 38, Code of Criminal Procedure, may be considered in the adjudication hearing"), 54.031. It would be an astounding -- almost unimaginable -- change for the Legislature to say that the Rules of Evidence don't apply to juvenile cases. That might not even be constitutional.

While anything is possible with appellate courts, I'd be shocked if an appellate court didn't recognize that the Legislature just used the word "apply" when they meant "applicable." See Fleming Foods of Texas, Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999) ("unambiguous statutes are the current law and should not be construed by a court to mean something other than the plain words say unless there is an obvious error such as a typographical one that resulted in the omission of a word, see City of Amarillo v. Martin, 971 S.W.2d 426, 428 n. 1 (Tex.1998), or application of the literal language of a legislative enactment would produce an absurd result").

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I suppose that even under a worst case, the overruling of CJM will be sustained since the incorporation of Chapter 37 is clear. As for whether the Rules of Evidence generally apply under the JJC, we know from 54.03(d) that they apply at the adjudication phase. I suppose it wouldn't be awful if a court were to say that TRE don't apply at the disposition phase.

[This message was edited by david curl on 06-24-07 at .]

Any insight into this change would be helpful. I have a case going up on appeal on this exact issue. I was going to argue the conflict between 53.045 and 51.17 - how in the world could you prove 53.045 without using extraneous offenses.

I now think I can argue that the legislature attempted to correct the conflict and even though the trial was before the amendment, the error is harmless based on the legislative intent.

HELP would really be appreciated.

I'm not sure that I understand your question. I assume you're referring to an habitual-felony-conduct finding. Isn't an habitual-felony-conduct finding made at the adjudication phase? See TEX. FAM. CODE 54.04(d)(3), see also TEX. FAM. CODE 54.04(m). How would the juvenile know whether he was entitled to a jury for the disposition phase if he didn't know whether such a finding had been made. See TEX. FAM. CODE 54.04(a)

If so, I don't think there is any problem with that. First the decision in In re C.J.M., 167 S.W.3d 892 (Tex.App.-Fort Worth 2005, pet. denied) held that extraneous offenses are not admissible at the disposition phase -- because they violate Rule 404(b). Second, I don't think these prior adjudications are "extraneous offenses." Aren't these more like prior DWIs in a felony DWI trial.

quote:

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Originally posted by david curl:
While anything is possible with appellate courts, I'd be shocked if an appellate court didn't recognize that the Legislature just used the word "apply" when they meant "applicable."

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Those are all good response, David, thank you.

I hate to argue something is just a typo when the Legislature went out of it's way to change it -- even when all indications are that it was, indeed, a typo. There is always that assumption that a change was intended and should be given meaning, absent additional analysis (like yours). I wonder why or how that change was made?

I still stick by my plain reading -- just because something could have been done more artfully does not mean it doesn't mean what it says. Also, the "Except as otherwise provided" language fits neatly with a literal reading that other provisions of the Family Code could apply the TREs, but in their absence, those rules only apply to criminal cases. However, the result is surely absurd.

Anyone else have any comments? It'll be interesting to see what mischief (if any) is made by the defense bar and courts over this.

I'd point to Getts for a case pointing out that a bad result or an unintended result is not necessarily the same as an absurd result. The inconsistencies in this bill are of the type that would allow you to look at legislative history, though, because they create an ambiguity.

Here's what the bill analysis says about this change:

SECTION 10. Amends Sec. 51.17, Family Code, by amending Subsection (c) and adding Subsections (h) and (i).

Subsection (c) is amended to clarify that Articles 33.03 (Presence of Defendant) and 37.07 (Criminal Docket) of the Code of Criminal Procedure are applicable to juvenile court proceedings.

http://www.capitol.state.tx.us/tlodocs/80R/analysis/pdf/HB02884H.pdf

This mistake got through because it was assumed that the bill was dead in the House after it got larded up with expensive provisions about TYC. It, unexpectedly, came back to life on the House Floor when those provisions were stripped out. I think there was only an informal hearing in the Senate.

Thanks for the heads up on 54.04 - I have not started my brief yet and had not really looked at the statute that well - it was just passed on to me as a possible argument. Thanks for the help.

That little thing is in there in all versions of the bill. I say blame it on Riley--this was his baby, wasn't it?

This would be an interesting provision for the CCA to construe, just to (perhaps) have an example of something other than a "plain language" reading. It seems fairly well set up for that.

Okay I am totally confused now - I thought 53.045 was how the juvenile was indicted and 54.04(d)(3) would apply - but just quickly looked at the record and it does not appear the petition was presented to the grand jury - will have to find out if I am missing something from the record. Thanks for the help.

quote:

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Originally posted by david curl:
Here's what the bill analysis says about this change:

SECTION 10. Amends Sec. 51.17, Family Code, by amending Subsection (c) and adding Subsections (h) and (i).

Subsection (c) is amended to clarify that Articles 33.03 (Presence of Defendant) and 37.07 (Criminal Docket) of the Code of Criminal Procedure are applicable to juvenile court proceedings.

http://www.capitol.state.tx.us/tlodocs/80R/analysis/pdf/HB02884H.pdf

This mistake got through because it was assumed that the bill was dead in the House after it got larded up with expensive provisions about TYC. It, unexpectedly, came back to life on the House Floor when those provisions were stripped out. I think there was only an informal hearing in the Senate.

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Actually, that is an old version of the bill analysis. The most recent in time is found here:

http://www.capitol.state.tx.us/tlodocs/80R/analysis/pdf/HB02884E.pdf

It basically regurgitates the statutory language:

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"SECTION 10. Amends Section 51.17, Family Code, by amending Subsection (c) and adding Subsections (h) and (i), as follows:

"(c) Provides that, except as otherwise provided by this title, the Texas Rules of Evidence apply to criminal cases and Articles 33.03 (Presence of Defendant) and 37.07 (Criminal Docket) and Chapter 38 (Evidence in Criminal Actions), Code of Criminal Procedure, apply to a judicial proceeding under this title."
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In other words ... no help. There is no legislative history on this change. None, zero, zip, nada, none.

Should be interesting to watch ...

I believe the committee report is still valid legislative history. See Tooke v. City of Mexia, 197 S.W.3d 325, 363 (Tex. 2006) (O'Neill, J., dissenting) (discussing House Committee Report rather than the “engrossed” Bill Analysis see http://www.capitol.state.tx.us/BillLookup/Text.aspx?LegSess=79R&Bill=HB2039 ). Isn’t one the Senate and one the House? The House just doesn’t do an analysis on the engrossed bill. http://www.lrl.state.tx.us/legis/intent/intentStep2.html

Here’s the link to House hearing on March 28, 2007. The discussion takes place between 1:21:00 and 1:28:45.

http://www.house.state.tx.us/committees/broadcasts.php?session=80&committeeCode=340

I would argue that the absence of any discussion of this matter is strong evidence that a dramatic change in the law was not intended.

quote:

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Originally posted by david curl:
I would argue that the absence of any discussion of this matter is strong evidence that a dramatic change in the law was not intended.

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I think that's the most persuasive argument I've heard yet, from a common sense perspective.

But, how do you pick which of the two outcomes of the ambiguity to use without some history? Do we craft a rule that states: "When an amendment creates an ambiguity, and the history is silent regarding an intent to change the law, the ambiguity is resolved in favor of no change."? Does the rule change if the result of the change is vagueness (no clear answer) instead of ambiguity (multiple discrete answers)?

First, I think the Code Construction Act tells you how to pick:

Statute Construction Aids

In construing a statute, whether or not the statute is considered ambiguous on its face, a court may consider among other matters the:

(1) object sought to be attained;
(2) circumstances under which the statute was enacted;
(3) legislative history;
(4) common law or former statutory provisions, including laws on the same or similar subjects;
(5) consequences of a particular construction;
(6) administrative construction of the statute; and
(7) title (caption), preamble, and emergency provision.

TEX. GOV'T CODE sec. 311.023.
So even if there was no legislative discussion of the change, it seems to me that you would start with what the law was before the change. From there you would -- keeping in mind the consequences of a particular construction -- try to achieve the smallest change that could be harmonized with the text.

Second, I remain convinced that the House Bill Analysis provides good legislative history of the limited nature of the change intended.