Opinion

Hernandez, Alexander

Court
Court of Criminal Appeals of Texas
Filed
Feb 4, 2004
Status
Published
Cited by
0 cases
Authority
More cited than 38.0%

finding ambiguous a statute silent on definition of "voluntarily"

How later courts described this case

  • finding ambiguous a statute silent on definition of "voluntarily"
  • finding ambiguous a statute silent on whether "a case" refers to a criminal case or a civil case
  • finding ambiguous a statute silent on meaning of phrase "motion to suppress evidence"

Written by the judges who cited it.

The opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. 826-02

ALEXANDER HERNANDEZ, Appellant

v.

THE STATE OF TEXAS

ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE ELEVENTH COURT OF APPEALS

DALLAS COUNTY

Keasler, J., filed this concurring opinion in which Keller, P.J. and Hervey, J.

join.

O P I N I O N

The majority says that Boykin v. State (1) does not address the situation of a statute's

silence, and as a result, the court must "round out" the law and "impose its own construction." (2)

I disagree.

Boykin instructs courts to apply the plain language of the statute unless the statute is

ambiguous or leads to an absurd result which the legislature could not possibly have intended. (3)

The Court says this language "does not tell us what to do when the legislature leaves a gap"

through silence. But silence falls well within the umbrella of ambiguity. If a statute is silent

on a matter, it is ambiguous. We have recognized this many times. (4) Similarly, this statute is

silent on whether "an indictment" refers to an indictment alleging the same offense or any

offense. The majority's efforts to bring this case outside the ambit of Boykin are wholly

unpersuasive.

I am also troubled by the Court's new guidelines for statutory construction. This new

category of "silent but not ambiguous" statutes is dangerous. The majority today gives courts

the power to "round out" statutes and "impose their own construction" whenever they perceive

statutes as silent. This will take us far from the literal text of the statute and gives courts none

of the guidelines that Boykin provides. Boykin limits the extra-textual journey to legislative

history, other statutes, consequences of the construction, etc. The Court's opinion today

provides no such limits and will serve as precedent for courts to strike out on their own in

interpreting statutes. This is a bad idea.

I would apply Boykin to this case and conclude that this statute is ambiguous. I would

then consider extra-textual sources, which the Court does in the remainder of its opinion. I

would reach the same conclusion that the Court does regarding Art. 12.05(b).

I therefore concur in the Court's judgment.

DATE DELIVERED: February 4, 2004

PUBLISH

1. 818 S.W.2d 782 (Tex. Crim. App. 1991).

2.

Ante , slip op. at 6-7.

3.

Boykin , 818 S.W.2d at 785 .

4.

See Brown v. State , 98 S.W.3d 180, 183-85 (Tex. Crim. App. 2003) (finding

ambiguous a statute silent on definition of "voluntarily"); State v. Roberts , 940 S.W.2d 655,

658 (Tex. Crim. App. 1996) (finding ambiguous a statute silent on meaning of phrase "motion

to suppress evidence"); Lane v. State , 933 S.W.2d 504, 514-15 (Tex. Crim. App. 1996)

(plurality op.) (finding ambiguous a statute silent on meaning of "provide"); Lanford v.

Fourteenth Court of Appeals , 847 S.W.2d 581, 587 (Tex. Crim. App. 1993) (finding

ambiguous a statute silent on whether "a case" refers to a criminal case or a civil case).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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