# State v. Muller

> Court of Criminal Appeals of Texas · April 1, 1992 · 829 S.W.2d 805

URL: https://www.frixlaw.com/law-library/cases/9654858

## Case

- **Full name:** The STATE of Texas, Appellant, v. Robert A. MULLER, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** April 1, 1992
- **Citations:** 829 S.W.2d 805; 1992 Tex. Crim. App. LEXIS 81; 1992 WL 61753
- **Precedential status:** Published
- **Opinion:** Concurrence by Miller
- **Judges:** Campbell, Clinton, Miller
- **Cited by:** 118 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9654858

## How later opinions describe it (automated extraction)

- holding that it was error for the court of appeals to permit the State to amend its original notice of appeal to include a certification made by the elected District Attorney after the original filing period had elapsed
- holding that "substantial compliance" means one has performed the "essential requirements" of a statute
- holding the Article 44.01 requires the elected “prosecuting attorney” and not his assistant to “make” the State’s notice of appeal within the prescribed time period, either through the physical act of signing the notice -21- or by personally and expressly authorizing an assist…
- holding that the prosecuting attorney "makes" an appeal "through the physical act of signing the notice or by personally and expressly authorizing an assistant to file a specific notice of appeal on his behalf." (Emphasis added
- noting that if the prosecuting attorney had personally approved the notice, the record could be supplemented with evidence or an affidavit to that effect

## Opinion text

MILLER, Judge,
concurring.
I agree with the Court’s holding today that only the “prosecuting attorney” is authorized to “make an appeal” on behalf of the State pursuant to Art. 44.01 1 , but I cannot agree with the analytical path the majority has traversed in reaching this conclusion.
I acknowledge that an overwhelming majority of this Court now adheres to the statutory construction rule that we will only consult legislative history when the plain meaning of the literal text of the statute is ambiguous or leads to highly improbable results. At pp. 808, 811 n. 7. See also Boykin v. State, 818 S.W.2d 782 (Tex.Crim.App.1991). Nevertheless, I must continue to stress that “often ambiguity in a statute is not apparent until the legislative history is researched and the true legislative intent is discerned.” Boykin, 818 S.W.2d at 789 (Miller, J., dissenting) (emphasis added). As I discussed in Boykin , this Court’s own experiences bear witness to this statement. See Id. at 789-790 , discussing Studer v. State, 799 S.W.2d 263 (Tex.Crim.App.1990), and Dillehey v. State, 815 S.W.2d 623 (Tex.Crim.App.1991). Only by researching the legislative histories of the statutes interpreted in both Studer and Dillehey was this Court able to discern the ills sought to be corrected by the legislature and then effectuate its intent in enacting those statutes. 2
Moreover, the Court’s adherence to this “plain language rule” ignores the statutory construction aids in the Government Code. Section 311.023 specifically provides:
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, (emphasis added)
*814 This section, which this Court has utilized in prior interpretive cases 3 , clearly does not require a finding of ambiguity in a statute before resort to legislative history may be taken.
Finally, the lack of a majority decision by the court of appeals, coupled with this Court’s reversal of that decision, suggests to me that there is latent ambiguity in the statute, and confirms my belief that the majority opinion’s interpretive analysis is incorrect. I am not comforted by the majority opinion’s statement, in dicta, that the legislative history underlying Art. 44.01 dictates the same conclusion reached by applying the “plain meaning” rule. See at p. 811, n. 7. The majority may have reached the correct result in this case, but its continued failure to consider legislative history and appreciate its role in judicial interpretation of statutory law will only result in this Court effectuating our 'perceived intent of the legislature, rather than the real thing.
With these comments, I concur in the result only.
. See at p. 810.
. The majority opinion begins its interpretive analysis by focusing on the meaning a "typical legislator" would have given the language of the statute at the time of its enactment. At p. 808. How can we, as "typical” judges I presume, even begin to know what a "typical” legislator is thinking. The very purpose of legislative history is to shed light on this exact subject matter. Also, what is a "typical legislator”?
. See, e.g., Ward v. State, 829 S.W.2d 787 (Tex.Crim.App.1992); State v. Rosenbaum, 818 S.W.2d 398 (Tex.Crim.App.1991); and Studer, 799 S.W.2d at 271 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9654858. Public record. Not legal advice.