"`Certainly when a legislature reenacts a law using the same terms that have been judicially construed in a particular manner, one may reasonably infer that the legislature approved of the judicial interpretation. There is considerably less force (though still some
How later courts described this case
- "`Certainly when a legislature reenacts a law using the same terms that have been judicially construed in a particular manner, one may reasonably infer that the legislature approved of the judicial interpretation. There is considerably less force (though still some
- “[W]e have long recognized that prolonged legislative silence BRENT — 7 or inaction following a judicial interpretation implies that the Legislature has approved of the interpretation.”
- discussing the principle of legislative ratification of a statutory construction
- conspiracy statute does not apply to offenses outside of the Penal Code because it is contained in Title 4 and only Titles 1, 2, and 3 apply to offenses outside the Penal Code
Written by the judges who cited it.
The opinion
COCHRAN, J.,
filed a dissenting opinion
in which MEYERS, JOHNSON, and HOLCOMB, JJ., joined.
KELLER, P.J., concurring in which PRICE, J., joined.
The dissenting opinion contends that we should overrule Moore v. State 1 and Baker v. State. 2 But Moore and Baker are judicial interpretations of statutes involving substantive penal law. The interests underlying the doctrine of stare decisis are at their height for such interpretations because parties rely upon them for guidance in attempting to obey the law. 3 The Court’s opinion meticulously details the legislature’s piecemeal response to the interpretive gloss announced in Baker and Moore. Instead of altering the Penal Code to extend the Title 4 inchoate offense provisions generally to offenses outside the Code, the legislature has chosen to amend various non-Penal Code provisions on an ad hoc basis to allow for Title 4’s application. As the dissent points out, the legislature could have chosen to amend Penal Code § 1.03 in response to Baker and Moore, but it did not. Or the legislature could have amended Title 4 to make it expressly applicable to all criminal offenses outside the Penal Code. Again, it did not. The dissent suggests that neither of these actions would solve what it perceives to be other problems created by the Baker/Moore construction. Perhaps not, but an amendment to Title 1 or Title 4 of the Penal Code would have effectively extended the inchoate offense provisions to all criminal offenses outside the Penal Code if that is indeed what the legislature wanted.
The dissent also suggests that a legislative fix might have unintended consequences. But that is a reason for this Court to refrain from creating a “judicial fix” to change the legal interpretation expounded in Baker and Moore. It is not the least bit absurd to conclude that the legislature may have intended to limit the application of the inchoate offense provisions to certain felonies as opposed to *886 globally applying it. The legislature may have believed that global application could have unintended consequences.
Finally, even if the dissent were correct in concluding that Baker and Moore should be overruled, the new interpretation could not be applied to these defendants. Due process prohibits a court from retroactively applying a more expansive interpretation of a criminal offense provision that is “unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.” 4 Baker and Moore were the law at the time the defendants engaged in the conduct for which they were indicted. Retroactive application of a contrary and more expansive interpretation of the conspiracy statute would violate the defendants’ right to fair warning of what constitutes criminal behavior. 5
With these comments, I join the Court’s opinion.
. 545 S.W.2d 140 (Tex.Crim.App.1976)
. 547 S.W.2d 627 (Tex.Crim.App.1977).
. Busby v. State, 990 S.W.2d 263, 267 (Tex.Crim.App.1999).
. Rogers v. Tennessee, 532 U.S. 451, 457 , 121 S.Ct. 1693 , 149 L.Ed.2d 697 (2001)(quoting Bouie v. City of Columbia, 378 U.S. 347, 352 , 84 S.Ct. 1697 , 12 L.Ed.2d 894 (1964)).
. Id.