Keller, P.J., delivered an opinion dissenting to the order of the Court which was joined by KEASLER, and HOLCOMB, JJ.

The Court holds that the district attorney cannot file a petition for discretionary review if the State Prosecuting Attorney (S.P.A.) chooses to file one. Because I believe that the Legislature conferred upon a district attorney and the S.P.A. the authority to file separate petitions, I dissent.

A statute must be interpreted in accordance with the plain meaning of its language unless the language is ambiguous or the plain meaning leads to absurd results that the Legislature could not possibly have intended.¹ In a “plain meaning” inquiry, "[w]ords and phrases shall be read in context and construed according to the rules of grammar and usage."² And, "we generally presume that every word in a statute has been used for a purpose and that each word, phrase, clause, and sentence should be given effect if reasonably possible."³

When the statutory language is ambiguous or leads to absurd results that the Legislature could not possibly have intended, we may resort to extratextual sources of interpretation.⁴ In conducting that inquiry, we may consider, among other matters: (1) the object sought to be attained, (2) the circumstances under which the statute was enacted, (3) the legislative history, (4) common law or former statutory provisions, including laws on the same or similar subjects, (5) the consequences of a particular construction, (6) administrative construction of the statute, and (7) the title (caption), preamble, and emergency provision.⁵

The first question is whether there is statutory authorization for district attorneys to represent the State on discretionary review. Texas Code of Criminal Procedure, Article 2.01 gives district attorneys the authority and duty to represent the State in appeals: “Each district attorney shall represent the State in all criminal cases in the district courts and in appeals therefrom, except in cases where he has been, before his election, employed adversely” (emphasis added). The key issue is what the statute means by “appeal.” If discretionary review is a form of appeal under the statute, then Article 2.01 would authorize a district attorney to represent the State before this Court on discretionary review.

Here, the word “appeal” could have one of two possible meanings under the language of the statute: (1) direct review by the appellate court of first resort, or (2) review of a lower court’s decision by a higher court. The first definition would limit “appeals” in criminal cases to direct review of cases by the court of appeals in non-death penalty situations and to direct review of death penalty cases by this Court. The second definition would include those situations but would also include discretionary review before this Court and writs of certiorari before the United States Supreme Court.⁶ Because the language of the statute is ambiguous, resort to extratextual sources is required for interpretation.

Before September 1, 1981, the Court of Criminal Appeals was the only court to hear appeals in criminal cases.⁷ Under the Texas Constitution and Article 44.01 of the Code of Criminal Procedure, the State was expressly denied the right to appeal criminal matters.⁸ In Faulder v. Hill, we confronted the issue of whether a petition for writ of certiorari to the United States Supreme Court constituted an “appeal” for the purpose of the Texas Constitutional provision denying the State the right to appeal.⁹ This Court had reversed Faulder’s conviction, and the State filed a motion to stay proceedings so that it might seek review by way of certiorari in the United States Supreme Court.¹⁰ The defendant sought a writ of prohibition from this Court to prevent the State from seeking such review.¹¹ The defendant contended that the State was barred by the Texas Constitution from filing a petition for writ of certiorari because such a petition would constitute an “appeal.”¹² While the case produced a fractured decision, with a plurality opinion and several concurring and dissenting opinions, all of the judges except Judge Dally agreed that a petition for writ of certiorari constituted an “appeal.”¹³ The lead opinion observed:

The plurality dictum expressed in White v. State, supra, correctly concluded, and respondent does not dispute, that a case such as this one is a criminal case, and that review of the case, whether denominated an appeal, a writ of error, a writ of certiorari, or any other name, is still an appeal.¹⁴

In 1981, the people of Texas and the Legislature comprehensively revised appellate jurisdiction involving criminal cases. In accordance with constitutional amendments, the courts of civil appeals were renamed the “courts of appeals,” first-level appellate jurisdiction over non- death penalty criminal cases was transferred from the Court of Criminal Appeals to the courts of appeals, and the Court of Criminal Appeals was given discretionary review jurisdiction over the decisions of courts of appeals in criminal cases.¹⁵ At about the same time, the Legislature amended Article 44.01 to permit the State to obtain discretionary review in a roundabout fashion:

The State shall have no right of appeal in criminal actions. However, this statute shall not be construed to prevent the State from petitioning the Court of Criminal Appeals to review a decision of a court of appeals in a criminal case, on its own motion.¹⁶

The language “on its own motion” appears to be a recognition that the Texas Constitution prevented the State from invoking our discretionary review jurisdiction with a petition.¹⁷ The Legislature was presumably aware of our prior caselaw holding that petitions for writ of certiorari were “appeals” and it could have readily inferred that a petition for discretionary review, which was much like petition for writ of certiorari, would likewise be considered an appeal. Although the 1981 constitutional amendments produced dramatic changes in the criminal appellate process, no change was made in the constitutional provision barring the State from prosecuting an appeal. Because of constitutional constraints, then, the Legislature could only authorize the State to suggest to this Court that we review something on our own motion. In response to a defendant’s claim that the new language in Article 44.01 violated the Texas Constitution, we stated that “the Legislature recognized the prohibition imposed by Article V, Section 26, and sought to make it clear that discretionary review, when granted, was “on its (this Court’s) own motion.”¹⁸

Article 2.01 and Article 44.01 were amended in the same bill.¹⁹ If the Legislature contemplated, as it appears to have done, that “appeal” under Article 44.01 included a petition for discretionary review, it seems logical to conclude that the Legislature also contemplated that “appeals” under Article 2.01 included petitions for discretionary review.

Other evidence of legislative intent can be found in a prior draft of the amendment to Article 2.01. The original version of the amendment would have granted district attorneys the authority to represent the State “in appeals therefrom to the Courts of Appeals” (emphasis added). The emphasized language was deleted from the final version of the bill. This deletion indicates the Legislature contemplated that a district attorney’s authority to appeal would extend beyond proceedings before the courts of appeals. One might contend that the reference to courts of appeals was deleted so that the statute would embrace direct appeals in death penalty cases, which are handled by this Court. But the Legislature could have included a reference in the statute to death penalty appeals, along with the reference to courts of appeals, if that was truly their intent – especially in light of the Legislature’s tacit recognition in Article 44.01 that discretionary review is a form of appeal.

In addition, Judge Dally’s testimony in a committee hearing indicates that the amendment to Article 2.01 was designed to permit district attorneys to follow their cases to the Court of Criminal Appeals:

Section 98 adds to provision 2.01 that district attorneys will represent the State on appeals from criminal cases in their district. This is probably unknown to many people but there has been no statutory provision for district attorneys doing what they have done, that is, following their cases on to the Court of Criminal Appeals. And this does make such a provision.²⁰

I would hesitate to use this passage as unqualified support for the proposition that discretionary review constitutes an appeal (although the Legislature may have so believed) because Judge Dally had taken the position elsewhere that discretionary review does not constitute an appeal.²¹ Judge Dally was in the minority on this point, as will be explained further in connection with my discussion of the S.P.A. statute. But Judge Dally’s committee statement does indicate that the Article 2.01 amendment was designed to legitimize a tradition regarding a district attorney’s representation of the State. That tradition consisted of dual representation of the State by the district attorney and the S.P.A., in which both filed briefs in this Court.²² And on at least two occasions before the 1981 changes, the district attorney and the S.P.A. advanced inconsistent positions.²³

Other, subsequently enacted statutory provisions reinforce the idea that discretionary review constitutes an “appeal.” Texas Code of Criminal Procedure, Article 1.051 refers to discretionary review as a form of appeal: the statute provides that counsel should be appointed in “an appeal to the Court of Criminal Appeals if the appeal is made directly from the trial court or if a petition for discretionary review has been granted.”²⁴ The current version of Article 44.01, titled “Appeal by State,” includes a provision that a state’s petition for discretionary review is covered by the Texas Rules of Appellate Procedure.²⁵ This reference to discretionary review in the current version of the State’s appeal statute is, as in the past version, a tacit recognition that discretionary review is a form of appeal. While subsequently enacted statutes do not carry a lot of weight in statutory construction, in this case they do show that the Legislature has consistently treated discretionary review as a form of appeal. Considering all of the above, I conclude that Article 2.01 gives district attorneys the authority to represent the State on discretionary review.

Having established that Article 2.01 gives district attorneys the authority to file petitions for discretionary review, I must next determine whether another statute deprives a district attorney of that authority if the S.P.A. files a petition. Before 1981, former Article 1811 of the Texas Civil Statutes provided for a State Prosecuting Attorney to represent the State before this Court: “The Court of Criminal Appeals shall appoint an attorney to represent the State in all proceedings before said Court, to be styled “State Prosecuting Attorney....”²⁶ In 1981, in the same bill amending Articles 2.01 and 44.01, the Legislature amended former Article 1811 by adding the following passage:

District and county attorneys may provide assistance to the State Prosecuting Attorney in representing the State before the Court of Criminal Appeals. The State Prosecuting Attorney may provide assistance to district and county attorneys in representing the State before the Courts of Appeals when requested to do so by the district or county attorney. The State Prosecuting Attorney may also represent the State in any stage of a criminal case before the Courts of Appeals when, in his judgment, the interests of the State so require.²⁷

Article 1811 was later codified in various parts of Chapter 42 of the Texas Government Code.²⁸

Nothing in the language of this statute deprives district attorneys of the authority to petition this Court. The statute, by its wording, is an affirmative grant of authority to the S.P.A. to represent the State before this Court. The statute also contains an affirmative grant of authority to district attorneys to provide assistance to the S.P.A. Those affirmative grants of authority are not inconsistent with an affirmative grant of authority to district attorneys to represent the State in all appellate proceedings. In other words, the language is consistent with both attorneys having authority to represent the State before this Court.

The Court finds significant that the Government Code authorizes a district attorney to “assist” the S.P.A. and concludes that an independent petition could not naturally be said to “assist.” That conclusion assumes either that a district attorney’s authority to petition the Court is derived solely from the provision permitting him to assist the S.P.A. or that the “assist” clause in Chapter 42 somehow overrides the grant of authority provided by Article 2.01. Nothing in the language of Chapter 42 requires either of those propositions to be true.

In fact, the structure of the statute suggests a different answer. Regarding the S.P.A.’s representation of the State in courts of appeals, Chapter 42 contains two separate clauses: one permits the S.P.A. to “assist” upon request while the other allows him to “represent the State” if he decides that the interests of the State so require. That difference in wording leads to two possible conclusions about the latter clause: (1) that the S.P.A. can choose to take over the State’s representation in the appeal, or (2) that he can act as an independent representative of the State before the Court of Appeals. The first interpretation creates difficulties. The statute provides that the S.P.A.’s representation may occur “in any stage of a criminal case before the Court of Appeals” (emphasis added). So, he is not obligated to represent the State throughout the proceedings but could “jump in” in the middle of the appellate process and “jump out” before the appeal is finished. Such drive-by representation could be disruptive if the S.P.A. suddenly jumps in to take over the case and then later jumps out, leaving the district attorney to deal with the aftermath. The more logical conclusion, based upon the language of that provision, is that the S.P.A. acts, at will, as an independent representative of the State before the court of appeals.

If the S.P.A. has both an “assist” function and an “independent representation” function at the court of appeals level, one has to wonder why the same functions would not be mirrored for district attorneys before this Court. Although Chapter 42 contains no language that could be interpreted as giving district attorneys an independent representation function, it does not need to: district attorneys were given that function by Article 2.01.

I observe that Judge Dally, in a law journal article, has interpreted these provisions to give the primary responsibility for representing the State to the district attorney at the court of appeals level and to the S.P.A. before our Court.²⁹ But this interpretation appears to be based upon his position that discretionary review does not constitute an appeal – a position from Faulder that he repeats elsewhere in the law journal article.³⁰ If the Legislature had agreed with this position, they would have given the State unqualified authority to file a petition for discretionary review instead of imposing the roundabout method placed in the 1981 revisions to Article 44.01. And, a majority of the Court in Faulder and Todd rejected this position as well.³¹

We have also recognized that longstanding judicial construction without Legislative disapproval adds force to the claim that the judicial construction was in fact correct. “When the Legislature meets, after a particular statute has been judicially construed, without changing that statute, we presume the Legislature intended the same construction should continue to be applied to that statute.”³² A judicial construction can take the form of a judicial opinion in a particular case or of a judicially-promulgated rule.³³ A custom can also be a judicial construction if it is early, longstanding, and pervasive.³⁴ As discussed in part 2, this Court recognized the independent filing of briefs by the district attorney and the S.P.A. as early as 1933 and the taking of inconsistent positions as early as 1932. And, those practices were still occurring at the time of the 1981 amendments. After the 1981 amendments there continued to be a consistent and pervasive practice of independent representation of the State before this Court by both the district attorney and the S.P.A., including the filing of separate petitions for discretionary review.³⁵ The Legislature has had ample time to amend the statutes involved if the prevailing practice of dual representation were inconsistent with the legislative intent.

I respectfully dissent.

KELLER, J.

Date delivered: February 28, 2001
Publish


¹ Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App.1991).
² Tex. Gov’t. Code § 311.011(a); Sanchez v. State, 995 S.W.2d 677, 683 (Tex. Crim. App. 1999).
³ Whitelaw v. State, 29 S.W.3d 129, 131 (Tex. Crim. App. 2000).
⁴ Boykin, 818 S.W.2d at 785.
⁵ Tex. Gov’t Code §311.023; Brown v. State, 943 S.W.2d 35, 38 (Tex. Crim. App. 1997). This provision is part of the “Code Construction Act,” which applies to the Code of Criminal Procedure, at least to the extent it has been amended or reenacted by the 60^th or subsequent legislature. Tex. Gov’t Code §311.002(2); Postell v. State, 693 S.W.2d 462, 464 (Tex. Crim. App. 1985).
⁶ Support for the latter definition can be found in Short v. State, 929 S.W.2d 13, 14 & 14 n. 2 (Tex. Crim. App. 1996)(citing Black’s Law Dictionary definition and holding that a petition for discretionary review constitutes an “appeal” for the purpose of former Rule of Appellate Procedure 60(b), regarding the effect of an escape from custody on a pending appeal).
⁷ Tex. Const., Art. 5, §5 (1980).
⁸ Tex. Const., Art. 5, §26 (1980)(“The State shall have no right of appeal in criminal cases.”); Tex. Code Crim. Proc., Art. 44.01 (1980)(“The State shall have no right to appeal in criminal actions”).
⁹ 612 S.W.2d 512 (Tex. Crim. App. 1980).
¹⁰ Id. at 513.
¹¹ Id.
¹² Id.
¹³ Id. at 514 (plurality opinion)(State could nevertheless file the petition because the Texas Constitutional provision did not apply outside the state system); Id at 516 & 516 n. 1 (Roberts, J. concurring and dissenting); Id. at 518-519 (Onion, P.J. dissenting); Id. at 525 (Clinton, J. dissenting). Contrast with Id. at 516 (Dally, J. concurring) & 526-528 (Dally, J. concurring on motion for rehearing).
¹⁴ Id. at 514.
¹⁵ Texas Const., Article 5, §6, 1980 amendment proposed by Acts 1979, 66th Leg., p. 3224, S.J.R. No. 36,§ 5, effective Sept. 1, 1981 (renaming the intermediate appellate courts and conferring criminal jurisdiction); Texas Const., Article 5, §5, 1980 amendment proposed by Acts 1979, 66th Leg., p. 3224, S.J.R. No. 36,§ 4, effective Sept. 1, 1981 (changes to Court of Criminal Appeals’ jurisdiction);
¹⁶ Texas Code of Criminal Procedure, Article 44.01 (1981); Acts 1981, 67^th Leg., S.B.265, p. 812, ch. 291, §123, effective Sept. 1, 1981.
¹⁷ Todd v. State, 661 S.W.2d 116, 118 (Tex. Crim. App. 1983).
¹⁸ Id.
¹⁹ Article 2.01, amended by Acts 1981, 67th Leg., S.B. 265, p. 801, ch. 291, § 98, effective Sept. 1, 1981.
²⁰ SB 265, Subcommittee Hearing, House Criminal Jurisprudence Committee, April 6, 1981.
²¹ Faulder, 612 S.W.2d at 516 & 526-528; Carl E.F. Dally and Patricia A. Brockway, Changes in Appellate Review in Criminal Cases Following the 1980 Constitutional Amendment, 13 St. Mary’s L.J. 211, 233 (1981).
²² See Ex Parte Shivers, 501 S.W.2d 898, 899 (Tex. Crim. App. 1973); Faugh v. State, 481 S.W.2d 412, 413 (Onion, P.J. concurring); Ex Parte Puente, 314 S.W.2d 306, 307 (Tex. Crim. App. 1958); Davis v. State, 308 S.W.2d 880, 883 (Tex. Crim. App. 1958)(on rehearing); McNaulty v. State, 135 S.W.2d 987, 988-989 (Tex. Crim. App. 1940)(on rehearing); Tucker v. State, 59 S.W.2d 156, 156 (Tex. Crim. App. 1933); Rice v. State, 51 S.W.2d 364, 365 (Tex. Crim. App. 1932)(on original submission by the S.P.A. and on rehearing by the district attorney). See also Dally and Brockway, 13 St. Mary’s L.J. at 238.
²³ Faugh, 481 S.W.2d at 413; Rice, 51 S.W.2d at 365 (on original submission and on rehearing).
²⁴ Tex. Code Crim. Proc., Art. 1.051(d)(2), which became effective in 1987.
²⁵ Art. 44.01(h), which became effective in 1987.
²⁶ Tex. Civ. Stat., Art. 1811 (1977). The statute also provided for the qualifications, term, and removal of the State Prosecuting Attorney, as well as the appointment of Assistant State Prosecuting Attorneys. Id. These provisions was subsequently codified at Tex. Gov’t. code §§42.001(a)(representing the State in all proceedings before the court), 42.001(b) (qualifications), 42.002 (oath and term), 42.003 (assistants), 42.004 (removal).
²⁷ Tex. Civ. Stat., Art. 1811 (1981); Acts 1981, 67^th Leg., SB265, p. 776, Ch. 291, §30, effective Sept. 1, 1981. This passage was subsequently codified at §§42.001(a) (third sentence); 42.005(a) (first sentence), 42.005(b) (second sentence).
²⁸ See citations above.
²⁹ Dally and Brockway, 13 St. Mary’s L.J. at 238.
³⁰ Dally and Brockway, 13 St. Mary’s L.J. at 233.
³¹ See discussion in part 2.
³² State v. Hardy, 963 S.W.2d 516, 523 (Tex. Crim. App. 1997)(quoting Marin v. State, 891 S.W.2d 267, 271-272 (Tex. Crim. App. 1994)).
³³ Hardy, 963 S.W.2d at 523.
³⁴ See Wheeler Lumber, Bridge & Supply Co. v. United States, 281 U.S. 572, 576 (1930)(“Early and long-continued usage amounting to a practical construction of a constitutional provision”).
³⁵ The following is a non-exhaustive list of cases in which this Court granted both the district attorney’s and the S.P.A.’s petitions for discretionary review: Curry v. State, 2000 W.L. 1347986, *2 (Tex. Crim. App. 2000); Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000); State v. Lee, 15 S.W.2d 921, 922 n. 1 (Tex. Crim. App. 2000); Huizar, 12 S.W.3d 479, 480 n. 1 (Tex. Crim. App. 2000); Perez v. State, 11 S.W.3d 218, 220 (Tex. Crim. App. 2000); Mayo v. State, 4 S.W.3d 9, 9-10 (Tex. Crim. App. 1999); Martinez v. State, 4 S.W.3d 758, 760 (Tex. Crim. App. 1999); Milburn v. State, 3 S.W.3d 918, 919 (Tex. Crim. App. 1999); Fields v. State, 1 S.W.3d 687, 688 (Tex. Crim. App. 1999); Perkins v. State, 993 S.W.2d 116, 116 (Tex. Crim. App. 1999); State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999); Weatherred v. State, 975 S.W.2d 323, 323-324 (Tex. Crim. App. 1998); Marin v. State, 925 S.W.2d 720, 721 (Tex. Crim. App. 1996); Ray v. State, 919 S.W.2d 125, 129 & 129 n. 2 (Tex. Crim. App. 1996)(Overstreet, J. dissenting); Lawhorn v. State, 898 S.W.2d 886, 888 n. 1 (Tex. Crim. App. 1995); Jackson v. State, 877 S.W.2d 768, 769 & 769 n. 1 (Tex. Crim. App. 1994); Gill v. State, 873 S.W.2d 45, 46 & 46 n. 2 (Tex. Crim. App. 1994); Ramos v. State, 865 S.W.2d 463, 464 (Tex. Crim. App. 1993); State v. Gonzales, 855 S.W.2d 692, 693 (Tex. Crim. App. 1993); Viveros v. State, 828 S.W.2d 2, 3 (Tex. Crim. App. 1992); Weatherford v. State, 828 S.W.2d 12, 13 (Tex. Crim. App. 1992); Grimes v. State, 807 S.W.2d 582, 583 (Tex. Crim. App. 1991); State v. Torres, 805 S.W.2d 418, 419 (Tex. Crim. App. 1991); Hernandez v. State, 800 S.W.2d 523, 524 (Tex. Crim. App. 1990); Solis v. State, 787 S.W.2d 388, 389 n. 1 (Tex. Crim. App. 1990); Blankenship v. State, 785 S.W.2d 158, 159 (Tex. Crim. App. 1990); Dingler v. State, 768 S.W.2d 305, 305 (Tex. Crim. App. 1989); Smith v. State, 739 S.W.2d 848, 849 (Tex. Crim. App. 1987); Fulmer v. State, 731 S.W.2d 943, 944 (Tex. Crim. App. 1987); McMillan v. State, 727 S.W.2d 582, 583 n. 1 (Tex. Crim. App. 1987); Perry v. State, 703 S.W.2d 668, 670 (Tex. Crim. App. 1986); Moreno v. State, 659 S.W.2d 395, 396 (Tex. Crim. App. 1983).