Martin D. Mayne -!...

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..
55 Waugh Dr" #900
U.S.POSTAGE
Houston, TX 77007
OCT29'S6
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DOCI(ET CALL
OCTOBER/NOVEMBER 1996 APublication of Harri sCounty Criminal LawyersAssociation
Honoree Richard "Racehorse" Haynes and Featured Speaker, Gerry Spence of Jackson,Wyoming
Photography by Russell Webb
n..-ty

25'"Y"ea.rs
Licea -1I1UIJ
In Jail Call 222 - BAIL
That's 222-2245
JION))S
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BurnsBail Bonds
1971
224-0305
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Servingall courtsinHarris County, with statewideandnationalaffiliates
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DOCKETCAll
HCClA
rs & Directors
1996-1997
President....... ..... .. ....... ......GorlondD. Mcinnis
President-Elect..... ..............RobertA. Moen
VicePresident ............ .......StonleySchneider
Secretory...................... ....WendellA. adom,Jr.
Treasurer........... .. .............GeorgeM.Secrest, Jr.
ImmediatePastPresident...GeorgeJ. Pomham
Board Chairman................RobertA. Moen
Directors:
Lloyd W.Oliver
Joseph W. Varela
Ted R.Doebbler
Tanya l.Elliott
Donny Easterling
Richard Trevathan
Joseph Solhob
ClydeWilliams
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Ron Hayes
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RobertMorrow
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Past-Presidentts 19711996
C. AnthonyFriloux (1972-1973)
StuartKinard (1973-197.4)
GeorgeLuquette (197.4-1975)
MorvinO. Teague (1975-1976)
DickDeGuerin (1976-1977)
W.B. "Bennie" House, Jr. (1977-1978)
DavidR.Bires (1978- 1979)
Woody Densen (1979-1980)
WillGray (1980-1981)
EdwardA. Mollett (1981-1982)
CarolynGarcia (1982-1983)
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DocketCall
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DOCKETCALL.............OCTOBERJNOYEMBER 1996
Contents
...
CourtRu1emaking and Statutory Conflict in Texas... ...... ........
............. ................................ .......................... ..by Don Rogers 2
HCCLAGrievanceCommitteeResolution.......... ...................17
... ... .. ...... ... ...... ... ...... .. .... .... ...... .._...... ....... ... by David Mitcham
ALR Appea\s....... .. ............... .. ......... by Elizabeth Rutkowski 18
LET'S HEAR FROMYOU!
CONTINUINGLEGALEDUCATION
...
October10,1996
November14,1996
December12,1996
Wednesday Appellate Updates
Criminal Courthouse Bldg., 301 San Jacinto, 230th court
01.00 MCLE, 12:00Noon
HCCLABoard Meeting, Thursdaynoon,
Scanlan Bldg., 405 Main 2nd floorconference
October24, 1996 LUNCHEON PROGRAM,Thursday noon,
Treebeard'satThe Church, 1117Texas.
October17-18, 1996 Experiencing InternetTravel:
WhyLawyers Need To Learn How
to Navigatethe Internet.
SouthTexas College of Law &
the State Bar ofTexas Computer
Section, 10.50 MCLE
(713) 646-1757 or(800) 646-1253.
November1, 1996 KeysToTheLocksAtTrial:
Opening Upthe Mind, Heart and
SoulofJurors.
SouthTexas College ofLaw- State
ofTexas Professional Development Course.
November6-9,1996 NACDLFall Meeting/Seminar
The UltimateinJurorPersuasion
Hyatt Regency, San Antonio
Co-Sponsored byTCDLA
2021872-8688, ext. 236.
"Existingrulesandprinciplescangiveusour
presentlocation,orbearings,ourlatitudeand
longitude. Theinnthatsheltersforthenight
isnotthejourneysend. Thelaw,likethe
travelermustbereadyforthemorrow. Itmust
havea principleofgrowth."
Cardozo, BeJUamin N., The Growth ofthe Law
(New Haven: Yale University Press, 1924),pp. 1920.
DOCKETCALL OCTOBERINOVEMBER1996
CourtRulemakingand
StatutoryConflictin Texas
by
DonRogers
The provisions ofArticle 4495b,
5.08oftheTexasRevisedCivilStatutes
createaphysician-patientprivilege,make
medical records confidential, andestab-
lish procedures for obtaining access to
medicalrecords whichappearonthe face
of the statutoryprovisionstobeapplica-
ble to court proceedings.I The provi-
sions of Sections 611.00I through
611.005ofthe TexasHealthandSafety
Code createamentalhealthprofessional-
patientprivilege,establishthatcommuni-
cations between a professional and pa-
tientandassociatedrecordsoftreatment
areconfidential,andprovideamongother
thingslegalremediesforimproperdisclo-
sureofconfidentialinfonnation.
2
These
statutesarehereinafterreferredtoasthe
medical and mental health enactments.
The Supreme Court ofTexas and the
Court of CriminalAppealsofTexashold
that the medicalandmentalhealthenact-
ments, among other lawfully enacted
statutesnotrepealedorlimitedinscope
bythe TexasLegislature,donotapplyto
courtproceedingsinsofarasthestatutes
are"deemed repealed" incivilandcrimi-
nal cases and criminal law matters
through court orders and accompanying
documents issued in coIUlection with
court rulemaking.
3
The practices and
holdings ofthe Supreme Court and the
CourtofCriminalAppealsdeeming law-
fullyenactedstatutesrepealedinorderto
deny full lawful effecttothe statutes in
court proceedings and related matters
causeananomaloussituation: Aperson
affected by a lawfully enacted statute
CaIUlot determine from the face ofthe
statute whetherorto what extent itap-
pliestocourtproceedingsorrelatedmat-
ters. The constitutional and statutory
rulemaking authority of the Supreme
CourtandtheCourtofCriminalAppeals
is analyzed in this article to determine
whether the practices and holdings of
bothCourtsdenyingfull effecttolawfully
enactedstatutesarepursuanttothe lawful
exerciseof anyconstitutionalorstatutory
authority.4 Analysis of each Court's
respective rulemaking authority demon-
strates: (I)thatneitherCourt is autho-
rized bythe Texas Constitution to pro-
mulgate any rule contraryto any provi-
sionofalawfullyenactedstatute;(2)that
neither Court is empowered with any
lawfulauthoritytorepeal,amend,orlimit
the application ofany lawfully enacted
statute; and (3) that the practices and
holdings ofboth Cow1s, whereby law-
fullyenactedstatutesaredeemedrepealed
anddeniedlawfuleffectincourtproceed-
ings andrelatedmatters,are unconstitu-
tionalasthey exceedthescopeofauthor-
ity granted by Article V, 31 ofthe
TexasConstitutionandviolatethe sepa-
rationofpowersdoctrineofArticleII,
1of theTexasConstitutionbyinfringing
onthe powersofthe legislativebranchof
government.
Abasicunderstandingoftherespec-
tive functionsandpowersofthelegisla-
tiveandjudicialbranchesof government
establishedbythe Texas Constitutionis
necessary to analyze the scope ofrule-
making authority that can be lawfully
delegated by the Legislature to the Su-
premeCourt and CourtofCriminalAp-
peals. ArticleIII, Iofthe TexasCon-
stitutionestablishesthelegislativepower
ofthe State ofTexas. The legislative
functions recognizedtobe includedwith
Articleill, 1includethepowertomake,
alter,andrepeallaw.
s
TheTexasConsti-
tution grants the Legislature ultimate
authority overjudicial administration.
6
TheLegislaturehastheauthoritytospec-
ify the means and procedure through
whichsubstantiveprovisionsinthecon-
stitutionaremadeeffective.
7
TheLegis-
latureis constitutionallyentitledtoexpect
the cow1s to follow the specific textof
anylawfullyenactedstatute.
s
ArticleV, 1oftheTexasConstitu-
tionestablishesthejudicialpowerofthe
State ofTexas. The judicial functions
includedwithinthegrantof powerunder
ArticleV, 1arerecognizedas: "(1)the
power to hear facts, (2) the power to
decide the issues offact made by the
pleadings,(3)thepowertodecideques-
tions oflaw involved, (4) the powerto
enter a judgment on the facts found in
accordancewiththelawasdeterminedby
thecowt, and (5)the powertoexecutethe
judgmentorsentence. "9 Cow1s have a
dutytodeterminethevalidityandconsti-
tutionality of any law enacted by the
Legislature. \0 Cow1s do not have the
authoritytojudiciallyamendany statute
oraddwordsnotimplicitlycontainedina
statute. I I The Supreme Court and the
Court of CriminalAppealsareauthorized
topromulgaterules forthegovernanceof
the courts withintheirrespectivejurisdic-
tion. The Supreme Courtcurrentlyhas
rulemakingauthorityderivedfrom Article
V, 31 ofthe Texas Constitution and
Sections22.003 and22.004oftheGov-
ernment Code. The Court ofCriminal
2 DOCKETCALL OCTOBERINOVEMBER 1996
Appeals currently has rulemaking author-
ity derived from Article V, 31 of the
Texas Constitution and Sections 22.108
and 22.109 of the Government Code.
The origin and scope of the rulemaking
authority of the Supreme Court and Court
of Criminal Appeals will be hereinafter
discussed.
The Supreme Court power to promul-
gate rules of procedure and evidence for
court proceedings in civil actions arises
from the Constitution of 1876.
12
Article
V, 25 of the Texas Constitution,
adopted in 1891, is the initial constitu-
tional source of the Supreme Court power
to promulgate the rules of civil procedure
and rules of evidence. \3 In 1939, the
Legislature, pursuant to Article V, 25,
passed the Rules of Practice Act
l4
to
enable the Supreme Court to promulgate
what ultimately became the Texas Rules
of Civil Procedure. The Legislature at the
time ofenactment ofthe Rules of Practice
Act intended to delegate full rulemaking
power in civil cases to the Supreme
Court.
IS
The provisions of Section 2 of
the Act give the Court full rulemaking
power as to matters ofpractice and proce-
dure in civil actions, and expressly pro-
vide that the rules promulgated by the
Supreme Court cannot abridge, modify,
or enlarge the substantive rights of a
litigant.
16
The Supreme Court promul-
gated what are now the Texas Rules of
Civil Procedure in 1940 and the Texas
Rules of Civil Evidence in 1982 through
authority conferred by the provisions of
Article V, 25 of the Texas Constitution
and the Rules of Practice Act. I
7
In 1985, the Legislature determined a
need to delegate limited rulemaking au-
thority to the Court of Criminal Appeals
for the promulgation of rules of evidence
and rules of post-trial and appellate pro-
cedure in criminal cases, and passed a
joint resolution
l8
leading to a constitu-
tional amendment whereby Article V,
25 was repealed and replaced by Article
V, 31 of the Texas Constitution. Arti-
cle V, 3Jl9 enables the Legislature to
delegate rulemaking authority to the
Supreme Court and Court of Criminal
Appeals. Article V, 25 and Article V,
31 of the Texas Constitution are excep-
tions to the general prohibition against
delegation of legislative functions to the
judiciary WIder the separation of powers
provisions of Article II, 1 of the Texas
Constitution, and confer a limited grant of
legislative power upon the COurts.20
On May 26, 1985, the Legislature,
anticipating adoption of Article V, 31,
enacted House Bill No. 13,21 which will
be later discussed, to enable the Court of
Criminal Appeals to exercise limited
rulemaking through promulgation of rules
of evidence and rules of post-trial and
appellate procedure in criminal cases.
House Bill No. 13 was initially codified
as Article 1811 f of the Texas Revised
Civil Statutes. In 1987, Sections 1, 2,
and 3 of House Bill No. 13 became Sec-
tion 22.108 of the Govenunent Code/
2
relating to promulgation and amendment
ofrules of appellate procedure in criminal
cases. In 1987, Sections 5, 6, and 7 of
House Bill No. 13 became Section 22.109
of the Government Code,23 relating to
promulgation and amendment of rules of
evidence in criminal cases. Section 9 of
House Bill No. 13 is presently codified as
Article 1811 f, 9 of the Revised Civil
Statutes. Other sections of House Bill
No. 13 were repealed in 1987.
24
In 1985,
the Legislature enacted Title 2 of the
Texas Government Code
25
to consolidate
statutes relating to the judiciary. The
Rules of Practice Act, as amended, was
incorporated into the Govenunent Code
as Section 22.004.
26
The Legislature at
that time added Section 22.003 of the
Government Code,27 which also relates to
rulemaking by the Supreme Court. The
sections mentioned regarding the rule-
making authority ofthe Court of Criminal
Appeals were added to the Govenunent
Code in 1987. The Court of Criminal
Appeals promulgated what are presently
the Texas Rules of Criminal Evidence
and the crirninallaw aspects of the Texas
Rules of Appellate Procedure through
authority derived from Article V, 31 of
the Texas Constitution and House Bill
No. 13. The Supreme Court promulgated
the civil law aspects of the present Texas
Rules of Appellate Procedure through
authority derived from Article V, 31 of
the Texas Constitution and the Rules of
Practice Act as incorporated into Texas
Government Code Section 22.004.
The authority of the Supreme
Court or Court of Criminal Appeals, if
any, to repeal, amend, or limit the appli-
cation of a lawfully enacted statute
through promulgation of an inconsistent
rule or otherwise in connection with law-
fully delegated rulemaking authority is at
best questionable. The Supreme Court
and the Court of Criminal Appeals en-
gage in the practice of deeming lawfully
enacted statutes repealed as to court pro-
ceedings and other matters, as discussed
at the outset in connection with the medi-
cal and mental health enacbnents. Sec-
tion 3 of the Rules of Practice Act em-
powers the Supreme Court to file with the
Secretary of State a list of statutes, known
as the List of Repealed Statutes, which in
its opinion are repealed by Section 1 of
the Act. Section 1 of the Rules of Prac-
tice Act is a general repealer of statutes
relating to civil procedure. The Supreme
Court holds that the statutes repealed by
Section 1 of the Rules of Practice Act
includes those enacted by the Legislature
on or before the effective date of the act. 28
The Supreme Court, nevertheless, contin-
ues to add to the List of Repealed Stat-
utes those which in its opinion are
deemed repealed by subsequent amend-
ments to the rules of procedure and rules
of evidence, including statutes lawfully
enacted after September 1, 1941, the
effective date of the Rules of Practice
Act.
29
The Supreme Court's authority for
this practice has been questioned, but
never directly challenged.
30
The Su-
preme Court, at the time of adoption of
the rules of civil procedure, promulgated
Rule 819/
1
which provides that a rule of
procedure prevails in the event of conflict
with a statute. Appellate courts utilize
Rule 819 to nullify statutory provisions
conflicting with rules of civil procedure.
32
Section 22.004(c)33 of the Government
DOCKET CALL OCTOBEWNOVEMBERIW6 3
Code now provides in part that "a rule
adopted by the supreme court repeals all
conflicting laws and parts of laws govern-
ing practice and procedure in civil ac-
tions." The Court of Criminal Appeals
designates all of the statutes listed in
Section 9(b) of House Bill No. 13, includ-
ing the medical and mental health enact-
ments, for repeal as they relate to criminal
cases and criminal law matters in its order
adopting the Texas Rules of Criminal
Evidence. 34 The Court of Criminal Ap-
peals does not add to its List of Repealed
Statutes. Nevertheless, any subsequent
enactment of a listed statute may later be
deemed repealed under the present orders
and holdings of the respective COurts.
35
An anomalous situation results from
the practices, orders, and holdings that
lawfully enacted statutes are deemed
repealed as to court proceedings and
related matters. A person affected by the
operation of a lawfully enacted Texas
statute cannot read the statute and deter-
mine its applicability in situations con-
nected with court proceedings or related
matters. The statute must instead be fully
briefed, including review of court orders
and accompanying documents, to deter-
mine if the statute, or any predecessor,
has been listed as repealed pursuant to a
standardless determination by either
court.
36
The applicability of the statute
may even then remain unclear. The situa-
tion presented does nothing but create
confusion among all affected, including
the bench, the bar, and law enforcement
officials, as to the meaning and applica-
tion of lawfully enacted statutes. The
ultimate consequences of this situation
include waste of judicial resources, in-
creased probability of erroneous judicial
decisions, and failure of the courts to
carry out the will of the citizens of Texas
as expressed through lawful enactments
by their representatives in the Legisla-
ture.
17
The issue hereafter addressed is
whether the orders and holdings of the
Supreme Court and Court of Criminal
Appeals deeming lawfully enacted stat-
utes repealed, and accordingly inapplica-
ble to court proceedings and other mat-
ters, are made pursuant to any lawful
exercise of power or authority by either
court.
The Supreme Court does not have
authority under the Texas Constitution to
promulgate any rule conflicting with the
provisions of any lawfully enacted stat-
ute. 1be Supreme Court in Few v. Char-
ter Oak Fire Insurance Company1B
holds that the language "not inconsistent
with the laws of the State" contained in
Article V, 25, the predecessor of Article
V, 31, causes the provision to be a
limited grant ofconstitutional authority to
promulgate rules not inconsistent with
legislative enactments, meaning that a
court-promulgated rule yields to the ex-
tent of conflict with a lawfully enacted
statute by virtue of the Texas Constitu-
tion. Article V, 31 replaces Article V,
25 with the same language authorizing
Supreme Cowt rulemaking "not inconsis-
tmt with the laws of the state." Readop-
tion of the language of a replaced consti-
tutional provision is presumed to be with
the purpose not to change the law.
39
The
construction of Article V, 2S by the
Supreme Court as a limited grant of
power to promulgate rules not inconsis-
tent with the law as embodied in legisla-
tive enactments prior to adoption of the
same language in Article V, 3 1 be-
comes a part of the constitution upon
adoption of Article V, 31 to the extent
that it cannot be changed even by a stat-
ute expressly seeking to change the mean-
ing of the provision as construed.4O The
Supreme Court accordingly is prohibited
by the provisions of Article V, 31 from
promulgation of rules of procedure or
evidence inconsistent with lawfully en-
acted statutes. Any rule promulgated by
the Supreme Court conflicting with a
valid statute exceeds the authority granted
by Article V, 31 and to the extent of
conflict is null and void ab initio.
The Court of Criminal Appeals has
no constitutional authority to promulgate
rules inconsistent with the provisions of
any lawfully enacted statute. Article V,
31(c) of the Texas Constitution autho-
rizes delegation of rulemaking authority
to the Court of Criminal Appeals by the
Legislature. Article V, 3 1 (c) allows the
Cowt of Criminal Appeals to promulgate
rules which may be prescribed by law or
the constitution. The constitution is
construed as a whole
41
to ascertain the
will ofthe people of Texas.42 The courts
cannot write in an exception to the consti-
tution as any change must be written by
the people through amendment. 41 The
constitution is strictly construed where
the language is plain and unambiguous. 44
Article V, 31 prohibits promulgation of
rules inconsistent with the laws of the
State of Texas by the Supreme Court.
The Court of Criminal Appeals cannot
logically have more power under the
Texas Constitution than the Supreme
Court. Article V, S empowers the
Court of Criminal Appeals with fmal
appellate jurisdiction in criminal cases
subject to exceptions or regulations pro-
vided in the constitution or prescribed by
law. The appellate jurisdiction of the
Court of Criminal Appeals is regulated by
the Legislature.
45
No provision of the
Texas Constitution and no statute autho-
rizes the Court of Criminal Appeals to
promulgate rules inconsistent with the
law of the state. The will of the people
expressed through Article V, 31 of the
Texas Constitution is that no appellate
court has constitutional authority to pro-
mulgate a rule inconsistent with the law
as embodied in a statute of the State of
Texas. Any rule promulgated by the
Court of Criminal Appeals conflicting
with the provisions of any lawfully en-
acted statute exceeds the authority
granted by Article V, 31 of the Texas
Constitution and is null and void ab initio
to the extent of the conflict.
The Legislature has no power to
delegate to the Supreme Court or the
Court of Criminal Appeals authority
which cannot be exercised lawfully pursu-
ant to the constitution. There is an im-
plied prohibition against adding to a
condition specified in a constitutional
provision where a power is given because
the constitutional provision is exclusive
4 DOCKET CALL
as to the circwustances under which the
power may be exercised.
46
The Legisla-
ture does not have power to enact any law
contrary to the provisions of the constitu-
tion.
47
Neither the Legislature nor the
courts can set aside a clear constitutional
provision.
48
A statute conflicting with
any constitutional provision is void and
tmenforceable.
49
The Legislature, there-
fore, cannot delegate the power to pro-
mulgate a rule inconsistent with the law
as embodied in a statute to either the
Supreme Court or the Court of Criminal
Appeals. The Legislature recognizes this
restriction upon its power to delegate
rulemaking authority to the Supreme
Court through the language of Section
22.003 of the Government Code to the
effect that the Supreme Court may pro-
mulgate and enforce all necessary rules
"not inconsistent with the law". The
Legislature, nevertheless, provides in
Section 22.004(c) of the Government
Code that "a rule adopted by the Supreme
Court repeals all conflicting laws and
parts of laws governing practice and
procedure in civil actions." Section
22.004(c) is based upon the premise that
full rulemaking power requires a provi-
sion empowering the Supreme Court to
repeal statutes as to matters of procedure
conflicting with its rules. The premise
begs the question as the Supreme Court
may not lawfully promulgate a rule con-
flicting with a lawfully enacted statute
because of the limited grant of authority
by Article V, 31 of the Texas Constitu-
tion. The power to repeal a statute is a
power inconsistent with the laws because
exercise of the power annuls a legislative
enactment. The issue thus arises as to
whether the Legislature may lawfully
delegate the power to repeal or amend a
statute to the Supreme Court and the
Court of Criminal Appeals through dele-
gation of rulemaking power pursuant to
either Article V, 25 or Article V, 31
of the Texas Constitution.
A repeal of a statute is essentially
defined by an appellate court in Texas to
be the abrogation or annulling of a previ-
ously existing law by subsequent statute
declaring the former law revoked or con-
taining provisions so contrary to the prior
law that the prior law cannot stand. so A
repeal completely abrogates the former
law. An amendment alters the law leav-
ing some part of the original still stand-
ing. An amendment is a partial repeal of
a law to the extent that the meaning of the
law is changed or something is added to
or deleted from the law increasing or
limiting its application. 51 Alteration of
the scope or application of a statute is
technically an amendment. The Supreme
Court and Court of Criminal Appeals by
deeming the medical and mental health
enactments and other listed statutes re-
pealed as to court proceedings or related
matters are actually attempting to amend
the statutes so as to limit their application
to matters outside of court proceedings.
A deemed repeal may be viewed as a
legal fiction employed by a court to pre-
clude application of a lawfully enacted
statute court proceedings or related mat-
ters. The word repeal as used herein
refers to the power to either completely
annul a statute or amend a statute by
limiting its application.
The power to repeal a statute is an
exclusive legislative power under Article
III, 1 of the Texas Constitution. The
powers to repeal or to amend a statute are
powers of general legislation which may
not ordinarily be delegated by the Legis-
lature in the absence of express constitu-
tional authority. 52 The power to repeal
laws may not be delegated under Article
III, I or Article II, I without express
constitutional authority as that is an ex-
clusive legislative function.53 Repeals
are either express or implied. An express
repeal specifically annuls a designated
statute. An implied repeal arises from
passage of a subsequent statute with
terms so contradictory to a prior statute
that the statutes cannot stand together.
The courts do not favor implied repeals
and ordinarily attempt to harmonize con-
flicting statutes. An implied repeal is
fmmd by the courts only where provisions
of statutes are irreconcilable.54 Repeals
may also be general or specific. A gen-
eral repeal or repealer is a clause or provi-
sion in a statute saying that all laws or
parts of laws in conflict with the statute
are repealed. 55 A specific repeal or re-
pealer is a provision in a statute designat-
ing a particular statute or statutes as
repealed. A general repeal or repealer is
effective to repeal prior enactments to
the extent the prior enactments are incon-
sistent with or repugnant to the terms of
the statute containing the provision.56 A
general repealing clause or general re-
pealer does not ordinarily repeal a special
statute even though the special statute
conflicts because the special statute is
treated as an exception to the general
statute regardless of the date of enact-
ment. 57 A general repealing clause or
general repealer is effectively nothing
more than a repeal by implication.5&
The Legislature cannot delegate the
power to repeal statutes in the absence of
express constitutional authorization with-
out violating the separation of powers
doctrine set forth in Article II, I of the
Texas Constitution. 59 The separation of
powers doctrine of Article II, 1 is vio-
lated where one branch of government is
delegated or assumes a power attached to
another branch without express constitu-
tional authorization or interferes with
another branch so as to prevent effective
exercise of its constitutional powers.
60
Courts have no constitutional power to
repeal or amend a statute.
61
Courts gen-
erally have nothing to do with making or
repealing statutes and violate their own
powers by undertaking to repeal a
statute.
62
Courts may determine the
validity of statutes and may construe
ambiguous statutes, but may not legislate
under the guise of statutory construction
by attempting to rewrite or change a
statute.
63
The Legislature generally
cannot delegate legislative functions to
the COurts.64 A function of govenunent
that the Legislature cannot directly dele-
gate to the courts cannot be indirectly
delegated to the courts.
6S
Article V, 31 of the Texas Consti-
tution does not expressly provide that the
DOCKET CAll
5
legislature may delegate the power to
repeal statutes to the judicial branch of
government. No other provision in the
Constitution allows such delega-
bon. Courts may not write in exceptions
to any provision in the constitution
through construction as any change must
be made by the people through constitu-
tional amendment. 66 The provisions of
Article V, 25 and Article V, 3 I al-
lowing promulgation of rules not
sistent with the laws as embodied in
enactments, contain an implied
prohibitIon against delegation of the
power to repeal statutes to the courts.
The power to repeal statutes cannot arise
as an implied power from the constitu-
tional grant of rulemaking authority in
any event as the provisions of Article II
I of the Texas Constitution allow trans:
fer of power among government branches
only by express constitutional authoriza-
tion. The limited grant of power to pro-
mulgate rules in a manner not inconsis-
tent with the laws negates implied power
to repeal statutes as such a power is con-
trary to the limited grant and cannot be
lawfully exercised.
67
The Legislature is
not empowered by either former Article
V, 25 or Article V, 31 to delegate the
power to repeal any statute to either the
Supreme Court or the Court of Criminal
Appeals. The Legislature cannot indi-
rectly delegate such power to the courts
where it cannot directly delegate such
power. Repeal of a statute is more prop-
erly a fimction of the Legislature than the
courts because repeal of a statute involves
policy considerations more appro-
pnately made by the Legislature than the
judicial branch of government.
68
The
Legislature in the absence of an express
grant of authority in the constitution
violates the separation of powers doctrine
of Article II, I of the Texas Constitu-
tion by delegating the function of repeal
of any lawfully enacted statute to the
judiciary. The issue thus becomes
whether the Legislature in fact delegates
the power to repeal statutes to the Su-
preme Court or the Court of Criminal
Appeals through respective enabling
legislation.
The Legislature does not delegate the
power to repeal statutes to the Supreme
Court through the Rules of Practice Act
as originally enacted. The only sections
of the Rules of Practice Act relevant to
the issue of whether the Act confers
power to repeal or limit application of
lawfully enacted statutes upon the Su-
preme Court are Section I and Section
3,(1} which should be considered together
as to practical effect. The magnanimous
language of Section I creates a hybrid
type of general repealer having the basic
effect of an implied repeal as to statutes
enacted on or before the effective date of
the act. 70 Section I is referred to herein
as a hybrid type of general repealer as it
purports to repeal only procedural stat-
utes or parts of statutes while leaving
substantive statutes or parts of statutes
unaffected by the repeal. The result under
this approach is that statutes having both
substantive and procedural aspects are
amended to delete the procedural aspects.
The Legislature does not undertake the
task of determining which statutes are
affected by Section I and instead leaves
the to the Supreme Court through
SectIOn 3. Section 3 authorizes the Su-
preme Court at the time of filing the rules
of procedure authorized by Section 2 to
additionally file with the Secretary of
State a list of statutes which in its judg-
ment are affected by the repeal in Section
I of the Act. The list of statutes con-
strued by the Supreme Court as affected
by the repeal in Section I of the Act
"shall constitute, and have the same
weight and effect, as any other decision of
the Supreme Court." Section 3 empowers
the Supreme Court to file a list of statutes
amounting to an advisory opinion in the
of an actual case or controversy,
and IS, therefore, unconstitutional in
violation of the separation of powers
doctrine of Article II, 1 of the Texas
Constitution as an infringement upon the
powers ofthe executive branch of govern-
t
71 S .
. ectIon 3 does not under any
Circumstances authorize the Supreme
Court's practice of adding lawful statutes
enacted after the effective date of the Act
to the List of Repealed Statutes. The
language of Section I gives the Supreme
Court no more power than it already has
to determine whether an implied repeal
results as to any statute enacted on or
before the effective date of the Act. The
of Section I is of practical sig-
only as evidence of the Legisla-
ture s mtent, at the time of the Act, to
confer full rulemaking power upon the
Supreme Court. The language of Section
I relinquishing full rulemaking power to
the Supreme Court is otherwise of no
significance as one legislative
sesSIOn, regardless of intent, cannot bind
a subsequent legislature so as to prevent
amendment or repeal of any statute
72
or
prevent a subsequent legislature from
exercising its constitutional powers with
respect to the judiciary. The general
repealer in Section I only affects statutes
enacted on or before the effective date of
the Act. 73 Any statute which specially
addresses a subject matter area encom-
passed by the rules of procedure or evi-
dence may be construed as a special stat-
ute controlling over the rules in the event
of conflict. H
Section 3 of the Rules of Practice Act
as amended in 1985 and incorporated into
Section 22.004(c) of the Texas Govern-
ment Code authorizes the Supreme Court
rep.ea1 statutes by promulgation of
mconslStent rules, and is unconstitutional
an unauthorized delegation of a legisla-
tIve function violating the separation of
powers doctrine of Article II, 1 of the
Texas Constitution. Section 22.004(c)
cannot, therefore, lawfully empower the
Supreme Court to repeal any statute or
deem any lawfully enacted statute re-
pealed as to court proceedings or related
matters. The power conferred upon the
Supreme Court through Article V, 25
and Article V, 31 of the Texas Consti-
tution authorizes the Supreme Court only
to promulgate rules of procedure not
inconsistent with the laws of the state
and does not relieve the Supreme Court of
its duty to give full effect to lawfully
enacted statutes.
75
The limited rule-
6 DOCKET CALL OCTOBERINOVEMBER 19%
making authority conferred upon the
Supreme Court can be withdrawn or
modified at any time at the discretion of
the Legislature. The practices and hold-
ings of the Supreme Court whereby stat-
utes lawfully enacted after September 1,
1941 are placed on the List of Repealed
Statutes, deemed repealed, and thereafter
denied full lawful effect in court proceed-
ings or related matters: (1) exceed the
authority granted by Article V, 25 and
Article V, 31 of the Texas Constitution;
(2) exceed the authority granted by the
Rules of Practice Act as originally en-
~ and (3) interfere with the powers of
the legislative and executive branches of
government violating the separation of
powers doctrine of Article II, 1 of the
Texas Constitution.
The Legislature does not lawfully
delegate the power to repeal statutes to
the Court of Criminal Appeals through
House Bill No. 13, as is demonstrated by
analysis of Section 9 of the Act in relation
to Article V, 31 of the Texas Constitu-
tion. Article V, 31(c) authorizes the
Legislature to delegate to the Court of
Criminal Appeals "the power to promul-
gate such other rules as may be pre-
scribed by law or this Constitution, sub-
ject to such limitations and procedures as
may be provided by law." Nowhere in
Article V, 31 or any other provision is
the Legislature authorized to empower the
Court of Criminal Appeals to repeal
statutes. In 1985, the Legislature enacted
House Bill No. 13
76
to enable the Court
of Criminal Appeals to promulgate what
has become the Texas Rules of Appellate
Procedure and the Texas Rules of Crimi-
nal Evidence. House Bill No. 13 empow-
ers the Court of Criminal Appeals to
promulgate rules of evidence and rules of
post-trial and appellate procedure, but not
rules ofcriminal procedure. The Legisla-
ture can place any limitations or excep-
tions on the jurisdiction of the Court of
Criminal Appeals." Section 9
78
is the
portion of House Bill No. 13 relevant to
the issue of authority of the Court of
Criminal Appeals, if any, to repeal or
limit application of the medical and men-
tal health enactments, and other lawfully
enacted statutes listed therein. The provi-
sions of Section 9(a) allow the Court of
Criminal Appeals to select which from
among the statutes listed in Section 9(b)
it desires to "designate for repeal" in
connection with promulgation of rules of
evidence for criminal cases. There is no
outright repeal of the statutes listed in
Section 9(b). The issue presented is
whether Section 9 of House Bill No. 13
causes a lawful repeal of the statutes
listed in Section 9(b) which are desig-
nated for repeal by the Court of Criminal
Appeals. The meaning of the words
designate for repeal in Section 9(a)
affects the constitutionality of Section 9
of House Bill No. 13 \mder the separation
ofpowers doctrine ofArticle II, 1 of the
Texas Constitution The authority, if any,
bestowed by House Bill No. 13 upon the
Court of Criminal Appeals to repeal the
civil statutes listed in Section 9(b), or
deem the statutes repealed, initially de-
pends upon the meaning of the words
cresignate for repeal. A construing court
must apply the specific text of a statute
without reference to extrinsic aids and
rules of statutory construction if the lan-
guage of a statute is not ambiguous.
79
The tenninology deSignate for repeal
seems sufficiently clear so as to be Wlam-
biguous as it appears on its face to mean
that the Court of Criminal Appeals is
empowered to merely designate which of
the statutes listed in Section 9(b) should
be considered for later repeal by the leg-
islature. The statutory language in Sec-
tion 9(a) does not contain an express
repealer or purport to say the statutes
listed in Section 9(b) are repealed upon
action by the Court of Criminal Appeals.
The language of Section 9(a)(2), how-
ever, includes wording which renders
Section 9 ambiguous as it says "a list of
statutes repealed Wlder this section."
Analysis of Section 9 of House Bill
No. 13 Wlder the principles of statutory
construction establishes that the Court of
Criminal Appeals is not thereby empow-
ered to repeal any statute. The words
designate for repeal are not defmed in
House Bill No. 13, and \meier the rules for
construction of civil statutes must be
given their ordinary meaning Wlless "con-
nected with and used with reference to a
particular trade or subject matter" or
"used as a word of art," in which case the
words shall have the "meaning given by
experts in the particular trade, subject
matter, or art."80 Words defmed in dic-
tionaries with meanings so well known so
as to be Wlderstood by persons of ordi-
nary intelligence are not considered vague
or indefInite.
81
Common dictionary defi-
nitions ofthe term repeal clearly indicate
a repeal is a legislative enactment abro-
gating or armulling a prior statute.
12
The
term repeal has a distinct legal meaning
as it is similarly defined by an appellate
court in Texas.
83
The word repeal is
accordingly defined by law requiring
application of "the meaning given by
experts in the particular trade, subject
matter, or art. 1184 The word repeal
whether defmed by conunon usage or by
legal or technical meaning can only be
construed to mean the abrogation or
annulling of a statute by a legislative act
or action in the form of a statute. Desig-
nate for repeal thus construed means
designate for action by the Legislature.
Construction of Section 9 of House Bill
No. 13 as authorizing designation of a
statute for repeal by the Legislature does
not give the Court of Criminal Appeals
authority to repeal, amend, or limit the
application of any statute listed in Section
9(b).
A construction of Section 9 of House
Bill No. 13 as empowering the Court of
Criminal Appeals to repeal statutes listed
therein, or otherwise limit their applica-
bility to criminal law matters, causes
Section 9 to be an Wlconstitutional dele-
gation of a legislative function violating
Article II, 1 of the Texas Constitution
insofar as the Court. and not the legisla-
ture, makes the decision as to which of
the statutes listed in Section 9(b) are
repealed. Courts are required to construe
a statute in a manner so as to uphold its
constitutionality.8s The Court of Crimi-
nal Appeals carmot be delegated the
DOCKET CAll OCTOBERINOVEMBER 1996 7
power to repeal statutes indirectly when it
cannot be given the power directly by the
Legislature.
16
The wording of Section 9
does not authorize the Court of Criminal
Appeals to limit the application of any
statute listed in Section 9(b) to preclude
its use in criminal cases or criminal law
matters. The language of Section 9, if
construed to authorize repeal of any stat-
ute by the Court of Criminal Appeals,
requires a repeal of the entire statute.
The medical and mental health enact-
ments are not repealed, and continue to be
amended, indicating that the Legislature
views any designation by the Court of
Criminal Appeals as only advisory. A
construction of Section 9 as authorizing
the Court of Criminal Appeals to suggest
which of the listed statutes should be
repealed by the Legislature upholds its
constitutionality, but does not empower
the Court to limit application of any stat-
ute. The provisions of House Bill No. 13,
regardless of construction, do not confer
lawful authority to repeal statutes on the
Court of Criminal Appeals. The practices
and holdings of the Court of Criminal
Appeals deeming lawfully enacted stat-
utes repealed so as to prevent their lawful
application to court proceedings and
related matters: (1) exceed the authority
granted by Article V, 31 of the Texas
Constitution; (2) exceed the authority
granted by House Bill No. 13; and (3)
interfere with the powers of the legislative
branch of government violating the sepa-
ration of powers doctrine of Article II,
I of the Texas Constitution.
The holdings of the Court of Crimi-
nal Appeals that the medical and mental
health enactments are deemed repealed as
to criminal cases and criminal law matters
also exceed the scope of authority granted
by House Bill No. 13 as the Act does not
authorize the court to promulgate or
affect rules of criminal procedure. The
medical and mental health enacbnents
contain procedural aspects as they set out
a procedure for obtaining medical records
and other evidence, and are therefore
special statutes.87 The medical and men-
tal health enactments, as special statutes
to the extent ofprescribing procedures for
obtaining evidence, control over the gen-
eral provisions of the Texas Code of
Criminal Procedure as to how such evi-
dence may be lawfully obtained.
88
Viola-
tion of a procedure for obtaining evidence
under the medical and mental health
enacbnents constitutes violation of a
statute, and any evidence obtained
through violation of a statute is inadmis-
sible in criminal proceedings by virtue of
Article 38.23 of the Texas Code of Crim-
inal Procedure regardless of its admissi-
bility under the Texas Rules of Criminal
Evidence.
89
The Court of Criminal Ap-
peals cannot deem the medical and mental
health enactments repealed as to proce-
dure applicable to criminal cases and
crirninallaw matters as such action: (1)
exceeds the scope of authority conferred
by House Bill No. 13 by invading the area
of criminal procedure; (2) exceeds the
authority granted by Article V, 31 of
the Texas Constitution; and (3) interferes
with the powers of the legislative branch
of government by affecting procedure in
criminal cases, and thereby violates the
separation of powers doctrine of Article
II, I of the Texas Constitution.
90
Conclusions
The Supreme Court and Court of
Criminal Appeals lack lawful authority
under Article V, 31 of the Texas Con-
stitution to promulgate rules of any kind
inconsistent with any lawfully enacted
statute. The Legislature may not through
delegated rulemaking authority empower
either Court to do anything forbidden by
the Texas Constitution. The Texas Con-
stitution does not authorize the Legisla-
ture to delegate to either Court the power
to repeal or limit application of any law-
fully enacted statute, and any statute
which can be construed as delegating
such function to either Court is unconsti-
tutional in violation of Article II, 1 as
an unauthorized delegation of a legisla-
tive function. The enabling legislation
delegating rulemaking authority to the
Supreme Court and the Court of Criminal
Appeals does not lawfully empower either
Court to repeal or limit any lawfully
enacted statute so as to prevent its appli-
cation to court proceedings or related
matters. Consequently, the practices and
holdings ofboth Courts deeming lawfully
enacted statutes repealed because of
rulemaking orders or activities, and there-
fore inapplicable to court proceedings,
exceed the lawful authority delegated to
each Cowt and are WlCOnstitutional as (1)
exceeding the authority granted respec-
tively by Article V, 25 and Article V,
31 and (2) infringing 00 the powers of the
legislative branch of government violat-
ing the separation of powers doctrine of
Article II, I of the Texas Constitution.
The medical and mental health enact-
ments, among other affected statutes,
must be given full lawful effect in court
proceedings and related matters. The
medical and mental health enactments,
therefore, control to the extent of conflict
ova Rules 509 and 510 of the respective
rules of evidence.
91
The medical and
mental health enactments also control in
the event of conflict over the Texas Rules
ofCivil Procedure and the Texas Code of
Criminal Procedure to the extent that the
statutes are special statutes regarding
procedure relating to the subject matter
areas covered by their provisions.92 The
Supreme Court and Court of Criminal
Appeals, ifnot content with any statutory
provisions, may lawfully reconunend
changes to the Legislature.
93
Any
changes to the provisions of lawfully
enacted statutes may only be made by the
Legislature.
9oI
The Supreme Court and
the Court of Criminal Appeals must give
full effect to all lawfully enacted stat-
utes.
9S
No amount of acquiescence can
remedy the violations of the Texas Con-
stitution discussed in this article.
96
Nev-
ertheless, the situation presented may
have simple solutions.
97
The Legislature
enacts the laws of the State of Texas in
the form of statutes. The courts of the
State of Texas are constitutionally re-
quired in all circumstances to give full
lawful effect to all lawfully enacted stat-
utes.
8 DOCKET CALL
ENDNOTES
1. Tex. Rev. Civ. Stat. Ann. art.
4495(b),5.08(VernonSUpp.
1996).
2. Tex. Health and Safety Code
Ann. 611.001 through
611.005 (Vernon 1992).
Theseprovisionswere fonnerly
codifiedasTex.Rev.Civ. Stat.
Ann. art. 5561h. See Tex.
Healthand SafetyCode Ann.,
Chapter 611 historical and
statutory notes(Vernon 1992).
Section611.004(a)(9)provides
that confidential infonnation
may be disclosed "in a civil
actionorin acriminal caseor
criminal law matter as other-
wise allowed by law or rule."
Thislanguageappearstosub-
ordinatethe statutesinChapter
611 ofthe Health and Safety
Code to court promulgated
rules. See: Tex. Health and
SafetyCodeAnn., 611.004
revisor's note (Vernon 1992).
The tenns "otherwise allowed
bylaw" may conditiontheop-
erationofthestatutestoproce-
dures set forth in Article
4495b, 5.08. The word
"rule"obviouslyrefers toRules
509 and 510 of the Texas
Rules of Civil Evidence and
Texas Rules ofCriminal Evi-
dencerespectively. Thisarticle
addresses the question of
whether the operationofastat-
utemaylawfullybelimitedby
courtpromulgatedrules.
3. R.K. v. Ramirez, 887 S.W.2d
836, 840 n.5 (Tex. 1994);
Statev.Comeaux,818S.W.2d
46, 52 n.6 (Tex. Crim. App.
1991); Blunt v. State, 724
S.W.2d 79, 80-81 n.l (Tex.
Crim. App. 1987). Both
Courts recognize the statutes
areotherwisevalidand opera-
ble. R.K., 887S.W.2dat840;
Richardson v. State, 865
S.W.2d 944, 953 n.7 (Tex.
Crim. App.1993).
4. Thediscussionandanalysisof
thescopeofcourtrulemaking
authorityhereinapplies toany
statute which has at any time
been listed or designated as
repealed(X' addedtotheListof
Repealed Statutesbyeitherthe
SupremeCourtofTexasorthe
CourtofCriminal Appeals of
Texas, and has not been law-
fully repealed by the Legisla-
ture. Thestatutesinvolvedare
too nwnerous toanalyzefor the
purposeofthisarticle,andmay
belocatedthroughreferenceto
infra notes 24, 29, and 34.
Themedicalandmentalhealth
enactments,andcourtenabling
legislationrelatingtosame,are
utilized herein for purpose of
example as the statutes have
proceduraland evidentiaryas-
pects,andarereferredtoherein
collectively as presently and
fonnerlyenactedorcodified.
5. Walker v. Baker, 145 Tex.
121, 196 S.W.2d 324, 328
(1946).
6. ArmadilloBailBondsv.State,
802 S.W.2d 237, 240 (Tex.
Crim.App.1990).
7. Vinson v. Burgess, 773
S.W.2d263,270(Tex. 1989).
8. Pub. UtilityCom'n ofTexas v.
Cofer, 754 S.W.2d 121, 124
(Tex. 1988); Boykin v. State,
818 S.W.2d 782, 785 (Tex.
Crim. App. 1991); Ex Parte
Hayward, 711 S.W.2d 652,
655-656 (Tex. Crim. App.
1986).
9. Morrow v. Corbin, 122 Tex.
553, 62 S.W.2d 641, 645
(1933); Kelley v. State, 676
S.W.2d 104, 107 (Tex. Crim.
App. 1984);Jackson v. State,
861 S.W.2d 259, 261 (Tex.
App.- Dallas 1993,nopet).
10. Friedman v.AmericanSurety
Co. ofNew York, 137 Tex.
149, 151 S.W.2d 570, 580
(1941).
11. Lee v. City ofHouston, 807
S.W.2d 290, 294-295 (Tex.
1991); Jones v. LibertyMu-
tuailnsuranceCompany,745
S.W.2d901,902(Tex. 1988).
12. Tex. Coost. art. V,25 interp.
commentary(Vernon 1955).
13. Tex. Const. art.V,25(1891,
repealed 1985)("TheSupreme
Court shall have power to
make and establish rules of
procedure not inconsistent
with the laws of the State for
the government ofsaid court
and the other courts ofthis
Stateto expedite the dispatch
ofbusinesstherein".)(empha-
sisadded).
14. Act of May 12, 1939, 46th
Leg., R.S., ch. 25, 1939 Tex.
Gen. Laws 20I, amended by
Act ofMarch 5, 1941, 47th
Leg., R.S., ch. 53, 1941 Tex.
Gen. Laws66(codifiedatTex.
Rev. Civ. Stat. Ann. art.
173la). The amendment re-
lated to interim rulemaking
authorityoftheSupremeCourt
for rules prior to theeffective
date ofthe act, September I,
1941, and appears as enacted
at Tex. Rev. Civ. Stat. Ann.
art. 1731a, historical note
(Vernon 1962).
15. BarAss'nofDallasv. Hexter
Tille & Abstract Co., 175
DOCKETCAlL OCTOBERINOVEMBER1996 9
S.W.2d 108, 113 (Tex. Civ.
App. - FortWorth 1943),ajJ'd,
142Tex. 506,179S.W.2d946
(1944).
16. Tex. Rev. Civ. Stat. Ann. art.
1731a, 2 (Vernon 1962);
Moritz v.Byerly, 185 S.W.2d
589,590-591 (Tex.Civ. App.
- Austin 1945,writrefd).
17. The SupremeCourtenteredthe
Order Adopting Rules as to
what is currently the Texas
Rules of Civil Procedure on
October 29, 1940, effective
September 1, 1941. Vernon's
Ann.Rules Civ. Proc.,Vol. I,
atp. XLIII(Vernon 1979). See
also Rules ofPractice and
Procedurein CivilActions, 3
Tex.B.J. 517(1940). TheSu-
preme Court entered its order
adopting the Texas Rules of
Evidence on November 23,
1982, effective September 1,
1983. Vernon's Texas Rules
Ann., 1996 Special Pamphlet,
Evidence andAppellate Pro-
cedure,at2. TheTexas Rules
ofEvidence becametheTexas
RulesofCivilEvidencebyOr-
der ofthe Supreme Court en-
teredNovember 10, 1986, ef-
fectiveJanuary 1, 1988. Id. at
4.
18. Tex. S.1. Res. 14, 8and 9,
69th Leg., R.S., 1985 Tex.
Gen. Laws 3355 (adopted on
November5, 1985).
19. Tex. Const. art. V. 3/pro-
viding:
(a)The SupremeCourtisresponsible
for the efficient administration of the
judicialbranchandshallpromulgaterules
ofadministration not inconsistent with
thelawsofthestateasmaybenecessary
for theefficientandunifonnadministra-
tionofjusticein thevariouscourts. (em-
phasis added)
(b)TheSupremeCourtshallpromul-
gaterulesofcivilprocedurefor allcourts
not inconsistent with the laws ofthe
stateasmaybe necessaryfor theefficient
and unifonn administrationofjustice in
thevariouscourts. (emphasisadded)
(c) The Legislature may delegate to
theSupremeCourtor CourtofCriminal
Appeals the power to promulgate such
other rules as may beprescribedby law
or this Constitution,subjecttosuchlimi-
tations and procedures as may be pro-
videdbylaw.
20. Bednerv.FederalUnderwrit-
ers Exchange, 133 S.W.2d
214, 216 (Tex. Civ. App. -
Eastland 1939, writ dism'd
judgm't.cor.).
21. Act of May 26, 1985, 69th
Leg.,RS.,ch. 685, 1985 Tex.
Gen. Laws 2472 (amended
1987)(currentversionatTex.
Rev.Civ.Stat. Ann. art. 181lf
(VernonSupp.1996.
22. Tex. Gov't Code Ann.
22.108 historicalnote(Vernon
1988).
23. Tex. Gov't Code Ann.
22.109historicalnote(Vernon
1988).
24. Tex.Rev. Civ. Stat. Ann.art.
1811f historical and statutory
notes (Vernon Supp. 1996).
Sections4and9ofHouseBill
No. 13 concernrepeal ofstat-
utes. Section 4 provides for
repealof designatedarticlesof
the Code ofCriminal Proce-
dure relating to appellatepro-
cedurein criminalcases. Sec-
tion 4is notanalyzed in depth
herein as it does not relate to
the medical and mental health
enactments, and was repealed
in 1987 as Article 1811f, 4.
Analysis of Section 4 may,
nevertheless,be relevant as to
the effectof articlesofthecode
notrepealedbytheLegislature
which conflictwith the provi-
sions of the Texas Rules of
Appellate Procedure. The
Court's ListofRepealed Stat-
utes in this regard appear in
Vernon's Texas Rules Ann.,
1996 Special Pamphlet, Evi-
dence and Appellate Proce-
dure, at 572-573. See infra
note 86 for partial analysis of
Section4.
25. Act of May 17, 1985, 69th
Leg.,RS.,ch. 480, 1985Tex.
Gen.Laws 1720.
26. Tex. Gov'tCodeAnn 22.004
historicalnote(Vernon 1988).
27. Tex. Gov't Code Ann.
22.003historicalnote(Vernon
1988).
28. Garrell v. Mercantile Nat.
Bank, 140 Tex. 394, 168
S.W.2d636,638(1943)("This
was broadenoughtoevidence
an intentionthatallprocedural
statutes,includingthosepassed
atthesamesessionofthe Leg-
islature,shouldbecome inoper-
ativeonandafter September 1,
1941. ").
29. The List ofRepealed Statutes
includes those listed on the
initial list accompanying the
OrderAdoptingRules entered
October 29, 1940 and subse-
quentlylistedbyvariousorders
adopting amendments to the
rules ofprocedure and orders
inconnectionwithadoptingor
amendingtherulesof evidence.
The orders and enumerated
statuteslistedas repealedasto
civil actions through
10 DOCKETCALL
rulemaking as to rules ofpro-
cedureappearinVernon's Ann.
Rules Civ. Proc., Vol. 1, pp.
XLill-LXXXllI(Vernon 1979)
and in the 1996 pocket part
supplement thereto at XIX-
XXXD. Variousordersregard-
ingtherulesofevidenceappear
inVernon'sTexasRules Ann.,
1996 Special Pamphlet, Evi-
dence and Appellate Proce-
dure, at 2-10, and the List of
RepealedStatutesaccompany-
ing the rules appears at 181.
Not every order adds to the
ListofRepealedStatutes.
30. See, e.g., Tex. Gov't Code
Ann. 22.004 revisor's note
(Vernon 1988).
3l. Tex.R Civ. P. 819. Rule 819
istmconstitutional totheextent
providing rules prevail over
statutes for the reasons dis-
cussed hereinas itexceedsthe
limited grant of authority to
promulgaterulesnot inconsis-
tentwith thelawsofthe State
tmderTex. Const. arts. V, 25
and V, 31 and violates Tex.
Const. art. II, 1.
32. See, e.g. , Moore v. Johnson,
785 S.W.2d 176, 179 (Tex.
App. - Waco 1990, no writ);
Stubbs v. Thomason, 244
S.W.2d 844, 845 (Tex. Civ.
App. - Dallas 1951, writ
dism'd).
33. Tex. Gov't Code Ann.
22.004(c) (Vernon 1988).
Thissectiontotheextentpro-
vidingcourtpromulgatedrules
repeal statuteswhere conflict-
ing is, as discussed herein,
tmconstitutionalinviolationof
the express provisionsofTex.
Const. art. V,31andthesep-
arationofpowersdoctrinecon-
tainedin Tex. Const. art. II,
1. Seeinfranote71.
34. The Order Adopting Texas
Rules of Criminal Evidence
dated December 18, 1985,ef-
fective September 1, 1986,
appears m Vernon's Texas
RulesAnn,1996SpecialPam-
phlet,EvidenceandAppellate
Procedure,at 184,and theac-
companying List ofRepealed
Statutes appears at 542-543.
The statutes listed were not
repealed by the Legislature at
thattime, and several, suchas
Tex.Rev. Civ.Stat. Ann. art.
4495b, 5.08 (Vernon Supp.
1996),amended as recentlyas
1995,remain on the books as
validstatutes.
35. See, e.g., R.K, 887S.W.2dat
840n.5.
36. Delegationoflegislativepower
has been authorized in limited
instances where it would be
impossible or impractical for
the legislature to perform the
functions delegated. TheLeg-
islatureinsuchinstancesmust
declare apolicy and fix apri-
mary standard governing the
exerciseofthedelegatedpower
toprovideguidanceintheexer-
cise of the delegated power.
Railroad Com'n ofTexas v.
Lone Star Gas, 844 S.W.2d
679,689-690(Tex. 1992);Ex
Parte GranvieI, 561 S.W.2d
503, 514-515 (Tex. Crim.
App. 1978). No standards
have been established by the
Legislaturefor the exerciseof
delegatedrulemakingauthority
tothecourtsexceptforthatin
Tex. Gov't Code Ann.
22.003(b) (Vernon 1988) di-
recting that rules of practice
and procedure for the govern-
mentof theSupremeCourtand
all othercourts ofthe statebe
notinconsistentwiththelaw.
37. Cf R.K, 887 S.W.2d at 840
n.5 and Crocker v. Synpol,
Inc., 732 S.W.2d 429, 435
(Tex.App. - Beaumont 1987,
nowrit)("Anuncertaintyarises
as to whether Sec. 5.08 has
beenrepealeda onlylimitedto
non-judicial disclosurecircwn-
stances. "). Such uncertainty
causes confusion and wastes
judicialresources.
38. Few v. Charter OakFire In-
surance Company, 463
S.W.2d424,425 (Tex. 1971).
See alsoClearLakeCityWa-
ter Authority v. Clear Lake
Utilities Co.,549S.W.2d385,
389 (Tex. 1977); Kirkpatrick
v.Hurst,484 S.W.2d587,589
(Tex. 1972);GovernmentSer-
vices Ins. Underwriters v.
Jones, 368 S.W.2d 560, 563
(Tex. 1963).
39. City ofWichita Falls v. Wil-
liams, 119 Tex. 163, 26
S.W.2d910,914 (1930);Cox
v.Robison, 105 Tex.426, 150
S.W. 1149,1151 (1912).
40. Hubbardv. HamiltonCounty,
113 Tex.547,261 S.W.990,
991 (1924); Lyle v.State, 80
Tex. Crim. 606, 193 S.W.680,
682 (1917). See also Trav-
eler's Ins. Co. v. Marshall,
124Tex. 45,76 S.W.2d 1007,
1024(1934).
4l. Vinson, 773 S.W.2d at 265;
Collingsworth County v.
Allred, 120 Tex. 473, 40
S.W.2d13,15(1931); Cooky.
State, 902 S.W.2d 471, 478
(Tex. Crim. App. 1995);
Oakley v. State, 830 S.W.2d
107, 110 (Tex. Crim. App.
1992).
DOCKETCAll. OCTOBERINOVEMBER 1996II
43
42. Collingsworth County, 40
S.W.2dat 15.
Carpenter v. Sheppard, 135
Tex. 413, 145 S.W.2d 562,
567(1940).
44. Ex Parte Hayckn, 152 Tex.
Crim. 517, 215 S.W.2d 620,
622(1948).
45. ExParte Spring, 586S.W.2d
482. 485-486 (Tex. Crim.
App. 1978); Armes v. State,
573 S.W.2d 7, 8 (Tex. Crim.
App. [PanelOp.] 1978).
46. Arnoldv. Leonard, 114 Tex.
535, 273 S.W. 799, 802
(1925) (tilt is a rule of
construction ofConstitutions
that ordinarily, where the cir-
cwnstancesarespecifiedunder
which any right is to be
acquired, there is an implied
prohibitionagainstthelegisla-
tive power toeither add toor
withdraw from the circum-
stances specified."). See also
Walker, 196 S.W.2d at 328;
White v. State. 440 S.W.2d
660, 665 (Tex. Crim. App.
1969).
47. City of Fort Worth v.
Howerton, 149Tex. 614,236
S.W.2d 615, 618 (1951);
Dendy v. Wilson, 142 Tex.
460, 179 S.W.2d 269, 273
(1944); Ex Parte Halstead,
147 Tex. Crim. 453, 182
S.W.2d479,482(1944).
48. State v. Hatcher, 115 Tex.
332, 281 S.W. 192, 195-196
(1926).
49. Dickson v. Strickland, 114
Tex. 176, 265 S.W. 1012,
1021 (1924); Jefferson v.
State, 751 S.W.2d 502 (Tex.
Crim. App. 1988); Halstead,
182S.W.2dat482.
50. Thompson v. UnitedGasCor-
poration. 190 S.W.2d 504.
508 (Tex. Civ.App. - Austin
1945, writ refd) ("Simply
stated,arepew is the'abroga-
tion ofannulling ofa previ-
ouslyexistinglawbyasubse-
quentstatute,whicheitherde-
claresthatthefonnerlawsha11
be revoked and abrogated,' or
which contains provisions so
contrary to or irreconcilable
with those ofthe earlier law
that only one ofthe two can
standinforce.").
51. Various definitions of repew
andamendmentappearatinfra
note82.
52. Texas Nat. Guard Armory
Boardv. McCraw, 132 Tex.
613. 126 S.W.2d 627, 635
(1939).
53. Brownv. Humble Oil&Refin-
ing Co., 126 Tex. 296, 83
S.W.2d935.941 (1935).
54. Ackerv. Texas Water Com'n,
790 S.W.2d 299, 301 (Tex.
1990); Standard v. Sadler,
383 S.W.2d 391, 395 (Tex.
1964); Garrett v. State. 161
Tex. Crim. 556, 279 S.W.2d
366,368(1955).
55. Garrettv. State.279S.W.2dat
368; City of Beaumont Inde-
pendent School District v.
Broadus, 182S.W.2d406,410
(Tex. Civ. App. - Amarillo
1944,writrefd). Examplesof
generwrepewersmaybefound
at Tex. Rev. Civ. Stat. Ann.,
FinalTitle 2(Vernon 1967)
(repealingall statutesexisting
priortoenactmentofthe Texas
RevisedCivilStatutes),andin
Section IoftheRulesofPrac-
tice Act. Tex.Rev. Civ. Stat.
Ann. art. 1731a. I (Vernon
1962).
56. ExParteHolmes.754S.W.2d
676.685n.6(Tex.Crim. App.
1988); Garrett v. Slate, 279
S.W.2dat368.
57. Jefferson County v. Boardof
CountyandDistrictRoadIn-
debtedness. 143 Tex. 99, 182
S.W.2d908,915 (1944).
58. Cityof PortArthurv. Jeffer-
son CountyFresh WaterSup-
plyDistrictNo.1.596S.W.2d
553, 556 (Tex. Civ. App. -
Beaumont 1980, writ refd
n.r.e.).
59. Tex. Const. art.II, 1("[N]o
person, or collection ofper-
sons,beingofoneofthesede-
partments, shwl exercise any
powerproperlyattachedtoei-
theroftheothers,exceptin the
instances herein expressly
(emphasisadded).
60. Armadillo Bail Bonds, 802
S.W.2dat239;ExParteGiles,
502 S.W.2d 774, 780 (Tex.
Crim.App. 1973);Stateexrei
Smith v. Blackwell. 500
S.W.2d 97, lOl (Tex. Crim.
App. 1973). See also In re
Thoma, 873 S.W.2d477,507
(Tex. Rev. Trib. 1994);
Meshell v. State, 739 S.W.2d
246, 252 (Tex. Crim. App.
1987) (holding the Speedy
Trial Act unconstitutional)
("Althoughonedepartmenthas
occasionwlyexercisedapower
that would otherwise seem to
fitwithinthepowerofanother
department, our courts have
only approved those actions
whenauthorizedbyanexpress
provision of the Con-
12DOCKETCALL

stitution. H); Hayward, 711
S.W.2dat655.
61. Lee, 807 S.W.2d at 294-295;
Williams v. State,707S.W.2d
40, 44-45 (Tex. Crim. App.
1986).
62. Lasater v. Lopez, 110 Tex.
179, 217 S.W. 373, 376-377
(1919) ("COurts have nothing
todowiththemakingofstat-
utes, orthe repeal ofstatutes.
They violatetheirtruepowers
andendangertheirownauthor-
itywhenevertheylDldertakethe
legislativerole. Legislationis
for legislatures, not courts.").
See also Hayward, 711
S.W.2dat656.
63. Halstead, 182 S.W.2dat482.
64. Danielv. Tyrrell&GarthInv.
Co., 127Tex. 213,93S.W.2d
372, 375 (1936); Southwest-
ern Bell Telephone Company
v. State, 523 S.W.2d 67, 69
(Tex. Civ. App. -- Austin
1975),rev'donothergrounds,
526 S.W.2d526(Tex. 1975).
Alternativelystated,theLegis-
lature carmot constitutionally
imposefunctions oncourtsthat
arelegislativeinnature. In re
Johnson,554S.W.2d775,780
(Tex. Civ. App. -- Corpus
Christi 1977),writrefdn.r.e.,
569S. W.2d882(Tex. 1978).
65. Key Western Life Ins. Co. v.
StateBoardofInsurance, 163
Tex. ll,350S.W.2d839,847
(1961).
66. Carpenter, 145 SW.2dat567.
67. See Eichelberger v.
Eichelberger, 582 S.W.2d
395,398-400(Tex. 1979)(dis-
cussing implied and inherent
powersof courts).
68. ChemicalBank&TrustCom-
panyv. Falkner, 369 S.W.2d
427,432(Tex. 1963); Watts v.
Mann, 187 S.W.2d 917, 924
(Tex. Civ. App.- Austin 1945,
writrefd).
69. See Tex. Rev. Civ. Stat. Ann.
art. 1731a, I and3(Vernon
1962).
70. Hallum v.Texas LiquorCon-
trolBoard, 166 S.W.2d 175,
176-177(Tex. Civ.App. - Dal-
las 1942,writrefd). See cases
citedsupra notes 54, 56, and
58.
71. NoprovisionintheTexasCon-
stitutionauthorizestheLegisla-
ture to empower the Supreme
Court to issue advisory opin-
ions. An advisoryopinionde-
cides an abstract question of
law without binding any par-
ties. Texas Association of
BUSinessv. TexasAirControl
Board, 852 S.W.2d 440, 444
(Tex. 1993). Courts may not
issue opuuons on abstract
questionsoflawintheabsence
of an actual case or
controversy. Section 3 ofthe
Rules ofPractice Act autho-
rizes the court to effectively
issueanadvisoryopinionasto
theeffectofSection I onstat-
utes enacted on or before the
effectivedateoftheactin the
absence ofa case or contro-
versy. SeeTex.Rev. Civ. Stat.
Ann. art. 1731a, 3 (Vernon
1962). Advisoryopinionsvio-
late the separation ofpowers
doctrineasthefunctionofissu-
anceofadvisory opinions be-
longs to the executive branch
ofgovernment. Fireman'sIns.
Co. ofNewark v. Burch, 442
S.W.2d331,333(Tex. 1969);
Morrow v. Corbin, 122 Tex.
553,62S.W.2d641,644-647
(1933). The Legislaturemay
not empower cowts to issue
advisory opinions in the ab-
sence ofan express constitu-
tional provision authorizing
same. Slate v. Margolis, 439
S.W.2d 695, 698-699 (Tex.
Civ. App. -Austin 1969, writ
refdn.r.e.). Tex. Gov'tCode
Ann. 22.004(c) (Vernon
1988) is alsounconstitutional
for this reason. Section 5 of
the Rules ofPracticeActand
Tex. Gov't Code Ann.
311.032(c) and 312.013(a)
(Vernon 1988)contain sever-
ability or savings provisions
whichprevententireactsfrom
beingvoidedbecauseofpartial
unconstitutionality.
72. CentralPower&Lightv. Pub.
Utility Com'n, 649 S.W.2d
287,289(Tex. 1983); WailS,
187 S.W.2dat924;Bryantv.
Slate,457S.W.2d72,78(Tex.
Civ.App. - Eastland 1970,writ
refdn.r.e.).
73. Garrell v. Mercantile Nat.
Bank, 168 S.W.2dat638. See
casescitedsupranote56.
74. Hallum, 166 S.W.2d at 176-
177. See the following as to
practicaleffectofspecialstat-
utes: Forwoodv. CityofTay-
lor, 147Tex. 161,214S.W.2d
282, 285-286 (1948); Sam
BassellLumberCo. v.Cityof
Houston, 145 Tex. 492, 198
S.W.2d 879, 881 (1947);
Cantu v. State, 842 S.W.2d
667, 685 n.l3 (Tex. Crim.
App. 1992), cert. denied 125
L.Ed.2d 73 (1993); Garza v.
State, 687 S.W.2d 325, 330
(Tex.Crim. App. 1985). See
alsoTex. Gov'tCodeAnn.
311.025(a) and 311.026
(Vernon 1988).
DOCKETCALL
75. Polaris Investment Manage-
ment Corp. v. Abascal, 892
S.W.2d860,862(Tex. 1995);
PublicUtilityCom'nv. Cofer,
745 S.W.2d 121, 124 (Tex.
1988); Board ofInsurance
Com'rs v. Guardian LifeIns.
Co., 142 Tex. 630, 180
S.W.2d906,909(1944);Hay-
ward, 711 S.W.2dat655-656.
76. Seesupranote21 forthecom-
pletecitationtoHouseBillNo.
13.
77. Spring, 586 S.W.2d at 485-
486;Armes, 573S.W.2dat8.
78. Tex. Rev. Civ.Stat. Ann.art.
1811f, 9 (Vernon Supp.
1996). See supra note 21.
The Order of the Court of
CriminalAppealsofDecember
18, 1985 filed with the Secre-
taryofStateincluded all stat-
utes listed under Section 9(b)
ofHouseBillNo. 13. Seesu-
pra note 34. Section 9 does
notstatethatallstatutes listed
insubsection(b)arerepealed
upon promulgation ofacom-
prehensive body of rules of
evidencein thetrialofcriminal
cases. Section4ofHouseBill
No. 13 providesfortherepeal
ofcertain articles ofthe Code
of Criminal Procedure. See
supra note 24 and infra note
86regardingSection4.
79. Boykin, 818 S.W.2d at 785;
CityofDallasv. Cornerstone
Bank, N.A.,879 S.W.2d264,
270(Tex.App. - Dallas 1994,
n.w.h.).
80. Tex. Gov't Code Ann.
312.002 (Vernon 1988).
Chapter 312 ofthe Govern-
mentCode appliestoconstruc-
tionofall civil statutesbyvir-
tue ofthe provisions ofTex.
Gov't Code Ann. 312.001
(Vernon 1988).
81. Floydv.Siate,575 S.W.2d21,
23 (Tex. Crim. App. [Panel
Op.] 1978).
82. The term repeal is defmed in
Webster's Ninth Collegiate

Inc., Copyright 1991, as fol-
lows: "1. torescindorannul
by authoritative act; esp.: to
revoke or abrogate by legisla-
tive enacbnent." See also
Black'sLaw Sixth
Edition, West Publishing,
Copyright 1990,whichdefmes
the termrepealas follows:
Repeal. The abrogationoran-
nullingofapreviouslyexisting
law by the enacbnent of
subsequent statute which de-
claresthatthefonnerlawshall
be revoked and abrogated
(which is called "express" re-
peal),orwhichcontainsprovi-
sions so contrary to or
irreconcilablewiththoseOfthe
earlierlawthatonlyoneofthe
twostatutescanstandinforce
(called "implied" repeal). To
revoke, abolish, annul, to re-
scindorabrogatebyauthority.
GolcondaLeadMinesv. Neill,
82 Idaho 96, 350 P.2d 221,
223. See also Abrogation:
express repeal. Amendment
distinguished Repealofalaw
meansitscompleteabrogation
by the enacbnent ofa subse-
quent statute, whereas the
amendmentofastatutemeans
analterationinthelawalready
existing, leavingsome partof
theoriginalstillstanding.
The word repealer, a deriva-
tiveofthewordrepeal,islike-
wise defmed therein as "one
thatrepeals; specific: alegisla-
tiveact that abrogates an ear-
lier act." The word repealis
defmedin TheRandomHouse
oftheEnglishlan-
guage,Random House,Copy-
right 1967,as follows: "1. to
revoke(l" withdrawformallyor
officially: to repeala grant.
2. to revoke or annul (a law,
tax,duty,etc.)byexpressleg-
islativeenactment." (empha-
sisadded).
83. Thompson, 190S.W.2dat508.
84. Awrittenopinionofacourtof
recordisincludedinthedefini-
tion of a law in Tex. Penal
Code Ann. 1.07(aX30)
(Vernon 1994). SeeTex. Gov't
CodeAnn 312.002(Vernon
1988).
85. Elyv. State,582S.W.2d416,
419 (Tex. Crim. App. [panel
Op.] 1977);Stalev.Gambling
Device,859 S.W.2d519,526
(Tex. App. - Houston [1st
Dist.] 1993, pet. refd); Tex.
Gov'tCode Ann. 311.021(1)
(Vernon 1988).
86. KeyWesternLifeIns. Co., 350
S.W.2d at 847. Section 4 of
HouseBillNo. 13,like Section
9, lists articles ofthe Codeof
CriminalProcedure fromwhich
theCourtofCriminalAppeals
may select to list as repealed
with the Secretary ofState at
the time offiling the rules of
post-trial and appellateproce-
dure. Section4,Wllike Section
9, states that the repeal ofthe
articlessolistedbytheCourt is
effectiveOIl the effectivedate
of the rules. The Court is
giventhe"option" astowhich
articles arerepealed. The0p-
tionamountstoan indirectat-
temptto delegate alegislative
14 DOCKETCAlL

function as the Court, and not
theLegislature,makesthe fmal
decisionastowhicharticlesare
repealed under this scheme.
Section 4, therefore, IS
unconstitutional in violationof
Tex. Const. art. n, 1 as an
unauthorized delegation of a
legislativefunction, andcannot
lawfullyempowertheCourtto
repealanystatute.
87. Tex. Rev. Civ. Stat. Ann.art.
4495b,5.08(g)(10)(Vernon
Supp. 1996)createsanexcep-
tionto the privilegesorconfi-
dentialityotherwiseallowedas
to criminal court proceedings
andprescribesaprocedure for
obtaining medical records as
follows:
"[I]nanycriminalprose-
cutionwherethepatient
is a victim. witness, or
defendant. Records are
not discoverable until
the court in which the
prosecution is pending
makes an m camera
detennination as to the
relevancyoftherecords
or communications or
any portion thereof.
Suchdeterminationshall
notconstituteadetenni-
nation as to the
admissibility of such
records or communica-
tions or any portion
thereof."
Thelanguageof5.08 (g) (10)
is the same as appeared at
5.08(g)(8)beforeamendment
of the statute, effective Sep-
tember 1, 1995. Act ofMay
28, 1995, 74thLeg., R.S., ch.
856, 4, 1995Tex. Tex.Gen.
Laws 4293 (codified as an
amendment to Tex. Rev. Civ.
Stat. Ann. art. 4495b, 5.08
(g)(VernonSupp. 1996.
88. The procedure for obtaining
records setforth in Tex. Rev.
Civ. Stat.Ann.5.08(g)(10)
(Vernon Supp. 1996) consti-
tutes a special statutecontrol-
lingoverthe provisionsofthe
TexasCodeofCriminal Proce-
dure,andcouldimpact service
and execution ofsearch war-
rants and grand jury subpoe-
nas, amongotherthings.
89. Tex. Code Crim. Proc. Ann.
art. 38.23 (Vernon Supp.
1996). See Erdman v. State,
861 S.W.2d 890, 893 (Tex.
Crim. App. 1993); Polk v.
State, 738 S.W.2d 274, 276
(Tex. Crim.App. 1987).
90. Themedicalandmentalhealth
enactments cannot be deemed
repealedastomattersof crimi-
nal procedurein anyeventand
remain validstatutesunderthis
scenario for consideration of
suchmattersasreasonableex-
pectation of privacy among
others. Cf Comeaux, 818
S.W.2dat51-53;andThurman
v. State, 861 S.W.2d 96, 99-
100(Tex. App.- Houston[lst
Dist.] 1993,no pet.) (holding,
among other things, that the
appellant did not have a rea-
sonableexpectationofprivacy
because ofthe deemed repeal
of the medical and mental
healthenactments).
91. Tex. R. Crim. Evid. lOl(c);
Few, 463 S.W.2dat425. Tex.
R. Crim.Evid. 509purportsto
abolish the physician-patient
privilege in criminal cases.
Thisruleconflictswiththepro-
visionsofTex. Rev.Civ.Stat.
Ann. art. 4495b, 5.08 (a)-
(f)(VernonSupp. 1996)andis
nullandvoidbyvirtueofTex.
Const. art. V, 31. The
deemed repeal of Article
4495b, 5.08 byeitherCourt
is unconstitutionalinviolation
of Tex. Const. art. II, 1.
92. c.E. Duke's Wrecker Service,
Inc. v. Oakley, 526 S.W.2d
228, 232 (Tex. Civ. App. -
Houston [1stDist.] 1975,writ
refd n.r.e.). See cases cited
supra note 74 as to effect of
specialstatutes.
93 . See, e.g. , Red River Nat. Bank
v. Ferguson, 109 Tex. 287,
206S.W. 923,927(1918).
94. Board of Ins. Com'rs. , 180
S.W.2dat909;Hayward, 711
S.W.2d at 656; Ex Parte
Young, 138 Tex. Crim. 418,
136S.W.2d863,864(1941).
95 . Public Utility Com'n ofTexas,
754 S.W.2d at 124; Boykin,
818S.W.2dat785;Hayward,
711 S.W.2dat655-656.
96. Kimbrough v. Barnett, 93 Tex.
301,55S.W. 120, 123(1900);
Ex Parte Heyman, 45 Tex.
Crim. 532,78 S.W. 349,354-
355(1904).
97. lmmediatesolutionstothesitu-
ation describedherein maybe
found by the Supreme Court
andtheCourtofCriminalAp-
pealsthroughexerciseof their
lawful rulemaking power to
accomplishthefollowing: (1)
rescission ofall orders listing
ordesignatinglawfullyenacted
statuesas repealed; (2)cessa-
tion ofthe practice oflisting
lawfully enacted statutes as
repealed in COIUlection with
promulgationoramendmentof
rules; (3) amendment ofthe
rulesof procedureandevidence
to adopt or conform with the
provisions ofconflicting law-
DOCKETCALL
fully enacted statutes; and (4)
amendment of the rules of evi-
dence and procedure to the ex-
tent necessaryto clearly require
resolution ofconflict between a
lawfully enacted statute and a
rule in favor of the statute to
insure thatall valid statutes are
given full lawful effect by the
courts. Legislative solutions to
the situation described herein
may include: ( I) an amend-
ment of Section 22.004(c) of
the Government Code to con-
form with the requirements of
Article V, 31 of the Texas
Constitution and eliminate con-
flict with Section 22.003(b) of
the Government Code; and (2)
a requirement that court-pro-
mulgated rules be expressly
approved by the Legislature as
an affumative check against
the possibility of conflict with
lawfully enacted statutes.
Reprinted with Permission of the
Voice for the Defense
and the Texas Criminal Defense
Lawyer's Association
Biographical of Don Rogers
Don Rogers is an attorney with the
law firm ofRichard Haynes & Associ-
ates, P.e. in Houston. He attended the
University of Houston, where he re-
ceived his B.B.A. (1970), J.D. (1972),
andL.LM. (1993) degrees. He is board
certified in Criminal Law and Civil
Appel/ate Law by the Texas Board of
Legal SpeCialization.
The Author wishes to specially thank
Richard "Racehorse" Haynes ofHous-
ton for his support and encouragement
in the preparation ofthis article.
Nancy J. Bailey Appointed
Houston Mayor Bob Lanier recently
apPointed Nancy J. Bailey as Judge of
Municipal Court No. 10. The appointment
was confirmed at the Houston City
Council meeting on Wednesday, Septem-
ber 4, 1996. Judge Bailey earned her
Bachelor of Arts Degree from Rice
University and her Doctor of Jurispru-
dence degree from the University of
Houston Law Center. Before assuming her
new position, Judge Bailey served as
Senior Executive Assistant to the Direc-
tor of Public Works and Engineering and,
prIor to that, she served as Senior Council
Aide to former City of Houston Council-
member Jim Greenwood.


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HCCLAGRIEVANCECOMMITTEERESOLUTION
On November 16, 1995 in Judge
Keagan's cowtroom, there was a very
oilightening Continuing Legal Education
seminar conducted by the State Bar re-
garding the grievance process. Several
attorneys for a cowtroom full of criminal
defense lawyers in attendance.
One of the issues that emerged
during the seminar was the relationship
between the Grievance Prone Practice
Areas (please see chart below) and the
occupational configuration of the griev-
ance panels which make up the Grievance
Conunittee. There are 180 lawyers in this
district which constitutes the Grievance
Committee, along with a number of non-
attorney citizens who volunteer their time
to sit in judgment of lawyers.
Grievance Prone
Practice Areas
(1993-1994 Discipline
Year: 5/1/93-4/30/94)
This chart represents the per-
centage of grievances filed
with respect to particular ar-
eas of law practice. For ex-
ample, 28% of all grievances
upgraded to complaint status
involved criminal law
representation. As this chart
indicates, if an attorney han-
dled no criminal, personal
injwy, or family law cases, the
attorney's chances of having a .
by DAVID MITCHAM
grievance filed were no greater
than 8% during this period.
Out of the 180 lawyers, it came to
light that a grand total of 14 had experi-
ence in the filed ofcriminal law according
to one of the Conunittee's administrative
lawyers who spoke at the seminar. There-
fore, criminal lawyers constitute approxi-
mately 8% of the Grievance Conunittee
whose case load involves complaints
against criminal lawyers at 28%.
The attitude displayed by the Bar's
personnel varied in regard to these disqui-
eting statistics. The administrative law-
yer appeared resigned to the circumstance
and gave the opinion that the Conunittee
would never be in a situation where there
could be a criminal lawyers on each of the
6 panels. The Chief Investigator offered
the opinion that criminal lawyers on the
panels were unnecessary and that all that
was needed were 6 people with "good
common sense". The Chief Attorney for
the Conunittee, Mr. Rick Perry, stated in
response to a question regarding the
Committee's make up and the perception
that criminal defense lawyers were under
represented, that the Committee was
indeed interested in getting more solo
practitioners and small finn practitioners
who had experience in criminal law to
serve on the Committee but to date very
few had applied.
Presently, it appears from the
information gathered at the seminar that
the Conunittee is primarily derived from
civil practitioners from large firms who
can afford to spend the time necessary to
sit in judgment of their peers who it ap-
pears from the information gathered at
the seminar come from areas civil practi-
tioners do not practice in. And of course,
there are those citizen volunteers willing
to devote their spare time policing our
profession.
It was not brought to light what
percentage of the Conunittee was derived
from family law practitioners or from the
plaintiffs personal injury bar but the
impression was that it was consistent with
the representation afforded to the criminal
bar.
So the upshot of the seminar's
discussion seemed to be that the areas of
practice that are receiving the brunt of the
Grievance Committee's attention are
being judged by attorneys who do not
practice in these areas and citizen volun-
teers who have never experienced the
problems associated with the practice of
law.
In order to attempt to rectify this
apparent imbalance in the Committee's
occupational configuration and to provide
for meaningful peer review, it should be
resolved that the Harris County Criminal
Lawyers Association form a Committee
to recruit attorneys to participate on the
S tate Bar's Grievance Conunittee and
submit their names to the appropriate Bar
officials and monitor our representation
therein. Further, this HCCLA Grievance
Committee should establish liaisons with
the family law bar and the plaintiffs
persooal injury bar to likewise organize a
response to this apparent imbalance with
the Bar's grievance organization.
DOCKET CAll. OCTOBERINOVEMBER 1996 17
ALRAPPEALS
by
ElizabethRutkowski
ALRlicense suspensions cannot be
ignored by attorneys who represent
clients charged with OWl, intoxication
assaultif apersonwasoperatingamotor
vehicleatthetimeoftheoffense;and/or
criminallynegligenthomicideifaperson
wasoperatingamotorvehicleatthetime
of the offense. Whether the person is
chargedwithrefusalorfailureofabreath
testtheprocedurestorequestahearingor
appealthedecisionoftheadministrative
lawjudgearethesame.
A defendant has 15 days from the
date ofnotice to request a hearing. The
dateof noticeisusuallythesamedateas
the date the person was arrested. The
licensesuspensionwill automaticallytake
effect onthe 40th day from the date of
notice ifno hearing is requested. (See
524, Texas Transportation Code for
failure ofa breathtestand 724, Texas
Transportation Code for refusal of a
breathtest.)
There are defmite benefits to
requestingahearingandtoattendingthe
hearing. The most obvious benefit is
winningattheALRhearingandkeeping
your client from suffering a license
suspension. Ifnohearingis requestedor
if onedefaultsonthedateof thehearing
the license suspension is automatic and
therighttofile an appealonthe license
suspensionis lost.
This article focuses on the statutes
regarding the filing of ALR appeals,
524.041, Texas Transportation Code;
case law pertaining to appeals ofALR
suspensions; and case law applying to
administrative review. Throughout this
article the Texas Transportation Code
will becitedasTRC.
PROCEDURE
To file an appeal from a driver's
licensesuspension theAppellantshalldo
thefollowing:
1. File a verified appeal in the
appropriatecountycourt at law
within 30 days of the State
Office of Administrative
Hearings Law Judge's fmdings
and decision. Ifthecountydoes
not have a county court at law
the appeal shall be filed in the
countycourt. Ifthejudgeofthe
county court is not a licensed
attorney,eitherpartymayfile a
motiontotransfertheappealtoa
districtcourt.524.041,TRC.
In most Texas counties, the
appeal may include application
for anoccupational license.
2. Serve, by certified mail, court-
certifiedcopiesofthe appealto
both OPS and SOAH at the
followingaddresses:(524.041,
TRC)
State Office of Administrative
Hearings
300West 15thSt. ,Ste.502
P.O.Box 13025
Austin,Texas78711-3025
Texas Department of Public
Safety
c/oDirectorofHearings - ALR
Program
P.O. Box 15327
Austin,Texas78761-5327
3. Acquire a copy ofthe agency
record. The record is obtained
through the State Office of
Administrative Hearings in
Austinandthecostis $75.00per
side oftape. SOAH Rule No.
159.37(f) requires that the
Appellant file a written request
for the record and pay the
appropriatefeewithin 10daysof
filing the appeal. SOAH will
send a copyoftherecordtothe
attorneyandfile acopywiththe
appropriatecourt.
4. DPS, throughits attorney, isre-
quired to file an ansWC% within
20days, Rule99,Tex. Rulesof
CivilProc.
(Either a district attorney or a
county attorney may represent
OPS on appeal. 524.041,
TRC.)
Procedures thereafter depend upon
thecourtinwhichtheappealisfiledand
uponthedecisionoftheattorneyandthe
clienttofighttheappealordismissit.
BENEFITSTOFILINGANAPPEAL
1. Maximwn 90 day stay of
suspension for those who are
eligible.
The statue limits eligibility to
person'swhohavenotsuffereda
driver's license suspension as a
result of an alcohol-related or
drug-relatedenforcementcontact
during the five years preceding
the date ofthe person's arrest;
and/orto personswhohavenot
been convicted previously of
DWl, for 10yearsprecedingthe
date ofthe person's new arrest.
These limitations include
person's who have been
convictedofintoxicationassault
if a motor vehicle was used;
and/orconvictedofintoxication
manslaughterif a motorvehicle
wasused. See524.042,TRC.
(Filing an appeal on an ALR
suspension will not stay a
suspension based on anything
other than the instant ALR
suspensIOn even if the
suspension resulted from the
sameincident.)
18 DOCKETCALL

2. Opportunity to remand to the
State Office ofAdministrative
Hearings to present additional
evidence. 524.043,TRC.
3. Possibilitytostaythesuspension
long enough to win an acquittal
on the DWl and rescind the
suspension. 724.048 (c),TRC.
ISSUES ONAPPEAL
On appeal, the Texas
DepartmentofPublicSafetyis limitedto
issues oflaw.Thepersonwhoselicenseis
suspendedbecauseofanALRsuspension
is limited, on appeal, to prove that the
administrativeagency/administrativelaw
judge prejudiced the Appellant's
substantialrights.(Thelaw from January
1, 1995 to September 1, 1995 expressly
statedthat appealswouldbebasedonthe
substantial evidence rule; however the
TRC, which became effective on
September1, 1995,doesnotstatethatthe
review will be based on the substantial
evidencerule.)
Possibleissuesonappeal:
1. Whether the administrative
agency violated the person's
constitutionalrights.
When an appeal process is not
provided by statute, this issue
must be included to provide
standing/or filing an appeal.
2. Whether the administrative
agency'sladministrative law
judge's decision was made by
fraud, bad faith or affected by
othererroroflaw.
3. Whether the agency's
conclusions were reasonably
supportedbythefmdings andby
substantial evidence in view of
the reliable and probative
evidence in the record as a
whole.
4. Whether the agency's decision
cameaftercarefulconsideration
oftheevidence.
5. Whether the administrative
agency's fmdings inferences,
conclusions,ordecisionswerein
violationofastatutoryprovision
and/or beyond the agency's
statutoryauthority.
6. Whether the judge's findings
were arbitrary or capricious or
characterized by abuse of
discretionorclearlyunwarranted
exerciseofdiscretion.
See: Gulf States Utility Co. v.
CoalitionofCitiesfor AffordableUtility
Rates, 883 S.W. 2nd 739 (Tex.App.-
Austin 1994); Miller v. Railroad
Comm'n,363 S.W.2d244,245-46(Tex.
1962); City ofEl Pasov.Public Utility
Commission ofTexas. EI Paso Electric
Company, 883 S.W.2d 179 (Tex.App.-
Austin 1995); Texas Dept. ofPublic
Safety v. Raffaelli, 905 S.W. 2d 773
(Tex.App.-Texarkana 1995)
A T THE HEARING ON THE
APPEAL
Thecounty court at lawjudgehas the
authority to remand the case to SOAH,
affinn the suspension or rescind it.
However, for the Appellant to prevail
underthe Substantial Evidence Rule the
Appellanthas theburdento provethere
was a lack of substantial evidence
presented to support the agency's
findings. To compound the difficulty of
an Appellant's win on appeal, case law
indicates that the agency's decision will
be upheldtoresolveanyconflictin favor
oftheagency.
CASELAWONALRSUSPENSIONS
Thefirstpublishedcase(andtheonly
publishedcase as ofthis writing) on an
ALRsuspensionisTexasDept. ofPublic
Safety v. Raffaelli, 905 S.W. 2d 773
(Tex.App.-Texarkana 1995). In
Raffaelli, DPS appeals a district court
orderthatreversedanadministrativelaw
judge's fmdings. Raffaelli is concerned
with, amongother issues, the following:
1 ) whether the trial court erred in
concluding "...that the administrative
lawjudge's fmdings was erroneous and
not supported by substantial evidence";
and 2)whetheratechnicalerrormadeby
a SOAH judge on a SOAH fonn is
reversibleerror.
At the ALR hearing the arresting
officertestified and presentedthe arrest
and probablecauseaffidavit. Theofficer
testified that Raffaelli insisted upon
havingan attorneypresentwhenhe took
thebreathtest eventhoughtheofficerhad
infonnedhim hedidnothavethatright.
The video tape offered into evidence
supportedtheofficer'stestimonyandthe
officer concluded that Appellant had
refusedtotakethe breathtest.
The Courtfound thatanydisputeas
to whether or not Raffaelli refused the
breath test was to be decided by the
administrative law judge. Judge Bleil
wrote that " . ..although substantial
evidence is more that a scintilla, the
evidence in the record may preponderate
againstthedecisionoftheagencybutstill
amountto substantialevidence." Hecited
El Paso, 883 S.W. 2nd at 185 as his
authorityand found therewas substantial
evidence to affmn the administrative
order suspending Raffaelli's driver's
license.
Rafaellichallengedtheadministrative
law judge's failure to strike one or the
other"was/was not" on the fmdings and
decision sheet. The Court held that the
errorwas"hypertechnical" andupheldthe
suspension.
Raffaelli was not the best fact
situation to go to the appellate level.
However,itdoesillustratehowdifficultit
isgoingtobe toprevailin thecountycivil
courtsatlaworat ahigherappellatelevel
on an ALR review predicated on the
substantialevidencerule.
THE SUBSTANTIAL EVIDENCE
RULE
NorthAlamoWaterSupplyCorp.v'
Texas Dept. of Public Health. 839
S.W.2d 448 (Tex.App.-Austin 1992),
citesfrom CityofLeague Cityv.Texas
Water Comm'n 777 S.W.2d 802 (Tex.-

App. 1989, no writ) to swrunarize the
standardsofreviewforan appealfounded
on the substantial evidence rule.North
Alamo, id at 452 & 453, offers the
"Substantial-EvidenceChallenge"or"the
standards governing appeal of an
administrativeorderunderasubstantial-
evidencerule."
"1. The fmdings, inferences,
conclusions,anddecisionsofan
agency are preswned to be
supported by substantial
evidence, and the burden is on
thepartycontestingtheorderto
proveotherwise;
2. In applying the substantial
evidencetest,thereviewingcourt
is prohibited from substituting
its judgment for that of the
agency as to the weight ofthe
evidenceorquestionscommitted
toagencydiscretion;
3. Substantial evidence is more
thanascintilla,buttheevidence
in the record may preponderate
against the decision of the
agency and nonetheless amount
tosubstantialevidence;
4. Thetrue test is not whether the
agency reached the correct
conclusion, but whether some
reasonable basis exists in the
recordfortheactiontakenbythe
agency;
5. Theagency's actionwill besus-
tainediftheevidenceis suchthat
reasonable minds could have
reached the conclusion that the
agency must have reached m
ordertojustityitsaction."
There are nwnerous cases on the
substantial evidence rule. Isuggest that
before you argue your appeal from an
ALR suspension you research some of
yourissues toensurethatyouhaveyour
argumentsproperlyformed.
JUSTICE SEEKS LOCAL COUnSEL
TO HELP COLLECT fEOERAL OEBTS
TheDepartmentofJusticeisseekingproposals
from privatecounselinterestedinbiddingon
contractstohelpitcollectdelinquentfederaldebts
intheSouthernDistrictofTexas.Thecontractsare
tobeawardedfrom competitivebidssubmittedin
responseto Requests for Proposal(RFPs) soon to
beissuedbytheDepartment.
RobertN.Ford
DeputyAssistantAttorneyGeneral
forDebtCollectionManagement
LibertyPlaceBuilding
SecondFloorSouth
3257thStreet,N.W.
Washington,D.C.20530
CONFERENCE
ANNOUNCEMENT
TheUniversityofHouston-ClearLakewillhold theThird
NationalConferenceonChildrenandViolence:Children,
ConuTIlmityandFamilyTraumatizedbyViolenceon
November14-16,1996attheRenaissanceHoustonHotel,in
Houston,Texas.
-
66
Theconferencewill includeworkshOps, panels, focus
groups,keynotespeakersandwillconsistofsix tracks:
Education,MentalHealth,CriminalJustice,Health,
MediaandCommunityAdvocacy.
Theprogramwillbed esigned fora wide rangeof
professionals from thefi eldsofHealth,PublicHea lth,
Social ServiceProviders,YouthWorkers, Child Advocates,
Schools, LawEnforcement,andothers involved in
reducingviolenceamongyouthandchildren.
Registrationfees : $269
EarlyRegistrat ion(Before10/1196) $249
For further information please contact:
ProfessionalandContinuing EducationOffice)
UniversityofHouston-ClearLake
2700BayArea Boulevard,MC 354
Houston,Texas 77058-1098
(713)283-3030(PHONE)
(713)283-3039(FAX)
1-800-892-9451
20DOCKETCALL OCTOBERINOVEMBER 1996
WOMEN CRIMINAL
DEFENSE LAWYERS
NACDL wants to expand the representation of women in
criminal defense work. In doing so, your affiliation in your
local Bar Association and Criminal Defense Bar Association is
important. However, you are also important to the National
Association of Criminal Defense Lawyers and their expanded
vision towards women in the criminal justice work place.
As Chairperson of the Women's Issues Committee, I am asking
you to contact me personally to discuss your membership in
NACDL and encourage you either to become a member, if
you are not one, or expand your horizons by encouraging
other female criminal defense lawyers that you know practice
criminal defense law on a state or federal level, to join the
ranks of NACDL. Your participation is important, and with
the onset of the Women's Issues Committee during the tenure
of President, Bob Fogelnest, we have an opportunity to expand
our influence on this national organization and its agenda.
Judy Clark is the President-Elect. She is a prominent criminal
defense lawyer. This is an excellent opportunity for women
practicing in criminal defense law to espouse their concerns
and develop an agenda to help in areas of concerns, specifically
unique to the female criminal defense lawyer.
Marcia G. Shein, M.S.
Chairperson, Women's Issues Committee
52 Executive Park South, Suite 5203
Atlanta, GA 30328
(404) 633-3797
~
SCANLANBUILDING
405 MAINSTREET
DOWNTOWN HISTORICAL LANDMARK
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TOTALLYRENOVATEDOFFICEBUILDING
SHORTTERM LEASES(30 DAYS- 5YEARS)
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500SO.FT. TO60,000 SO.FT.
6,000SO. FT.FLOORS
FORINFORMATION
ofEALSOlRC:
405MainStreet,Suite300
Houston, Texas77002
RobertH. Cranshaw,Jr.
Phone:713-223-4550
Fax: 713-223-4559
t
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Congra.,
Pr.,lon
Herrll
Counlr.
AdminI
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