journal of the texas criminal defense lawyers association

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mestion that we now proceed. the leejslaturc prior to the enactment the same to remain in effect unlessof Art& 1731alArt. 1731a. Sec. 1. In order toconfer upon and relinquish to theSupreme Court of the State ofTexas fullrule-making power in civiljudicial proceedings, all laws andparts of laws governing the practiceTHE TEXAS RULES OF EVIDENCEARE THE EQUIVALENTOF STATUTE LAWAs previously discussed, the expresslanguage of the preamble to the TexasRules of Evidence limits their use to civilcases, and that limitation is consistentwith their legislative history. Therefore,any argument that the Rules apply tocriminal caes must be exttinsic to theRules themselves. he appropriate exttinsidityis fonnd in ~rticle 38.02, TexasCode of CrirninalProcedurc, which states:The Rnles of Evidence pfescribedin the statute law of thisState in civil suits shall, so far asapplicable, govern dso in criminalactions when not in conflict withthe provisions of this Code or ofthe Penal ~ode.5~ronght into focus is the meaning ofthe phrase ". . .prescribed in. the statutelaw of this State in cisil suits. . ." foundin Article 38.02. If the Texas ~ules ofEvidence fall within that phrase then asecond question arises: Though oneconcludes that the new Texas Rules ofin theEvidence are ". .statute law of this State in civil suits. .."is there some reason to believe that Article38.02 is totally inapplicable? First tobe addressed is whetber or not the TexasRules of Evidence fall within the phrasecontained in Article 38,02.Obviously, the Texas Rules of Evidenceare prescribed in this State in civil suits.consequently, the question boils down towhether or not the Texas Rules of Evidenceare "statute law''-the phraseused in Article 38.02 of the Texas Codeof Criminal Procedure.~rticle 1731 Texas Cid Statutesaffirms the power of the Supreme Courtto make rules, not inconsistent with thelaw, for the government of the Texascourts. Article 1731 is merely an affumationby the legislature of the rulemakingpower invested in the Supreme,Court by Article 5, section 25 of theTexas Constitution.But in 1939, the legislature passedArticle 1731s Texas Cd Statutes.Article 1731a delegates to the SupremeCourt aU of the legislative power to makerules of practice in civil actions, even tothe point of repealing all laws passed byand ~rocedure in civil actions arehereby repealed, such repeal to beeffective on and after September1, 1941. Provided, however, that nosuhst'antive law or part thereof ishereby repealed.6In other words in 1939, the legislaturewiped the slate clean and delegated to theSupreme Conrt all legislative power tomake rules in civil cases in the future.7That delegation by the legislature of allof its power, together with the poweralready possessed by the Supreme Courtunder the Constitution, leaves no doubtthat after 1939, all rule-making power incivil cases belongs to the Supreme Court.However, as a check-rein, the legislatutereserved to itself the right to dirapproveany rule ~ro~ounded by the SupremeCourt.8Article 1731a, Sec. 2. The SumemeCourt is herehv investedkith the full rule-makin'g power inthe practice and procedure incivil actions. Such rules shall notabridge, enlarge or modify thesubstantive rights of any litigant.Such rules, after promulgation bythe Supreme Court, shall he fdedwith the Secretary of State and acopy thereof mailed to each electedmember of the Legislature on orbefore December 1st immediatelypreceding the next Regular Sessionof the Legislature and shall bereported by the Secretary of Stateto the Legislature, and, unlessdisapproved by the Legislature,such des shall become effectiveupon September 1,1941; providedhowever, the Supreme Court may,from time to time after September1, 1941, promulgate any specifkrule or rules or any amendment oramendments to any specific ruleor rules and make the same effective,except as hereinafter provided,at such time as the Supreme Courtmay deem expedient in the interestof aproper administration ofjustice,and until disapproved by the Legi*lature. Any such specific rule orrules, or any such amendment oramendments to any specific ruleor rules, shall be Hed by the Clerkof the Supreme Court with theSecretary of State, and a copythereof mailed by the said clerkto each registered member of theState Bar of Texas, at least sixty(60) days before the effective datethereof, and reported by theSecretmy of State to the nextsucceeding Regular Session of theLegislature in the same manner ashereinabove provided.9Now, to reiterate the issue at hand:Are the Texas Rules of Evidence "statutelaw'-the term used in Article 38.02Texas Code of Criminal Procedure?The Rules were expressly passed underthe authority of Article 1731a-the delegationof power by the Legislature to theSupreme Court.lO Furthermore, the Rnleswere presented to the Legislature fortheir potential disapproval all in accordancewith the conditions of Sec. 2 Article1731%. Furthermore, the Rules, themselves,contain an express repeder ofstatutes.lf Each of these repealed statutesseemingly conflicted with policies establishedby the Supreme Court in the RulerTherefore, logic would dictate that thenew Texas Rules of Evidence, althoughpropounded by theTexas Supreme Conrt,are "statute law."One need not rely upon logic aloneto reach the conclusion that the TexasRules of Evidence are "statute law."'There exist at least four cases to thateffect. Childress v. Robinson, 161 S.W.78 (Ct. Civ. App. 1913) was the fustcase to diacuss the point, and to hold thatSupreme Court rules have the force andeffect of statutes. Bedner v. FederdUnderwriters Exchange, 133 S.W.2d 214(Ct. Civ. App. 1939) was the next case toconsider the issue and in that case thecourt made the following expansivecomment:In making and establishing [therule in question] the SupremeCourt was exercising legislativepower under direct grant of suchpower by the Constitution, &s anexpress exception to the generalgrant of dl legislative power to the6 VOICE for the DefenseJAugust 1983
Legislature; Constitution Article II could be made that the Court's intentionssec. 1; Id. Article 111 sec. 1; Id. should be controlling in determiningArticleV, sec. 25, Vernon's Ann. St. the scope of application of the RulesThe controlling effect of the in- made by them.tention of the Supreme Court as Note that the Texas Rules of Civilthe Law maker, and the rules and Procedure were passed under the sameprinciples governing the ascertain- authority as the new Texas Rules ofment of such mtention, are the ~videuce.lS On two earlier occasions thesame as applicable to a statute TexasCourt ofCrirninalAppealsdiscussedof the state enacted by the Legis the applicability of the Texas ~ules oflature.12Civil Procedure to criminal cases. In both~ i in ~ B~~~~ & , ~ ~ i ~ k 153 ~ of ~ those h cases ~ ~ at least ~ ~ part , of the opinion~,~,2d 342 (ct. cm. 1941) the was based on the rationale that the TexasCourt made this comment:Rules of Civil Procedure would not applyin criminal cases unless there was a clearThe and statutes do' expression of intent to make themconfer upon the Supremeapplicable in criminal cases. In HollowayCourt' the authority and powerY. Stnte,l6 decided in 1944, the Court ofto make and establish rules notCriminal Appeals expressed the thoughtinconsistent with the law of thethis way: ". . .[TI he rules governing civilState for the government said actions are applicable and controllingcourt and other courts of thein criminal matters only when expresslyState, Article V, set. 25, Constitumadeso by statute,~,17 Again, in SessionsVernon's Ann. St'; Arts' 1730v, S*afe,18 decided in 1917, the Courtand 1731, Vernon's Civ. Statutes,of Criminal Appeals expressed its feeling1925' Such when promulgated that of Supreme Courtandhave all the effectrules should be determined, in part, byand force statutes. .. .The powerthe intention of the supreme court:when exercised is the exercise ofWe think it is a mistaken view tolegislative power under direct grantby the Constitution.13assume that this rule controls theauthority of this Court to passThat same language was used Once againupon questions disclosed in thein Church v. Crites, 370 S.W.2d 419,record of appeal, The Supreme421 (Civ. A ~ 1963). ~ . Thus, the court has nottoclusion that the Texas Rules of Evidencerules for this Court for that purare"statute law" seems inescapable. Norpose, and it is a mistake to holdis that proposition of law at all unusual.that those made for other courtsMany courts have held that court tuleswould have such effect.19properly promulgated and not exceedingSince the Supreme Court had nothe limitation of the court's rule-making intention of m&gRules ofpower have the force of law and areEvidence applicable to criminal cases,tantamount in this respect to rules incor-Holloway and Sessions appear to be veryporated in statutes.14persuasive at first blush. Those twoARTICLE 38.02 TEXAS CODE opinions do lend strength to the argu-OF CRIMINAL PROCEDURE APPLIES ment that Article 38.02 is totally inap-Even if the Texas Rules of Evidence plicable to the situation now underare ". . .rules of evidence prescribed in consideration. But the key to Hollowaythe statute law of the State in civil and Sessions lies in the realization thatsuits. . ."-the language used in Article the applicability of the Texas Rules of38.02-is there some reason to helieve that civil Procedure was being discussed inArticle 38.02 is totally inapplicable in those cases; not the applicability of thethis particular situation?Texas Rules of Evidence.Were it not for Article 38.02 there The impottance of this distinction mustwould he a serious question about the not be ignoredand, in fact, was recognizedapplicability of the Rules to criminal by the Court of criminal Appeals, itself, incases. Since the Supreme Court's expressed the recent case of Warminski v. Dear,intention was to adopt rules that govern 608 ~.~.2d 621 (Ct. rim. App. 1980)civil actions, a well reasoned argument (en banc) where the Court noted thedistinction between Article 38.02 Codeof Criminal Procedure and Article 40.10Code of Criminal Procedure; Article 38.02deals with the applicability of tules ofevidence; while Article 40.10 deals withthe applicability of the Texas Rules ofCivil Procedure.20 Since Article 40.10did not exist when HolZoway and Sessionswere decided, the Court of CriminalAppeals had the freedom in those twocases to speculate about the effect of theSupreme Court's intention on the scopeof the applicability of the Texas Rulesof Civil Procedure.The fact that Article 38.02 is cast interms of rules of evidence in the "statutelaw" should not be taken as an intentionto exdude rules propounded by theSupreme Court, because until now rulesof evidence were, in fact, prescribed instatute law. Rules of evidence prescribedhy the Supreme Court simply did notexist. Therefore, any broader languagein Article 38.02 would have appeared tobe superfluous, so there is no reason tobelieve that the Legislature intended touse the term "statute law" as a limitationon court-made rules of evidence.Through the haze one fact stands out;there has always been an attempt to applypractices of civil courts to criminal courts,except in instances where the Legislaturehas expressly formulated a practice uniqueto criminal courts. This underlying themeof parallelism can be seen over and overagain. First, Article 5, sec. 5 of the TexasConstitution gives the Supreme Courtpower to make rules for all courts. Nextis the fact that since 1856, the TexasLegislature has consistently declared inone statutory revision after another thatthe rules of evidence in civil cases willapply in criminal cases unless in conflictwith the Code of Criminal Procedureor the Penal Code.21 Next is thefact that in the 1965 revision of the Codeof Criminal Procedure the Legislatureamended Article 40.10 to apply theTexas Rules of CivilPmcedure to cPiminalcases tmless in conflict with the Codeof Criminal Procedure. EindyY it isdifficult to ignore the "why nat" arpmentimplicit in the language of Article38.02 of the Texas Code of CrituinalProcedure+ Given its Iong-standing tenureas a part of the jurisprudence of thisState, why should Article 38.02 not beapplied to the issue at hand?August 1983/VOICE for the Defense 7
Page 3 and 4: President's ReportTHOMAS G. SHARPE,
Page 5: THE NEW TEXASRULES OF EVIDENCEIN CR
Page 9 and 10: RONALD DANFORD, No. 62,855, Attempt
Page 11 and 12: JULIA MONTEZ, No. 68,441, Rev'd, Ju
Page 13 and 14: -- NARCISQ RICO, No.6/29/83.68,637,
Page 15 and 16: EX PARTE VICTOR MAREK, No. 61,904,
Page 17 and 18: supra, i-e., as the juror, thr~ugh
Page 19 and 20: MICHAEL CAMPBELL, No. 027-83, Opini
Page 21 and 22: tory terms such as, "deliberately",
Page 23 and 24: WILLIE SKINNER, No. 839-82, Opinion
Page 25 and 26: 509 S.W.2d 356. The courts of ~ppea
Page 28 and 29: ". . . There is one thing qore I wa
Page 30 and 31: KO one has talked to the Jurors abo
Page 32 and 33: e reflected in a formal judgment or
Page 34 and 35: defendant would have to be willing
Page 36 and 37: contains the necessary allegation o
Page 38 and 39: 3727. Oldrecord books of munimentso
Page 40 and 41: vacuum. Commentary on the code's kn
Page 42 and 43: ~42retroactively, but only for thos
Page 44: TEXAS CRIMINAL DEFENSE LAWYERS ASSO

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