What does 'district judges trying criminal cases' mean in Texas Government Code section 76.002?

TX AG Opinion GA-0357: What does "district judges trying criminal cases" mean in Government Code section 76.002?

Plain-English summary

In Texas, each judicial district's community supervision and corrections department, the agency that runs probation, pretrial intervention, victim restitution, and community corrections facilities, is created and overseen by the local district judges. Government Code section 76.002 says "the district judge or district judges trying criminal cases in each judicial district" must establish the department and approve its budget and community justice plan. The Gregg County criminal district attorney asked the Attorney General what that phrase actually means.

The question mattered because of how Gregg County's courts are organized. The county has three district courts. Two handle criminal and civil cases. The third, the 307th District Court, is a family district court. It has criminal jurisdiction on paper, but criminal cases are not assigned or transferred to it; it only occasionally takes a referred guilty plea or handles criminal contempt arising from unpaid child support. The district attorney wanted to know whether that family court judge had to take part in approving the probation department's budget and plan.

The Attorney General read "trying criminal cases" as narrower than simply having criminal jurisdiction. The clue was that the legislature used the word "jurisdiction" elsewhere in chapter 76 but not here, so "trying criminal cases" had to mean something more specific. Reading the phrase in the context of chapter 76, the opinion concluded that a district judge is "trying criminal cases" when, in handling a criminal matter, the judge makes a decision that involves a chapter 76 program or facility, like ordering a person into a pretrial intervention program or sending a person to a department-managed facility. The duty attaches to the judge, not the court, and the statute's present-tense wording signals that it is meant for a judge who regularly examines such criminal matters, not one who handles a stray criminal case once in a great while. The opinion declined to decide whether the family court judge personally satisfied that test, saying it did not have enough facts, but it gave the standard the county could apply.

Currency note

This opinion was issued in 2005. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Who this opinion affected (as of 2005)

District judges: The opinion told them that the section 76.002 duty to establish and fund a community supervision and corrections department falls on a judge who regularly handles criminal matters involving a chapter 76 program or facility, not on every judge who happens to have criminal jurisdiction.

Family district courts: It addressed the in-between situation of a court with criminal jurisdiction that rarely hears criminal cases, holding that whether such a judge is covered depends on whether the judge regularly makes decisions involving chapter 76 programs, a fact question the opinion left to be resolved locally.

Community supervision and corrections (probation) departments: It clarified which judges are responsible for approving the department's budget and community justice plan, which bears on how the department is governed.

County prosecutors and court administrators: It supplied a working definition of "trying criminal cases" for chapter 76 governance questions and noted that the legislature had repealed the closely related subsection 76.002(b) in 2005 while keeping the same phrase in subsection (a).

Common questions

What does "district judges trying criminal cases" mean in Government Code 76.002?
The opinion concluded it means a district judge who regularly examines criminal matters that involve a Government Code chapter 76 program or facility, not simply any judge who has criminal jurisdiction.

Does every district judge with criminal jurisdiction have to help run the probation department?
No. The opinion read "trying criminal cases" as narrower than "criminal jurisdiction." Only a judge who regularly handles criminal matters tied to chapter 76 programs is covered by section 76.002.

Does the duty attach to the court or to the individual judge?
To the judge. The statute speaks of "the district judge," so the obligation follows the judge who examines qualifying criminal matters rather than the court as an institution.

How often must a judge handle criminal cases to be covered?
The statute states no specific number, but the opinion noted its present-tense wording points to a judge who regularly examines criminal matters involving the department, not one who tries a single case once a decade.

Did the opinion decide whether the family court judge had to participate?
No. It said there was not enough information to decide that as a matter of law, but it gave the test: if the judge, while handling a criminal issue, makes a decision involving a chapter 76 program or facility, the judge has "tried a criminal case" for purposes of section 76.002.

Background and statutory framework

Government Code chapter 76 governs community supervision and corrections departments, which operate probation and pretrial intervention programs, manage crime-victim restitution, and run community corrections facilities. Section 76.002(a) directs "the district judge or district judges trying criminal cases in each judicial district" to establish the department and approve its budget and community justice plan; the 2005 legislature repealed the parallel subsection 76.002(b) while retaining the same phrase in subsection (a) (Tex. Gov't Code Ann. §§ 76.001-.018, 76.002 (Vernon 2005)). Gregg County's 307th District Court is a family district court with concurrent district-court jurisdiction, including in criminal matters, but it is rarely assigned criminal cases (Tex. Gov't Code Ann. §§ 24.601-.639, 24.601(a), 24.615 (Vernon 2004); Tex. Code Crim. Proc. Ann. art. 4.01 (Vernon 2005); Tex. Fam. Code Ann. § 157.167; Tex. Pen. Code Ann. § 25.05 (Vernon 2003)).

In construing the phrase, the opinion applied ordinary statutory-construction principles: give effect to legislative intent, start with the words' plain and common meaning, and, where a statute is not plain, consider the object sought, legislative history, and consequences, presuming a just and reasonable result (City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003); State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002); Tex. Gov't Code Ann. §§ 311.021, 311.023 (Vernon 2005)). General dictionary and case-law definitions of "try" and "trial" did not yield a single meaning, because courts define "trial" within the context of the particular statute (Marrs v. R.R. Comm'n, 177 S.W.2d 941, 947 (Tex. 1944); Sanchez v. State, 926 S.W.2d 391, 395 (Tex. App.-El Paso 1996, writ ref'd); Sparkman v. State, 634 S.W.2d 82, 84 (Tex. App.-Tyler 1982, no writ)).

The opinion reasoned that "trying criminal cases" must be narrower than "criminal jurisdiction," because the legislature used "jurisdiction" in another part of chapter 76 (section 76.003) but not in section 76.002, and a court does not imply a term where the legislature excluded it (Tex. Gov't Code Ann. § 76.003(a), (b) (Vernon 2005); Meritor Auto., Inc. v. Ruan Leasing Co., 44 S.W.3d 86, 90 (Tex. 2001)). Read in context, a judge is "trying criminal cases" when, in examining a criminal issue, the judge makes a decision that would involve a chapter 76 program or facility. The requirement attaches to the judge rather than the court, and the statute's present tense indicates it is reserved for a judge who regularly examines criminal matters involving the department (In re Scariati, 988 S.W.2d 270, 273 n.1 (Tex. App.-Amarillo 1998, orig. proceeding)).

Citations

Statutes and rules:

• Tex. Gov't Code Ann. §§ 76.001-.018, 76.002, 76.002(a), 76.003(a), (b), 509.001(1) (Vernon 2005)
• Tex. Gov't Code Ann. §§ 24.601-.639, 24.601(a), 24.615 (Vernon 2004)
• Tex. Gov't Code Ann. §§ 311.021, 311.023 (Vernon 2005)
• Tex. Code Crim. Proc. Ann. art. 4.01 (Vernon 2005)
• Tex. Fam. Code Ann. § 157.167
• Tex. Pen. Code Ann. § 25.05 (Vernon 2003)

Session laws:

• Act of May 16, 2005, 79th Leg., R.S., H.B. 1326, ch. 255, 2005 Tex. Sess. Law Serv. (repealing Tex. Gov't Code Ann. § 76.002(b); amending ch. 76)
• Act of May 17, 2005, 79th Leg., R.S., H.B. 1174, ch. 253, 2005 Tex. Sess. Law Serv. (amending Tex. Fam. Code Ann. § 157.167)

Cases:

• City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003)
• State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002)
• Marrs v. R.R. Comm'n, 177 S.W.2d 941, 947 (Tex. 1944)
• Sanchez v. State, 926 S.W.2d 391, 395 (Tex. App.-El Paso 1996, writ ref'd)
• Sparkman v. State, 634 S.W.2d 82, 84 (Tex. App.-Tyler 1982, no writ)
• Meritor Auto., Inc. v. Ruan Leasing Co., 44 S.W.3d 86, 90 (Tex. 2001)
• In re Scariati, 988 S.W.2d 270, 273 n.1 (Tex. App.-Amarillo 1998, orig. proceeding)

Other authorities:

• Tex. Att'y Gen. LO-97-025
• Black's Law Dictionary 1510, 1520 (7th ed. 1999)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0357
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2005/ga0357.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

September 16, 2005

The Honorable William M. Jennings
Gregg County Criminal District Attorney
101 East Methvin Street, Suite 333
Longview, Texas 75601

Opinion No. GA-0357

Re: The meaning of "district judges trying criminal cases" in Government Code section 76.002 (RQ-0330-GA)

Dear Mr. Jennings:

You ask about the meaning of "district judges trying criminal cases" in Government Code section 76.002.[1] See TEX. GOV'T CODE ANN. § 76.002 (Vernon 2005). In your request letter, you specifically ask about the meaning of this phrase as it is used in Government Code section 76.002(b). See Request Letter, supra note 1, at 1, 3. The Seventy-ninth Legislature, however, repealed that subsection and otherwise amended chapter 76 during its 2005 Regular Session. See Act of May 16, 2005, 79th Leg., R.S., H.B. 1326, ch. 255, § 12, 2005 Tex. Sess. Law Serv. (repealing TEX. GOV'T CODE ANN. § 76.002(b)). Nevertheless, the phrase is used in a substantially similar manner in 76.002(a)[2] and raises a similar legal question, which you have asked us to construe instead.[3]

Government Code chapter 76 governs community supervision and corrections departments, which, generally, are created to operate programs for the supervision and rehabilitation of persons in pretrial intervention programs, to manage crime victim restitution payments, and to establish "community corrections facilities."[4] See TEX. GOV'T CODE ANN. §§ 76.001-.018 (Vernon 2005).[5] Section 76.002(a) provides that "[t]he district judge or district judges trying criminal cases in each judicial district . . . shall: (1) establish a community supervision and corrections department; and (2) approve the department's budget and community justice plan." See Act of May 16, 2005, 79th Leg., R.S., H.B. 1326, ch. 255, § 1, 2005 Tex. Sess. Law Serv. (to be codified at TEX. GOV'T CODE ANN. § 76.002(a)) (emphasis added).

You inform us that Gregg County has three district courts: the 124th District Court and 188th District Court, which preside over criminal and civil matters, and the 307th District Court, which was established as a family court under Government Code chapter 24, subchapter D to have primary responsibility for cases involving family law matters.[6] See Request Letter, supra note 1, at 1; see also TEX. GOV'T CODE ANN. §§ 24.601-.639 (Vernon 2004) ("Family District Courts"); id. § 24.615 (creating the 307th Judicial District Court as a family district court for Gregg County). Relevant here, although the 307th District Court has jurisdiction in criminal matters, you further inform us that criminal cases are not initially assigned to it; neither are criminal cases transferred to it under an exchange agreement between the other two district courts and the Gregg County county courts at law. See Request Letter, supra note 1, at 2. But the family district court occasionally "takes guilty pleas and assesses punishment in criminal matters referred to it by the other district courts," and the family district court "hears criminal contempt matters that arise out of unpaid child support obligations."[7] See id. Nevertheless, you note that the family district court "has probably not presided over a criminal case from indictment to conviction, at least not recently[.]" Id. at 3.

Because the family district court is only occasionally involved in criminal matters, you question whether Government Code section 76.002(a) requires the judge of the family district court to participate in approving the department's budget and community justice plan. See Request Letter, supra note 1, at 2-3.[8] Specifically, you ask us to construe the phrase "trying criminal cases" to determine if the family district court's criminal matters fall into that phrase's definition. See id. at 1-3. You also ask several questions the answers to which are dependent upon the construction of this phrase. See id. at 2-3. Therefore, we first turn to construing it.

In construing a statute we are charged with determining and giving effect to the legislature's intent. See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003). This is accomplished by establishing the "'plain and common meaning of the statute's words.'" Id. (quoting State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002)). Generally, if a statute's meaning is unambiguous, we interpret the statute according to its plain meaning. See id. Where a statute is not plain on its face, however, we may consider, inter alia, the object sought to be attained, the statute's legislative history, and the consequences of a particular construction. See TEX. GOV'T CODE ANN. § 311.023 (Vernon 2005). Finally, we presume that in enacting a statute the legislature intended a just and reasonable result. See id. § 311.021.

Here, "trying criminal cases" is not defined in the statute, see id. §§ 76.001-.018.[9] Neither have we found any court case that has defined this particular phrase. Generally, "try" is defined as "[t]o examine judicially; [t]o examine and resolve (a dispute) by means of a trial." BLACK'S LAW DICTIONARY 1520 (7th ed. 1999). "Trial" is also generally defined as a judicial examination and determination of issues between parties to an action in an adversary proceeding. See id. at 1510; see Marrs v. R.R. Comm'n, 177 S.W.2d 941, 947 (Tex. 1944). This office has observed, however, that "courts in criminal cases define 'trial' within the context of the particular statute or constitutional provision at issue." Tex. Att'y Gen. LO-97-025, at 2; see, e.g., Sanchez v. State, 926 S.W.2d 391, 395 (Tex. App.-El Paso 1996, writ ref'd) ("trial" for purposes of the rule for recusal or disqualification of a judge means "trial on the merits or a substantive hearing of some sort"); Sparkman v. State, 634 S.W.2d 82, 84 (Tex. App.-Tyler 1982, no writ) ("trial" as used in the Sixth Amendment right to speedy trial refers to a "determination by a jury of guilt or innocence"). Accordingly, "trying criminal cases" has no single meaning.

If we were to apply the general definitions, the phrase "trying criminal cases" would include district courts that judicially examine any criminal issues. And as you note, it would be logically absurd to literally construe the statute to require a district judge to be actively trying a criminal case for the judge to be responsible for approving the department's budget and community justice plan. See Request Letter, supra note 1, at 3. So construing the phrase with the general definitions necessarily means that "trying criminal cases" refers to any district court that might examine criminal issues; and those would be by definition courts with criminal jurisdiction. But the legislature did not use the term "jurisdiction" to describe the district judges responsible for the department, though it did so in the statute's other provisions. See TEX. GOV'T CODE ANN. § 76.003(a), (b) (Vernon 2005)[10] (permitting a district judge served by a department to appoint a statutory county court judge "exercising criminal jurisdiction" to serve in a judicial council) (emphasis added). Consequently, the legislature intended some meaning for "trying criminal cases" that is more narrow than criminal jurisdiction. See Meritor Auto., Inc. v. Ruan Leasing Co., 44 S.W.3d 86, 90 (Tex. 2001) (when the legislature has used a term in one section of a statute and excluded it in another, a court will not imply the term where it has been excluded).

The phrase is a part of Government Code chapter 76, which provides, among other things, for the creation of a community corrections facility and the operation of pretrial intervention programs. See TEX. GOV'T CODE ANN. §§ 76.001-.018 (Vernon 2005).[11] And these programs are administered by the department,[12] which in turn is created by judges who are required to approve the department's policies and budget.[13] Thus, contextually, "trying criminal cases" must refer to criminal cases that involve the programs created in chapter 76 such that a judge would have an interest in approving the department's budget and community justice plan. That is, a district judge is "trying criminal cases" if in examining a criminal issue the judge makes a decision that would involve a chapter 76 program, like ordering a person into a pretrial prevention program or sending a person to a department-managed facility.

Your remaining questions, in essence, ask that we define the character and frequency of criminal trial experience that brings a district judge into section 76.002(a). See Request Letter, supra note 1, at 3. First you ask if the family district court judge is qualified under our construction of the phrase to participate in the management of the department. Id. You have not provided us with enough information to make that determination as a matter of law. Nevertheless, if the family district court judge, in examining a criminal issue, makes a decision that would involve a chapter 76 program or facility, then that judge has tried a criminal case for the purposes of section 76.002.

Finally, we consider your last two questions together because they ask about similar issues:

Would it be sufficient to bring [the family district court] within § 76.002 if the court were to "try" one criminal case a decade, or once ever, or to preside over one guilty plea a year, or ever? Does it matter that the [family district court judge] has participated in the management of the probation department for the last fourteen [] years?

Id. By the statute's plain language, the requirement to approve the department's budget and community justice plan is inherent in the judge and not the judge's court. See Act of May 16, 2005, 79th Leg., R.S., H.B. 1326, ch. 255, § 1, 2005 Tex. Sess. Law Serv. (to be codified at TEX. GOV'T CODE ANN. § 76.002(a)) ("The district judge[s] . . . .") (emphasis added). Therefore, the provision is triggered by the judge examining a criminal matter the disposition of which involves a chapter 76 program or facility. There is no language in the statute about frequency or numbers. However, the use of the present tense in the phrase suggests that section 76.002(a)'s requirement is reserved for a judge who regularly examines criminal matters that involve the department.

SUMMARY

The phrase "district judges trying criminal cases" in Government Code section 76.002 means a district judge who regularly examines criminal matters that involve a Government Code chapter 76 program or facility.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

BARRY R. McBEE
First Assistant Attorney General

NANCY S. FULLER
Chair, Opinion Committee

Daniel C. Bradford
Assistant Attorney General, Opinion Committee

Footnotes

[1] See letter from Honorable William M. Jennings, Gregg County Criminal District Attorney, to Honorable Greg Abbott, Texas Attorney General (Mar. 21, 2005) (on file with Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

[2] See Act of May 16, 2005, 79th Leg., R.S., H.B. 1326, ch. 255, § 1, Tex. Sess. Law Serv. (to be codified at TEX. GOV'T CODE ANN. § 76.002(a)) ("The district judge or district judges trying criminal cases . . . .") (emphasis added).

[3] See Telephone Conversation with Honorable William Jennings, Gregg County District Attorney (July 19, 2005).

[4] "Community corrections facility" is defined as a "physical structure established by the judges described by Section 76.002 . . . that is operated . . . for the purpose of confining persons placed on community supervision and providing services and programs to modify criminal behavior, deter criminal activity, protect the public, and restore victims of crime." Act of May 16, 2005, 79th Leg., R.S., H.B. 1326, ch. 255, § 9, 2005 Tex. Sess. Law Serv. (to be codified at TEX. GOV'T CODE ANN. § 509.001(1)).

[5] As amended by Act of May 16, 2005, 79th Leg., R.S., H.B. 1326, ch. 255, 2005 Tex. Sess. Law Serv.

[6] Government Code section 24.601 sets out a family district court's jurisdiction, providing that "a family district court has the jurisdiction and power provided for district courts by the constitution and laws of this state. Its jurisdiction is concurrent with that of other district courts in the county in which it is located." TEX. GOV'T CODE ANN. § 24.601(a) (Vernon 2004); see also TEX. CODE CRIM. PROC. ANN. art. 4.01 (Vernon 2005) ("[T]he following courts have jurisdiction in criminal actions: . . . The district courts . . . .").

[7] See TEX. FAM. CODE ANN. § 157.167, as amended by Act of May 17, 2005, 79th Leg., R.S., H.B. 1174, ch. 253, § 1, 2005 Tex. Sess. Law Serv. (child support fees and costs judicially ordered may be enforced by contempt); see also In re Scariati, 988 S.W.2d 270, 273 n.1 (Tex. App.-Amarillo 1998, orig. proceeding) (explaining the difference between civil and criminal contempt); TEX. PEN. CODE ANN. § 25.05 (Vernon 2003) (making it a state jail felony for an individual to "intentionally or knowingly fail[] to provide support for the individual's child younger than 18 years of age, or for the individual's child who is the subject of a court order requiring the individual to support the child.").

[8] See also Act of May 16, 2005, 79th Leg., R.S., H.B. 1326, ch. 255, § 1, 2005 Tex. Sess. Law Serv. (to be codified at TEX. GOV'T CODE ANN. § 76.002(a)) ("The district judge or district judges trying criminal cases . . . shall . . . .") (emphasis added).

[9] See supra note 5.

[10] See supra note 5.

[11] See supra note 5.

[12] See, e.g., TEX. GOV'T CODE ANN. §§ 76.011 (permitting the department to "operate programs for the supervision and rehabilitation of persons in pretrial intervention programs"), .014 (permitting the department to establish a developmental program for the educational and vocational training of a defendant under the supervision of the department), .017 (permitting the department to establish "a treatment alternative to incarceration program") (Vernon 2005).

[13] See Act of May 16, 2005, 79th Leg., R.S., H.B. 1326, ch. 255, § 1, 2005 Tex. Sess. Law Serv. (to be codified at TEX. GOV'T CODE ANN. § 76.002(a)).