Can a Texas court clerk prepare a criminal judgment, and does the 1999 law require an attorney to supervise?

Plain-English summary

A Brazoria County district attorney asked, on behalf of the district clerk, whether a 1999 amendment to article 42.01, section 2 of the Code of Criminal Procedure stopped a court clerk from preparing criminal judgments. In that county, deputy district clerks had been filling in judgment forms drafted by a district judge, at the court's request. The district clerk worried the new language barred the office from doing this because it had no staff attorney to supervise. The district attorney suggested that, because a judge wrote the forms and a judge must review every judgment before signing it, that was the supervision the Legislature had in mind.

The Attorney General concluded the clerk could still prepare judgments, but only under an attorney's supervision. Before September 1, 1999, section 2 let a judge order "the clerk of the court" (among others) to prepare a judgment, which the judge then signed under section 1. The 1999 amendment changed the wording to "the court clerk under the supervision of an attorney." Working from the rule that the Legislature is not presumed to do a useless act, the opinion read the change as a real change: clerks may still prepare judgments, but no longer without an attorney's supervision. The bill analysis to Senate Bill 577 supported this, describing the bill as creating a prohibition on clerks preparing judgments without a supervising attorney.

The opinion rejected the argument that a judge's review and signature counts as the required supervision. Judges already had to read and sign judgments under section 1 before the amendment, so if that were the supervision the amendment required, the amendment would have accomplished nothing. Instead, the opinion concluded an attorney must supervise the clerk in preparing the judgment before the judge's final review. As for what "supervision" means, the opinion declined to pin it down. Because the Legislature used the broad phrase "under the supervision of an attorney" without naming a particular attorney, and because section 2 already gives judges latitude over how a judgment is prepared, the opinion held it is within the discretion of the judge who orders a clerk to prepare a judgment to decide which attorney supervises and what the supervision entails.

Currency note

This opinion was issued in 2000. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The district clerk's office (what the opinion held for it): At the time of this opinion, the office could continue to have clerks prepare judgments, but it needed an attorney to supervise that work; a judge's later review and signature did not satisfy the new requirement.

Judges (what the opinion held for them): The opinion left to each judge who orders a clerk to prepare a judgment the choice of which attorney supervises and what supervision involves.

The district attorney and other county attorneys (what the opinion held for them): Section 2 still let a judge instead order the prosecuting attorney or a defense attorney to prepare the judgment, or have the court do it; the clerk option simply now carried the attorney-supervision condition.

Common questions

Did the 1999 change stop court clerks from preparing criminal judgments?
No. The opinion concluded clerks may still prepare judgments, but only under the supervision of an attorney.

Does a judge reviewing and signing the judgment count as that supervision?
No. The opinion held judges already had to review and sign judgments, so that review cannot be the new supervision the amendment requires.

Who decides which attorney supervises the clerk?
The judge who orders the clerk to prepare the judgment. The opinion held that choice, and the scope of supervision, is within the judge's discretion.

Are there other ways to get a judgment prepared?
Yes. The opinion noted section 2 also lets the judge order the prosecuting attorney or a defense attorney to prepare it, or have the court prepare it.

Background and statutory framework

Article 42.01 defines a criminal judgment as the written declaration of the court signed by the trial judge and entered of record, and section 1 lists the items a judgment must contain. The judge's signature shows the judge's knowledge and approval of the contents and reflects the duty to read every judgment and order (Bustillos v. State, 213 S.W.2d 837, 841 (Tex. Crim. App. 1948), quoting In re Walker's Estate, 110 Cal. 387, 42 P. 815, 816 (1895); Burrell v. Cornelius, 570 S.W.2d 382, 384 (Tex. 1978); JM-373 (1985)). Section 2 governs who may prepare a judgment. As added in 1975, it allowed a judge to order the clerk of the court, the prosecuting attorney, or defense counsel to prepare it, or to prepare it himself. Senate Bill 577 (1999) replaced "the clerk of the court" with "the court clerk under the supervision of an attorney." Applying the presumption that the Legislature does not act uselessly (Hunter v. Fort Worth Capital Corp., 620 S.W.2d 547, 551 (Tex. 1981)) and the bill analysis describing the change as a new prohibition on unsupervised clerk-prepared judgments, the opinion gave the amendment effect and read the broad supervision language to leave the details to the ordering judge's discretion.

Citations

Statutory provisions:

• Tex. Code Crim. Proc. Ann. art. 42.01, § 1, § 1(1)-(27), § 2 (Vernon Supp. 2000)
• Act of Apr. 24, 1975, 64th Leg., R.S., ch. 95, § 1, 1975 Tex. Gen. Laws 245
• Act of May 22, 1999, 76th Leg., R.S., ch. 580, § 6, 1999 Tex. Gen. Laws 3119, 3121
• Tex. S.B. 577, 76th Leg., R.S. (1999)

Cases and prior opinions:

• Bustillos v. State, 213 S.W.2d 837 (Tex. Crim. App. 1948)
• In re Walker's Estate, 110 Cal. 387, 42 P. 815 (1895)
• Burrell v. Cornelius, 570 S.W.2d 382 (Tex. 1978)
• Hunter v. Fort Worth Capital Corp., 620 S.W.2d 547 (Tex. 1981)
• Tex. Att'y Gen. Op. No. JM-373 (1985)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0259
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2000/jc0259.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

July 26, 2000

The Honorable Jeri Yenne
Brazoria County Criminal District Attorney
111 East Locust, Suite 408A
Angleton, Texas 77515

Opinion No. JC-0259

Re: Whether a recent amendment to article 42.01, section 2 of the Code of Criminal Procedure precludes a court clerk from preparing a judgment (RQ-0198-JC)

Dear Ms. Yenne:

On behalf of the district clerk of your county, you ask whether a recent amendment to article 42.01, section 2 of the Code of Criminal Procedure precludes a court clerk from preparing a judgment. We conclude that section 2 does not preclude a court clerk from preparing a judgment, but that a court clerk may prepare a judgment only under the supervision of an attorney. It is for the judge ordering a court clerk to prepare a judgment to determine which attorney will supervise the clerk and what that supervision will entail.

We begin with a brief review of article 42.01, which sets forth the purpose and requisites of criminal judgments. Article 42.01 declares that "[a] judgment is the written declaration of the court signed by the trial judge and entered of record showing the conviction or acquittal of the defendant. The sentence served shall be based on the information contained in the judgment." TEX. CODE CRIM. PROC. ANN. art. 42.01, § 1 (Vernon Supp. 2000). A 1985 opinion of this office explained the significance of the article 42.01, section 1 requirement that a judge sign a judgment:

A judge signs a variety of orders in criminal cases. See Code Crim. Proc. art. 42.01 (defining a "judgment" as a "written declaration of the court signed by the trial judge and entered of record"). The purpose of a judge's signature on such instruments is to show his knowledge and approval of the contents. See Bustillos v. State, 213 S.W.2d 837, 841 (Tex. Crim. App. 1948), quoting In re Walker's Estate, 110 Cal. 387, 42 P. 815, 816 (1895). It is the responsibility of the judge to read every judgment and order. See Burrell v. Cornelius, 570 S.W.2d 382, 384 (Tex. 1978). The signature signifies that he has done so.

Tex. Att'y Gen. Op. No. JM-373 (1985) at 1. Section 1 also prescribes an extensive list of items that must be reflected in a judgment, such as the title and number of the case, the defendant's plea, and the jury verdict or finding of the court, and the sentence. See TEX. CODE CRIM. PROC. ANN. art. 42.01, § 1(1)-(27) (Vernon Supp. 2000).

You ask about section 2 of article 42.01, which provides for the preparation of judgments. Prior to September 1, 1999, section 2 provided that "[t]he judge may order the clerk of the court, the prosecuting attorney, or the attorney or attorneys representing any defendant, to prepare the judgment, or the court may prepare the same." Act of Apr. 24, 1975, 64th Leg., R.S., ch. 95, § 1, 1975 Tex. Gen. Laws 245 (emphasis added) (adding section 2 to TEX. CODE CRIM. PROC. ANN. art. 42.01). The Seventy-sixth Legislature amended section 2 in Senate Bill 577 so that it now provides that "[t]he judge may order the prosecuting attorney, or the attorney or attorneys representing any defendant, or the court clerk under the supervision of an attorney, to prepare the judgment, or the court may prepare the same." Act of May 22, 1999, 76th Leg., R.S., ch. 580, § 6, 1999 Tex. Gen. Laws 3119, 3121 (emphasis added) (amending TEX. CODE CRIM. PROC. ANN. art. 42.01, § 2).

You state that judgments in your county have been prepared by deputy district clerks at the request of the court. The forms used for the judgments were drafted by a district court judge and the deputy district clerks merely fill in the blanks. See Letter from Honorable Jeri Yenne, Brazoria County Criminal District Attorney, to Honorable John Cornyn, Attorney General, at 1 (Mar. 1, 2000) (on file with Opinion Committee) [hereinafter "Request Letter"]. The district clerk in your county is concerned that the amendment to section 2 precludes the district clerk's office from preparing judgments because the office does not employ an attorney to supervise the preparation. See id. at 2. On the other hand, you suggest that the fact that the forms in your county were prepared by a judge and that a judge must review a judgment before signing it "is the type of supervision envisioned by the legislature." Id.

Keeping in mind the maxim that "the legislature is never presumed to do a useless act," Hunter v. Fort Worth Capital Corp., 620 S.W.2d 547, 551 (Tex. 1981), we must give meaning to the 1999 amendment to section 2 of article 42.01 and must work from the assumption that the legislature intended to change the law. Prior to September 1, 1999, section 2 authorized a judge to order the clerk of the court to prepare a judgment. Such judgments were ultimately signed by the judge, as required by section 1. Section 2 now authorizes a judge to order "the court clerk under the supervision of an attorney" to prepare a judgment. Clearly, court clerks may prepare judgments, but they are no longer authorized to do so without an attorney's supervision. See TEX. CODE CRIM. PROC. ANN. art. 42.01, § 2 (Vernon Supp. 2000) ("[t]he judge may order the prosecuting attorney, or the attorney or attorneys representing any defendant, or the court clerk under the supervision of an attorney, to prepare the judgment, or the court may prepare the same.") (emphasis added); see also SENATE COMM. ON CRIMINAL JUSTICE, BILL ANALYSIS, Tex. S.B. 577, 76th Leg., R.S. (1999) (Committee Report dated April 6, 1999) (noting that "[i]n the course of their duties regarding criminal proceedings, clerks currently maintain several duties and practices impractical or improper" and describing Senate Bill 577 as "creating a prohibition to prepare judgments without a supervising attorney"). Furthermore, because judges were required to review and sign judgments under section 1 prior to the amendment to section 2, see Tex. Att'y Gen. Op. No. JM-373 (1985) at 1, we do not believe that that type of review is what the legislature meant in the 1999 amendment by "supervision of an attorney." In sum, although it is not correct to construe section 2 to preclude court clerks from preparing judgments altogether, we disagree with the view that the fact that the forms have been prepared by a judge and that a judge must review a judgment before signing it is the type of supervision envisioned by the legislature. We conclude that an attorney must supervise a court clerk in preparing a judgment under article 42.01, prior to the judge's final review of the judgment.

You ask us to define "supervision" for purposes of section 2. See Request Letter at 2. We believe that the legislature, in using the broad term "under the supervision of an attorney" and not specifying a particular attorney to supervise, intended to vest judges with discretion with regard to the execution of the attorney supervision requirement. This construction is consistent with the remainder of section 2, which gives a judge latitude in determining how a judgment will be prepared. In addition to permitting a judge to order the court clerk to prepare a judgment, section 2 also provides that the judge may undertake the task or order the prosecuting or defense attorney to prepare the judgment. See TEX. CODE CRIM. PROC. ANN. art. 42.01, § 2 (Vernon Supp. 2000). Given the legislature's use of the nonspecific phrase "supervision of an attorney" and the discretion that section 2 otherwise vests in judges to arrange for the preparation of judgments, we conclude that it is within the discretion of a judge ordering a court clerk to prepare a judgment to determine which attorney will supervise the clerk and what that supervision will entail.

SUMMARY

Article 42.01, section 2 of the Code of Criminal Procedure does not preclude a court clerk from preparing a judgment. However, a court clerk may prepare a judgment only under the supervision of an attorney. It is for the judge ordering a court clerk to prepare a judgment to determine which attorney will supervise the clerk and what that supervision will entail.

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General - Opinion Committee