Courts often grapple with what the Legislature intended when it used particular words in a statute. Because the Legislature only speaks through its enactments, answering that question requires a number of tools and methods. Attorneys can give their clients the best advice and a distinct advantage in litigation by understanding and mastering statutory interpretation tools. Daniel Olds, an appellate and litigation attorney at Bickerstaff Heath Delgado Acosta, LLP, has learned the ins and outs of statutory interpretation working in Congress, for Texas state agencies, and as a briefing attorney at the Eastland Court of Appeals. In this episode, Daniel joins Todd Smith and Jody Sanders to share insights from his varied background and research, discussing tools and nuances that will add value to any practitioner’s statutory analysis.
We have with us Daniel Olds, from Austin. He’s a lawyer at Bickerstaff Heath Delgado Acosta. He’s going to talk to us about statutory interpretation. Welcome to the show, Daniel.
Thanks for having me.
Thanks for joining us.
I know you’re here in Austin, but tell us a little bit about your background, where you grew up, went to school. I certainly want to hear about your connection to the Austin legal community since that’s my backyard.
I grew up in the Dallas area. I originally came to Austin to go to school at UT for undergrad, then ended up going to law school at the University of Georgia. I was there for three years and then my first job out of law school was the Congressional Research Service. If your readers are not familiar with that, it’s this in-house, nonpartisan think tank that Congress has. They have lots of scientists there and lots of smart folks who do a lot of policy analysis for Congress when they’re evaluating legislation and things like that. They also have a legal office. It’s a team of about 20 or 30 lawyers and they do everything from explaining reasons, Supreme Court cases to members of Congress, to providing legal opinions and analysis to members and their staff about pending legislation, whether or not Congress can do something that they’re thinking about doing. That was an interesting experience. It piqued my interest in this whole idea of statutory interpretation. I got to see it from a unique side, from making the law side.
My wife at the time I was up there was a 1-year at UT law school. I wanted to come back to Texas eventually. I figured it would be easier to do that sooner rather than later. I ended up getting a job in Austin. I ended up working at the Texas Department of Public Safety and, looking back on it, I still don’t know how I got this job. To be the head of their appellate team doing expunction work, and expunctions are a weird thing. If your readers don’t know anything about expunction there’s a statute, there’s a provision of the code of criminal procedure that provides for an expunction. All government agencies, DA’s offices, Department of Public Safety, police departments, whoever has records of an arrest has to physically destroy all records of the arrest. In order to get this pretty stringent remedy, you have to file a petition in district court and show that you meet the statutory requirements. The funny thing is that the expunction statute is not the most artfully written statute in the history of the world.
When I got there, there were a lot of open questions about how someone got an expunction under the statute. There were real debates and then one went to the appellate courts. This was in 2015, the legislature had passed a bill that would have clarified a lot of these questions and the governor vetoed it. My boss walked into my office and said, “I thought your job was going to be a lot easier than it is going to be because you’re stuck with this crazy statute that you’re going to have to figure out and argue in all these different courts.” I was there for about two years and I got to participate in proceedings in every appellate court in the state, except for the Court of Criminal Appeals because they are civil cases. It’s not that court. Ironically, the one intermediate court I did not litigate in was the Eastland Court of Appeals I would go on to work at. I spent two years at DPS. I did well over 30 appeals. I’ve got a number of trial court decisions, which is exciting for the 25, 26-year-old lawyer here.
That’s an incredible experience. There are few people that at that age and stage of their career that can say that they’ve had that much experience, a direct hands-on representation of client experience.
It was a lot of fun. They were such weird procedural cases that I get to learn about the appellate procedure. The whole job was fascinating. I got to do some bench trials. I’d never done any litigation before. I have no idea why they trusted me to do this job. Maybe I’m the only person who applied. I don’t know. I remember walking into the first bench trial I did, it was done in Bexar County. We only had two lawyers in our office. Usually, we would file an answer and let that speak for our position but sometimes if it was a more complex case, we would get down to the hearing if we could. I went to my first bench trial down in Bexar County and there was a witness, I was trying to prove up his expunction eligibility.
I cross-examined the witness and then I sat down and the judge waited a few seconds. He said, “Mr. Olds, are you passing the witness?” I said, “Yes, judge. I’m sorry.” It was a big learning curve, but it was a lot of fun and it piqued my interest in appellate law. It made me want to go to court and get the experience from the other side of the bench. Luckily, the Eastland Court of Appeals was nice enough to let me come up there for a year, do work with them, and learn some of the ropes from the judge’s perspective. I clerked for former Chief Justice Jim Wright, who’s now retired. He still sits when I signed them on a lot of cases. With the election coming up, he’s probably going to take more of an actual retired life. He’s working hard, but they’re going to get two new judges this election so he should be able to step back a little bit. I did that and then ended up coming back to Austin. I did a stint into the Attorney General’s office. I’m in bigger stuff where I do trial and appellate litigation. It’s a lot of fun. I enjoy it.
Eastland is a neat court and I’m in Fort Worth so I spend a lot of time out there. It’s a cool place. Did you live in Eastland for the year? Did you commute from somewhere else?
No. I lived in Eastland. There are two apartment complexes in Eastland. I found one about a mile from the court. It was an interesting experience. I’d never lived anywhere that small. I went to law school at State University Georgia in Athens. I went there for my interview and one of the judges said, “You went to law school at the University of Georgia. This is a small town. How many people were in Athens?” I said, “About 100,000.” He said, “You’re not used to anything like these, are you?” I’m like, “No. I’m afraid I’m not.”
It’s a neat court though. The courthouse is beautiful and the courtroom is pretty.
The last live oral argument that I did was in Eastland back in January. It was the first time of all things that I had argued in that court. I took the little tour and went and saw the McLeod Museum and spent a little time over there. You know you’re in a small town when technically the museum was closed right after your argument, but the museum clerk, who couldn’t have been nicer says, “I’ll make sure that gets opened up for you. You can go on in there and look around.”
Sherry is fantastic.
She was great. Overall, I was impressed and it is a beautiful courthouse and even down to some of the little mini historical markers about the water fountains and things like that.
It’s amazing to me, it usually had like 30,000 people to the oil boom back in the twenties. The thing that the population has decreased that much that’s how the Eastland Court of Appeals got there originally and why it hasn’t been moved is a topic of much debate. They tried to move it to Midland as 2012, but they built a structure out there for the court to sit because they thought it was going to move out there. The delegation from Abilene said, “If we can’t have it, you’re not going to have it either. It’s going to stay Eastland.” One of the judges told me that it’s the smallest town in America to have an appellate court. It was this interesting court that it’s out there, but the folks out there are great. They’re proud that the court is out there and they take it seriously and they love that it’s there. Lawyers come in to argue and get to see their town. I loved living out there. I thought it was a great experience. I enjoyed it.
Jody mentioned Ol’ Rip. We’ve got to cover that for folks that don’t know about it. My recollection is, Jody and I are both TCU Horned Frogs. We have a special affinity for Ol’ Rip. Correct me and fill in my gaps in the story, Daniel, because I’m not going to know at all, but Ol’ Rip was a Texas Horned Toad that emerged from the cornerstone. When they went to remodel the courthouse and it had been shut in for 50-plus years, apparently not the legend.
It may have been a little shorter than that. The way I remember it is the original courthouse burned down and so they rebuilt it at some point, around 1900 maybe. When they did that, he got stuck in there in the cornerstone. Years later, sometime in the twenties, they opened it when they went to do some remodeling on. Somehow he was miraculously still alive and it was this big miracle. He went on a tour across the country and he met President Coolidge. It was a big deal. He eventually died sadly as all lizards do.
He’s interred forever.
He’s still there stuffed for display.
You walk into the courthouse. He is there.
He’s not even interred. He’s there stuffed, you can see him.
My terminology is off. I have a selfie with Ol’ Rip I might have to publish on the Twitter feed.
Apologies to Justice Wise because I know we’re not doing Texas history proud like we should, but he can fill in the blanks for us if he wants to cover that on an episode one day.
What a great way to start your career. You wound up in Austin and now you’re practicing both trial and appellate law it seems.
I do a little bit of both. I enjoy both trial and appellate litigation. I like the writing aspect of both. I liked the procedural aspects of trial and develop litigation. I loved the rules of civil procedure and appellate procedures. That is interesting in a nerdy way. My favorite class in law school was Civil Procedure. I find how that stuff works interesting. I even enjoy discovery to some extent because we’ll also want gamesmanship, but it’s all good.
With the exception of discovery, you’re among friends here on the rest of that. I don’t know that we love discovery disputes all that much. Maybe a good mandamus every once in a while, and then the nuts and bolts of it, but otherwise, that’s great. You reached out to us to come on and you had mentioned statutory interpretation. You’ve touched on a little bit, but how did you get interested in statutory interpretation? That’s a great area.
I took a class on statutory interpretation where I was in law school to open the door to be a warning about this. When I was working for Congress, I saw it from a unique perspective where they were crafting legislation and trying to figure out how pending legislation would interact with the law and how that would make courts interpret the law and what the pending legislation would say. When I was working at DPS doing appellate stuff, there were a lot of statutory interpretation arguments that had to be made in each case. This was about reading the plain text of the statute. It was trying to make it fit with these other statutes and other statutes in criminal law.
That person seemed to have anything to do with its functions, but when you thought a little bit more broadly about it, it did interact with those other statutes in some ways. We’ve got to make these interesting arguments. There were some interesting historical aspects to it because the legislature had tried to amend it. There were some House and legislature reports that were in play with the last time that they had amended the expunction statute. I started making a lot of those arguments and at the same time, I taught as an adjunct at St. Mary’s in 2016. I taught a class on statutory interpretation. When I was teaching this class, I was doing expunction work. I’m looking at some of these cases and I’m thinking about some of these issues a little bit more deeply.
I was also going to one of these CLEs where I wanted to go with the ability. CLE is like the state bar one in Austin that they do every year. That’s great. I get a lot of these CLEs and I noticed this consistent theme where folks would get up there and say, “Statutory interpretation is important for appellate work in Texas.” I think everyone agrees with that. They would usually say something along the lines of, “The Texas Supreme Court is all pretty similar ideologically. They all like textualism. They all like this book that Justice Scalia wrote with Bryan Garner, they only like looking at that to determine how they should read statutes and they will get the text of the statute.” I’m sitting there going, “What does that mean?” They’d say, “They don’t like legislative history.” It’s like, “That’s fair enough. That’s true.” Maybe they might mention how they will look at the dictionary sometimes, that was about it. It was like, “This is all you need to know about statutory interpretation in Texas.” What is the text in the statute? That’s how the Texas Supreme Court reads these statutes. That’s how the lower courts read these statutes. That’s all you need to know.
When I was doing this expunction work, reading these opinions, and sending this constant dialogue with all these different courts about what the expunction statute meant, and thinking about some of these more theoretical issues while I was teaching the class, I started noticing that there were some deeper issues here that no one seemed to be talking about. That spurred me to write this article. They all look at the text of the statute and at the plain language and all that good stuff, but the folks on our Supreme Court and lower courts have serious disagreements about how to apply those textualist principles and reading statutes. All of these cases are not unanimous. A lot of these statutory interpretation cases produce lots of different opinions and different analyses. I started thinking, “Why is no one talking about this?” I started looking into it more and thinking about it, but over the course of a few years, I was writing the notes down and thinking about it and it ended up being this article that I was fortunate enough to publish in the Texas Tech Law Review.
That’s a recent publication. The title of the article, just for everybody’s edification, is Ordinary Meaning, Context, and Textualism in Texas Statutory Interpretation, it’s in Volume 52. He won the Texas Tech Law Review from this year, 2020.
It came about organically. I wonder because I’m on this mission. I do have the CLE version of this, too. Usually, that’s convinced folks that statutory interpretation is an important thing to know. For the folks who read this, the appellate lawyers, they already know that. They see that statutes, or at least one statute, are employed to some extent in a lot of these cases. It’s such a big part of what the current Supreme Court does. There’s a statute for almost everything. I went to a panel of the justices on the Texas Supreme Court a couple of years ago, and someone asked Chief Justice Hecht, who’s been on the court since 1989, “What’s the biggest difference from when you first got on the court to now?” He didn’t hesitate. He said, “Back then, we decided mostly common law cases and now we’re just interpreting statutes. That’s mostly what we do.”
That’s such a big part of our day-to-day life and it just didn’t use to be that way. There needs to be as many statutes and it used to be mostly formulating common law principles. Now, there’s always one statute employed in about every case that we have to look at. A lot of folks know how important working in statute is but I don’t think that we talk enough about how exactly different judges in different courts go about interpreting those statutes based on textualist principles or by looking at the text of the statute. I’m not talking about legislative history or anything like that, which Texas courts don’t like looking at. Most federal courts don’t look at that often either, but there are real disagreements about how to apply these textualist principles. It has real ramifications for how we interpret statutes going forward.
What are some of the things that you see that you feel like don’t get discussed enough?
The two big takeaways of the article are, how do we interpret plain language? One tool that we might use is dictionaries but then there are all these questions about, “What kind of dictionary do we use? Do we use Webster’s? Do we use different Black’s Law Dictionary? Do we use the modern-day dictionary? Do we use the dictionary that was around at the time that the legislation was enacted? Do we use whatever dictionary we have on the bookshelf?” I was always interested when I was at the Court of Appeals. When there was a time we had to look at a dictionary to find a real definition, we used the dictionary that was on the bookshelf. That’s what was available. That’s what a lot of courts do. That’s what a lot of lawyers do. There’s a question of, do we need to think more about what dictionary are we using? There’s the question of, “Were our dictionaries the best thing to use?”
I talk about the Jaster case more in that article. In that case, Justice Don Willett has a great concurrence where he says, “Dictionaries are okay to look at, but they’re contextual.” You can find lots of different definitions in a dictionary. If you looked at multiple dictionaries, you can find all definitions and you can find a definition that might fit the interpretation that you want to put forward, but that may not be the best definition that we should use in this particular case. They’re contextual and we have to take a more contextual approach, a statutory interpretation. That’s the other thing that people don’t focus on enough is to what extent does context come into play? I analogize the statutory interpretation of that article to a microscope. If you have an ambiguous word in a statute that you’re trying to interpret that your case turns on, zoom right in on that word.
You’ll look at the plain language of that word to get the ordinary meaning, trying to figure out what that means with dictionaries and things like that. You’ll zoom out a little bit and you will get the words immediately surrounding that word to see if that helps shed some light on what that word means. You might zoom out a little bit more to look at the other subsections around that particular subsection of that word it is in. You then may zoom out to look at the entire statute and look at different statutes to see if that sheds light to know what that word means. That’s a real debate that’s going on, too. If you’ll get that Jaster case, Justice Don Willett talks about the importance of context and statutory interpretation and why that’s important. Other justices dismissed context but there was more of an emphasis on, “What’s the plain language of this word? How do we determine what this word means in terms of ordinary meaning?”
In the Jaster case, Justice Boyd wrote the plurality opinion and he looked at all different sources to find out what that ordinary meaning was of the dictionaries. You looked at case law from the Supreme Court to see how they’ve interpreted words like that in the past. He looked at the rules of civil procedure, the rules of evidence. There’s a question about, to what extent do we want to rely on those tools for ordinary meaning? At what point do we want to branch out a little bit more to look at the context? That’s a tension that we see in Texas jurisprudence and maybe even across the country, which is how much emphasis we place on the ordinary, the meaning of a word? How much emphasis do we place on the context of that word it is found in? Ultimately, what is the proper context to look at it? Look at the words immediately surrounding it, we’ll get the whole statute. Do we look even outside of other statutes? There’s no consensus quite yet.
It’s an interesting parallel to discussions the court is having in cases about contracts too. They’re having the same fights there about how far can we go beyond the language on the page to see industry terms or what are surrounding circumstances. In the legislative context, you don’t have a subjective issue. You have this collective legislative intent that nobody knows what that is and how do you determine that at the end of the day when you can’t ask somebody, “What were you guys thinking when you did this?” There are many different places it can come from.
In Texas, of course, they say the intent of the legislature is best determined by getting the words of the statute. History has fallen out of favor across the country. One of the big legacies of Justice Scalia being on the Supreme Court is that all judges now look at the text of the statute first and foremost when trying to determine what an ambiguous word or phrase means in the statute. It used to be that they would look at the legislative history first. They were guessing what Congress or the legislature was thinking when they passed something, they would sit in their chair and imagine what they were thinking without marring the text. There’s a heavy emphasis first and foremost on the text of the statute. In Texas, that’s what the law is. I’m not going to say that’s not what the law is. It’s interesting too, not only is there a philosophical hesitancy to use legislative history in Texas, but there’s also a practical concern. Justice Boyd had a great opinion in a case where we talked about it.
If we were to use legislative history in Texas, we don’t have one of the good sources of legislative history that the federal courts have. We don’t have conference committee reports in Texas. We don’t have easy access to a reliable form of legislative history like federal courts do that would allow us to even look at that even if we want it to. There’s a philosophical reluctance to use legislative history and also a practical. It’s hard to do that in Texas. We don’t have one of the same tools that federal courts have and maybe courts in other states. We’ll get the text of the statute is important for determining what the legislature meant. We’ll give the text of the statute and trying to figure out what emphasis we place on that plain language, what emphasis we place on the context within which the statutory words are found. We can look at other statutes to see how we presume that the legislature knew what the law was when it passed new laws, which may or may not be a fiction.
I’m not here to bash the legislature, but it’s maybe a little unrealistic to think that they knew every single law on the books every time they pass a law. We presume that. Courts engage in benign fiction that the legislature was aware of everything and that it meant all these laws to be harmonious. You look at other statutes and you try to say, “They passed this one statute twenty years ago, and now they’re passing the statute twenty years later. They seem like they’re maybe in conflict, but can we read them to be in harmony in some way? How do they fit in?” A lot of lawyers forget that. Lawyers naturally are focused on their case and they’re focused on how the law affects their own case. Appellate lawyers are a little more cognizant of some of the broader implications that the appellate court might decide wherein the federal courts are concerned about issuing a decision that’s going to maybe affect some area of law that they may not be thinking about at the moment.
It’s important to think about that context. Think about how other statutes play into the section that you’re trying to interpret. Also, think about the context in which that law was passed and try to figure out how all those things are playing together. It’s complicated. It’s hard to say that there are any right or wrong answers. It’s more of an art than a science. It’s like constitutional law. There are lots of different ways to do it, and it’s hard to say that one way is right or wrong, but you have to make the argument. Part of this article is talking about how to make some more nuanced arguments, more sophisticated arguments. Try to engage the Texas Supreme Court and some of these lower courts in this sophisticated conversation that they’re all having with each other about how to properly interpret these statutes.
You mentioned that Jaster was a plurality opinion. I haven’t studied that opinion specifically for this episode, but it does suggest that there is some disagreement about the proper scope of statutory interpretation if the Supreme Court can’t get five votes for one position.
That decision produced three different opinions, the plurality opinion from Justice Boyd, concurrence was written by Justice Willett, and great dissent was written by Chief Justice Hecht. They’re all well-written opinions. I would encourage everyone to take a look if they have time. They articulate these disagreements the justices have about how to go about doing this.
Maybe we’re on to the next Full Employment Act for appellate lawyers with all the new statutes out there and those that have been litigated heavily over the last few years. I look forward to studying your article more closely because I tend to gravitate toward, “The term is not defined in the statute. What do I do after that?” Dictionary. What dictionary am I going to look at? Let’s start with Blacks.” Blacks doesn’t cover it. Garner didn’t include this term for whatever reason. No slam on Garner, but that’s already a thick book. After that, it’s like, as you point out, I can pick whatever dictionary off the shelf I happen to have or better yet online.
As an advocate, I can look for one that has a definition of a term that’s favorable to my position. You’re then in the position of, “This is a well-accepted dictionary if it’s Merriam-Webster’s or somebody, something like that.” Those are all good points that you make about a dictionary specifically, and then you go, “That’s not even to touch Wikipedia or any of those sources.” He suggested at the end of the article, we’ve now got such an incredibly broad amount, a huge amount of information to draw on, to figure out what words mean, including things going far beyond hardbound dictionaries. There’s a lot of gray area in this. I look forward to studying your article more closely because it’s going to have an impact on how I approach these issues.
You think about things like uniform statutes, where it comes from outside of the state, essentially, and then our legislature will bless it. That’s a whole different process because you don’t want to create divisions between the states and the way that they interpreted. At the same time, how do you know whether the legislature wanted to adopt it in the same meaning that Louisiana, Maryland, or some other state did? It does bring up some interesting questions about how you go about interpreting something like that.
Each state has its own way of interpreting statutes. I never say it has a Code Construction Act as we do. The legislature tells courts in this state how they’re supposed to interpret statutes and different states go about doing that differently. It’s hard, but with those uniforms statutes, because it can be interpreted different ways by different courts in different states. How do you handle that? Was that intentional? Was that non-intentional? It’s a hard issue.
We’ve talked about a lot of them, but I don’t know, are there some other interpretive tools or things that people should keep in mind or things they should identify maybe at the outset of their case when they think these may be issues that are going to come up?
Focusing on textual tools is key. One of the big things that I find that lawyers forget about is courts don’t like to read redundancies in the statutes. If your interpretation would make it look like another part of the statute that’s redundant, you need to find a way to explain that away. That’s an easy way for your opposing counsel to come in and say, “In the court, if you adopt my opposing counsel’s view of the statute, then this another provision is redundant.” We presume that the legislature is not repetitive in writing statutes. This is another one of these fictions. The legislature is trying to make sure that we know what they’re saying. They’ll say it explicitly over and over again. The courts don’t presume that. Courts presume that they only mean to say things once and that’s it. If two things look like they can mean the same thing, we presume that they meant different things. You’ve got to find a way to say, “No, this isn’t creating redundancy in the statute. This is a little bit different.” Otherwise, I’ve got other attorneys and usually they ignore it. I don’t think that they’re quite aware of this presumption, but that’s an easy trap to fall into. It’s actual interpretation.
They ignore it because they don’t know how to deal with it.
Not a good answer.
I thought reading your article alongside, I don’t know if you’ve seen Justice Scott Brister’s short article, and a punch list of statutory interpretation.
I haven’t seen it but I’ve heard of it.
I find that to be a handy source and it’s literally what you would expect from the name. It’s like, “Here’s the problem, here’s the rule.” I think of statutory interpretation issues as things like, “The specific is going to control over the general beyond.” Beyond the dictionary definition or a real-world definition of an undefined term, there are many layers to this that wind up in a situation where it is clear. It’s not even to get into the whole issue of ambiguity and then what you do with ambiguity. It’s such a complex area even taking a step back beyond what you cover in the article. It’s an incredibly useful source of information because these are rules, frankly, Daniel, that I forget about. They’re not even talked about in most of the case law, but there are specific situations that the courts or the legislature have to specify, “Here’s how you look at this.” You mentioned the article coming about organically. That’s the best way to sit and think about something like this because if you force it, you’re likely to miss something. If you’ve had time over a period of a year or two to think about it and approach the problem, the result speaks well of you in the process you went through to put this article together.
I won’t say it was an easy process, but it was a fun process thinking about this. I do hope that people can read it and learn from it and take something practical away from it. One of the things I love about statutory interpretation is that it’s theoretical. We’re thinking about how courts and legislators talk to each other in this abstract way. We’re thinking about democratic ideals. What are tools of statutory interpretation, of democratic legitimacy? It’s also super practical at the same time. Many of our cases revolve around statutes, how to interpret and how to properly read statutes. It’s interesting and I do think it’s practical. I didn’t write something that I thought might help practicing lawyers that’s not great. Theoretically more of your article that no one’s ever going to read. Hopefully, people do take something helpful away from it.
You talk about the theoretical, and much of the statutory interpretation fight seems to come from the court, trying to work out this separation of powers and ideas, where they don’t want to get into the legislative sphere. At the same time, they’re the ones who are charged with interpreting what the legislature did. It’s interesting to watch those dialogues go along on a real high level in a lot of these cases.
The courts are always thinking about that. They don’t want to step on anyone’s toes, but at the same time, there are these presumptions that they are supposed to engage in under our president here in Texas. Generally, they see statutory interpretation approaches around the country and there are these different approaches that all courts engage in. There are these general principles that they take away and say, “We go fictions, we’re supposed to engage in, that we’re supposed to presume.” Sometimes those reflect how the world operates in an accurate way. Sometimes maybe not so much. Maybe the legislature doesn’t know every law on the books when it passes a law. It’s important to keep those in mind. That’s what courts are thinking about.
You think about on the national level, the idea of the whole debate over Chevron deference and how that relates to a lot of these principles, and in Texas, we don’t have that. That principal there. It’s just not quite the same. We don’t have the deference necessarily, but it is interesting how they resolve those questions in these cases individually.
You bring up a good point. That makes statutory interpretation in Texas maybe even more important than it is in federal courts. Oftentimes, there are administrative regulations at the federal level. If you apply Chevron deference, the statute is ambiguous, the courts defer to the agency that interpreted it. In Texas, we don’t have that strong deference to agencies. You do have more room to work in a lot of these statutory interpretation cases, being able to make arguments from these statutes it’s even more important for an appellate lawyer or a trial lawyer when you’re making an argument to a court.
Do you see any major differences between the ways that you would make these types of arguments in the Fifth Circuit versus Texas courts? I know they all come from a textualist hat approach, but are there nuances that people should keep in mind?
A lot of the general principles are the same. I mentioned the Code Construction Act. Texas does have the statute that tells courts how to properly interpret statutes. One of the things it says in there is that courts can look at the legislative history, which later purposes. That’s largely been pushed aside by our courts. There’s a one Texas Supreme Court case that explicitly says, “The statute says we may consider this. We’re going to choose not to consider it.” It’s still sometimes helpful to cite if you’re interpreting a Texas statute because it is another source of authority that you can say. A lot of the principles are similar if you’re arguing in federal court or state court. A lot of these ways of going about statutory interpretation are universal across the country in federal court and different state courts. It is largely similar, but there were a few differences.
A federal court might be a little more willing to look at legislative history. The Supreme Court is open to what is native history more than the Texas Supreme Court might be, but at the same time, you have to think about what precedential value does statutory interpretation methodology have to what you know. Is it a case by case analysis of applying these principles? We’ll come in case law to say, “We have to interpret statutes in this particular way.” That’s another can of worms.
Especially when you end up in a diversity case where you’re asking a federal court to interpret a Texas statute, how do they go about doing it? Do they do it the Texas way or federal way? It brings up a lot of interesting questions. I know both working at the AG’s office and doing the expunction, do you see a lot of differences in the way that you might approach a constitutional challenge to a statute? That seems to dovetail with statutory interpretation because they want to interpret in a way that’s not going to cause a constitutional problem.
It comes into a statutory interpretation question because you do want to interpret a statute in a way that’s not going to create a constitutional question. In terms of the analysis, this is theoretical. It’s a lot easier to change a statute than it is to change the constitution. If the court messes up in its interpretation of the statute, it’s easy for the legislature to go and fix it. That Jaster case, the legislature wouldn’t change the statute right after that Supreme Court decision because they said, “We don’t like the way you interpreted this.”
“We can’t have this.”
With constitutional questions, it’s a lot harder to go and change the constitution. There might be a little more care in making sure that there is not some broad sweeping ruling. At the same time, in constitutional questions, you’re going to look further back when the constitution was created or when a certain constitutional provision was enacted. Whereas the legislature, a statute was passed many years ago, but they amended it several years ago so they touched it again. We know the legislature thought about this and they fixed something over here, but they didn’t touch this provision that we’re talking about. You don’t have many constitutional questions. We’re not constantly changing the constitution as much as we’re constantly changing statutory provisions. That’s one main difference.
It seems like with the constitutional question though, that the statute is either constitutional or it’s not. What I’m wondering is, in your experience have you looked at how courts interpret a statute in terms of whether it’s constitutional or not? Are there specific rules in addressing that you’ve come across or do we apply the Code Construction Act and the other common law rules to get at it and we either get results A or B?
There is the role of constitutional avoidance. The statute is or is not constitutional or always a provision of the statute could be constitutional or not. There are competing versions of what a statutory term means. A court might say, “We’re going to go with the version that doesn’t even raise a constitutional question.” They may say, “Let’s look at both of these interpretations.” There might be a question about the statute’s constitutionality if we interpret it this way. We have to go through the analysis to see if it would be constitutional. If we determined that we don’t think that it would create a constitutional problem, even though it could raise this question, the rule of constitutional avoidance is not going to come into play. You can articulate this rule of constitutional avoidance in different ways.
I think Texas courts, and I may be wrong on this, but what the case law says is that, “We only apply the rule of constitutional avoidance if we know that this competing interpretation of the statute is unconstitutional. Otherwise, we’re going to apply the version that we think is best articulated by the text of the statute. We’re going to go through all these textual tools and we’re going to determine what the plain meanings say.” I already go with that version. You have to think about if you do apply the rule of constitutional avoidance, how do you weigh that against what the plain text is? It may be clearly unconstitutional, but the plain text clearly says, “It’s unconstitutional.”
That’s a whole other level of theoretical approach.
There are different ways to articulate that. That’s another tool that you can put in your toolkit if you’re arguing these cases. If someone says, “My opponent’s version’s interpretation of the statutes it’s unconstitutional.” They say, “It might be unconstitutional, but we don’t know that for sure.” If it’s a federal statute, they can say, “The Supreme Court hasn’t talked about this and they have the final say on this.” None of us here in Texas can know whether or not it’s constitutional or not. We don’t have to worry about that court. Just apply the plain text of the statute.
A lot of this is above my pay grade, either that or I haven’t had the right cases to look into. Maybe that’s the issue. I haven’t had the right cases to educate myself about it.
It’s interesting to see in some statutes, even though the approach remains the same, sometimes the results change. I’m thinking in particular of the TCPA, we had a guest on who talked about this and for the first, however many years of its existence, it was the movement that won more often than not. As things changed, it went the other way. The statute itself changed some, but not in any meaningful manner, but then the legislature changes it. It seems like the results continue to go in that direction. It’s interesting to watch how that developed, even though the statute itself and the principles didn’t necessarily change, somehow the results moved along a little bit there.
To the extent that the legislature does that something with the rate. It might even be as simple as the legislature changed the numbering of cross-references in the statute because they changed these other statute’s numbering rates. They’re updating that numbering. They were thinking about the statute, if the courts are interpreting a statute this way and the legislature didn’t like it, presumably the court was aware of what these courts were doing. They care enough to amend some part of the statute, but they’re not going to substantively change the statute in response to these court decisions. Are they implicitly saying that they agree with what the Supreme Court said whatever case or what this lower court said? That’s an interesting question, which one of these fictions we presume that the legislature is aware of. In Texas, we presume that the legislature is aware of what the Texas Supreme Court said about the statute. If they then go and amend it without changing whatever the Supreme Court interpreted, we assume that the legislature is condoning whatever the Texas Supreme Court has interpreted that statute to mean. It is one of the interesting issues to think about.
You’ve also started a blog that tracks some of these things. Do you want to go ahead and tell people how they can find that?
There’s a blog, it’s called TXStatutoryInterpretation.com. I’m trying to spread the word about some of these tools of statutory interpretation. Some of the blog posts have been about the legislative history in Texas, or do we not look at legislative history? Those are a little more straightforward. I’m trying to do somewhere. I will get actual appellate court decisions to look at how different judges go about interpreting the statutes. What arguments are they making? Hopefully, that will help practitioners going forward to engage in some of these types of arguments that judges in our state are making and how they’re interpreting statutes and learn from that. I don’t think there’s any right or wrong way to do this, but I think different judges go about it differently, in different circumstances, too. It’s interesting to look at that as they’re deciding these cases. I’m trying to track more of those decisions too. It’s also on Twitter. If you want to search the Texas Statutory Interpretation Blog on Twitter, it’s on there. I usually try to post links to the blog posts that are up there. I’m trying to make it a little educational.
That’s great and that’s a real service to the bar because it can be complex. Most of the time, the analysis, the case law it goes into maybe it’s sufficient, but maybe it’s not. There’s room for advocacy in applying these rules in a way. If the statutory interpretation is not as settled as we think it is, then there’s more reason for lawyers to step in and do the work that they need to do on behalf of their clients to have the law applied perhaps in a different way than it might be with a superficial application of certain rules.
Thanks for all your work on this and thanks for sharing the article with us and for coming on the show and talking about it. Those are great ways to get information out and hopefully we get you some followers and some comments.
I appreciate that. Thank you all for having me on.
As we close, we always like to ask our guests for some tips or war stories. You’ve given lots of great tips, but I don’t know if you have anything else that you’d like to share. Do you have a good war story or anything?
They’re related to statutory interpretation. I was doing a bench trial one time in state district court. There was a complicated argument about these statutory provisions, the expunction statute. I was going back and forth with this other lawyer who used to be a district court judge himself in the county. It was high-level arguments. We went back and forth for an hour on this expunction question. After the hearing, we went off the record and the judge said to me, “Mr. Olds, do you have any friends in the legislature?” I said, “No, your honor. I’m afraid I don’t.” He said, “The statute is ambiguous and no one knows what it means. I need you to clarify it one way or the other because nobody knows what the heck this means.” Sometimes a lot of frustration on the part of people was trying to interpret this because they’re trying to do the right thing, but it’s hard sometimes. Sometimes you don’t know what the legislature meant. Sometimes the legislature never considered whatever situation comes up and you have to pretend that they did.
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About Daniel Olds
Daniel Olds focuses his practice on litigation for public and private entities. Daniel has extensive litigation experience, having argued various motions and served as lead counsel in numerous bench trials. He also has extensive appellate experience, having drafted and filed briefs on behalf of clients in nearly every Texas appellate court, including the Texas Supreme Court.
Prior to joining the Firm, Daniel served as an Assistant Attorney General in the Tort Litigation Division of the Office of the Texas Attorney General. There, he represented state agencies and employees throughout all stages of the litigation process, including depositions, mediations, trial court hearings, and appeals. His government experience also includes time as the lead appellate attorney for the Texas Department of Public Safety in expunction cases. In this role, he managed the Department’s appellate strategy for expunction cases. In doing so, he served as lead counsel in numerous appeals at the state intermediate courts of appeals and the Texas Supreme Court. Daniel also served as a briefing attorney to the Honorable Jim R. Wright of the Eleventh Court of Appeals of Texas in Eastland, Texas.
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