NO. 74,522






Keasler, J., filed this concurring opinion.


The majority concedes that this statute is unambiguous, but it nevertheless proceeds to examine the legislative history "in order to highlight the harmony between the legislative intent and [its] holding." (1) I vigorously oppose this unnecessary excursion.

We made clear in Boykin v. State (2) that

[w]hen attempting to discern this collective legislative intent or purpose, we necessarily focus our attention on the literal text of the statute in question and attempt to discern the fair, objective meaning of that text at the time of its enactment. We do this because the text of the statute is the law in the sense that it is the only thing actually adopted by the legislators, probably through compromise, and submitted to the Governor for her signature. We focus on the literal text also because the text is the only definitive evidence of what the legislators (and perhaps the Governor) had in mind when the statute was enacted into law. There really is no other certain method for determining the collective legislative intent or purpose at some point in the past, even assuming a single intent or purpose was dominant at the time of enactment. Yet a third reason for focusing on the literal text is that the Legislature is constitutionally entitled to expect that the Judiciary will faithfully follow the specific text that was adopted. (3)

We continued that "[i]f the plain language of a statute would lead to absurd results, or if the language is not plain but rather ambiguous, then and only then, out of absolute necessity, is it constitutionally permissible for a court to consider, in arriving at a sensible interpretation, such extratextual factors as executive or administrative interpretations of the statute or legislative history." (4) We noted that "[t]his method of statutory interpretation is of ancient origin and is, in fact, the only method that does not unnecessarily invade the lawmaking province of the Legislature. The courts of this and other jurisdictions, as well as many commentators, have long recognized and accepted this method as constitutionally and logically compelled." (5)

The majority goes far beyond Boykin's boundaries and into the statute's legislative history for no good reason. Only a few weeks ago, in Ex parte Peterson, (6) the majority quoted my concurring opinion in Watts v. State (7) for the proposition that "[t]he prudent jurist will typically decide cases on the narrowest, surest ground available." Alas, apparently the Court was just kidding. What I said in Watts bears repeating today:

Statements that are "unnecessary to the issue upon which the . . . Court . . . is writing" are dicta. (8) Dicta include "[a]n opinion expressed by a court, but which, not being necessarily involved in the case, lacks the force of an adjudication; an opinion expressed by a judge on a point not necessarily arising in a case; an opinion of a judge which does not embody the resolution or determination of the court, and made without argument, or full consideration of the point; not the professed deliberate determination of the judge himself." (9)

It is dangerous to include dicta in court opinions. "With neither case facts to sharpen analysis nor help from advocates' arguments, a dictum-issuing court necessarily writes broadly and ambiguously." (10) Additionally, "a court that employs a rule broader than the facts before it may properly consider the rule in relation to that particular case; however, the rule's potential bearing on all other cases will rarely be completely contemplated by the court." (11) Finally, "[i]t is often unwise for an appellate court to discuss issues not implicated by the facts of the case at bar, for it is difficult to test the operational dynamics of a legal rule being assembled in a factual vacuum." (12)

As Chief Justice Warren has explained, "[i]t has not been the custom of the Court, in deciding the cases which come before it, to write lengthy and abstract dissertations upon questions which are neither presented by the record nor necessary to a proper disposition of the issues raised." (13) He complained that the majority's opinion in that case "departed from this custom and is in the nature of an advisory opinion, for it attempts to resolve with finality many difficult problems which are at best only tangentially involved here." (14)

Given the prevalence of dicta in court opinions and the standard complaints from dissenters, "[o]ne wonders why obiter dicta are even present." (15) One author has some theories:

Sometimes, they are included for reasons of contrast. Sometimes, judges appear to be writing short essays on the law. Perhaps the judge wants the opinion included in a case book. Perhaps he is bucking for another job. Perhaps the judge writes well and is looking for a mode of self-expression. Perhaps he does not write the opinions at all but leaves them to law clerks who do not know any better, or who think they still are writing term papers. Perhaps all of these reasons apply, and perhaps there are others as well. (16)

Regardless of the reasons, the urge to write beyond what is necessary in any case should be tamed. Justice Selya of the United States Court of Appeals for the First Circuit argues that appellate courts should strive for prudence in their opinions. "[P]rudence counsels judges not to reach out and decide large, controversial issues in the absence of a necessity to do so. The prudent jurist will typically decide cases on the narrowest, surest ground available, leaving tougher calls, with broader implications, for future cases that squarely present them." (17)

I would hold that the statute's plain language unambiguously prevents Wolfe's appeal. I would follow Boykin and not go beyond that conclusion. Because the majority does not do so, I concur only in its result.

DATE DELIVERED: November 12, 2003



1. Ante, slip op. at 4.

2. 818 S.W.2d 782 (Tex. Crim. App. 1991).

3. Id. at 785.

4. Id. at 785-86.

5. Id. at 786 (citing West Virginia Univ. Hospitals, Inc. v. Casey, 499 U.S. 83 (1991); Demarest v. Manspeaker, 498 U.S. 184 (1991); Public Citizen v. U.S. Dept. of Justice, 491 U.S. 440 (1989) (Kennedy, J., concurring); Caminetti v. United States, 242 U.S. 470, 485 (1917); Republicbank Dallas v. Interkal, 691 S.W.2d 605, 607 (Tex. 1985); Sparks v. State, 76 Tex. Crim. 263, 174 S.W. 351, 352 (1915); E. Crawford, The Construction of Statutes 164 (1940); H. Black, Handbook on the Construction and Interpretation of the Laws 24-27, 85 (1896); 2A N. Singer, Sutherland on Statutory Construction 46.01-46.07 (1984 & Supp.1991); 1 W. LaFave & A. Scott, Substantive Criminal Law 2.2 (1986); 82 C.J.S. Statutes 322 (1953)).

6. 2003 LEXIS 534 *2 n.3, __ S.W.3d __ (Tex. Crim. App. October 8, 2003).

7. 99 S.W.3d 604, 615 (Tex. Crim. App. 2003) (Keasler, J., concurring).

8. Michael Sean Quinn, Symposium on Taking Legal Argument Seriously: Argument and Authority in Common Law Advocacy and Adjudication: An Irreducible Pluralism of Principles, 74 Chi.-Kent L. Rev. 655, 713 (1999).

9. Grigsby v. Reib, 105 Tex. 597, 602, 153 S.W. 1124, 1126 (1913).

10. Richard B. Cappalli, What is Authority? Creation and Use of Case Law by Pennsylvania's Appellate Courts, 72 Temple L. Rev. 303, 310 (1999).

11. Joshua C. Dickinson, Casenote: Standing Requirements for Intervention and the Doctrine of Legislative Standing: Will the Eighth Circuit "Stand" by Its Mistakes in Planned Parenthood of Mid-Missouri & Eastern Kansas, Inc. V. Ehlmann?, 32 Creighton L. Rev. 983, 1024 (1999).

12. Evan Tsen Lee, Deconstitutionalizing Judiciability: The Example of Mootness, 105 Harv. L. Rev. 605, 649 (1992).

13. Culombe v. Connecticut, 367 U.S. 568, 635-36 (1961) (Warren, C.J., concurring).

14. Id.

15. Quinn, 74 Chi.Kent L. Rev. at 713.

16. Id.

17. Hon. Bruce M. Selya, Essay: Thoughts from the Bench: The Confidence Game: Public Perceptions of the Judiciary, 30 New Eng. L. Rev. 909, 916 (1996).