Untitled Texas Attorney General Opinion

OFFICE OF THE ATTORNEY GENERAL. STATE OF TEXAS
JOHN CORNYN
July 26,200O
The Honorable Jeri Yenne Opinion No. JC-0259
Brazoria County Criminal District Attorney
111 East Locust, Suite 408A Re: Whether a recent amendment to article 42.01,
Angleton, Texas 775 15 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 ofthe 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. CODECRIM.
PROC. ANN. art. 42.01, 5 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 Y.
State, 213 S.W.2d 837, 841 (Tex. Crim. App. 1948), quoting In me
Wdker’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 Y. Cornelius, 570 S.W.2d 382, 384 (Tex. 1978). The
signature signifies that he has done so.
Tex. Att’y Gen. Op. No. JM373 (1985) at 1. Section 1 also prescribes an extensive list ofitems that
must be reflected in a judgment, such as the title and number of the case, the defendant’s plea, and
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the jury verdict or finding of the court, and the sentence. See TEX. CODE GRIM. PROC. ANN. art.
42.01, $ l(l)-(27) (Vernon Supp. 2000).
You ask about section 2 of article 42.01, which provides for the preparation ofjudgments.
Prior to September I, 1999, section 2 provided that “[tlhe 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, 9 1,
1975 Tex. Gen. Laws 245 (emphasis added) (adding section 2 to TEX. CODE GRIM. PROC. ANN. art.
42.01). The Seventy-sixth Legislature amended section 2 in Senate Bill 577 so that it now provides
that “[tlhe 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,s 6, 1999 Tex. Gen.
Laws 3119,3121 (emphasis added) ( amending TEX. CODE GRIM. PROC. ANN. art. 42.01, § 2).
You state that judgments in your county have been prepared by deputy district clerks at the
request ofthe court. The forms used for the judgments were drafted by a district court judge and the
deputy district clerks merely till in the blanks. See Letter from Honorable Jeri Yenne, Brazoria
County Criminal District Attorney, to Honorable John Comyn, Attorney General, at 1 (Mar. 1,200O)
(on file with Opinion Committee) [heremafter “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 I. Section 2 now authorizes a judge to order “the court clerk under the
supervision of an attorney” to prepare ajudgment. Clearly, court clerks may prepare judgments, but
they are no longer authorized to do so without an attorney’s supervision. See TEX. CODE GRIM.
PROC. ANN. art. 42.01, 5 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 CRIMMAL 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
I prior to the amendment to section 2, see Tex. Att’y Gen. Op. No. JM-373 (1985) at I, we do not
believe that that type of review is what the legislature meant in the 1999 amendment by “supervision
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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 ajudgment 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 thejudgment. See TEX. CODECRIM.PROC. ANN. art. 42.01,s 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 ofjudgments, 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.
The Honorable Jeri Yenne - Page 4 (X-0259)
SUMMARY
Article 42.01, section 2 of the Code of Criminal Procedure
does not preclude a court clerk from preparing ajudgment. 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.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVJN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Mary R. Crouter
Assistant Attorney General - Opinion Committee