This one is confusing enough to make you glad you’re not a judge.

If you saw the Statesman editorial a few weeks ago about Entergy you may have been struck by the closing call:

And lawmakers should spell it out in terms that even a majority of the Texas Supreme Court can’t reinterpret to please certain business interests.

Turns out, the Legislature is debating a bill that would order the Texas Supreme Court to ignore some (but not all) changes to its recodified (but not other) statutes, as Paul Burka recently discussed on his blog. Burka seems to quietly applaud this bill. I find it disturbing.

What this Entergy-related bill would do

The current version of the Senate Bill would condition the Texas Supreme Court’s §22.001(a)(3) statutory-construction jurisdiction: (( Those few of you who secretly find the “Statement of Jurisdiction” the most thrilling part of a brief should be grinning in anticipation.

Of course, the bill would not restrict the Texas Supreme Court’s other, independent grounds for jurisdiction, so the Court would be free to exercise jurisdiction over many of the same cases under §22.001(a)(1) (disagreement or dissent among justices on the court of appeals),§22.001(a)(2) (conflict jurisdiction), §22.001(a)(6) (importance to the jurisprudence), or the like.

But the bill is making its point, without regard for future litigants who will spend countless hours and dollars fighting about recodification intent. That’s good for my business, but perhaps not what the legislators had in mind. ))

In interpreting and applying a codified or revised statute to which this section applies, the supreme court shall give the statute the same effect and meaning that was or would have been given the statute before its codification or revision, regardless of any omission or change in the codified or revised statute that the supreme court would otherwise find to be direct, unambiguous, and irreconcilable with the prior version of the statute. Any omission or change in the codified or revised statute for which the court finds no direct express evidence of legislative intent to change the sense, meaning, or effect of the statute shall be considered to be unintended and shall be given no effect.

The bill would also add a similar provision to the Code Construction Act.

Why this is a bad idea

This bill would render some words in the statutes meaningless — those words added or changed during a recodification without some “direct express evidence” of legislative intent to back up what they mean. (( Having researched many statutes over the years, I can tell you that it’s a rare enough thing in Texas to find “direct express evidence of legislative intent” even about the overall thrust of a bill, let alone individual wording changes. ))

To me, that defeats the whole purpose of a recodification.

How are later readers of these newly recodified statute books supposed to know which words have meaning — and which other words, perhaps in the same sentence, are rendered moot by this new bill?

As I understand it, the aim of recodification is to make the law more clearly organized and easier to find. But this bill would turn every recodified statute into an exercise in literary criticism. Seemingly simple statements could have their meaning dramatically changed by a historical context not apparent on first reading. Other phrases could only be deciphered after rummaging through piles of legislatives hearings and history. Instead of cleaner, more accessible law, we would get statutes composed of words we can no longer take at face value. (( Fans of Literally may wish I had said “words we can literally no longer take literally.” ))

If that’s our only other option, we’d be better off scrapping the whole recodification project and leaving well enough alone.

It would be much easier and in my view preferable for the Legislature to try to reform how it constructs statutes than how courts interpret them. (( Here’s a modest proposal: When the Legislature merely recodifies a statute, it should not make other changes to the text. Sure, that would take some restraint on the part of lobbyists and staff — but perhaps the meaningful wording changes can just be put in a separate companion bill. The non-meaningful changes? If they’re not meaningful, we shouldn’t worry about them. ))

Justice Hecht’s concurrence in Entergy made a powerful point that the Legislature should take to heart. To say a statute is ambiguous — what his opinion playfully calls “the a-word” — should not grind the wheels of government to a halt:

Only every so often do we come right out and brand a text with the a-word, as if it were a mark of shame. It seems nicer to call a statute unclear or better yet, just leave that implication. But the truth is that the meaning of statutory language is often reasonably disputed and therefore ambiguous to some extent, and resolving reasonable disputes with reason, rather than by denying their reasonableness, would result in a sounder jurisprudence.

A statute being held ambiguous should not be a personal slight to its drafters — the Court is not grading the Legislature’s papers. Writing clear statutes is hard and uncertain work, as are other kinds of legal drafting. The Court knows that; its opinions are as scrutinized as any statute.

If the Legislature now expresses its displeasure about Entergy by making future statutes even harder for employees, employers, and even judges to decode, that won’t help anyone.