Ordinary Meaning, Context, and Textualism in Texas Statutory Interpretation
Forthcoming, Texas Tech Law Review
21 Pages Posted: 22 Apr 2020
Date Written: March 28, 2020
This Article touches on one of the most important issues in Texas law: how to properly interpret statutes. Statutory interpretation is one of the most important issues in Texas law because there are now statutes that touch nearly every area of life. As former Texas Supreme Court Justice Don Willett once said: “The lion’s share of modern-day appellate judging is ‘legisprudence’—interpreting statutes. Day by day, the universe of free-form, common-law judging shrinks, meaning the bulk of this Court’s time is spent deciding what the Legislature’s words mean.” Of course, it is well known that the justices on the Texas Supreme Court are textualists, meaning that they focus exclusively on the text of statutes when interpreting an ambiguous word or phrase in a statute and eschew legislative history. But, just knowing that textualism reigns supreme in Texas statutory interpretation methodology does not tell the whole story of how to properly interpret statutes in Texas. In fact, the justices on the Texas Supreme Court do not all apply the principles of textualism the same way. Their disagreements have left many questions in Texas statutory interpretation unanswered, and possibly even conflict with some of the traditional principles of textualism. Even more, how the Texas Supreme Court eventually resolves these unanswered questions has implications for whether Texas courts come to adopt new methods of statutory interpretation that federal courts and other states are starting to adopt. My article seeks to examine how the Texas Supreme Court applies textualism, what disagreements exist on the Texas Supreme Court, and what those disagreements mean for the future of statutory interpretation in Texas.
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