ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

September 16,2005 

The Honorable William M. Jennings 

Gregg County Criminal District Attorney 

101 East Methvin Street, Suite 333 

Longview, Texas 75601 

Opinion No. GA-0357 

Re: The meaning of “district judges trying criminal 

cases” in Government Code section 76.002 

(RQ-0330-GA) 

Dear Mr. Jennings: 

You ask about the meaning of “district judges trying criminal cases” in Government Code 

section 76.002.’ See TEX. GOV’T CODE ANN. 8 76.002 (Vernon 2005). In your request letter, you 

specifically ask about the meaning of this phrase as it is used in Government Code section 76.002(b). 

See Request Letter, supra note 1, at 1, 3. The Seventy-ninth Legislature, however, repealed that 

subsection and otherwise amended chapter 76 during its 2005 Regular Session. See Act of May 16, 

2005,79th Leg., R.S., H.B. 1326, ch. 255, § 12,2005 Tex. Sess. Law Serv. (repealing TEX. GOV’T 

CODE ANN. 9 76.002(b)). Nevertheless, the phrase is used in a substantially similar manner in 

76.002(a)* and raises a similar legal question, which you have asked us to construe instead.3 

Government Code chapter 76 governs community supervision and corrections departments, 

which, generally, are created to operate programs for the supervision and rehabilitation of persons 

in pretrial intervention programs, to manage crime victim restitution payments, and to establish 

‘See letter from Honorable William M. Jennings, Gregg County Criminal District Attorney, to Honorable Greg 

Abbott, Texas Attorney General (Mar. 21, 2005) (on file with Opinion Committee, also available at 

http://www.oag.state.tx.us) [hereinafter Request Letter]. 

2See Act of May 16,2005,79th Leg., R.S., H.B. 1326, ch. 255, $1, Tex. Sess. Law Serv. (to be codified at TEX. 

GOV’T CODE ANN. 9 76.002(a)) (“The district judge or district judges trying criminal cases . . . .“) (emphasis added). 

3See Telephone Conversation with Honorable William Jennings, Gregg County District Attorney (July 19, 

2005). 
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“community corrections facilities.“4 See TEX. GOV’T CODE ANN. $8 76.001-.018 (Vernon 2005)? 

Section 76.002(a) provides that “[t]he district judge or district judges trying criminal cases in each 

judicial district . . . shall: (1) establish a community supervision and corrections department; and 

(2) approve the department’s budget and community justice plan.” See Act of May 16,2005,79th 

Leg., R.S., H.B. 1326, ch. 255,s 1,2005 Tex. Sess. Law Serv. (to be codified at TEX. GOV’T CODE 

ANN. 4 76.002(a)) (emphasis added). 

You inform us that Gregg County has three district courts: the 124th District Court and 

188th District Court, which preside over criminal and civil matters, and the 307th District Court, 

which was established as a family court under Government Code chapter 24, subchapter D to have 

primary responsibility for cases involving family law matters! See Request Letter, supra note 1, at 

1; see also TEX. GOV’T CODE ANN. §§ 24.601-,639 (Vernon 2004) (“Family District Courts”); id. 

5 24.615 (creating the 307th Judicial District Court as a family district court for Gregg County). 

Relevant here, although the 307th District Court has jurisdiction in criminal matters, you further 

inform us that criminal cases are not initially assigned to it; neither are criminal cases transferred to 

it under an exchange agreement between the other two district courts and the Gregg County county 

courts at law. See Request Letter, supra note 1, at 2. But the family district court occasionally 

“takes guilty pleas and assesses punishment in criminal matters referred to it by the other district 

courts,” and the family district court “hears criminal contempt matters that arise out of unpaid child 

support obligations.“7 See id. Nevertheless, you note that the family district court “has probably not 

presided over a criminal case from indictment to conviction, at least not recently[.]” Id. at 3. 

Because the family district court is only occasionally involved in criminal matters, you 

question whether Government Code section 76.002(a) requires the judge of the family district court 

to participate in approving the department’s budget and community justice plan. See Request Letter, 

4“Cornrnunity corrections facility” is defined as a “physical structure established by the judges described by 

Section 76.002 . . . that is operated . . . for the purpose of confining persons placed on community supervision and 

providing services and programs to modify criminal behavior, deter criminal activity, protect the public, and restore 

victims of crime.” Act of May 16, 2005, 79th Leg., R.S., H.B. 1326, ch. 255, 5 9, 2005 Tex. Sess. Law Serv. (to be 

codified at TEX. GOV’T CODE ANN. 5 509.001( 1)). 

‘As amended by Act of May 16,2005, 79’h Leg., R.S., H.B. 1326, ch. 255,2005 Tex. Sess. Law Serv. 

6Governrnent Code section 24.60 1 sets out a family district court’s jurisdiction, providing that “a family district 

court has the jurisdiction and power provided for district courts by the constitution and laws of this state. Its jurisdiction 

is concurrent with that of other district courts in the county in which it is located.” TEX. GOV’T CODE ANN. 6 24.601(a) 

(Vemon2004); see also TEX. CODECRIM. PROC. ANN. art. 4.01 (Vemon2005) (“[Tlhe following courts have jurisdiction 

in criminal actions: . . . The district courts . . . .“). 

7See TEX. FAM. CODE ANN. 5 157.167, as amended by Act of May 17,2005, 79’h Leg., R.S., H.B. 1174, ch. 253, 

5 1,2005 Tex. Sess. Law Serv. (child support fees and costs judicially ordered may be enforced by contempt); see also 

In rescariati, 988 S.W.2d 270,273 n. 1 (Tex. App.-Amarillo 1998, orig. proceeding) (explaining the difference between 

civil and criminal contempt); TEX. PEN. CODEANN. 6 25.05 (Vernon 2003) (making it a state jail felony for an individual 

to “intentionally or knowingly fail[ ] to provide support for the individual’s child younger than 18 years of age, or for 

the individual’s child who is the subject of a court order requiring the individual to support the child.“). 
The Honorable William M. Jennings - Page 3 (GA-0357) 

supra note 1, at 2-3.’ Specifically, you ask us to construe the phrase “trying criminal cases” to 

determine if the family district court’s criminal matters fall into that phrase’s definition. See id. at 

l-3. You also ask several questions the answers to which are dependent upon the construction of 

this phrase. See id. at 2-3. Therefore, we first turn to construing it. 

In construing a statute we are charged with determining and giving effect to the legislature’s 

intent. See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003). This is 

accomplished by establishing the “‘plain and common meaning of the statute’s words. “’ Id. (quoting 

State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002)). Generally, if a statute’s meaning is 

unambiguous, we interpret the statute according to its plain meaning. See id. Where a statute is not 

plain on its face, however, we may consider, inter alia, the object sought to be attained, the statute’s 

legislative history, and the consequences of a particular construction. See TEX. GOV’T CODE ANN. 

8 3 11.023 (Vernon 2005). Finally, we presume that in enacting a statute the legislature intended a 

just and reasonable result. See id. 8 3 11.021. 

Here, “trying criminal cases” is not defined in the statute, see id. $9 76.001-.Ol 8.9 Neither 

have we found any court case that has defined this particular phrase. Generally, “try” is defined as 

“[It]0 examine judicially; [t]o examine and resolve (a dispute) by means of a trial.” BLACK’S LAW 

DICTIONARY 1520 (7th ed. 1999). “Trial” is also generally defined as a judicial examination and 

determination of issues between parties to an action in an adversary proceeding. See id. at 15 10; see 

Marrs v. R.R. Comm ‘n, 177 S.W.2d 941,947 (Tex. 1944). This office has observed, however, that 

“courts in criminal cases define ‘trial’ within the context of the particular statute or constitutional 

provision at issue.” Tex. Att’y Gen. LO-97-025, at 2; see, e.g., Sanchez v. State, 926 S.W.2d 391, 

395 (Tex. App.-El Paso 1996, writ ref d) (“trial” for purposes of the rule for recusal or 

disqualification of a judge means “trial on the merits or a substantive hearing of some sort”); 

Sparkman v. State, 634 S.W.2d 82’84 (Tex. App.-Tyler 1982, no writ) (“trial” as used in the Sixth 

Amendment right to speedy trial refers to a “determination by a jury of guilt or innocence”). 

Accordingly, “trying criminal cases” has no single meaning. 

If we were to apply the general definitions, the phrase “trying criminal cases” would include 

district courts that judicially examine any criminal issues. And as you note, it would be logically 

absurd to literally construe the statute to require a district judge to be actively trying a criminal case 

for the judge to be responsible for approving the department’s budget and community justice plan. 

See Request Letter, supra note 1, at 3. So construing the phrase with the general definitions 

necessarily means that “trying criminal cases” refers to any district court that might examine criminal 

issues; and those would be by definition courts with criminal jurisdiction. But the legislature did not 

use the term “jurisdiction” to describe the district judges responsible for the department, though it 

‘See aZso Act of May 16, 2005, 79th Leg., R.S., H.B. 1326, ch. 255, $ 1, 2005 Tex. Sess. Law Serv. (to be 

codified at TEX. GOV’T CODE ANN. 6 76.002(a)) (“The district judge or district judges trying criminal cases . . . shall 

. . . . “) (emphasis added). 

‘See supra note 5. 
The Honorable William M. Jennings - Page 4 (GA-0357) 

did so in the statute’s other provisions. See TEX. GOV’T CODE ANN. § 76.003(a),(b) (Vernon 2005)” 

(permitting a district judge served by a department to appoint a statutory county court judge 

“exercising criminal jurisdiction” to serve in a judicial council) (emphasis added). Consequently, 

the legislature intended some meaning for “trying criminal cases” that is more narrow than criminal 

jurisdiction. See Meritor Auto., Inc. v. Ruan Leasing Co., 44 S.W.3d 86’90 (Tex. 2001) (when the 

legislature has used a term in one section of a statute and excluded it in another, a court will not 

imply the term where it has been excluded). 

The phrase is a part of Government Code chapter 76, which provides, among other things, 

for the creation of a community corrections facility and the operation of pretrial intervention 

programs. See TEX. GOV’T CODE ANN. $5 76.001-.018 (Vernon 2005).” And these programs are 

administered by the department,‘* which in turn is created by judges who are required to approve the 

department’s policies and budget.13 Thus, contextually, “trying criminal cases” must refer to 

criminal cases that involve the programs created in chapter 76 such that a judge would have an 

interest in approving the department’s budget and community justice plan. That is, a district judge 

is “trying criminal cases” if in examining a criminal issue the judge makes a decision that would 

involve a chapter 76 program, like ordering a person into a pretrial prevention program or sending 

a person to a department-managed facility. 

Your remaining questions, in essence, ask that we define the character and frequency of 

criminal trial experience that brings a district judge into section 76.002(a). See Request Letter, supra 

note 1, at 3. First you ask if the family district court judge is qualified under our construction of the 

phrase to participate in the management of the department. Id. You have not provided us with 

enough information to make that determination as a matter of law. Nevertheless, if the family 

district court judge, in examining a criminal issue, makes a decision that would involve a chapter 

76 program or facility, then that judge has tried a criminal case for the purposes of section 76.002. 

“See supra note 5. 

“See supra note 5. 

12See, e.g., TEX. GOV’T CODE ANN. $0 76.011 (perrnitting the department to “operate programs for the 

supervision and rehabilitation ofpersons in pretrial intervention programs”), .014 (permitting the department to establish 

a developmental program for the educational and vocational training of a defendant under the supervision of the 

department), .O 17 (permitting the department to establish “a treatment alternative to incarceration program”) (Vernon 

2005). 

13See Act ofMay 16,2005,79th Leg., R.S., H.B. 1326, ch. 255,s 1,2005 Tex. Sess. Law Serv. (to be codified 

at TEX. GOV’T CODE ANN. 6 76.002(a)). 
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Finally, we consider your last two questions together because they ask about similar issues: 

Would it be sufficient to bring [the family district court] within 5 

76.002 if the court were to “try” one criminal case a decade, or once 

ever, or to preside over one guilty plea a year, or ever? Does it matter 

that the [family district court judge] has participated in the 

management of the probation department for the last fourteen [] 

years? 

Id. By the statute’s plain language, the requirement to approve the department’s budget and 

community justice plan is inherent in the judge and not the judge’s court. See Act of May 16,2005, 

79th Leg., R.S., H.B. 1326, ch. 255, 9 1,2005 Tex. Sess. Law Serv. (to be codified at TEX. GOV’T 

CODE ANN. kj 76002(a)) (“The district judge[s] . . . . “) (emphasis added). Therefore, the provision 

is triggered by the judge examining a criminal matter the disposition of which involves a chapter 76 

program or facility. There is no language in the statute about frequency or numbers. However, the 

use of the present tense in the phrase suggests that section 76.002(a)% requirement is reserved for 

a judge who regularly examines criminal matters that involve the department. 
The Honorable William M. Jennings - Page 6 (GA-0357) 

SUMMARY 

The phrase “district judges trying criminal cases” in 

Government Code section 76.002 means a district judge who 

regularly examines criminal matters that involve a Government Code 

chapter 76 program or facility. 

Very truly yours, 

BARRY R. MCBEE 

First Assistant Attorney General 

NANCY S. FULLER 

Chair, Opinion Committee 

Daniel C. Bradford 

Assistant Attorney General, Opinion Committee