## IN THE COURT OF CRIMINA L A PPEA LS OF TEXA S NOS. PD-0018-22 & PD-0019-22
THE STATE OF TEX AS

v. SEBASTIAN TORRES, Appellee ON STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE THIRTEENTH COURT OF APPEALS

HIDALGO COUNTY K E L L E R 

### , P.J., filed a concurring opinion in w hich H E R V E Y 

### , J., joined.

CONCURRING OP INION The State makes some g ood statutory c onstruction arg uments, but its position is ultimately untenable b ecause it would encourag e law enforcement to disreg ard a mag istrate’s request for the return of a child. That r esult is op p o s i t e t o w h a t the leg islature c learly intended in enacting the statute. The cardinal rule of statutory construction is that c ourts effectuate the plain meaning of the tex t of a statute unless the tex t is ambig uou s o r t h e p l a i n m eaning leads to absurd results that theTORRES CONCURRENCE — 2

leg islature could not have possibly intended. 1 The statute provides: A mag istrate w ho provides the warning s required by Subsection (a)(5) for a recorded statement may at the time the warning s are provided request b y s p e a k i n g on the recording that the officer return the child and t h e r e cording to the mag istrate a t the con c l u s i o n o f the process of questioning
. T h e mag istrate may then view the recording with the child or have the child v iew the recording to enable the mag istrate to determine w hether the child’s statements were g iven voluntarily
. The mag istrate’s determination of voluntariness shall be reduced to writing and sig ned a

nd dated by the mag istrate. I f a mag istrate uses the procedure d e s c r ibed by this subsection, a child’s statement is not a dmissible unless the mag istrate d etermine s t h at the statement was g iven voluntarily
. 2 The State arg ues that a “procedure” is n o t “used” unless it is completed, and this arg ument makes log ical and intuitive sense. B ut it would be an overstatement to say that the st a t u t o ry lang uag e plainly d ictates the State’s construction. The statute is ambig uous. And e ven if the statute
were not ambig u ous, resort to ex tratex tual factors would still be justified because the State’s construction would lead to absurd results that the leg islature could not have possibly intended. I t is at least true that the “ p r ocedure” at issue beg ins when the mag istrate requests that “the officer return the child and the recording ” at the conclusion of the process of questioning
. W hether the c hild is returned to the mag istrate is under the c ontrol of the officers having custody of the child. I f officers c an thwart the “use” o f the “procedure” by refusing to return the child, then officers will have an incentive to never r eturn the child after a mag istrate’s request. Such an incentive is contrary to the obvious leg islative purpose of g iving the mag istrate the ability to determine the v oluntariness of a child’s statement. The statute clearly contemplates that the mag istrate’s request fo r t h e child to be returned will be c o m p l i ed w i t h
. The leg islature could not possibly have intended that law

1 Boykin v. State , 818 S.W .2d 782, 785 (Tex . Crim. App. 1991).
2 T E X . F A M I L

Y C O D E 51.095(f).TORRES CONCURRENCE — 3

enforcement officers b e able to thwart the whole p urpose of the statute b y disobey ing a mag istrate’s request for a child’s return. Ex trate x tual factors also strong ly militate ag ainst the State’s proposed c onstruction. Ex tratex tual factors include “the consequences of a particular construction.” 3 T h e consequence of allowing law-enforcement officers to thwart the mag istrate-review p rocedure by refusing to comply with a mag istrate’s request would be to render the statute ineffective. 4 I join the Court’s opinion. F iled: April 19, 2023 Publish

3 W

illiams v. State , 603 S.W .3d 439, 445 (Tex . Crim. App. 2020).
4 This “consequences” analy sis is more tex tually related than is sometimes the case because the leg islative intent here is derived from the tex t itself without having to look a t leg islative history
.