State Prosecuting Attorney's 2017 Annual Report for Judicial Support Agencies, Boards, and Commissions
1. “May this Court adhere to a rule that refuses to allow the consideration of legislative history to interpret a statute unless the statute is ambiguous, when the Legislature states that legislative history may be considered whether or not a statute is ambiguous?”
a. “Must Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991) and its progeny be overruled to the extent they conflict with Texas Government Code Section 311.023, which Texas Penal Code Section 1.05(b) makes applicable to the Penal Code?”
2. “Does the organized retail theft statute admit of more than one reasonable interpretation with respect to whether the statute may be violated by a solitary actor committing ordinary shoplifting, and does consulting the plain language alone lead to absurd results that the legislature could not possibly have intended?”
3. “May a shoplifter violate the organized retail theft statute by committing ordinary shoplifting while acting alone?”
Lang was convicted of organized retail theft, Tex. Penal Code § 31.16(b)(1), which says, “A person commits an offense if the person intentionally conducts, promotes, or facilitates an activity in which the person receives, possesses, conceals, stores, barters, sells, or disposes of . . . stolen retail merchandise.” Acting alone, she stole over $500 worth of merchandise.
On appeal, Lang argued that “organized retail theft is not an activity that can be committed alone through ordinary shoplifting.” The court of appeals disagreed. Reviewing the plain language of the statute, it found the statute 1) does not require multiple actors, and 2) does criminalize ordinary theft. Because the plain language permits only one reasonable understanding that does not lead to absurd results, it was obligated by multiple cases from the Court of Criminal Appeals not to look to extra-textual sources.
Lang argues that the Legislature, through the Code Construction Act, directs courts to consider legislative history regardless of ambiguity. She recognizes that Boykin acknowledged as much but rejected it out of respect for the Legislature, and she asks that it be overruled. Alternatively, she suggests that diametrically opposed interpretations by her and the State prove ambiguity. Barring that, Lang argues that the plain language of the statute contemplates conduct related to merchandise that is already stolen, making it impossible to simultaneously be the thief and receiver, possessor, etc. of stolen merchandise. She adds that it is absurd that nearly any ordinary shoplifter may be prosecuted for organized retail theft as construed by the court of appeals.