Texas Legislative Council Letter
This letter was faxed to Capacity FOR JUSTICE by Gary W. Kansteiner, Senior Legislative Counsel of the Texas Legislative Council. According to Mr. Kansteiner, the Texas State Seal cannot be faxed. Therefore the letterhead is missing from the following letter.
October 24, 2003
The Honorable Robert L. Duncan
State Senator
State Capitol
Room CAP3E.12
Dear Senator Duncan:
Mary Alice Conroy, a member of the working group instrumental in the drafting of Senate Bill 1057 of the Regular Session of the 78th Legislature (Chapter 35, Acts of the 78th Legislature, of Criminal Procedure, as added by Senate Bill 1057. Dr. Conroy indicates that certain mental health practitioners, particularly those in Harris County, are concerned that a grandfather provision in Article 46B.022(a) does not permit the substitution of experience for formal training in determining qualifications for appointment as an expert.
Article 46B.022(a) reads as follows:
(a) To qualify for appointment under this subchapter as an expert, a psychiatrist or psychologist must:
(1) as appropriate, be a physician licensed in this state or be a psychologist licensed in this state who has a doctoral degree in psychology; and
have the following certification or experience or training:
(A) as appropriate, certification by:
(i) the American Board of Psychiatry and Neurology with added or special qualifications in forensic psychiatry; or
(ii) the American Board of Professional Psychology in forensic psychology; or
(B) experience or training consisting of:
(i) at least 24 hours of specialized forensic training relating to incompetency or insanity evaluations;
(ii) for an appointment made before January 1, 2005 at least five years of experience before January 1, 2004, in performing criminal forensic evaluations for courts; or
(iii) for an appointment made on or after January 1, 2005, at least five years of experience before January 1,2004, in performing criminal forensic evaluations for courts and eight or more hours of continuing education relation to forensic evaluations, completed in the 12 months preceding the appointment and documented with the court.
Apparently, an attorney in Harris County has opined that the lack of a conjunction between items 46B.022(a)(2)(B)(i) and (ii) meant that a psychiatrist or psychologist seeking court appointed as an expert for determining the competency of a defendant before January 1, 2005, needs both 24 hours of specialized training and five years of experience in performing criminal forensic examinations. This is incorrect. The Code Construction Act (Chapter 311, Government Code), which applies to the Code of Criminal Procedure, provides in Section 311.011(a) that “[w]ords and phrases shall be read in context and construed according to the rules of grammar and common usage.”
Common usage in legislative drafting, and in speech, is that if in a list of conditions the last two items are connected by an “or,” satisfaction of any of the conditions fulfills the requirement, while if the last two items are connected by an “and”, satisfaction of all the conditions is necessary. See Reed Dickerson, Legislative Drafting, Greenwood Press, 1954. At page 85, Dickerson, who is the authoritative source of rules of legislative drafting, states simply: “In an enumeration of items that are to be taken in the alternative, use ‘or’”.
In summary, the “or” between items 46B.022(a)(2)(B)(ii) and (iii) means that a psychiatrist or psychologist who is not board certified and who seeks an appointment before January 1, 2005, needs to show either 24 hours of specialized training or five years of experience in performing criminal forensic examinations.
Sincerely,
Gary W. Kansteiner
Senior Legislative Counsel
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