             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                          NO. PD-1473-06


                                     THE STATE OF TEXAS

                                                  v.

                                   JAMES VASILAS, Appellee

           ON APPELLEE’S PETITION FOR DISCRETIONARY REVIEW
       IN CAUSE NO. 05-04-00328-CR FROM THE FIFTH COURT OF APPEALS
                               COLLIN COUNTY

    HOLCOMB, J., delivered the opinion of the Court, in which MEYERS, PRICE, WOMACK ,
    JOHNSON , KEASLER , HERVEY , and COCHRAN , JJ., joined. KELLER , P.J., concurred.

                                           OPINION

       In this case, we must determine whether the court of appeals erred in concluding that the

Texas Penal Code Section 37.10(a)(5) and the Texas Rule of Civil Procedure 13 are not in pari

materia. We affirm.

                                             Background

       Appellee James Vasilas is an attorney whose client was charged with the state jail felony of

delivery of marijuana. Appellee’s client was convicted of the lesser-included offense of possession

of marijuana. After this conviction, appellee signed and filed a petition for expunction of the records
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relating to his client’s arrest on the delivery charge. On December 16, 2003, the State charged

appellee in a four-count indictment for tampering with a governmental record.1 Each of the first

three counts of the indictment alleged that appellee had made a false entry in a governmental record,

i.e., the petition for expunction of records, with the intent to defraud and harm the State of Texas.

The fourth count alleged that appellee made, presented, and used a governmental record, i.e., the

petition for expunction of records, with knowledge of its falsity, intending to defraud and harm the

State of Texas. Appellee filed a nonsuit of the expunction lawsuit.

          Subsequently, appellee filed a motion to quash the indictment on two grounds. First, he

asserted that Texas Penal Code Section 37.10 and Texas Rule of Civil Procedure 13 are in pari

materia, and that Rule 13 controls over Section 37.10. Second, he claimed that pleadings in civil

suits are not “governmental records” as defined by Section 37.01(2)(A). The trial court, after hearing

oral argument, granted the motion to quash without filing findings of fact or conclusions of law. The

State abandoned its appeal of the trial court’s granting the motion to quash the first three counts of

the indictment, but contested its decision as to the fourth count (alleging that appellee made,

presented, and used a governmental record, i.e., the petition for expunction of records, with

knowledge of its falsity, intending to defraud and harm the State of Texas) on two grounds. First,

the State argued that Section 37.10 and Rule 13 are not in pari materia. Second, the State asserted

that the trial court erred in concluding that the petition for expunction was not a governmental

record.

          The court of appeals addressed the State’s second issue, concluding that “the petition for

expunction filed by appellee was not a governmental record within the meaning of chapter 37 of the


          1
              Tex. Pen. Code § 37.10.
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penal code.” State v. Vasilas, 153 S.W.3d 725, 727 (Tex. App.— Dallas 2005). Given this

resolution of the case, the court of appeals declined to address the State’s first issue of whether the

statute and the rule were in pari materia, and affirmed the trial court. Id. We reversed, concluding

that “the legislature’s definition of a governmental record is clear and unambiguous and may include

a court record, such as the petition for expunction at issue,” State v. Vasilas, 187 S.W.3d 486, 491

(Tex. Crim. App. 2006), and remanded the case to the court of appeals for consideration of the

State’s first issue of whether the statute and the rule were in pari materia. Id. at 492. On remand,

the court of appeals concluded that “section 37.10(a)(5) of the Penal Code and rule of civil procedure

13 are not in pari materia” and that the trial court therefore “erred in granting appellee’s motion to

quash Count IV of the indictment.” State v. Vasilas, 198 S.W.3d 480, 486-87 (Tex. App.— Dallas

2006). We granted appellee’s petition to review that holding.2

                                             Discussion3

       Appellee argues that the court of appeals erred in applying the in pari materia doctrine, and

that it “should have concluded that § 37.10 necessarily concerns the same subject matter and persons


       2
         We note for clarity that even though Mr. Vasilas is the petitioner for the present review,
we will continue to refer to him as the “appellee” in this opinion because he had prevailed in the
original trial court proceedings.
       3
          We note that two amicus-curiae briefs were filed supporting appellee’s petition for
discretionary review. One was filed on behalf of the Litigation Section of the State Bar of Texas,
League of United Latin American Citizens (Texas), National Association for the Advancement of
Colored Persons (Texas State Conference), Texas Criminal Defense Lawyers Association, and
Texas Trial Lawyers Association. But this brief literally tracks one of appellee’s own arguments,
differing essentially in that it substitutes the words “court of appeals” for appellee’s inadvertent
use of the word “State” in challenging the court of appeals’ holding. A second, much shorter
brief filed by the Texas Association of Defense Counsel, echoes the same concerns as those
already articulated by appellee and the other amici. Thus, neither brief actually adds to the
present discussion. We will, therefore, address appellee’s own arguments, but confine the
discussion only to the issue before us.
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and serves the same purposes as the sanctions laws that already and comprehensively regulate lawyer

and litigant conduct with regard to court filings.”

       We note at the outset that the in pari materia doctrine has traditionally been applied only to

a comparison of two or more statutes. Indeed, in spite of our extensive research, we could not find

(and appellee and the amici failed to cite) any case,4 treatise5 or other source of law6 that stated or

implied that this doctrine was applicable to two such diverse legal sources as those at issue in the

present case, i.e., a statute passed by the Legislature and a court-made rule. On the contrary, as we

have previously noted, the “doctrine of pari materia is, simply put, a principle of statutory



       4
        See, e.g., Azeez v. State, 2008 Tex. Crim. App. LEXIS 329 (Tex. Crim. App. March 5,
2008) (comparison of two statutes); Burke v. State, 28 S.W.3d 545 (Tex. Crim. App. 2000)
(same); Cheney v. State, 755 S.W.2d 123 (Tex. Crim. App. 1988) (same); Mills v. State, 722
S.W.2d 411 (Tex. Crim. App. 1986) (same); Ex parte Wilkinson, 641 S.W.2d 927 (Tex. Crim.
App. 1982) (same); Alejos v. State, 555 S.W.2d 444 (Tex. Crim. App. 1977) (same).
       5
        In fact, the only discussion of the in pari materia doctrine that we could find in the Texas
Jurisprudence, the American Jurisprudence and the Corpus Juris Secundum was in the statutes
sections; and even there, we could not find a single case in which the doctrine had been applied
to compare a statute with a court-made rule of civil or criminal procedure. See, e.g., 67 TEX .
JUR. 3d Statutes § 133 (2003 & Supp. 2008); 73 AM . JUR. 2d Statutes § 205 (2001 & Supp.
2007); 82 C.J.S. Statutes § 352 (1999 & Supp. 2007). See also 2B N. Singer, SUTHERLAND
STATUTORY CONSTRUCTION § 51.03 (2000 & Supp. 2007-08); 1 W. LaFave, SUBSTANTIVE
CRIMINAL LAW § 2.2(j) (2d ed. 2003).
       6
         Indeed, the in pari materia doctrine is so intrinsically associated with statutes that
common reference sources, such as encyclopedias and dictionaries, define the doctrine in terms
of only that association. See, e.g., BLACK’S LAW DICTIONARY 807 (8th ed. 2004)(defining the in
pari materia doctrine as “a canon of construction that statutes that are in pari materia may be
construed together, so that inconsistencies in one statute may be resolved by looking at another
statute on the same subject.”); 8 THE GUIDE TO AMERICAN LAW 115 (1984) (defining “pari
materia” as the “phrase used in connection with two laws relating to the same subject matter that
must be analyzed with each other.”); 31 WORDS AND PHRASES 120 (1957) (“The purpose of
‘pari materia’ rule is to ascertain and to carry into effect the Legislature’s intention.”).
                                                                                    VASILAS - Page 5

interpretation. It is a rule courts may use in determining the intent of the Legislature in enacting a

particular statute or statutes.” Cheney v. State, 755 S.W.2d 123, 126 (Tex. Crim. App. 1988). See

also Burke v. State, 28 S.W.3d 545, 546 (Tex. Crim. App. 2000) (“The rule of in pari materia is

nothing more than a principle of statutory interpretation, a means of devining (sic) and giving full

effect to legislative intent” (quoting Mills v. State, 722 S.W.2d 411, 413 (Tex. Crim. App. 1986)).

Indeed, we have consistently explained the in pari materia doctrine in terms of the following passage

from Texas Jurisprudence, which clearly indicates the applicability of the doctrine to a comparison

of statutes only:

               It is a settled rule of statutory interpretation that statutes that deal with the
        same general subject, have the same general purpose, or relate to the same person or
        thing or class of persons or things, are considered as being in pari materia though
        they contain no reference to one another, and though they were passed at different
        times or at different sessions of the legislature.

                In order to arrive at a proper construction of a statute, and determine the exact
        legislative intent, all acts and parts of acts in pari materia will, therefore, be taken,
        read, and construed together, each enactment in reference to the other, as though they
        were parts of one and the same law. Any conflict between their provisions will be
        harmonized, if possible, and effect will be given to all the provisions of each act if
        they can be made to stand together and have concurrent efficacy.

                The purpose of the in pari materia rule of construction is to carry out the full
        legislative intent, by giving effect to all laws and provisions bearing on the same
        subject. The rule proceeds on the supposition that several statutes relating to one
        subject are governed by one spirit and policy, and are intended to be consistent and
        harmonious in their several parts and provisions. Thus, it applies where one statute
        deals with a subject in comprehensive terms and another [statute] deals with a portion
        of the same subject in a more definite way. But where a general statute and a more
        detailed enactment are in conflict, the latter will prevail, regardless of whether it was
        passed prior or subsequently to the general statute, unless it appears that the
        legislature intended to make the general act controlling. And, the rule is not
        applicable to enactments that cover different situations and that were apparently not
        intended to be considered together.

53 TEX . JUR. 2d Statutes § 186 (1964) (quoted in Azeez v. State, 2008 Tex. Crim. App. LEXIS 329,
                                                                                    VASILAS - Page 6

*23-24 (Tex. Crim. App. March 5, 2008); Cheney, 755 S.W.2d at 126; Alejos v. State, 555 S.W.2d

444, 450 (Tex. Crim. App. 1977))(citations omitted).

       In 2003, Texas Jurisprudence updated the above oft-quoted description of the in pari materia

doctrine, but the new description still clearly showed that the doctrine was applicable to a

comparison between statutes only.7 The most recent update of Texas Jurisprudence makes that point


       7
           See 67 TEX . JUR. 3d Statutes § 133 (2003):

               In construing a statute, whether or not the statute is considered ambiguous on
       its face, a court may consider among other matters laws on the same subjects.
       Statutes which involve the same general subject matter and also possess the same
       general purpose are “in pari materia” even though the statutes may fail to contain any
       reference in one to the other and even though the statutes may have been passed at
       different times or at different legislative sessions.

               In order to arrive at a proper construction of a statute, and determine the exact
       legislative intent, all acts and parts of acts dealing with the same subject and having
       the same purpose will, therefore, be taken and read together, each enactment in
       reference to the other, as though they were parts of one and the same law. Thus, two
       statutes that are in pari materia are to be construed together, each enactment in
       reference to the other, as though they were part of one and the same law; any conflict
       between their provisions will be harmonized, if possible, and effect will be given to
       all the provisions of each act if they can be made to stand together and have
       concurrent efficacy.

               The rule proceeds on the supposition that several statutes relating to one
       subject are governed by one spirit and policy, and are intended to be consistent and
       harmonious in their several parts and provisions. Where one statute deals with a
       subject in general terms, and another [statute] deals with a part of the same subject
       in a more detailed way, the two should be harmonized if possible; however, if there
       is any conflict, the latter will prevail, regardless of whether it was passed prior to the
       general statute, unless it appears that the legislature intended to make the general act
       controlling.

               Although subsequent enactments may be some evidence of the legislature’s
       intent in a prior version of a statute, courts should give little weight to such
       subsequent enactments in interpreting the prior law.

(Citations omitted.)
                                                                                    VASILAS - Page 7

even clearer, expressly stating that “‘[p]ara materia,’ which applies only if two statutes have the same

purpose or object, provides that where one statute deals with a subject in general terms, and another

deals with a part of the same subject in a more detailed way, the two should be harmonized if

possible; but if there is any conflict, the latter will prevail.” 67 TEX . JUR. 3d Statutes § 133 (Supp.

2008) (emphasis added) (citations omitted).

        In short, all the cases and treatises on the subject appear to be in consensus that the doctrine

of in pari materia is applicable only to a comparison of statutes. This is understandable considering

that the purpose of the doctrine is to harmonize the different provisions of the law passed by the

same governmental entity: the legislature. Burke, 28 S.W.3d at 546 (“The rule of in pari materia is

nothing more than a principle of statutory interpretation, a means of devining (sic) and giving full

effect to legislative intent”) (quoting Mills, 722 S.W.2d at 413); Cheney, 755 S.W.2d at 126 (“The

doctrine of pari materia is, simply put, a principle of statutory interpretation. It is a rule courts may

use in determining the intent of the Legislature in enacting a particular statute or statutes.”). But no

such justification exists for applying the in pari materia doctrine to a statute and a court-made rule,

each of which is created by a different branch of government for its own particular purposes.8

Indeed, it would be like comparing apples and oranges to apply the doctrine to two such diverse legal



        8
         The Legislature passes the laws which are then applicable to all persons in a given
jurisdiction. In contrast, the rules of civil procedure (applicable to the present case since Rule 13,
the rule at issue, is a rule of civil procedure) are made by the Texas Supreme Court and are
applicable only to the litigants in a case. See Tex. R. Civ. P. 1 (Objective of Rules):

                The proper objective of rules of civil procedure is to obtain a just, fair,
        equitable and impartial adjudication of the rights of litigants under established
        principles of substantive law. To the end that this objective may be attained with
        as great expedition and dispatch and at the least expense both to the litigants and
        to the state as may be practicable, these rules shall be given a liberal construction.
                                                                                   VASILAS - Page 8

sources.

                                             Conclusion

        The court of appeals in the present case applied the in pari materia doctrine to determine

whether Penal Code Section 37.10(a)(5) or Rule of Civil Procedure 13 controlled appellee’s case.

In light of our research, however, we hold that the in pari materia doctrine is not applicable to the

present case. This accords with the basic purpose of the doctrine: to harmonize different provisions

enacted by the same legal source, i.e., the legislature. However, we are reluctant to say that the court

of appeals erred by applying the doctrine in the present case because this appears to be a case of first

impression (in which a party has asked the courts to apply the doctrine to such diverse legal sources:

a statute and a court-made rule) and the court of appeals did not have the benefit of our holding

today. Because the court of appeals still reached the correct result by holding that the statute and the

rule are not in pari materia, we affirm the judgment of that court.



DELIVERED: MAY 7, 2008.

PUBLISH
