Reversed and Remanded and Opinion filed May 22, 2012.




                                         In The

                       Fourteenth Court of Appeals

                                  NO. 14-11-00884-CR

                       ROBERT RANDALL KRAUSE, Appellant

                                            V.

                          THE STATE OF TEXAS, Appellee


              On Appeal from the County Criminal Court at Law No. 4
                               Harris County, Texas
                          Trial Court Cause No. 1734286


                                    OPINION
       Appellant Robert Randall Krause pleaded guilty to driving while intoxicated after
the trial court denied his motion to suppress blood test results. Appellant argues that the
trial court erred by denying his motion to suppress because the person who obtained his
blood specimen was licensed as an “emergency medical technician-intermediate” and,
therefore, was not a “qualified technician” pursuant to Chapter 724 of the Texas
Transportation Code.

       Under Chapter 724, “emergency medical services personnel” are expressly
excluded from being “qualified technician[s]” who can take a blood specimen without a
warrant at the request or order of a peace officer.                See Tex. Transp. Code Ann.
§ 724.017(a), (c) (Vernon 2011). It is undisputed that the person who took appellant’s
blood was a licensed “emergency medical technician-intermediate” and worked in the
emergency room of a hospital.

         We agree with appellant that the trial court erred by denying the motion to
suppress in light of Section 724.017(c)’s unambiguous terms. We reverse and remand for
a new trial.

                                            BACKGROUND

         The relevant facts are undisputed.             Appellant was arrested for driving while
intoxicated.       Without obtaining a warrant, the arresting officer sought a mandatory,
involuntary blood draw. See Tex. Transp. Code Ann. § 724.012(b) (Vernon 2011).
Appellant’s blood was taken by Rachel Lopez at the LBJ Hospital in Harris County,
Texas.

         Appellant moved to suppress the results of the blood testing, arguing that Lopez
was not a “qualified technician” authorized to take his blood. See Tex. Transp. Code
Ann. § 724.017(a), (c). The trial court held a hearing, and Lopez was the only testifying
witness. The court issued findings of fact and conclusions of law, finding in part as
follows:

               “The Court accepts [Lopez’s] testimony as being truthful;”
               Lopez held a license as an EMT-I;1
               Lopez was employed at the LBJ Hospital for six years;
               “As an EMT-I, she is trained to draw blood, to start IV’s, to do
               tracheotomies, and to start intubation;”
               “Her duties in the LBJ Hospital emergency room are limited to drawing
               blood, but on occasion she is called to other parts of the hospital to start
               IV’s;”
               “She also completed training as an EMT-[Basic], which is a lower

         1
             “EMT-I” means “emergency medical technician-intermediate.”

                                                    2
          paraprofessional license that requires knowledge of CPR, ‘anything
          basically [in] the field,’ and ambulance driving;”
          The State proved by a preponderance of the evidence that the blood
          specimen was taken in a sanitary place by someone trained to do so and
          in a reasonable manner.

Lopez testified that she works in the hospital’s emergency room and performs 50 to 100
blood draws per day. At the time she took appellant’s blood, the hospital classified her as
an EMT-I. The trial court did not explicitly conclude that Lopez was a “qualified
technician” for purposes of Section 724.017(a), but the court nonetheless denied the
motion to suppress.

                                        ANALYSIS

       Chapter 724 of the Transportation Code governs the taking of a blood specimen
without a warrant under certain circumstances.       Section 724.017(a) states, “Only a
physician, qualified technician, chemist, registered professional nurse, or licensed
vocational nurse may take a blood specimen at the request or order of a peace officer
under this chapter.” Tex. Transp. Code Ann. § 724.017(a). Subsection (c) states, “In this
section, ‘qualified technician’ does not include emergency medical services personnel.”
Id. § 724.017(c).

       Appellant argues that Lopez was not a “qualified technician” authorized to draw
his blood because (1) Section 724.017(c) expressly and unambiguously excludes
“emergency medical services personnel” from being a “qualified technician” under
Section 724.017(a); and (2) Lopez falls within the scope of “emergency medical services
personnel” as a licensed “emergency medical technician-intermediate.”

I.     Standard of Review and Principles of Statutory Construction

       When, as here, the historical facts are undisputed and the issue is one of statutory
construction, we review de novo the trial court’s ruling on a motion to suppress.
Mahaffey v. State, No. PD-0795-11, __S.W.3d __, 2012 WL 1414108, at *3 (Tex. Crim.
App. Apr. 25, 2012).


                                            3
       “When interpreting statutes, courts must seek to effectuate the collective intent or
purpose of the legislators who enacted the legislation.” Id. (quotation omitted). We first
look to the literal text for meaning, id., and we should construe words in accordance with
their common usage unless a word has acquired a technical or particular meaning. See
Tex. Gov’t Code Ann. § 311.011 (Vernon 2005); State v. Rhine, 297 S.W.3d 301, 312
(Tex. Crim. App. 2009); see also Tex. Penal Code Ann. § 1.05(b) (Vernon 2011) (Section
311.011 of the Code Construction Act applies to the Penal Code). If the plain language is
ambiguous or would lead to absurd consequences, we may consider extra-textual sources
such as legislative history. Mahaffey, 2012 WL 1414108, at *3. A statute is ambiguous
when it “may be understood by reasonably well-informed persons in two or more
different senses; conversely, a statute is unambiguous where it reasonably permits no
more than one understanding.” Id. A statute leads to an absurd consequence when the
Legislature could not have possibly intended the result. See id. at *4.

II.    Lopez Was Not a “Qualified Technician” Under Chapter 724

       The State does not argue that the statutory phrase “emergency medical services
personnel” cannot encompass a licensed “emergency medical technician-intermediate”
such as Lopez. Rather, the State contends that an emergency medical technician who
works in a hospital and regularly performs blood draws should not be classified as
“emergency medical services personnel” for purposes of this statute. The dispute on
appeal therefore focuses on the interpretation and application of Section 724.017(c).

       At the conclusion of the suppression hearing, the trial court stated, “Well, it’s my
opinion that it does sort of fall under Texas versus Johnston and that it’s going to be
based on her qualifications; and listening to her testimony, I do believe she was qualified
and more than qualified to be able to take a blood sample . . . .” This was a reference to
State v. Johnston, 336 S.W.3d 649 (Tex. Crim. App. 2011), which held that a blood draw
by a police officer was reasonable under the Fourth Amendment in part because the
officer’s training and experience as an emergency medical technician made him
“qualified” to draw blood. See id. at 662, 664.

                                             4
       Reliance on Johnston is misplaced because that case applied a Fourth Amendment
reasonableness standard to circumstances in which police took a blood specimen after
securing a warrant. See id. at 661. Johnston did not address whether an emergency
medical technician is a “qualified technician” in connection with a warrantless blood
draw under Section 724.017 of the Transportation Code. See id.

       The parties have cited, and research has revealed, only one case addressing this
issue under Section 724.017. See State v. Laird, 38 S.W.3d 707 (Tex. App.—Austin
2000, pet. ref’d).

       In Laird, an emergency medical technician took a blood specimen from the
defendant at a fire station. Id. at 710. The trial court suppressed evidence of the blood
test because the emergency medical technician was not authorized to take a blood
specimen under Section 724.017. Id. at 711. The court of appeals affirmed, holding that
the emergency medical technician was not authorized to take the defendant’s blood under
Section 724.017. Id. at 712.

       Noting that Chapter 724 does not define “emergency medical services personnel,”
Laird reasoned that the emergency medical technician was not a “qualified technician”
under Section 724.017(a) because (1) Section 724.017(c) states that “‘qualified
technician’ does not include emergency medical services personnel;” and (2) the witness
who took the blood specimen testified that he was “a high-level emergency medical
technician.” Id.

       Laird rejected the State’s arguments that “a paramedic employed by a hospital in
the task of drawing blood at the hospital in the course of everyday treatment of patients . .
. is a ‘qualified technician’ and not excluded from the class of persons authorized to draw
blood simply because he also happens to be a paramedic.” Id. (omission in original).
Similarly, Laird rejected the State’s argument that an emergency medical technician
could be a qualified technician in the absence of an emergency situation: “Nothing in the
statute itself suggests that the existence of an emergency is what disqualifies emergency
medical services personnel from taking blood specimens.” Id. The court held that

                                             5
Section 724.017(c) is not absurd because it affords peace officers with a bright line rule
that is easy to follow: “[T]hey may request that blood specimens be taken by any
qualified person other than emergency medical services personnel.” Id. at 712–13. We
agree with Laird’s analysis.

       Like the Austin Court of Appeals, we too observe that Section 724.017(c)’s
unambiguous terms lead to “some unexpected outcomes in certain cases such as this
one.” Id. at 712. It is particularly troubling to this court that the emergency medical
technician in Laird, and Lopez here, arguably were more qualified to take a blood
specimen than some other non-emergency medical services personnel who have been
deemed to be “qualified technicians” under Section 724.017(a). See State v. Bingham,
921 S.W.2d 494, 495–96 (Tex. App.—Waco 1996, pet. ref’d) (unlicensed phlebotomist
with four months of specialized education and at least one year of work experience);
Finley v. State, No. 06-10-00218-CR, 2011 WL 6395158, at *6 (Tex. App.—Texarkana
Dec. 20, 2011, pet. filed) (mem. op., not designated for publication) (uncertified
phlebotomist who was trained by the hospital and supervised by a certified phlebotomist);
Meier v. State, No. 05-08-00486-CR, 2009 WL 765490, at *1–2 (Tex. App.—Dallas Mar.
25, 2009, no pet.) (not designated for publication) (uncertified phlebotomist with 200
hours of clinical training and two-and-a-half years of experience); Jessup v. State, No.
13-02-00024-CR, 2004 WL 2612958, at *2 (Tex. App.—Corpus Christi Nov. 10, 2004,
no pet.) (mem. op., not designated for publication) (phlebotomist who completed a course
about drawing blood and successfully took the hospital’s checklist test about drawing
blood).

       We nonetheless agree with Laird’s conclusion that the result in this case is not
absurd; categorically excluding all “emergency medical services personnel” from
drawing blood under Chapter 724 creates a bright line rule that is easy for peace officers
to follow. See 28 S.W.3d at 712–13. Invalidating warrantless blood draws performed by
skilled and experienced “emergency medical services personnel” may or may not be
undesirable in particular cases; but such a result is not one that the Legislature could not


                                             6
possibly have intended.

        The State contends that Laird is distinguishable on its facts because the blood
specimen at issue in that case was taken at a fire station, but appellant’s blood was taken
at a hospital. Nothing in Laird indicates that the location of the blood draw affected the
meaning of “emergency medical services personnel.” To the contrary, Laird specifically
rejected the State’s argument that “a paramedic employed by a hospital in the task of
drawing blood at the hospital in the course of everyday treatment of patients” could be a
qualified technician under the statute. 38 S.W.3d at 712. Laird focused instead on the
fact that the paramedic was an “emergency medical technician.” See id. We agree that
“emergency medical services personnel” includes an “emergency medical technician”
working in the hospital emergency room.2

        Notwithstanding Section 724.017(c), the State invites us to adopt a “common
sense interpretation of the term qualified technician” that encompasses Lopez.                      We
decline this invitation to rewrite Section 724.017(c) because “the commitment to the
separation of powers is too fundamental for us to pre-empt [legislative] action by
judicially decreeing what accords with ‘common sense.’” Tenn. Valley Auth. v. Hill, 437
U.S. 153, 195 (1978); see also Seals v. State, 187 S.W.3d 417, 422 (Tex. Crim. App.
2005) (“We appreciate the need and the concern for rational public policy. It is not our
place within the judiciary, however, to construe a statute based on our notions of what is
rational or what makes good common sense.”).

        Similarly, the State argues that applying Section 724.017(c) as written “would
cause less efficient operation of hospital personnel because doctors and nurses would be
taken away from patients with very serious needs.” Policy considerations such as these
are more properly directed to the Legislature.              See, e.g., Fla. Dep’t of Revenue v.
Piccadilly Cafeterias, Inc., 554 U.S. 33, 52 (2008) (“[I]t is not for us to substitute our
view of . . . policy for the legislation which has been passed by [the Legislature]. That

        2
          The location of the blood draw already is addressed by the requirement that the blood specimen
be taken in a sanitary place. See Tex. Transp. Code Ann. § 724.017(a).

                                                   7
said, we see no absurdity in reading [the statute] as setting forth a simple, bright-line rule
instead of [a] complex, after-the-fact inquiry . . . .” (first omission in original) (quotations
omitted)); Montgomery v. State, 145 Tex. Crim. 606, 170 S.W.2d 750, 753 (1943) (“The
courts are not concerned with the wisdom of legislation, this being a matter resting
exclusively with the legislature.”); Pistole v. State, 68 Tex. Crim. 127, 150 S.W. 618, 621
(1912) (“This court cannot pass upon a question of policy by the Legislature. . . .
[W]henever the Legislature has the right itself to pass upon the question of policy, this
court cannot substitute its judgment for that of the Legislature.”); cf. State ex rel. Lykos v.
Fine, 330 S.W.3d 904, 918 & n.64 (Tex. Crim. App. 2011) (“[I]mportant moral and
public policy questions [are] suitable for intense and open debate by legislative policy
makers, not by courts . . . . [J]udges are not free to impose their personal policy views or
morality in lieu of the policy choices and decisions of the democratically elected
legislatures . . . .”).

        The State also argues that Section 724.017(c)’s phrase “does not include” is
ambiguous, or means “does not automatically include.” We fail to see how “does not
include” means anything other than “excludes” in this context. Accordingly, we reject
the State’s ambiguity argument. See, e.g., United States v. Temple, 105 U.S. 97, 99
(1881) (“When the language is plain, we have no right to insert words and phrases, so as
to incorporate in the statute a new and distinct provision.”). Section 724.017(c) states
that “‘qualified technician’ does not include emergency medical services personnel.”
Tex. Transp. Code Ann. § 724.017(c). This provision is unambiguous because it is
susceptible to only one reasonable interpretation in this case. The phrase “emergency
medical services personnel,” under its common or technical understanding, necessarily
includes a person such as Lopez who was licensed as an “emergency medical technician-
intermediate;” held the job title of “emergency medical technician-intermediate;” worked
in the emergency room of a hospital; and was trained to draw blood, do tracheotomies,
start intubations, perform CPR, do “anything basically [in] the field,” and drive an
ambulance. See Laird, 28 S.W.3d at 712 (emergency medical technician employed by a


                                               8
hospital would be “emergency medical services personnel”); cf. Tex. Health & Safety
Code Ann. § 773.003 (Vernon 2010) (“In this chapter . . . ‘Emergency medical services
personnel’ means (A) emergency care attendant; (B) emergency medical technicians; (C)
emergency medical technicians-intermediate; (D) emergency medical technicians-
paramedic; or (E) licensed paramedic.”).

       Because Section 724.017(c) is not ambiguous and does not lead to absurd results,
resort to legislative history is not warranted. See Boykin v. State, 818 S.W.2d 782, 785–
86 (Tex. Crim. App. 1991). Resort to legislative history does not help the State in any
event. We have reviewed the bill analysis for S.B. 420, which added the provision
excluding emergency medical services personnel. See Act of May 10, 1991, 72d Leg.,
R.S., ch. 148, 1991 Tex. Gen. Laws 737, 737. The bill analysis states, “If emergency
medical services personnel (EMS) are included as qualified technicians, then it could
mean that they can perform these tests in an ambulance, as it could be argued that an
ambulance is a ‘sanitary place.’” House Comm. on Public Safety, Bill Analysis, Tex.
S.B. 420, 72d Leg., R.S. (1991).

       The State relies on this excerpt to argue that the Legislature wanted to prevent
blood specimens from being taken in an ambulance or on the side of the road. However,
if the Legislature wanted to prevent blood draws from being conducted in certain
locations, it could have expressed that intent clearly in the statute without categorically
excluding an entire class of medical services personnel. See United States v. Great N. Ry.
Co., 343 U.S. 562, 575 (1952) (“It is our judicial function to apply statutes on the basis of
what [the Legislature] has written, not what [the Legislature] might have written.”); cf.
Laird, 38 S.W.3d at 712 (“If the legislature was concerned about emergency situations, it
could easily have disqualified blood samples taken . . . during an emergency.”). We
follow the language in the statute rather than an isolated remark in the legislative history.
See Pa. R.R. v. Int’l Coal Mining Co., 230 U.S. 184, 199 (1913) (“[N]ot even formal
reports — much less the language of a member of a committee — can be resorted to for
the purpose of construing a statute contrary to its plain terms, or to make identical that


                                             9
which is radically different.”); Molinet v. Kimbrell, 356 S.W.3d 407, 414 (Tex. 2011)
(“Statements made during the legislative process by individual legislators or even a
unanimous legislative chamber are not evidence of the collective intent of the majorities
of both legislative chambers that enacted a statute.”); see also Boykin, 818 S.W.2d at 785
(“[T]he Legislature must be understood to mean what it has expressed, and it is not for
the courts to add or subtract from such a statute.” (quotations omitted)).

        Our holding is buttressed by the Legislature’s conduct after Laird was decided.
The Legislature met several times after Laird and amended Section 724.017, but the
Legislature left subsection (c) untouched. See Act of May 31, 2009, 81st Leg., R.S., ch.
1348, § 19, 2009 Tex. Gen. Laws 4262, 4268. Although “legislative inaction does not
necessarily equate to legislative approval,” see State v. Medrano, 67 S.W.3d 892, 903
(Tex. Crim. App. 2002), “[w]hen the Legislature amends a statute in ways that do not
affect the interpretation of that statute previously given by courts, we presume that the
Legislature has consented to the courts’ statutory interpretation.” Harris Cnty. Appraisal
Dist. v. Tex. Gas Transmission Corp., 105 S.W.3d 88, 97 (Tex. App.—Houston [1st
Dist.] 2003, pet. denied); see also Juarez v. State, 308 S.W.3d 398, 404 (Tex. Crim. App.
2010) (“The Legislature has amended the statute since its enactment in 1973, but it has
never overruled our [interpretation]. In the absence of any contrary legislative command,
we will presume that the Legislature has approved of our [interpretation].”). Here, the
Legislature’s 2009 amendment did not alter Laird’s interpretation of subsection (c).
Accordingly, we may presume the Legislature has consented to Laird’s interpretation.3


        3
          We note that the Legislature did not amend subsection (c) even though it had the opportunity to
do so. Rather than concur with a House amendment that would have deleted subsection (c) and
specifically allowed a blood specimen to be taken by “a licensed or certified emergency medical
technician-intermediate or emergency medical technician-paramedic,” the Senate referred the House
amendment to the conference committee. See S.J. of Tex., 81st Leg., R.S. 4118–20 (2009). The
committee did not include the amendment in the final version of the bill. See 2009 Tex. Gen. Laws 4268.
         Given that the Legislature amended the statute in question without modifying Laird’s
interpretation, we need not ascribe much weight, if any, to the Legislature’s failure to pass this particular
floor amendment or four other bills, see Tex. H.B. 1406, 82d Leg., R.S. (2011); Tex. H.B. 259, 80th Leg.,
R.S. (2007); Tex. H.B. 14, 79th Leg., R.S. (2005); Tex. H.B. 1141, 78th Leg., R.S. (2003), that would
have deleted current subsection (c) and allowed certain emergency medical technicians to take blood

                                                     10
        Appellant’s sole issue is sustained.

                                            CONCLUSION

        We conclude that the trial court erred by denying appellant’s motion to suppress.
We therefore reverse the trial court’s judgment and remand for a new trial.




                                                /s/        William J. Boyce
                                                           Justice


Panel consists of Justices Boyce, Christopher, and Jamison.
Publish — Tex. R. App. P. 47.2(b).




specimens. Compare Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 442–43 (Tex. 2009)
(disapproving of discerning legislative intent from failed bills), with Ojo v. Farmers Group Inc., 356
S.W.3d 421, 433 (Tex. 2011) (considering fact that two subsequent bills “died in committee” that would
have outlawed credit scoring, a practice causing disparate impact; holding that disparate impact claim
based on credit scoring was not cognizable under the Insurance Code), and Graff v. Beard, 858 S.W.2d
918, 919 (Tex. 1993) (finding it “significant” that the conference committee did not include a social host
liability provision in the final dram shop statute when the Senate version had included the provision;
declining to recognize common law social host liability).

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