Edward John Moreno, Jr., Appellant v. The State of Texas, Appellee (2016)

MEMORANDUM OPINION

Edward John Moreno, Jr. was convicted by a jury of misdemeanor driving while intoxicated.  On appeal, Moreno contends the trial court erred in denying his motion to quash the information because:  (1) the signature of the assistant district attorney on the jurat of the complaint is illegible;  and (2) the administration of oaths by district or county attorneys and their assistants under article 21.22 of the Texas Code of Criminal Procedure should be governed by the same statutory provisions applicable to notary publics under chapter 406 of the Texas Government Code. We overrule Moreno's issues and affirm the trial court's judgment.

Signature on Jurat

In his first issue, Moreno contends the information is defective because the signature on the jurat of the complaint is illegible.  The sufficiency of a charging instrument is a question of law that we review de novo.  State v. Rosseau, 396 S.W.3d 550, 555 n.6 (Tex.Crim.App.2013);  Smith v. State, 309 S.W.3d 10, 13–14 (Tex.Crim.App.2010);  Bartlett v. State, 249 S.W.3d 658, 671 (Tex.App.—Austin 2008, pet. ref'd).

Article 21.22 of the Texas Code of Criminal Procedure provides:

No information shall be presented until affidavit has been made by some credible person charging the defendant with an offense.  The affidavit shall be filed with the information.  It may be sworn to before the district or county attorney who, for that purpose, shall have power to administer the oath, or it may be made before any officer authorized by law to administer oaths.

Tex.Code Crim. Proc. Ann.art. 21.22 (West 2009).  In this case, the affidavit was in the form of a complaint, which was signed by the affiant and sworn and subscribed to before a Bexar County assistant district attorney.

A jurat is the officer's statement that the document was sworn and subscribed to before the officer.  See Hardy v. State, 213 S.W.3d 916, 917 (Tex.Crim.App.2007);  State v. Pierce, 816 S.W.2d 824, 827 (Tex.App.—Austin 1991, no pet.).  The jurat must contain the officer's signature and show the officer's authority to administer the oath.  Byrom v. State, 256 S.W.2d 853, 853–54 (Tex.Crim.App.1953);  Pierce, 816 S.W.2d at 827–28.

In this case, the jurat reads:

SWORN TO AND SUBSCRIBED before me on this date: Oct. 29, 2013.

/s/

Assistant Criminal District Attorney Bexar County, Texas

Therefore, the jurat contained the officer's signature, and the typewritten title beneath the signature line showed the officer's authority to administer the oath because assistant district attorneys are authorized to perform all duties a district attorney can perform, including the administration of oaths under article 21.22.  See Lopez v. State, 288 S.W.2d 64, 65–66 (Tex.Crim.App.1956);  Tex. Gov't Code Ann. § 41.103(b) (West 2004).

Moreno contends that the illegibility of the officer's signature on the jurat renders the information defective.  Moreno recognizes, however, that the Houston court has held to the contrary.  In Smith v. State, the appellant asserted the trial court erred in denying his motion to quash the complaint and information because the signatures of the affiant and the assistant district attorney were difficult to read.  811 S.W.2d 665, 668 (Tex.App.—Houston [14th Dist.] 1991, pet. ref d).  The Houston court held, “There is no requirement in the statute that the signatures be legible.”  Id. We agree.  Because the illegibility of the signature of the Bexar County assistant district attorney on the jurat does not render the information defective, Moreno's first issue is overruled.

Applicability of Chapter 406 of the Texas Government Code

In his second issue, Moreno contends district and county attorneys and their assistants who administer oaths under article 21.22 should be required to comply with the statutory provisions applicable to notary publics set forth in chapter 406 of the Texas Government Code. When a statute is clear and unambiguous, “the 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.”  Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991) (internal citations omitted).  In this case, the Legislature chose to allow district and county attorneys to administer oaths under article 21.22 without engrafting the more detailed requirements applicable to notary publics in chapter 406.  Because article 21.22 is clear and unambiguous, this court is not authorized to add to the statute because doing so would “unnecessarily invade the lawmaking province of the Legislature.”  Id. at 786.  Moreno's second issue is overruled.

Conclusion

The judgment of the trial court is affirmed.

Opinion by: Sandee Bryan Marion, Chief Justice