Lang, Terri Regina

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0563-17

TERRI REGINA LANG, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRD COURT OF APPEALS
BURNET COUNTY

Y EARY, J., filed a dissenting opinion.

DISSENTING OPINION

We are called upon in this case to review a court of appeals’ interpretation of a penal

statute. Here, the question is whether the reach of the organized retail theft statute extends

to Appellant’s conduct. The court of appeals found that the language of the statute plainly

did, and it declined to consult extra-textual factors to “construe” that which it believed

needed no construction. I agree that the meaning of the statute is plain on its face—though

I believe its plain meaning to be different in an important respect from the court of appeals’
 LANG — 2

perception. Because I find the statutory language to be unambiguous, I disagree with this

Court’s resort today to extra-textual factors. And because I believe the statute on its face

plainly extends to proscribe Appellant’s conduct, I would ultimately affirm the court of

appeals’ judgment. Because the Court does not, I respectfully dissent.

I. INTRODUCTION

Appellant was convicted of the offense of organized retail theft, under Section

31.16(b)(1) of the Texas Penal Code. See T EX. P ENAL C ODE § 31.16(b) (“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[.]”). On appeal, she challenged the legal sufficiency of the evidence to support

her conviction, contending that the evidence at trial showed nothing more than that she was

a solitary shoplifter, and not a member of an organized retail theft ring.

The court of appeals held that the plain language of Section 31.16(b)(1) reaches

unaffiliated shoplifting offenders; and, because there was sufficient evidence to establish that

Appellant came to possess stolen merchandise of the requisite value from a grocery store, the

court of appeals held the evidence to be legally sufficient to support her conviction as a state-

jail felon. Lang v. State, No. 03-15-00332-CR, 2017 WL 1833477, at *7 (Tex. App.—Austin

May 5, 2017) (mem. op., not designated for publication). Finding the meaning of the statute

to be plain, the court of appeals refused even to consider Appellant’s proffered evidence of

legislative history, which, she contended, supports the proposition that the Legislature did
 LANG — 3

not intend the statute to duplicate the theft statute’s coverage of the solitary shoplifter.1 See

id. (“[B]ecause we conclude that the statute is unambiguous and does not lead to absurd

results, we need not, indeed may not, resort to extra-textual sources.”). We granted

Appellant’s petition for discretionary review in order to address the court of appeals’

methodology in interpreting the statute, as well as its ultimate conclusion regarding the scope

of the statute. Although I do not agree with every particular of the court of appeals’ analysis,

I would nevertheless affirm its judgment.

II. BACKGROUND

Appellant entered an HEB in Marble Falls on October 2, 2013, with several reusable

grocery bags. She spent more than an hour in the aisles of the store, placing merchandise into

the reusable bags in her shopping cart. When she approached the check-out counter, she

placed several of the reusable bags on the conveyer belt, but an additional reusable bag

containing merchandise remained hanging from the side of her shopping cart—tied to the

handle of the cart but on the side that was away from the cashier. Appellant never placed

those items of merchandise on the conveyer belt. Once she had paid for the items that she had

placed on the conveyer belt, she exited the store. She was stopped just outside the door, and

the police were called. The unpaid-for items totaled over $500 in retail value.

Rather than charge her under the ordinary theft statute, the State indicted Appellant

1
There is no dispute that Appellant’s conduct could have been prosecuted under Section
31.03 of the Penal Code—our generic theft statute. See TEX . PENAL CODE § 31.03(a) & (b)(1) (“A
person commits an offense if he unlawfully appropriates property with intent to deprive the owner”
where “[a]ppropriation of property is unlawful if . . . it is without the owner’s effective consent[.]”).
 LANG — 4

for the more particularized offense of organized retail theft, alleging that she “did

intentionally conduct and promote and facilitate an activity in which [she] received and

possessed and concealed and stored stolen retail merchandise,” of an amount exceeding $500

in value. The jury convicted her of that offense, and the trial court assessed her punishment

at twenty months’ confinement in a state-jail facility and a fine of $1,060. See T EX. P ENAL

C ODE § 31.06 (c)(3), as amended by Acts 2011, 82nd Leg., ch. 323, § 3, p. 942, eff. Sept. 1,

2011 (amending the statute to provide that retail theft of an amount of more than $500 but

less than $1,500 constitutes a state-jail felony, susceptible to punishment of confinement in

a state jail for not more than two years or less than 180 days, and a fine of up to $10,000,

under T EX. P ENAL C ODE § 12.35(a) and (b)).

On appeal, Appellant argued that the evidence was insufficient to prove that she had

committed the offense of organized retail theft because there was no evidence to show that

her actions were part of a larger criminal enterprise. She maintained both that: 1) the offense

of organized retail theft requires evidence that Appellant was acting in concert with others

as part of a larger group activity; and 2) the organized retail theft statute cannot reasonably

be construed to reach the conduct of an ordinary shoplifter, even if she is acting with others.

Relying on the literal language of the statute itself, as illuminated by the rules of grammar

and standard dictionary definitions, the court of appeals held that the plain language of the

organized retail theft statute belied Appellant’s asserted construction. Lang, 2017 WL

1833477, at *3–7. Along the way, the court of appeals declined to consider the legislative
 LANG — 5

history of the statute, observing that, “because we conclude that the statute is unambiguous

and does not lead to absurd results, we need not, indeed may not, resort to extra-textual

sources.” Id. at *7. “Consequently,” the court of appeals concluded, “we give effect to the

plain meaning of the statute, which does not require proof that [A]ppellant committed this

offense working with others and applies to the underlying theft [A]ppellant committed.” Id.

In her petition for discretionary review, Appellant now argues that: 1) the literal

language of the statute is ambiguous; 2) even if plain, the literal language of the statute leads

to absurd results that the Legislature could not conceivably have intended, and; 3) even if the

statutory language seems plain and sensible, Section 311.023 of the Code Construction Act

(applicable to the Texas Penal Code via T EX. P ENAL C ODE § 1.05(b)) would permit the court

of appeals to consult extra-textual sources such as legislative history for help in discerning

the legislative intent. She argues that Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App.

1991), should be disavowed to the extent that it prohibits judicial reference to legislative

history in the absence of ambiguity or absurdity in the statutory language. See T EX. G OV’T

C ODE § 311.023 (providing that “a court may consider among other matters” “legislative

history” when construing a statute, “whether or not the statute is considered ambiguous on

its face”). Especially when considering the legislative history, Appellant contends, it is clear

that the Legislature did not intend for the organized retail theft statute to reach the conduct

of an ordinary shoplifter—or, at least, not an ordinary unaffiliated shoplifter.
 LANG — 6

III. BOYKIN

In Boykin, we emphasized the primacy of the literal language of the statute itself. We

explained that “we necessarily focus our attention on the literal text of the statute in question

and attempt to discern the fair, objective meaning of that text at the time of its enactment.”

818 S.W.2d at 785. Just as the court of appeals discerned in this case, Lang, 2017 WL

1833477, at *7, Boykin absolutely prohibits courts from consulting extra-textual factors such

as legislative history unless the literal language of the statute is ambiguous, or unless the

plain language of the statute would lead to absurd results. See 818 S.W.2d at 785–86 (“If the

plain language of statute would lead to absurd results, or if the language is not plain but

rather ambiguous, then and only then, out of absolute necessity, is it constitutionally

permissible for a court to consider, in arriving at a sensible interpretation, such extratextual

factors as executive or administrative interpretations of the statute or legislative history.”).

For courts to resort to examination of extra-textual considerations to justify their construction

of statutes that are plain on their faces would only serve to invade the province of the

Legislative Department. Id. at 786 n.4. The Texas Supreme Court is in accord with this

methodology. See Bank Direct Capital Finance v. Plasma Fab, 519 S.W.3d 76, 84–85 (Tex.

2017) (“We must resist the interpretive free-for-all that can ensue when courts depart from

the statutory text to mine extrinsic clues prone to contrivance. * * * If it is not necessary to

depart, it is necessary not to depart.”).

Appellant argues that, Boykin’s principles notwithstanding, even if we are unable to
 LANG — 7

agree with her that the organized retail theft statute is ambiguous or absurd, we should still

consider the legislative history. We are authorized to do so, she maintains, under Section

311.023(3) of the Code Construction Act, and she asserts that the legislative history will

definitively establish that Section 31.16 was aimed at shoplifting collectives, and was simply

not meant to duplicate the theft statute’s coverage of unaffiliated shoplifters. But, I continue

to believe that, if the literal language and structure of a statute render it of sufficient clarity

that its proper construction cannot be reasonably doubted, it would improperly encroach upon

the Legislative Department for this Court to engage in further construction of it. See Boykin,

818 S.W.2d at 786 & n.4 (Boykin’s method of statutory construction is “constitutionally and

logically compelled[,]” and for courts to look for legislative meaning apart from statutory

language that is unambiguous risks “courts . . . assuming legislative authority”); T EX. C ONST.

art. II § 1 (“[N]o person, or collection of persons, being of one of these departments [of state

government, namely, Legislative, Executive, and Judicial], shall exercise any power properly

attached to either of the others[.]”). It is one thing for a court to construe the meaning of a

statute when its language or structure leave genuine room for doubt. It is quite another thing

to tinker with the objectively plain meaning of a statute with a view to improving it. The

former falls within the proper domain of judges. The latter is the exclusive bailiwick of the

Legislative Department.

In this case, I agree with the court of appeals that the language of the statute plainly

permits prosecution of the solitary unaffiliated shoplifter who violates the terms of the statute
 LANG — 8

and that, consistent with Boykin, resort to extra-textual sources would therefore be forbidden.

To the extent that Section 311.023 nevertheless purports to authorize courts to do so, the

statute itself is at risk of being declared an unconstitutional delegation of legislative authority

to the courts. For this reason, I would decline Appellant’s invitation to overrule that aspect

of Boykin.

IV. THE UNAFFILIATED SHOPLIFTER

Under the literal language of Section 31.16(b)(1), it is an offense if:

• a person
• intentionally
• conducts, promotes, or facilitates
• an activity
• in which the [same] person
• receives, possesses, conceals, stores, barters, sells, or
disposes of
• retail merchandise
• that is stolen.

The court of appeals held that this language plainly suffices to proscribe any act of

shoplifting, whether committed by a single actor or one acting in concert with others. First,

the court of appeals set out various dictionary definitions of the words “conducts, promotes,”

and “facilitates,” and observed that, “[i]n looking at the definitions of these terms, although

an individual’s behavior may contribute toward a greater collective effort or a broader group

objective, the requirement of collective action or group behavior is not inherent in the

definitions.” Lang, 2017 WL 1833477, at *4–5. It next observed that the statute does not

explicitly mention that other persons must be involved; a single person may “conduct,
 LANG — 9

promote, or facilitate an activity” in which she ultimately “possesses . . . stolen retail

merchandise.”2 Id. at 5. The direct object of the transitive verbs “conducts, promotes, or

2
Approximately one-third of the states have enacted a criminal statute for organized retail
theft. The majority of those statutes explicitly require the defendant to have committed the offense
in conjunction with another person or other persons in order to be convicted of organized retail theft.
See CON . GEN . STAT . ANN . § 53-142k (West 2010) (“Any person who, for financial gain and in
conjunction with one or more persons, commits larceny by shoplifting . . . shall have committed the
offense of organized retail theft.”); ME . REV . STAT . ANN . Tit. 17-A, § 363 (2015) (“A person is
guilty of organized retail theft if the person commits 2 or more thefts of retail merchandise . . .
pursuant to a scheme or course of conduct engaged in by 2 or more persons . . . .”); MASS. GEN .
LAWS ANN . Ch. 266, § 30D (West 2015) (“A person commits an organized retail crime if the person,
acting in concert with 2 or more persons . . . steals, embezzles, or obtains by fraud . . . retail
merchandise . . .”); MISS. CODE ANN . § 97-43-3.1 (West 2014) (“It shall be unlawful for any person
to conduct, organize, supervise, or manage . . . an organized theft of fraud enterprise . . . [defined as]
any association of two or more persons who engage in the conduct . . . .”); N.H. REV . STAT . ANN .
§ 637:10-c (2010) (“A person is guilty . . . if he or she conspires with one or more persons to engage
for profit in a scheme or course of conduct of theft . . . .”); N.C. GEN . STAT . ANN . § 14-86.6 (West
2017) (“A person is guilty . . . if the person . . . conspires with another person to commit theft of
retail property . . . .”); OR. REV . STAT . ANN . § 164.098 (West 2008) (“A person commits the crime
of organized retail theft if, acting in concert with another person . . . .”); 18 PA . STAT . AND CONS.
STAT . ANN . § 3929.3 (West 2010) (“A person commits organized retail theft if the person organizes,
coordinates, controls, supervises, finances, or manages any of the activities of an organized retail
theft enterprise . . . [defined as] a corporation, partnership, or any other type of association . . . .”);
TENN . CODE ANN . § 39-14-113 (West 2017) (“A person commits the offense of organized retail
crime when the person works with one or more persons to commit theft of any merchandise . . . .”);
WASH . REV . CODE ANN . § 9A.56.350 (West 2017) (“A person is guilty of organized retail theft if
he or she commits theft of property . . . with an accomplice . . . .”); W. VA . CODE ANN . § 61-3A-7
(West 2017) (“Any person who enters into a common scheme or plan with two or more other persons
to violate the provisions of section one of the article . . . shall be guilty of a felony . . . .”). But other
states just as explicitly allow for a defendant to be guilty of organized retail theft even when acting
alone. ARIZ. REV . STAT . ANN . § 13-1819 (2009) (“A person commits organized retail theft if the
person acting alone or in conjunction with another person does . . . .”); DEL. CODE ANN . tit. 11, §
841B (West 2007) (“organized retail theft crimes committed by a person or group of persons . . . .”);
MICH . COMP . LAWS ANN . § 752.1084 (West 2013) (“A person is guilty of organized retail crime
when that person, alone or in association with another person, does . . . .”); NEV . REV . STAT . ANN .
§ 205.08345 (West 2013) (“‘organized retail theft’ means committing, either alone or with any other
persons, a series of thefts of retail merchandise . . . .”). One state has enacted an organized retail theft
statute that, like ours, does not explicitly indicate whether the crime must be committed in
conjunction with another person or persons to be considered organized retail theft. LA . STAT . ANN .
§ 14:67.25 (2017) (“Organized retail theft is the intentional procuring, receiving, or concealing of
 LANG — 10

facilitates,” the court of appeals added, is the word “activity”—a “thing,” not other actors.

Id. at *6. From these premises, the court of appeals concluded: “Nothing in the statutory

language requires that the person committing the offense work with others when engaging

in the prohibited behavior.” Id.

To this extent, I agree with the court of appeals. When the Legislature wishes to

require the involvement of more than one person before it may be said that an offense has

been committed, it well knows how to do so.3 Section 31.16(b) contains no such language.

Moreover, some of the statutorily defined manners and means of perpetrating the offense of

organized retail theft plainly contemplate circumstances involving conduct of a solitary

shoplifter—regardless of whether the shoplifter is acting within or as part of a greater

collective enterprise. A person commits the offense if she:

• conducts
• an activity
• in which the [same] person
• possesses
• stolen
• retail merchandise

Reduced to these particular manner and means of committing the offense, it becomes clear

how a single, unaffiliated shoplifter may be guilty of the offense. A solitary person may

stolen retail property with the intent to sell, deliver, or distribute that property.”).
3
See, e.g., TEX . PENAL CODE § 15.02(a)(2) (requiring the agreement of “one or more
persons” to engage in a criminal conspiracy); TEX . PENAL CODE § 71.01(a) (defining “combination”
to require “three or more persons” for purposes of the offense of engaging in organized criminal
activity).
 LANG — 11

“conduct” an activity in which she possesses retail merchandise that her own earlier conduct

caused to be stolen. It is true that the verb “conduct” carries at least one connotation

suggesting “management” or “direction.” 4 But, as the court of appeals rightly pointed out,

what must be managed or directed, under the plain grammatical structure of the statute, is the

“activity,” not other people. Id. Nothing in the statute requires that the “activity” must be a

collaborative effort involving more than one person.5 In this case, Appellant left the store

with merchandise which she had already shoplifted,6 and that constituted activity in which

she possessed stolen retail merchandise. The statute plainly requires nothing more for

conviction.

Appellant argues that the statute does not contemplate proscribing the act of

shoplifting itself, since it plainly contemplates criminalizing only “an activity in which” retail

merchandise, already “stolen,” is then “received, possessed,” etc. Applicant’s Brief on

4
As relevant to the statute at hand, the verb “conduct” may mean: “1 : to bring by or as if by
leading : LEAD , GUIDE , ESCORT . . . 2 b : to have the direction of : RUN , MANAGE , DIRECT ”.
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE , at 474 (2002).
But it may also mean: “4 : to behave or comport (oneself) : ACQUIT ”. Id.
5
That Section 31.16 is denominated “organized” retail theft—to the extent that suggests an
organization of multiple persons—cannot affect our construction of the statute if the text is otherwise
plain. See Baumgart v. State, 512 S.W.3d 335, 339 (Tex. Crim. App. 2017) (“Although relevant as
an extra-textual factor in construing the text of a statute when consideration of such factors are
allowed, ‘[t]he heading of a title, subtitle, chapter, subchapter, or section does not limit or expand
the meaning of a statute.’”) (quoting TEX . GOV ’T CODE § 311.024, and citing Ex parte Couch, 838
S.W.3d 252, 254–55 (Tex. Crim. App. 1992)).
6
See State v. Ford, 537 S.W.3d 19, 24 (Tex. Crim. App. 2017) (citing Hill v. State, 633
S.W.2d 520, 521 (Tex. Crim. App. 1981)) (“[A] customer of a store can exercise control over
property with intent to deprive, even if the customer has not yet left the store with the property.”).
 LANG — 12

Discretionary Review at 36–39. I agree with this much of Appellant’s argument. And it is

upon this point that I believe a plain reading of the statute differs from the understanding that

the court of appeals imposed upon it: The statute does not proscribe shoplifting per se.

Instead, it proscribes the subsequent possession of already-stolen retail merchandise in the

course of some further activity—here, at least, the shoplifter leaving the store.

I also think the statute was plainly meant to cover more than just the conduct of

“fences.”7 In my view, the affiliated “boosters”8 —the shoplifters who supply the

fences—were also plainly meant to fall within the purview of the statute, inasmuch as they

might, after committing a theft, “conduct an activity in which they possess [the] stolen retail

merchandise” before turning it over to their fences.9 Indeed, it is hard to conceive of an

“organized retail theft” statute in which the boosters would not be covered, at least to some

extent.10 But, as the court of appeals held, and I also agree, nothing in the language of the

statute plainly excludes unaffiliated shoplifters who come to possess stolen retail

7
“Fence” is a slang term for “[o]ne who receives and sells stolen goods.” WEBSTER’S II NEW
COLLEGE DICTIONARY 412 (1999).
8
“Booster” is a slang term for “shoplifter.” WEBSTER’S II NEW COLLEGE DICTIONARY 128
(1999).
9
Indeed, several of the punishment enhancement provisions of Section 31.16 are plainly
aimed at the conduct of boosters, such as those based upon the activation (or deactivation) of a fire
exit alarm or the deactivation of a retail theft detector. TEX . PENAL CODE § 31.16(d)(2).
10
Of all the statutes denominated “organized retail theft” that are identified ante in note 2,
all but one—the Louisiana statute—explicitly proscribe the activity either of both fences and
boosters (Connecticut, Delaware, Michigan, Mississippi, North Carolina, Oregon, Pennsylvania,
Tennessee, Washington, and West Virginia), or of boosters alone (Arizona, Maine, Massachusetts,
Nevada, and New Hampshire).
 LANG — 13

merchandise. See Lang, 2017 WL 1833477, at *7 (holding that the statute “does not require

proof that appellant committed this offense working with others”). Under the plain terms of

the statute, an unaffiliated shoplifter may also commit organized retail theft by engaging in

some further activity after the theft in which she possesses the already-stolen retail

merchandise.

I do disagree with the court of appeals to the extent that it seems to have held that the

statute may reasonably be read to criminalize the mere act of theft. To that extent, I believe

that the court of appeals has misconstrued the plain import of the statute. Section 31.16(b)(1)

explicitly requires the actor to possess retail merchandise that has already been “stolen.”

T EX. P ENAL C ODE § 31.16(b)(1). So it is not the “the simple act of shoplifting” (or theft) that

is proscribed. I believe the statute is only reasonably susceptible to a reading that more than

a simple theft is required. That much is unambiguous, and so resort to extra-textual factors

on that account is not permitted.

Here, Appellant acquired or exercised control over the retail merchandise while still

in the store, with the requisite intent to deprive the owner of it; thus, she had already

committed the simple act of shoplifting before she ever left the store. See State v. Ford, 537

S.W.3d 19, 24 (Tex. Crim. App. 2017) (citing Hill v. State, 633 S.W.2d 520, 521 (Tex. Crim.

App. 1981)) (“[A] customer of a store can exercise control over property with intent to

deprive, even if the customer has not yet left the store with the property.”). Then, when she

exited the store, she “conduct[ed] . . . an activity in which [she] . . . possess[ed] . . . [already]
 LANG — 14

stolen retail merchandise.” T EX. P ENAL C ODE § 31.16(b)(1). She violated the plain language

of the statute. Moreover, as I have taken pains to demonstrate, there is no reasonable basis

in the language of the statute to suppose that more than one individual must necessarily be

involved in the proscribed “activity” before the statute can be violated—so long as that

“activity” goes beyond “the simple act of shoplifting” or theft.

V. THE COURT’S CONSTRUCTION OF THE STATUTE

After consulting various bill analyses, however, the Court nevertheless comes to the

conclusion that group activity is what the statute was meant to address. See Majority Opinion

at 15–16 (“[T]he statute was enacted for the purpose of targeting professional theft rings

involved in the large-scale theft, transfer, repackaging, and reselling of stolen retail

merchandise.”). I do not disagree that the statute plainly permits going beyond the conduct

of an unaffiliated shoplifter—and was, indeed, obviously aimed primarily at the activity of

fences and their affiliated boosters. But, as written, the statute is just as plainly not limited

to such group activity.

Also, there is nothing inherently contradictory about a statute designed to reach both

group activity and the activity of a lone actor. For example, a lone actor who first shoplifted

retail merchandise and then later fenced it (i.e., “conduct[ed] an activity in which [he]

barter[ed], [sold], or dispose[d] of” it) would plainly be subject to prosecution under the

statute. No group activity need be involved in this hypothetical. Why should group activity

be necessary before a lone shoplifter can be prosecuted—so long as, as in this case, she
 LANG — 15

further “conducts an activity in which [she] . . . possesses . . . stolen retail merchandise”?

In the final analysis, however, my dispute with the Court may ultimately boil down

to nothing more than a basic disagreement about whether the act of leaving the store after

having shoplifted the retail merchandise should suffice to prove that Appellant “conduct[ed]

an activity in which [she] . . . possesse[d] . . . stolen retail merchandise.” None of these

statutory terms has acquired a special or technical acceptation.11 It seems to me that a rational

juror could rationally apply the statutory language to convict Appellant on the facts of this

case. Cf. Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992) (“[W]hen

determining the sufficiency of evidence to support a jury verdict, reviewing courts must not

employ definitions of relevant statutory words which are different or more restrictive than

the jurors themselves were legally entitled to use.”); Denton v. State, 911 S.W.2d 388, 390

(Tex. Crim. App. 1995) (same). If the theft was completed before Appellant left the store,

then how was leaving the store not an activity in which she possessed stolen retail

merchandise? The Court wholly fails to address this question.

VI. CONCLUSION

As judges on a court of last resort, we cannot avoid resolving disputes about how

statutory language can permissibly be implemented. We frequently find ourselves caught in

11
Unless a word has acquired a technical legal meaning, “definitions for terms that are not
statutorily defined are not considered to be the ‘applicable law’ under [TEX . CODE CRIM . PROC. art.
36.14], and it is thus generally impermissible for the trial court to define those terms in the jury
instructions.” Green v. State, 476 S.W.3d 440, 445 (Tex. Crim. App. 2015). Why, then, should we
feel compelled to construe a limitation on the ordinary terms in the statute at this stage of the game
that we would have disallowed in the jury charge?
 LANG — 16

the cross-fire between our unmistakable judicial obligation to interpret and apply the law and

the equally inescapable constitutional prohibition against actually making law. When a statute

is truly ambiguous, then of course we must construe it. But when it is plain, we absolutely

may not. We must implement its plain language. For my part, I am more concerned with

avoiding judicial legislation than I am with making sure that every statute is implemented in

exactly the way I think some legislators hoped that it would be implemented. In my view, the

language of the statute should ordinarily control, and we should err against declaring

statutory language to be ambiguous except as a last resort. The statute at issue in this case is

plain enough, as far as I am concerned, that we need not resort to extra-textual factors. In any

event, nothing about the legislative history as set out in the Court’s opinion is necessarily

inconsistent with what I believe to be the plain import of the statute.

I would affirm the judgment of the court of appeals. Because the Court does not, I

respectfully dissent.

FILED: November 21, 2018
PUBLISH