The Lawful Use of “Includes” and “Including” Revisited…

“Includes” and “Including,”
They Don’t Work Like You May Think.

The use of “includes” and “including” in relation to many statutory definitions, like “motor vehicle” for example, is an important key to unlocking and understanding what a statute actually encompasses and applies to so you can then fully understand its overall meaning. You also need to remember that the use of these terms does not serve to in any way alter or remove the specific subject matter context within which every statute must be read in order to be properly interpreted, which is the biggest failing of every modern-day court in Texas and elsewhere. The courts simply don’t read the statutes within the legislative context specifically identified in the caption/title of the Bill responsible for the legislation that created it.

Surely by now you have figured out that something is off about this statutory shell game, and, hopefully, it is causing you to pause and ask yourself the question, “Does the state consider my private conveyance a ‘motor vehicle’, and if so, why?” Well, to be absolutely clear, the numerous minions of the state, based solely upon their own unsubstantiated opinions, legal conclusions, and legal presumptions, do consider your private conveyance to be exactly that, a “motor vehicle.” But, the fact is, the actual law and its related statutes do not support any of those opinions, presumptions, or conclusions as actually being true once you actually understand how to properly read them and the kind of incorrect logic and interpretations that attorneys and the courts utilize to keep this insight and understanding out of the hands and minds of the general public.

This is especially true if a statutory definition uses “includes” or “including” as its constructive formula. If it does, then truly understanding the following explanation of how these terms work is wholly necessary to interpreting the statute correctly and in accordance with the laws of “this state” pursuant Chapters 311 and 312 of the Texas Government Code. This also means understanding the United States Supreme court cases that have already ruled on the following as being the only proper use and method of statutory interpretation applicable to these two terms in relation to law. Thus, the following legal argument requires a proper understanding of how the courts, especially the United States Supreme Court, have declared the terms “includes” and “including” actually function in law.

“I See Incompetent People, but They’re too Incompetent to Know They’re Incompetent.”

So, when the legislature writes a statutory provision that states that the use of terms like “includes” and “including” are to be read as follows, ““Includes” and “including” are terms of enlargement and not of limitation or exclusive enumeration, and use of the terms does not create a presumption that components not expressed are excluded,” it is imperative that you understand how any type of “enlargement” (expansion) of the statute must be legally construed and applied by the courts so as to not constitute a rewrite of the law itself, or the Legislature’s intent by enacting it.

However, it is readily apparent that the majority of attorneys and judges that I have had the [dis]pleasure of interacting with have absolutely no clue about how to properly do this. They simply use these terms to unconstitutionally and unlawfully encompass anything and everything, anyone and everyone, ranging from a “commercial motor vehicle” to a “tricycle” or from a “driver/operator” to your three-year old riding their “tricycle/little red wagon.” They are completely, utterly, and uncompromisingly clueless about how these terms are required to be interpreted and used in order to maintain not only the original legislative intent, but how to also properly understand and apply the law or statute in question.

This is a completely unacceptable level of judicial and legal incompetence in my opinion. Our lives and property are being placed into the hands of individuals that are utterly incompetent and clueless about the very thing upon which their entire career rests, revolves and evolves, a comprehensive understanding of the proper operation of law in its entirety. Which means, they are required to know how to properly read it, interpret it, understand it, and apply it, and how to do each of these things in a manner that remains consistent with, and entirely within, its proper legislatively intended context. If they are incapable or unwilling to do those things properly, then they shouldn’t be allowed to remain as a sitting judge or a ‘licensed’ attorney. Period.

If you ever meet an attorney or judge that isn’t unfamiliar with or incorrectly using these terms, then they are either fresh out of law school or cost so much money per hour that you would need two mortgages on your home to even hire them for an hour to consult on your case, neither of which is a viable alternative for the vast majority of people that are in need of legal help. Demonstrably, every other attorney and judge you will encounter is simply flying along just below the systems “incompetence/malpractice” radar so they can steal the most money they can before their clients realize just how hard they’ve been screwed and left holding the bag in their own case because their attorney never filed a single legal pleading or did a damned thing to actually help them. If you truly wish to prove to the world that you are a gullible fool, then trust an attorney to do the right thing or act in your best interest before their own. If you don’t already know what I’m talking about from your own personal past experience, I would like to help you out by selling you this nice little toll bridge property I own that crosses over the San Francisco bay. I’m willing to let it go real cheap if that would help?

How Can a Statute be “Enlarged” by Adding Something not Written and Still Avoid Being Unconstitutionally Vague, Ambiguous, and Over-broad?

In relation to law, the term “enlargement,” when used in relation to “includes” and “including,” means that a statutory definition is not to be considered “fixed or limited” to only the exact things specifically listed. However, you must also understand that a statute that is non-specific runs afoul of the constitutional requirement that a law must be understandable by men of reasonable intelligence so as to properly understand what is being prohibited. Which means, the terms “includes” and “including” are able to be “enlarged” only in a certain way, and that way requires that the definition be read only as “enlarging” to encompass those things that are naturally within the same specific class of persons, things, or legal entities actually listed in the original “includes” or “including” declaration. This will remain true even when the definition contains the provision “includes, but is not limited to” as a part of its declaration.

What this basically means is that all of the items following “includes” or “including” must have an identifiable class relationship in order to be considered a viable addition to the “enlargement” intent and functionality of the statute. If there is any kind of oddball item listed in that same definition that does not appear to fit in with the classification represented by the majority of the other things listed, then that oddball thing must be subjected and limited to an interpretation that actually harmonizes it with all the other listed items following it after the “includes/including.”

An example of this of this kind of definition would be something like, “Person includes a natural person, corporation, association, limited liability corporation, or other legal entity,” or “Person includes an individual, corporation, association, limited liability corporation, or other legal entity.”  These definitions contain the terms “natural person” or “individual” preceding an entire list that “includes” or is “including” only “legal entities.” The terms “natural person” and “individual” are normally construed to be part of a completely different natural classification than all the other fictional entities specifically listed, right? But how can that be? In cases like this, the only acceptable interpretation is one that can logically harmonize everything listed into a singular classification without culminating in a “ridiculous result/outcome.” Otherwise, if this simply isn’t possible, then the rule of statutory construction relating to the proper use of “includes” and “including” has been violated, making the resulting interpretation legally unsound and inherently incorrect.

But how would one go about harmonizing such totally dissimilar terms into a single harmonious classification that is not ridiculous to conclude? Well, in this case, the one that makes the most logical sense is to try and harmonize the term(s) that are in the minority and whose normal classification is different than the other things listed (“natural person/individual”), into the classification associated with the majority of the things listed (“legal entities”). So, ask yourself, how would a “natural person/individual” be capable of fitting into the same classification as a “legal entity,” so that the rules of statutory construction relating to the use of the terms “includes” and “including” in law are not violated? That is actually easier than you might think.

You first have to understand that “legal entities” have no physical existence, they are entirely fictional and incapable of acting of their own volition, and therefore, can act only through one or more “natural persons/individuals” acting as its agent(s). This is the only form in which such an agent can exist and function for the benefit the legal entity. Isn’t every officer, agent, employee, or trustee of a “legal entity” actually a “natural person/individual?” Can they be anything else? Can one “legal entity” act as the agent for another “legal entity” sua sponte without a “natural person/individual” making the decisions and then acting on its behalf as well? Of course not, as that would be a “ridiculous result.”

C’mon Alice, don’t you get it now? Follow the white rabbit, step through the looking glass, get your head out of your ass and pay attention, or whatever other metaphor best serves to wake you up and provide you with the understanding that the terms “natural person/individual” do not and cannot be lawfully construed in a manner that allows a statutory definition’s interpretation to add We the People to the same legal classification as that of a “legal entity” when we are acting privately on our own behalf. We must actually be acting as an authorized officer, agent, employee, or trustee of one or more of the specific types of legal entities specifically listed in the definition that we are alleged/alleging to represent. This is almost never the case when it comes to the statutory interpretations and applications that We the People are being unlawfully subjected to on a daily basis.

The Devil is [Always] in the Details.

This ability to create and require a specialized interpretation of a law or statute is precisely what makes “includes” and “including” “legal terms of art.” It is the knowing and willful misuse and abuse of the rules of statutory interpretation and application for these legal terms of art that have been and are being used to deceive people into thinking that something “included” means one thing, yet the courts ignore the rules so as to interpret the same term of art in a myriad of ways to get their own desired outcome in some particular case at hand, if you leave them the means to do so.

When used in law, “includes” limits the items listed to a readily identifiable natural relationship. This is done via what you could call a “relational class” that is naturally relative to all of the things that are listed, but that also allows for “enlargement” by allowing other things that fall within that same natural relational class to be considered as inclusive with the other listed items, even though they are not made specifically a part of the list by actual name.

For instance:

“The term “Fruit” includes oranges, limes, and lemons.”

In THIS configuration, the term “includes” is capable of “enlargement” because ALL of the things listed have a natural class relationship, that of being members of the family of citrus “fruit.” Therefore, “fruit” as defined here, can be EXPANDED to encompass other citrus fruits like “grapefruits” and “kumquats”, but cannot ‘include’ “apples” or “bananas,” because they don’t share the citrus fruit class relationship.

“The term “Fruit” includes apples, pears, oranges, limes, and lemons.”

In THIS configuration, the term “includes” is NOT reasonably capable of “enlargement” because ALL of the things listed DO NOT share an identifiable natural class relationship between them which would allow anything else that is not listed to be matched to ALL of them, nor is there any logically reasonable way to formulate a class relationship that would allow this definition to be expanded beyond those specific types of fruit expressly listed. Thus, the list is LIMITED to ONLY those things that are expressly listed. By explanation of this point, not only are these items NOT all citrus fruits, they cannot even all be classified as “fruits that must be peeled before eating.” or as “fruits with an edible skin,” i.e. no other natural relationship exists between them.

I can hear you thinking, “this point seems to run counterintuitive to the previous discussion on creating an interpretative relationship between “natural person/individual” and a list of only legal entities,” but, that analytical comparison would be flawed, as you have to remember that this is only because of the “ridiculous result” prohibition. Trying to logically construe these various fruits into a unified class that would allow the definition to expand to encompass other things would produce a ridiculous result (example: you decide the common class relationship should be “things you use to make smoothies,” which would not be a naturally occurring and reasonable classification of any one or more of the kinds of fruit listed, right?). After all, using the smoothie example, you could, conceivably, decide to throw some actual vegetables into that smoothie mix as well, right? Vegetables are not naturally associated or recognized as a class of “fruit,” right? So, that example would produce a “ridiculous result,” right? But, we were able to reach a natural conclusive outcome between “natural person/individual” when these terms are being listed alongside only legal entities in a manner that did not culminate in a “ridiculous result,” right?  See, this is not something that is so difficult or contradicting after all.

Distinctions Without a Difference.

“Including” would work the same way as “includes” wherever it is used.

Now, be aware of the fact that the use of “includes” in this example would be considered an “enlargement,” because everything listed SHARES a natural trait in common. However, this “enlargement” presumes that the existing list is NOT already exhaustive of the things it lists. Which means that, in order to BE capable of “enlargement,” there MUST be something of the same natural relational class that is NOT specifically listed but IS applicable simply because it has the same naturally occurring class relationship.

Therefore, if the list IS exhaustive, meaning there is nothing that is not listed that could reasonably be construed to match the existing classification of the other items, THEN the list is actually incapable of “enlargement” and is, therefore, LIMITED by default to only those things expressly listed, even though all the statutory language necessary for authorizing the list to be “enlarged” actually exists.

An example of this would be something like:

“The term ‘Fruit’ includes red apples.”

Now, under this configuration, the definition of “Fruit” cannot be said to “include” any other color variations associated with apples, as it specifically limited what was to be “included” into the definition of “fruit” by two specific criteria for the class. The thing to be “included” must be an “apple,” and the only acceptable color allowing the “apple” to be considered as “fruit” is “red.” Therefore, by default, this definition specifically excludes by omission all green, orange, yellow, or other color variations normally associated with apples, even though they otherwise share 100% of all the other natural class qualities of apples that would otherwise make them appear to be reasonably “included” in this list. So, even though this definition used the term “includes,” which is to be considered a term of enlargement, not limitation, the list is not actually capable of being “enlarged” to encompass anything that does not meet the two specific criteria contained in the definition.

I would also add that when the legislature intends the definition to be non-expansive they will write, “The term ‘fruit’ means…” or “means and includes,” which then limits the definition to only those things expressly stated in the definition (full credit to my friend and media colleague Dave Champion, author of “Income Tax: Shattering the Myths,” for this clarification).

You must be aware of how these two terms work or you will never actually understand what a law or statute truly means and how it is lawfully and legally allowed to be interpreted and applied, which means that you will almost certainly lose your case, then possibly your money, your house, or your freedom.

4 thoughts on “The Lawful Use of “Includes” and “Including” Revisited…

  1. How about writing “including oranges, limes, and lemons but not excluding all other foods that humans ever eat (such as clay, leaves, bugs, newspapers, paste, monkey brains, pencil lead, gum). LOL.

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    • Such a definition would fall afoul of the “ambiguous and overbroad” rule. A definition worded in the way that you suggest would be trying to define the term “fruits” TWO DIFFERENT WAYS in the same definition, as a “fruit” and as a “food,” which it cannot do.

      Now, you COULD define “Food” separately, and have it INCLUDE “fruits,” but you can’t define both in one single definition instance without the definition being unclear as to what it is actually defining and what it includes or means.

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  2. Another great article. Very informative and well written, as I have come to expect after reading past articles. Much appreciated

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  3. Olmos Park chief of police (I call him and the rest of the officers *blank blank piece of blank gypsy fa – – – – -) released this statement:

    A message from CITY OF OLMOS PARK
    Olmos Park Police Alert: During the last week a group of individuals claiming to be gun activists were detained in the City of Olmos Park after officers received information a person in the group was carrying a rifle on his person. Olmos Park Police Officers quickly determined the intent of this group and all of the individuals in the group were released.

    It is challenging when people have rifles or other firearms slung over their bodies and we don’t know who is a law-abiding citizen or who is a criminal. Rest assured the Olmos Park Police Department will respond quickly, appropriately and follow the “Rule of Law”. Our main priority is your safety and the suppression of Crime, Fear & Disorder!
    Thank You for your continued support!
    Rene Valenciano
    Police Chief

    Like

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