Big Changes to the Texas Rules of Appellate Procedure

On April 14th, 2011, the Judges of the Texas Court of Criminal Appeals signed an order amending the Texas Rules of Appellate Procedure. These changes were published in the May 2011 issue of the Texas Bar Journal, and comments from the public were accepted until June 30, 2011. The Rules discussed below are those approved after expiration of the public commentary period, and are therefore the final version. The biggest change, spurring most of the revisions to the Rules, is the requirement that a Petition for Discretionary Review must now be filed in the Court of Criminal Appeals instead of the Courts of Appeals. These changes are currently posted to the Court’s website and were ordered published in the Texas Bar Journal. They will become effective September 1, 2011.

1. Rule 50. Reconsideration on Petition for Discretionary Review: deleted in its entirety.

Rule 50 allowed a Court of Appeals, upon receipt of a Petition for Discretionary Review (“PDR”), to “reconsider and correct or modify the court’s opinion or judgment.” If the original opinion is corrected or modified, the Court would withdraw said opinion and issue a new one. According to the commentary the rule was deleted because a motion for rehearing serves the same purpose.

Rule 50 gave an appellate court one more chance to modify its decision or issue a new opinion upon the filing of a PDR. The court did not lose jurisdiction after a PDR was filed; rather, the court had 60 days after the filing, but no more, to issue a modified opinion. State v. Riewe, 13 S.W.3d 408 (Tex. Crim. App. 2000). See also Garza v. State, 896 S.W.2d 192, 194 (Tex. Crim. App. 1995) (construing former Rule 101). A party could then file a new PDR from the modified judgment, but the old one was not dismissed by operation of law unless a party did file a new one. In the latter situation the new opinion was attached as an appendix to the PDR. The court of appeals could not issue another opinion, however, upon filing of a new PDR. Now, presumably, the court loses jurisdiction after a PDR is filed, except for staying or recalling the mandate, or other such routine matters.

2. Rule 68.2, entitled “Time to File Petition,” is amended as follows:

First Petition. The petition must be filed within 30 days after either the day the court of appeals’ judgment was rendered or the day the last timely motion for rehearing or timely motion for en banc reconsideration was overruled by the court of appeals.

The commentary states: “The amendment to Rule 68.2 resolves timely filing questions concerning motions for en banc reconsideration by including those motions in calculating time to file.”

This amendment is a long-needed change, and involves the interplay of two other appellate rules: Rules 49.1 and 49.7. Previously, the filing of a motion for reconsideration en banc pursuant to Rule 49.7 was not counted towards the time to file a PDR. If the appellant filed an en banc motion, it did not matter when the court of appeals ruled on it, or whether it ruled at all. The only motion that mattered was a “regular” panel motion for rehearing filed pursuant to Rule 49.1. The appealing party was required to file the PDR within 30 days after the “regular” motion for rehearing was overruled by the court of appeals. Rule 49.7 became a trap for the unwary party who waited to file a PDR until 30 days after his motion for reconsideration en banc was ruled on, only to have his PDR dismissed as untimely filed. Franks v. State, 97 S.W.3d 584 (Tex.Crim.App. 2003) (Cochran, J., concurring)(only an explicit reference to Rule 49.1 will toll the time for filing a PDR); Ex parte Sierra, 122 S.W.3d 202 (Tex. Crim. App. 2003) (Johnson, J. concurring) (same). Now both motions will toll the time. The Court is to be commended for clarifying these rules and eliminating this unnecessary and unfair trap.

3. Rule 68.3. Where to File the Petition. In the Court of Criminal Appeals

This amendment is a major change and should be a welcome one. Interestingly, it was not included in the original version of these amendments, but was perhaps an afterthought by the Court or a suggestion by a member of the public because of the deletion of Rule 50. Whatever the reason, parties are now required to file their PDRs in the Court of Criminal Appeals instead of the appellate court that issued the decision. Now that Rule 50 no longer exists, and courts of appeal may no longer modify their judgments after filing of a PDR, there is no logical reason to keep the filing requirement in the appellate courts.

The Rule also, with the addition of Subsection (b), now prevents a PDR erroneously filed in the Court of Appeals from being dismissed as untimely.

(a) The petition and all copies of the petition must be filed with the clerk of the court of appeals, but if the State’s Prosecuting Attorney files a petition, the State’s Prosecuting Attorney may file the copies of the petition—but not the original—with the clerk of the Court of Criminal Appeals instead of with the court of appeals clerk.

b. Petition Filed in Court of Appeals. If a petition is mistakenly filed in the court of appeals, the petition is deemed to have been filed the same day with the clerk of the Court of Criminal Appeals, and the court of appeals clerk must immediately send the petition to the clerk of the Court of Criminal Appeals.

The Court of Criminal Appeals ends up summarily dismissing PDRs because of untimeliness. A number of these filings are no doubt done by pro se litigants, or by lawyers who don’t generally practice appellate law and are unfamiliar with the Rules. This change is self-explanatory, with the new requirement of filing the PDR in the high court. As the commentary states, subsection (b)’s purpose is “to address and prevent the untimely filing of petitions for discretionary review that are incorrectly filed in the court of appeals rather than in the Court of Criminal Appeals.”

4. Rule 68.7. Court of Appeals Clerk’s Duties

The appellate court clerk now has no duty, aside from sending the record and other necessary documents to the high court when a PDR is filed. The Rule is substantially amended to conform to this new filing requirement:

(a) On Filing of the Petition. Upon receiving the petition, the court of appeals clerk must file the original petition and note the filing on the docket.

(b) Reply. The opposing party has 30 days after the timely filing of the petition in the court of appeals to file a reply to the petition with the clerk of the court of appeals. Upon receiving a reply to the petition, the clerk for the court of appeals must file the reply and note the filing on the docket.

(c) Sending Petition and Reply to Court of Criminal Appeals.
Unless a petition for discretionary review is dismissed under Rule 50, Within 15 days of receiving notice of the filing of petition for discretionary review from the clerk of the Court of Criminal Appeals, the clerk of the court of appeals must, within 60 days after the petition is filed, send to the clerk of the Court of Criminal Appeals the petition and any copies furnished by counsel, together with the record, copies of the any motions filed in the case, and copies of any judgments, opinions, and orders of the court of appeals. The clerk need not forward any nondocumentary exhibits unless ordered to do so by the Court of Criminal Appeals.

The original version of this amendment only deleted the reference to Rule 50, as noted in the commentary: “Rule 68.7 is amended to delete reference to Rule 50, which is abolished.” However, after the public commentary period, Subsections (a) and (b) were deleted as well.

5. Rule 68.8. Court of Criminal Appeals Clerk’s Duties on Receipt of Petition.

Here is another rule that was amended in response to the change in filing requirements.

Upon receipt of the record from the court of appeals, the clerk of the Court of Criminal Appeals will file the record and enter the filing on the docket. The clerk of the Court of Criminal Appeals will receive a petition for discretionary review, file the petition and the accompanying record from the court of appeals, note the filing of the petition and record on the docket, and notify the parties by U.S. Mail of the filing. The Court may dispense with notice and grant or refuse the petition immediately upon its filing.

As the commentary notes: “Rule 68.8 is amended to reflect changes consistent with filing the petition in the Court of Criminal Appeals.”

6. Rule 68.9. Reply.

This is a new Rule added “so that any reply will be filed in the Court of Criminal Appeals since the petition is also filed in the Court of Criminal Appeals” (quoting the commentary).

The opposing party has 15 days after the timely filing of the petition in the Court of Criminal Appeals to file a reply to the petition with the clerk of the Court of Crim­inal Appeals.

7. Rule 68.10. Amendment.

This Rule has also been substantially amended to conform with the new filing rule:

Upon motion Tthe petition or a reply may be amended or supplemented within 30 days after the original petition was filed in the court of appeals or at any time when justice requires. The record may be amended in the Court of Criminal Appeals under the same circumstances and in the same manner as in the court of appeals.

The commentary says: “This rule is changed to reflect the filing of the petition and any reply in the Court of Criminal Appeals. Thus, the rule is also changed to require a motion and to delete a time frame because the petition will be filed in the Court of Criminal Appeals.”

8. Rule 68.11. Service on the State Prosecuting Attorney.

This Rule, requiring service of a PDR, a reply, and any amendment or supplementation of a petition or reply, on the State Prosecuting Attorney (“SPA”), is simply amended to delete the address of the SPA, as the address “has changed and may change again.” (quoting the commentary)

Note: the SPA’s current address is P.O. Box 13046, Capitol Station, Austin, Texas 78711. Presumably, future changes to contact information will be posted on the SPA’s website: http://www.spa.state.tx.us/

9. Rule 79.2. Contents.

The Court has amended subsection (c) as follows:

(c) A motion for rehearing an order that refuses or dismisses a petition for discretionary review may be grounded only on substantial intervening circumstances or on other significant circumstances which are specified in the motion. Counsel must certify that the motion is so grounded and that the motion is made in good faith and not for delay.

Commentary: “Rule 79.2(c) is amended so that it applies only to petitions for discretionary review that are refused. Additionally, the certification requirement is changed to encompass a broader basis for rehearing.”

This Rule has been in existence for a long time and requires the movant to certify that his motion was grounded on intervening circumstances, which usually meant a new decision by another appellate court, the Court of Criminal Appeals, or the U.S. Supreme Court was handed down after the time the PDR was filed, and somehow impacted the law, requiring the PDR to be reconsidered. Or perhaps a statute changed, or another PDR was granted on the same or similar issue. The Rule now precludes the filing of a motion for rehearing after the petition has been disposed of in a way other than refusal.

The Rule also changes the requirement that the circumstances for rehearing be intervening—that is, after the PDR was filed but before it was refused. What those are is anybody’s guess. The commentary refers to this change as encompassing “a broader basis for rehearing.” Perhaps if a statutory amendment became effective or a significant case was issued after the PDR was refused, those would constitute other significant circumstances. Of course, they would need to occur within 15 days after the PDR was refused, or the motion would be untimely. Rule 79.1. These motions are rarely granted, so this change will probably have little impact.

Miscellaneous Form 11-004: Affidavit Required in Habeas Corpus Proceedings.

The Court has made a new form to be used in habeas corpus applications, which are required to be verified by either the inmate, a non-lawyer filing the writ on the inmate’s behalf, or a lawyer filing on behalf of his client. The inmate is the “Applicant.” All others filing on an inmate’s behalf are designated “Petitioner.” On its website, the Court explains this form is Miscellaneous Rule 11-004, which is to be included with the form for filing a post-conviction writ pursuant to Tex.Code Crim. Proc. 11.07 §2, and notes it supersedes Miscellaneous Rule 11-002. Download this form from the Court’s website.

 

VERIFICATION

This application must be verified or it will be dismissed for non-compliance. For verification purposes, an applicant is a person filing the application on his or her own behalf. A petitioner is a person filing the application on behalf of an applicant, for example, an applicant’s attorney. An inmate is a person who is in custody.

The inmate applicant must sign either the “Oath Before a Notary Public” before a notary public or the “Inmate’s Declaration” without a notary public. If the inmate is represented by a licensed attorney, the attorney may sign the “Oath Before a Notary Public” as petitioner and then complete “Petitioner’s Information.” A non-inmate applicant must sign the “Oath Before a Notary Public” before a notary public unless he is represented by a licensed attorney, in which case the attorney may sign the verification as petitioner.

A non-inmate non-attorney petitioner must sign the “Oath Before a Notary Public” before a notary public and must also complete “Petitioner’s Information.” An inmate petitioner must sign either the “Oath Before a Notary Public” before a notary public or the “Inmate’s Declaration” without a notary public and must also complete the appropriate “Petitioner’s Information.”

OATH BEFORE A NOTARY PUBLIC

STATE OF TEXAS

COUNTY OF _______________

________________________________, being duly sworn, under oath says: “I am the applicant / petitioner (circle one) in this action and know the contents of the above application for a writ of habeas corpus and, according to my belief, the facts stated in the application are true.”

_________________________________

Signature of Applicant / Petitioner (circle one)

SUBSCRIBED AND SWORN TO BEFORE ME THIS _____ DAY OF __________, 20__.

_________________________________

Signature of Notary Public

PETITIONER’S INFORMATION

Petitioner’s printed name: __________________________________

State bar number, if applicable: ______________

Address: _____________________________

_____________________________

_____________________________

Telephone: ___________________________

Fax: ________________________

 

 

INMATE’S DECLARATION

I, ______________________________________, am the applicant / petitioner (circle one) and being presently incarcerated in _______________________________, declare under penalty of perjury that, according to my belief, the facts stated in the above application are true and correct.

Signed on ____________________, 20_____.

_______________________________________

Signature of Applicant / Petitioner (circle one)

PETITIONER’S INFORMATION

Petitioner’s printed name: __________________________________

Address: _____________________________

_____________________________

_____________________________

Telephone: ___________________________

Fax: ________________________

Signed on ____________________, 20_____.

_______________________________________

Signature of Petitioner

TCDLA
TCDLA
Cynthia L. Hampton
Cynthia L. Hampton
Cynthia L. Hampton practices appellate law in Austin. She formerly served as the Assistant Executive Director and General Counsel for TCDLA, where she authored the Appellate Manual, Code Books, and either co-authored or edited the Association’s other publications. A native Austinite, she graduated from the University of Texas at Austin and St. Mary’s University School of Law in San Antonio. She has been Board Certified in Criminal Law by the Texas Board of Legal Specialization since 1994. Notable published decisions include In Re Bowen, __S.W.3d__ (Tex.Crim.App. Nos. AP-76,519-20, 6/15/11), Dyar v. State, 125 S.W.3d 460 (Tex.Crim.App. 2003), and Tucker v. State, 990 S.W.2d 261 (Tex.Crim.App. 1999).

Cynthia L. Hampton practices appellate law in Austin. She formerly served as the Assistant Executive Director and General Counsel for TCDLA, where she authored the Appellate Manual, Code Books, and either co-authored or edited the Association’s other publications. A native Austinite, she graduated from the University of Texas at Austin and St. Mary’s University School of Law in San Antonio. She has been Board Certified in Criminal Law by the Texas Board of Legal Specialization since 1994. Notable published decisions include In Re Bowen, __S.W.3d__ (Tex.Crim.App. Nos. AP-76,519-20, 6/15/11), Dyar v. State, 125 S.W.3d 460 (Tex.Crim.App. 2003), and Tucker v. State, 990 S.W.2d 261 (Tex.Crim.App. 1999).

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