I had occasion again recently to look at how long the State has to perfect appeal. I recalled that the TDCAA Legislative Update informed that the Leg. had changed the rule to give the State 20 days instead of the previous 15 day limit. I looked that up, and it seems to be true. See TCCP 44.01(d). But it seems to me that the TRAP
26.2(b) still says that the State only has 15 days. This looks like a conflict to me. Has anyone else noticed it? Am I wrong to see a conflict here? If so, is there anything being done to resolve it?

would rule 2 eliminate any conflict?

Kevin,

Since the Court itself drafted the rules, the extra days were added years after the original rules were drafted (so we can presume the application of the new rule), and the Court will surely address any question about the application of the five day extension, is there any real need to be concerned? The CCP trumps the TRAP too! See TRE 101(c). We get five more days.

I admit though it would be nice if things were conformed and cleaned up.

JAS

[This message was edited by JAS on 10-11-07 at .]

Oldham 977//354, it seems to me, cautions against relying on Rule 2 in a time limit for notice of appeal context.

I just think it is unfortunate. Since the Legislature seems to have wanted to give us 5 more days, I agree that we should have 5 more days. But, until the discrepancy is cleared up, will anyone actually feel comfortable taking them? It's just an issue waiting to get in the way of a perfectly good State's appeal. I hope that a fix is on the way. Who is on the rules committee?

I don't think it would be rash to rely on the 20 days. TRE 101 should prevail. I agree any reliance on TRAP 2 is dangerous ground. I do wonder, though, why we got just five more days--why not ten or fifteen?

JAS

[This message was edited by JAS on 10-11-07 at .]

John,

In my experience, when there has been a conflict between a statute and a rule of evidence, the courts have undertaken to "harmonize" the two. I guess, I'm just gun shy a little from my prior exprience with the various courts' sense of harmony. Many times, I seem hear different music. It sure would sting to rely on the statue only to have the courts sing a different tune.

section 22.108 of the government code says of the rules of appellate procedure in criminal cases, "The rules and amendments to rules remain in effect unless and until disapproved, modified, or changed by the legislature."

[This message was edited by David Newell on 10-11-07 at .]

Kevin, you got the CCA to write a new rule in the middle of an opinion in Cullen. Why don't you just write 'em a letter and ask them to amend Rule 26.2(b). I'm sure, coming from you, it would get done right away. I think they may be considering some other changes, 'cause I know David Curl was sending them a good idea.

John,

What are you saying? Has David Curl already brought this up? Did I miss something?

I passed along your observation today to Chuck Mallin -- he's on the Rules Committee.

No, David had another good idea he was working on, but looks like he sent this good idea to Chuck. My main point was that you got the so excited that they used their rulemaking power in the middle of a case, so I think you must have a hotline or something.

Of course I'm in favor for more time for the State to file its NOA (why can't we have 30 days too?), but is five days so important? We can always withdraw a notice of appeal, so where for some reason we cannot fully appraise the matter at issue within 15 days simply file NOA within 15 days and withdraw it if facts latter reveal the inadvisability of appealing. Maybe I have been lucky and never had a situation where I could not timely get my elected's approval/signature. I would prefer not to file a NOA and then withdraw, but if I recall correctly, the two times I have done it 20 or even 30 days would not have helped.

JAS

being able to sign the notice yourself would be nice, though i can see where it would cause problems.

I was present at a legislative committee hearing this past session where some prosecutors spoke in favor of a bill to change the time period from 15 to 30 days. Before the bill was passed by the legislature, it got amended down to 20 days.

John, in the first State's appeal I ever attempted, the extra time would have made a difference. We did not get notice of when the order quashing the State's indictment had been entered until several days (e.g. more than 15 but less than 20 days) later.

It may not prove useful all the time, but in that case we had to start the indictment process all over again. Of course, ultimately the court upheld a similar order as to the new indictment, so it made no real difference.

One idea might be to run the time from when the State gets notice of an order rather than when it is signed. It is not uncommon for opposing counsel to get an order signed without our knowledge. I have had two cases where more time would have been helpful because my electeds were out of town.

Ken,

Thanks for the legis. history. That provides perspective. I guess the defense bar was vigorously opposed to any addtional time.

JAS

As Ken said, the original bill's language would have given the state 30 days, not 20. For more information about the bill, it's (frustrating) history, or future changes, contact Mike Elliott in Ft. Bend County -- he's the one who pushed the bill through this session.