Texas Rule of Appellate Procedure 4.6 Did Not Go into Force Friday, September 1, 2017

In the last issue of the Texas Bar Journal-- August 2017, the Texas Supreme Court and the Texas Court of Criminal Appeals, promulgated Texas Rule of Appellate Procedure 4.6 as a rule that would go into effect last Friday, Sept. 1, 2017. The weekend's new September 2017 issue withdraws those notices so that there can be more public comment (I bet the prosecutors didn't like one or more things about it.).

Here is the proposed new T.R.A.P. 4.6.
No Notice of Trial Court’s Order on Motion for Forensic DNA Testing
     (a) Additional Time to File Notice of Appeal. Notwithstanding Rules 26.2 and 26.3, a defendant may move for additional time to file a notice of appeal under Code of Criminal Procedure chapter 64 (Motion for Forensic DNA Testing) if the defendant neither received notice nor acquired actual knowledge that the trial judge signed an appealable order before the time for filing a notice of appeal had expired.
     (b) Contents of Motion for Additional Time. The motion must be in writing and sworn, state the earliest date when the defendant first received notice or acquired actual knowledge that the appealable order had been signed, and comply with Rule 10.5(b)(2).
     (c) When and Where to File.
          (1) The motion must be filed within 30 days of the date upon which the defendant first received notice or acquired actual knowledge of the trial court’s signing of the appealable order. But in no event may the motion be filed more than120 days after the date the appealable order was signed.
          (2) The motion must be filed in the proper court of appeals.
     (d) Order of the Court. The court of appeals must grant a motion for additional time if it finds that the defendant neither received notice nor acquired actual knowledge of the trial judge’s signing of an appealable order before the time for filing a notice of appeal had expired and that the defendant timely filed the motion for additional time. The time for filing the document will begin to run on the date when the court grants the motion.

All the Time in the World to Claim this Error

Many's the post in this blog that has emphasized the importance of preserving error before you can get it reversed in an appeals court. Texas Rule of Appellate Procedure 33. That is, generally, you must clearly inform the trial judge as to what your complaint is in time for the judge to correct the error. And if you do not do so, you cannot complain of the error on appeal. There is one huge exception to this rule, and that is a complaint that a court lacks subject-matter jurisdiction. We've already discussed the importance of making sure that the court you want to appeal to has subject-matter jurisdiction of your case. , a complaint you can make at any time up to the mandate's becoming final--even then, a habeas corpus writ complaining of it would likely prevail. The same principle applies to if it the trial court that lacked jurisdiction.

There is a story about this point of law. I believe it to be apocryphal.

 As a general rule, the people who have been arrested in the last 24 hours are brought before a judge, usually called a magistrate,

• One job of the magistrate is to listen to one or more prosecutors explain why the State believes the accused probably committed an offence and what offence the State believes it is. This is practically always a pure formality. An arresting officer gets approval to arrest and a designated charge from talking with a prosecutor from the scene of the arrest over radiophone.
• The magistrate also reads the accused his or her rights again.
• Magistrate sets bond or makes a finding that no bond will be set.
• Magistrate asks the accused if he or she claims to be indigent, and, if so, sets up the process for the accused to be interviewed to determine whether or not the accused is eligible for counsel to be appointed at no charge to the accused.

The accused who show up are often a motley crew, often in clothes not washed in days, many of them still drunk from the night before, many marked with the wounds of barroom battles or forceful arrests. And on this particular morning, there are one particularly, loud, obstreperous drunken man. He wouldn't follow the deputies' directions, and he yelled during other peoples' proceedings, and he started scuffles with the other accused people. Finally, the judge,whose main duties involved holding traffic court,  had had enough. He had the bailiffs bring this guy in front of the bench, where, upon hearing of what the man had done the night before--being publically intoxicated somewhere-- the judge pronounced upon him the death penalty, which subdued the fellow, head still spinning from a night of Thunderbird wine.

This is a joke. The trial judge would not have pursued the punishment he pronounced. But the lawyer for the anti-social Thunderbird person's complaint that the court did not have subject-matter jurisdiction for the judgment, could never be held to be too late as long as the accused was still alive.