Robert Charles Smith v. The State of Texas--Appeal from 26th District Court of Williamson County

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State: Texas

Court: Criminal Court of Appeals

Docket No: 03-10-00400-CR

Case Date: 08/20/2010

Plaintiff: Dean Cory Roblin

Defendant: Deborah Susan Briggs--Appeal from County Court at Law No 1 of Montgomery County

Preview:In the Interest of J.N.L., A Child--Appeal from 166th
Judicial District Court of Bexar County
DISSENTING OPINION
No. 04-04-00539-CV
IN THE MATTER OF J.N.L.
From the 166th Judicial District Court, Bexar County, Texas
Trial Court No. 1995-CI-04653
Honorable Michael P. Peden, Judge Presiding
Opinion by: Phylis J. Speedlin, Justice
Dissenting opinion by: Alma L. L pez, Chief Justice, joined by Catherine Stone, Justice
Sitting: Alma L. L pez, Chief Justice
Catherine Stone, Justice
Paul W. Green, Justice
Sarah B. Duncan, Justice
Karen Angelini, Justice
Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Delivered and Filed: December 8, 2004
While I applaud the majority's effort to assist the court reporter in this case, and am sympathetic that the court reporter
may have to produce a record without pay due to a possible omission by a third party, I do not believe Rule 2 should
be applied in this circumstance to enlarge the time limit for filing a contest to an affidavit of indigence. If this appeal
involved a criminal matter, I would be even more emphatic because the Texas Court of Criminal Appeals has
cautioned:
[W]e think it is clear that using Rule 2(b) to "suspend" or enlarge appellate time limits which regulate the orderly and
timely process of moving a case from trial to finality of conviction is overstepping the contemplated uses of Rule 2(b).
. . . Rule 2(b) is in essence an escape valve to be used by an appellate court when a case becomes unduly stalled or
delayed in the appellate process due to procedural rules, and the interests of justice compel speeding up the process;
although Rule 2(b) may be used to shorten the time limits when justice so requires, it should not be used as a method
to lengthen procedural time limits absent truly extraordinary circumstances, even in an effort to protect the substantive
rights of litigants.
Oldham v. State, 977 S.W.2d 354, 359-60 (Tex. Crim. App. 1998). As that court noted in an earlier case, "rule 2(b)
does not authorize the retroactive suspension of rules governing events that have already occurred at the trial level
before the record has been conveyed to the appellate court." State v. Garza, 931 S.W.2d 560, 563 (Tex. Crim. App.
1996). Because Oldham and Garza are decisions in criminal appeals and because the Texas Supreme Court has been
more liberal than the Texas Court of Criminal Appeals in its application of the appellate rules, I am comfortable that
we can disregard the problematic language in those decisions. Compare Verburgt v. Dorner, 959 S.W.2d 615, 617
(Tex. 1997) with Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996).
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In the civil context, however, appellate courts have similarly been unwilling to apply Rule 2 to expand either the trial
court's jurisdiction or the appellate court's jurisdiction. See Kacal v. Cohen, 13 S.W.3d 900, 901-02 (Tex. App.--Waco
2000, no pet.); Jauregui Partners, Ltd. v. Grubb & Ellis Commercial Real Estate Servs., 960 S.W.2d 334, 336-37 (Tex.
App. --Corpus Christi 1997, pet. denied). Although a few appellate courts have been willing to invoke Rule 2 to permit
a late filed affidavit of indigence to ensure that an appellant was provided a record on appeal, not all of the judges on
one of those courts were in agreement. See Gonzalez v. Gonzalez, No. 08-01-00453-CV, 2003 WL 1759587 (Tex.
App.--El Paso Apr. 3, 2003, no pet.) (not designated for publication); Wells v. Breton Mill Apts., 85 S.W.3d 823, 824
(Tex. App.--Amarillo 2001, no pet.); see also Gonzalez, 2003 WL 1759857, at *5-6 (McClure, J., dissenting).
Moreover, applying Rule 2 to ensure that the merits of an appeal are decided with a complete record is vastly different
than applying Rule 2 to ensure that a court reporter has the ability to contest an affidavit in an effort to be paid. While
in the former context, the application of Rule 2 arguably protects the substantive rights of the appellant by ensuring
that the appellate court has a sufficient record to review the merits of the appeal, applying Rule 2 in the latter context
only serves the financial motive of a non-party. Although the Texas Supreme Court has instructed us to construe the
Rules of Appellate Procedure reasonably, yet liberally, this instruction was in furtherance of the policy of disposing of
appeals on their merits. See Verburgt, 959 S.W.2d at 616-17.
Applying Rule 2 in this case does not expedite our decision, and I disagree that "good cause" has been shown for
suspending Rule 20 in these circumstances. The Texas Supreme Court established time limits in Rule 20 for a reason,
and I do not believe Rule 2 should be invoked to suspend its operation in this appeal. Accordingly, I respectfully
dissent.
Alma L. L pez, Chief Justice
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