State v. Rosenbaum
| Decision Date | 30 October 1991 |
| Docket Number | No. 1005-90,1005-90 |
| Citation | 818 S.W.2d 398 |
| Parties | The STATE of Texas, Appellant, v. Billy ROSENBAUM, Appellee. |
| Court | Texas Court of Criminal Appeals |
Jim W. James, Sp. Prosecutor, Bryan, for appellant.
Dick DeGuerin, Houston, Robert Huttash, State's Atty., Austin, for the State, for appellee.
Before the court en banc.
OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW
This petition involves the State's appeal from an order quashing allegations of materiality in a perjury indictment pursuant to Art. 44.01(d), V.A.C.C.P. In its findings of fact and conclusions of law, the trial court 1 found no materiality in the alleged perjurious statements. The State then filed an appeal with the Fourteenth Court of Appeals. Art. 44.01(a)(1), V.A.C.C.P. 2 The court of appeals dismissed the State's appeal in an unpublished opinion. State v. Rosenbaum (Tex.App.--Houston [14th] No. A14-90-00616-CR, delivered Aug. 23, 1990). The court reasoned that the notice of appeal was untimely filed based upon the 15-day time limits set forth in Art. 44.01(d) and TEX.R.APP.PROC. 41(b)(1); therefore, it had no jurisdiction to hear the appeal. This Court granted the State's petition based on its sole ground for review, that "the Court of Appeals erred in holding that notice of appeal was untimely." The State requests this Court to order the court of appeals to reverse the untimely dismissal and address the merits of this case. On the basis of the facts of this case, we will reverse the judgment of the court of appeals.
We borrow liberally from the State's petition for a recitation of the facts in the instant case. The defendant, Sheriff of Washington County, was indicted for aggravated perjury. 3 Upon defendant's motion, the trial court dismissed that portion of the indictment alleging that the misstatement was material. 4 Visiting District Judge Larry Gist signed the trial court order quashing a portion of the indictment on June 28, 1990. The record reflects that the order signed by Judge Gist contains the following language, In closing, the order states, "Signed and entered June 28, 1990." The judge's signature appears below this statement. Judge Gist then sent the signed order with a cover letter to the District Clerk of Washington County. The letter, dated June 28, 1990, stated, 5 (emphasis added). The State filed a notice of appeal on July 16, 1990.
Article 44.01(d), V.A.C.C.P., provides:
(d) The prosecuting attorney may not make an appeal under Subsection (a) or (b) of this article later than the 15th day after the date on which the order, ruling, or sentence to be appealed is entered by the court. (emphasis added).
Rule 41(b)(1), TEX.R.APP.PROC., provides:
(1) Time to Perfect Appeal. Appeal is perfected when notice of appeal is filed within thirty (fifteen by the state ) days after the day sentence is imposed or suspended in open court or the day an appealable order is signed by the trial judge; ... (emphasis added).
The court of appeals held that the computation date ran from the date of the judge's signature, reasoning that the order was effective from the date of signing, in accordance with TEX.R.APP.PROC. 41(b)(1). The court dismissed the State's appeal as untimely filed, stating it lacked proper jurisdiction to rule on the merits. Because the merits of the State's appeal before the court of appeals are not relevant and therefore not dispositive of our decision in the instant case, we will address only the jurisdictional issue as it relates to the State's timely filing of notice of appeal.
The thrust of the State's argument is that Judge Gist correctly followed the provisions of Art. 44.01(d), V.A.C.C.P., which starts the appellate timeclock from the date of entry by the court. In addition, the State relies on the contents of the letter from Judge Gist directing the District Clerk to "file this order of record" on July 2. 6 The State further contends that because the specific language of the order states that it was to be "entered of record" on July 2, and would "become final 15 days thereafter," the judge's specific intent was to follow the guidelines set out in Art. 44.01(d). Although the judge's intention here was apparently to hold entry of the order until July 2, his own writings to that effect are unclear.
Appellee counters in his brief that the trial judge "signed and entered the Order on June 28, 1990." (emphasis supplied). Appellee also relies on the judge's letter to the clerk, "Enclosed is an order signed and entered," in addition to the following language of the order, "signed and entered June 28," to show the appellate timetable began June 28th. Generally, we look to the interpretation of the language used in the relevant statutes, to-wit: Art. 44.01(d) which uses the date entered by the court, and TEX.R.APP.P. 41(b)(1), the date signed, to see which controls.
Without elaboration, the court of appeals ruled that TEX.R.APP.PROC. 41(b)(1) controls the instant case, implicating a conflict between the two provisions. Several rules of statutory interpretation are applicable to our analysis. We first attempt to harmonize statutory provisions containing apparent conflicts, so as to give effect to each. See TEX.GOV'T CODE ANN. § 311.025(b) (); and § 311.026(a) (). In so doing, we will attempt to determine the legislative intent 7 in the enactment of 44.01(d), and then examine the relationship between 44.01(d) and Rule 41(b)(1) (amended 1989).
A close scrutiny of the language of 44.01(d) as compared with Rule 41(b)(1) invites a harmonizing interpretation. A basic tenet of statutory construction urges the interpretation of words and phrases in context, according to the rules of grammar and common usage. TEX.GOV'T CODE ANN. § 311.011(a). An exception to this rule exists where words and phrases have acquired a technical meaning, and they are to be construed accordingly. TEX.GOV'T CODE ANN. § 311.011(b). We are also guided by the interpretative instruction of Art. 3.01, V.A.C.C.P., to-wit: "All words, phrases and terms used in this Code are to be taken and understood in their usual acceptation in common language, except where specially defined."
We are cognizant that this Court has long held that the signing of a judgment, ruling, or order is a function of the court separate and distinct from the entry of said judgment, ruling, or order into the records of the court. 8 However, this Court has not previously been confronted with the interpretation of the phrase "entry by the court" as it is used in Art. 44.01(d). Thus, we deal now with a question of first impression, to-wit: the interpretation of Art. 44.01(d) in limiting the State's appeal to 15 days "after the date on which the order, ruling, or sentence to be appealed is entered by the court." (emphasis added). Our focus therefore shifts from the meaning of "entry" or "entered" as it is used in reference to the duties of the clerk to its meaning in relation to action taken by "the court."
It is clear from our past decisions that the term "enter" has acquired a technical meaning when used in the context of entry of an order into the minutes of the court (see footnote 8). However, it has also come to commonly mean the act of rendering by a judge or justice. See Joachim v. Chambers, 815 S.W.2d 234 (Tex.1991) (Gonzalez, J., dissenting). In common usage and practice, the term "court" has been defined as a governmental department organized to administer justice, and is inclusive of both judge and jury. See BLACK'S LAW DICTIONARY 425 (4th ed.1968), citing Houston Belt & Terminal Ry. Co. v. Lynch, 221 S.W. 959 (Tex.Comm'n.App., 1920, holding approved). The words "court" and "judge" are frequently used in statutes interchangeably. Black's at 425. Further, when these terms are used in reference to orders made by the court or judge they are to be interpreted synonymously. Id., and cases cited therein. 9
Indeed, the date of actual entry into the court's record should be irrelevant vis-a-vis appeals by the State under Art. 44.01(d). Entry into the records of the court is merely ministerial in nature. Wilson, 677 S.W.2d at 522. As a practical matter, a judge may never really know when a signed order, judgment, or ruling is physically entered into the record. There are no consistent deadlines for clerical entry into the record in the courts throughout Texas. To rule that an appeal must be made within a certain time period following entry into the record would serve a gross injustice to all litigants because none would be following the same timetable.
Finally, it is clear from the language of 44.01 that the legislature intended this statute to facilitate judicial economy. Section (f) states "The court of appeals shall give precedence in its docket to an appeal filed under Subsection (a) or (b) of this article." 10 Sections (a) and (b) define the specific situations under which the State may file an appeal. Following this rationale, if the State is allowed to file certain interlocutory appeals from pre-trial orders, the trial process will be significantly expedited by prompt disposition of such appeals. Since an order will always be "entered" by a judge before it is "entered" by a clerk, the first such entry is preferable for purposes of dispatch.
Taking into account both the terms "entered" and "court" in the phrase "entered by the court" in Art. 44.01(d), our reading of this phrase in the context of the statute as a whole leads to an interpretation that in this case the term "entered by the...
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