Benny Joe Palomo v. State

Opinion

NO. 07-08-0051-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

MAY 28, 2008

______________________________

BENNY JOE PALOMO,

                                                                                                 Appellant

v.

THE STATE OF TEXAS,

                                                                                                 Appellee

_________________________________

FROM THE COUNTY COURT AT LAW NO. 1 OF RANDALL COUNTY;

NO. 2006-1390-L; HON. RONNIE WALKER, PRESIDING

_______________________________

Memorandum Opinion

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

            Pending before the court is the appeal of Benny Joe Palomo. The clerk’s record was filed on January 21, 2008, and a supplemental clerk’s record on March 19, 2008. Contained therein is the Trial Court’s Certification of Defendant’s Right of Appeal, which was executed on February 12, 2008, after amendments to Rule 25.2(d) of the Texas Rules of Appellate Procedure became effective on September 1, 2007. The form on file does not comply with the amendments to the rule, which now require that a defendant sign the certification and receive a copy. Additionally, the new form provides certain admonishments to a defendant not previously required.

           Procedural rules generally control litigation from their effective date. Wilson v. State, 473 S.W.2d 532, 535 (Tex.Crim.App. 1971). Consequently, we abate this appeal and remand this cause to the trial court for further proceedings. Upon remand, the trial court shall utilize whatever means necessary to determine if appellant desires to continue the appeal and, if so, secure a proper Certification of Defendant’s Right of Appeal in compliance with Rule 25.2(d). Once properly completed and executed, the certification shall be included in a supplemental clerk’s record. See Tex. R. App. P. 34.5(c)(2). The trial court shall cause this supplemental clerk's record to be filed with the Clerk of this Court by June 27, 2008. This order constitutes notice to all parties, pursuant to Rule 37.1 of the Texas Rules of Appellate Procedure, of the defective certification. If a supplemental clerk’s record containing a proper certification is not filed in accordance with this order, this matter will be referred to the Court for dismissal. See Tex. R. App. P. 25.2(d).

           It is so ordered.

 

                                                                      Per Curiam

Do not publish.

>Id. Furthermore, the record illustrates that she sent the instrument to the Hockley County District Clerk via first class, properly stamped mail and the mailing was deposited with the post office on August 29, 2003, or two days before September 1st. No one disputes that the item was properly addressed to the proper clerk or that the postage was sufficient. Nor does anyone question that the district clerk received the document on September 2, 2003, a date well within the ten days prescribed by Rule 5. Given these circumstances, we hold that Hutchins complied with Rule 5 and, therefore, her suit was filed before the date by which it had to be filed to avoid the modifications of HB 4.

The Hospital would have us hold otherwise for several reasons. Through the first, it posits that interpreting Rule 5 as we do results in an amendment to the terms of the house bill. In other words, by applying Rule 5 in the manner we do, we have delayed implementation of the legislature's decree that the Act take effect on September 1^st. The conclusion is wrong. Admittedly, the Texas Supreme Court cannot implement a rule of procedure that conflicts with a statutory edict. Tex. Gov't Code Ann. §22.04 (c) (Vernon 2004). Yet, the situation before us is much like that before the Supreme Court in Warner. There, question arose as to when a petition of an inmate was deemed filed. The court held, through the application of Rule 5, that it was filed when placed in the prison's mail system. Warner v. Glass, 135 S.W.3d at 684. Previously thereto, it had been argued that such an application of Rule 5 would effectively modify, and violate, the terms of the Inmate Litigation Act. See Tex. Civ. Prac. & Rem. Code Ann. §14.04 (Vernon 2002) (stating that the Act cannot be modified or repealed by a rule adopted by the Supreme Court). This proposition was rejected, however. The court noted that while the Inmate Litigation Act utilized the word "filing," it was "silent on when a claim [was] deemed filed." Warner v. Glass, 135 S.W.2d at 684. Rule 5 merely filled the void; it did not modify the Act. Id. The same is no less true here. While HB 4 speaks of a claim being filed by a certain day, it does not define when the claim is deemed filed. So, like the situation in Warner, we can turn to Rule 5 to determine that.

Next, the Hospital also suggests that Rule 5 contemplates the existence of a filing deadline, and HB 4 establishes no such deadline. It is true that some courts have held that a filing deadline must be involved before Rule 5 can apply. See e.g. In re Hearn, No. 04-03-00949-CV, slip. op., 2004 Tex. App. Lexis 3514 at 9 n.5 (Tex. App.-San Antonio, April 21, 2004, no pet. h.) (holding that Rule 5 does not deem a motion filed on the date it was placed in the mail when no filing deadline is involved); Smith v. Texas Dept. of Criminal Justice, 33 S.W.3d 338, 341 (Tex. App.-Texarkana 2000, pet. denied) (holding that the mailbox rule does not enlarge the time in which an inmate has to file a written order issued in a grievance proceeding when the statute did not contain a filing deadline). Yet, we can only wonder how a directive by the legislature declaring that if a suit is filed on X date then one set of laws apply, but if filed on Y date, then another set applies is not a deadline. See Whitworth v. Blumenthal, 59 S.W.2d 393, 398 (Tex. App.-Dallas 2001, no pet.) (stating that a filing deadline is "a date or time before which something must be done"). This is especially true when the new law affects the cause of action and the extent of one's recovery. See Act of June 2, 2003, 78^th Leg., R.S., ch. 204, §10.01, 2003 Tex. Gen. Laws 873-75 (limiting the amount of non-economic damages that can be recovered). Undoubtedly, plaintiffs seeking the greater relief afforded by the old law had to act before a specific date to obtain them. And, because they had to so act, the effective date of the statute created nothing short of a deadline. So, contrary to the Hospital's suggestion, the bill did impose "substantive limitation[s]" upon the cause of action depending upon when the suit was filed.

We also reject the notion that because Hutchins could have still pursued a negligence cause of action after September 1^st, though in a limited form, HB 4 could not be said to have imposed a filing deadline. Nothing in Rule 5 says that the party invoking its terms must face the risk of losing his entire claim before it can apply. Indeed, the rule can be used in many situations wherein the failure to act by a certain date has an effect short of vitiating a particular claim. For instance, Rule 5 would certainly apply to filing a response to a partial summary judgment. Yet, failing to comply with the seven-day period, Tex. R. Civ. P. 166a (c), does not necessarily mean that the non-movant risks losing his entire claim if the motion is granted. Again, the movant may have only sought partial relief. Moreover, to read the limitation suggested by the Hospital into Rule 5 would certainly contradict the Supreme Court's policy to liberally construe the rules of civil procedure. See Tex. R. Civ. P. 1 (stating that the "objective of rules of civil procedure is to obtain a just, fair, equitable and impartial adjudication of the right of litigants . . . ," and to achieve this end, "these rules shall be given a liberal construction"). And, that the Supreme Court nonetheless applied Rule 5 to a situation wherein the document was deposited with an entity other than the United States mail certainly evinces that Rule 5 falls within the court's policy of construing the rules liberally.

In sum, the law in existence prior to the effective date of HB 4 controlled Hutchins' duty viz the filing of expert reports. This is so because her suit was filed before that date. So, the trial court did not err in refusing to grant the Hospital's motion to dismiss.

Accordingly, we overrule the issues posed by the Hospital and affirm the order of the trial court.

Brian Quinn

Justice

1. An interlocutory appeal may be brought from an order of a district court that denies all or part of the relief sought by motion under §74.351(b) of the Texas Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. §51.014(a)(9) (Vernon Supp. 2004).

2.

We do note that the effective date did not apply to §17 of the Act. Act of June 2, 2003, 78^th Leg., R.S., ch. 204, §23.02(b), 2003 Tex. Gen. Laws 898. However, that section is not involved in this case.