Domanski v. State

725 S.W.2d 718, 1987 Tex. Crim. App. LEXIS 518

Opinions

OPINION ON MOTIONS FOR REHEARING ON COURT’S OWN MOTIONS

PER CURIAM.

In our original opinion in West v. State, 702 S.W.2d 629 (Tex.Cr.App.1986) we rejected appellant’s argument that the State’s petition for discretionary review had been untimely filed, and proceeded to the merits of the State’s petition. Ulti mately we reversed the judgment of the court of appeals and reinstated the judgment of conviction in the trial court.

Subsequently, in Domanski v. State, 725 S.W.2d 717 (Tex.Cr.App.1986), in virtually identical circumstances, we upheld the State’s contention that appellant’s petition for discretionary review had been untimely filed. We granted rehearing on our own motion in both causes in order to address this discrepancy.¹

We now adhere to our holding on original submission in Domanski, viz: that the fact that the sixteenth day after the delivery of an opinion in the court of appeals happens to fall on a Saturday, does not extend the “final ruling” of the court of appeals, see Tex.Cr.App. Rule 209(c)(1), to “the end of the next day which is neither a Saturday, Sunday, nor [any] legal holiday” under Tex. Cr.App. Rule 7, for purposes of computing the exact calendar day when thirty days for filing a petition for discretionary review begins to run. As we observed on original submission in Domanski:

“There is no valid reason for thus extending a final ruling of a court of appeals. Nothing is to be done on or after the day of final ruling except timely to file a petition for discretionary review. The rules do not purport to guarantee thirty working days in which to prepare and file it. Regardless of what day of the week the final ruling falls, that day should be used to compute the thirty days in which to do so.”

Accordingly, both «the State’s petition for discretionary review in West v. State, our cause number 067-84, and appellant’s petition for discretionary review in Domanski v. State, our cause number 755-83, are hereby refused as untimely filed.² All of our prior opinions in West v. State, supra, are withdrawn.

Footnotes

1

. Mandate issued in West on January 24, 1986, but was recalled by this Court on February 27 of that year.

2

. We observe that in petitions for discretionary review for which the new Texas Rules of Appellate Procedure supply the filing deadline (See our Order Implementing the Texas Rides of Appellate Procedure in Criminal Cases, delivered September 22, 1986), the particular question before us in these causes should never arise. Tex.R.App.Pro Rule 202(b) provides that:

"(b) The original petition shall be filed with the Clerk of the Court of Appeals which delivered the decision within 30 days after the day the judgment is entered or within 30 days after the day the last timely motion for rehearing is overruled.” (Emphasis supplied.)

Thus, computation of the 30 days begins directly from the day the court of appeals' decision is entered, rather than 30 days after that decision becomes a "final ruling” as defined by prior Tex.Cr.App. Rule 209(c)(1). Obviously the court of appeals will rarely enter a decision on a "Saturday, Sunday [or] legal holiday," see now Tex.R.App.Pro. Rule 5(a).