Ex parte Brew

Court of Appeals of Texas

Ex parte Brew

954 S.W.2d 107, 1997 Tex. App. LEXIS 4370, 1997 WL 471484

CourtCourt of Appeals of Texas

DecidedAugust 20, 1997

DocketNo. 04-97-00464-CR

StatusPublished

Cited by2 cases

This text of 954 S.W.2d 107 (Ex parte Brew) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ex parte Brew, 954 S.W.2d 107, 1997 Tex. App. LEXIS 4370, 1997 WL 471484 (Tex. Ct. App. 1997).

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Opinion

OPINION

GREEN, Justice.

Appellant, Roderick Brew, appeals the denial of habeas corpus relief. The magistrate originally granted Brew relief and ordered the prosecution dismissed with prejudice on March 14, 1997. On March 31st, however, the trial court signed an order denying habe-as corpus relief and rescinding the dismissal order. According to Brew, he did not file his notice of appeal until June 19th because he did not receive notice of the trial court’s March 31st order until after the expiration of the thirty-day time limit for perfection of this appeal. See Tex.R.App. P. 41(b)(1); Ex parte Pena, 940 S.W.2d 260, 261 (Tex.App.—San Antonio 1997, no pet.).

Brew argues that the magistrate’s March 14th order became final fifteen days before the trial court signed its March 31st order. Whether March 31st is the fifteenth day following March 14th is irrelevant-because “[a] magistrate may not enter a ruling on any issue of law or fact if that ruling could result in dismissal or require dismissal of a pending criminal prosecution.” Tex. Gov’t Code Ann. § 54.908(b) (Vernon Supp.1997) (regarding criminal law magistrates in Bexar County); see also id. § 54.878(b) (Lubbock County); § 54.978 (Travis County). Thus, the magistrate lacked jurisdiction to enter its March 14th order, and the trial court’s March 31st order is the proper appealable order. Because Brew’s appeal was untimely perfected, we dismiss it for lack of jurisdiction. See Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App.1996); Shute v. State, 744 S.W.2d 96, 97 (Tex.Crim.App.1988).

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OPINION

GREEN, Justice.

Appellant, Roderick Brew, appeals the denial of habeas corpus relief. The magistrate originally granted Brew relief and ordered the prosecution dismissed with prejudice on March 14, 1997. On March 31st, however, the trial court signed an order denying habe-as corpus relief and rescinding the dismissal order. According to Brew, he did not file his notice of appeal until June 19th because he did not receive notice of the trial court’s March 31st order until after the expiration of the thirty-day time limit for perfection of this appeal. See Tex.R.App. P. 41(b)(1); Ex parte Pena, 940 S.W.2d 260, 261 (Tex.App.—San Antonio 1997, no pet.).

Brew argues that the magistrate’s March 14th order became final fifteen days before the trial court signed its March 31st order. Whether March 31st is the fifteenth day following March 14th is irrelevant-because “[a] magistrate may not enter a ruling on any issue of law or fact if that ruling could result in dismissal or require dismissal of a pending criminal prosecution.” Tex. Gov’t Code Ann. § 54.908(b) (Vernon Supp.1997) (regarding criminal law magistrates in Bexar County); see also id. § 54.878(b) (Lubbock County); § 54.978 (Travis County). Thus, the magistrate lacked jurisdiction to enter its March 14th order, and the trial court’s March 31st order is the proper appealable order. Because Brew’s appeal was untimely perfected, we dismiss it for lack of jurisdiction. See Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App.1996); Shute v. State, 744 S.W.2d 96, 97 (Tex.Crim.App.1988).

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954 S.W.2d 107, 1997 Tex. App. LEXIS 4370, 1997 WL 471484, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-brew-texapp-1997.

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