The Texas Prosecutor, Jan-Feb 2018

The No-Notice Rule—it’s a trap!

You are feeling great about your motion to suppress hearing. During your officer’s testimony, the judge was nodding his head. Your closing argument was backed by the best, most current caselaw. The defense attorney held her head low and did not make eye contact as she left the courtroom. Yep. You were feeling pretty, pretty, pretty good.
    The judge did say he was taking the motion under advisement and would let the parties know about his decision. But he always did this. There is nothing to worry about, you say to yourself as you pack your bag and exit the courtroom.
    Weeks pass, and you see the same case up on docket. You ask the defense attorney if she has heard anything from the court. She says radio silence. You check the casefile for the judge’s order. Nothing there. You ask the judge, and he says he will make his decision soon. The next day, you check the file, you find the order, and the judge has granted the motion to suppress.
    You stay cool because you have 20 days to file your appeal.1 But wait. Oh no. The judge signed the order 21 days before. You check the caselaw. You have no recourse.
    So how did you waive the State’s right to appeal? To answer that, you need to know about the No-Notice Rule.

What is the No-Notice Rule?
Before 1987, the State could not appeal any order. Then the Texas legislature gave the State the right to appeal certain, specific orders, but that right is “a statutorily created one.”2 And the statute restricts the time to file the notice of appeal to 20 days.3 This begs the question: What does “entered by the trial court” mean?
    Counterintuitively, “entered by the court” actually means signed by the court. Although the Court of Criminal Appeals has repeatedly acknowledged that this interpretation “is inconsistent with longstanding precedent,” the rule has stuck.4 This interpretation is likely to remain the rule until the legislature amends the statute.
    The authors named this interpretation—of “entered = signed”—the “No-Notice” rule because there is no safeguard ensuring a party receives notice when the judge signs an order.

Inviting mischief
The rule invites mischief because the clock begins to tick with a private act.5 With the stroke of a pen, the judge begins the 20-day clock. The judge could sign the order in chambers without anyone knowing. The law does not require the judge to tell anybody about signing the order.
    Perhaps the clearest example of this is State v. Rollins.6 There, the judge held a hearing on July 29, 1999, but took the issue under advisement. Over the next two weeks, an employee of the district attorney’s office repeatedly visited the clerk’s office, repeatedly asked if the order was signed, and was repeatedly told no. On August 12, the clerk said she just gave the order to the judge to sign. The next day, August 13, the State got the order, which stated that it was “signed this 29th day of July, 1999.”7 The State filed its notice of appeal on August 26.8 The State’s notice of appeal was timely as of the date of actual notice but late as of the date the order was signed.
    In brief fashion, the Austin Court of Appeals dismissed the State’s appeal for lack of jurisdiction.9 Apparently, the clerk made a good-faith mistake and overlooked the signed orders in the file. But importantly, the State did everything right. It babysat the clerk’s file and received notice as soon as it could, but it was not enough.
    A good-faith mistake is not the only way to deprive the State of its right to appeal—so can a defense counsel’s improper conduct. In one case, the judge ordered defense counsel to prepare an order dismissing a case, tender the proposed order to the State for approval, and then send it to the judge to sign.10 But defense counsel, ex parte, sent the judge the proposed order. The judge signed it, assuming defense counsel obeyed his order. The State filed its notice of appeal immediately upon learning of the order, but it was too late. Appeal dismissed.11
    Most importantly, there is nothing to prevent the judge from depriving the State of its right to appeal. Imagine that a judge signs an order and sends that order to the clerk with a letter that states, “File this signed order in 21 days and keep the order confidential until then.” The Court of Criminal Appeals has indicated this would deprive the State from appealing that order.12 Of course, there is no need for the judge to make it that complicated. The judge could sign an order and put it in a drawer for 21 days or simply back-date the order. Nothing but the judge’s conscience prevents such actions.
    The No-Notice Rule puts the State’s right to appeal on a shaky foundation. The State can lose its right through mistakes, whether its own or others, through defense counsel’s tricks, and if the judge simply does not want the State to appeal. In some ways, this right to appeal looks less like a right and more like a privilege. The State’s ability to appeal the trial judge’s adverse ruling rests entirely within that same judge’s discretion.

Why would the Court choose the No-Notice Rule?
Although the No-Notice Rule can lead to absurd results and seems unfair, it is actually a logical result. The Court of Criminal Appeals first interpreted the meaning of “entered by the court” in State v. Rosenbaum.13 The Court acknowledged that it has long interpreted “entered” as referring to the ministerial act of placing the order into the minutes of the court.14
    But equating “enter” and “sign” as synonymous is the most workable solution. The signing of the order is the only known, fixed date. There are no rules that govern when clerks enter documents into the record. As the Court noted, “a judge may never really know when a signed order, judgment, or ruling is physically entered into the record.”15 As a matter of convenience, then, the Court picked the date an order is signed.
    Just two years ago, the Court revisited the No-Notice Rule and came to the same conclusion.16 As alternatives, the State proposed the file marked date and the date it actually receives notice—to no avail.
The date the order is entered into the clerk’s file suffers the same problem as the No-Notice Rule. Both the date the judge signs an order and the date the order is put into the file are private acts. “Which-ever of these events is deemed to trigger the appellate timetable, the State may not become actually aware of that event before the time has run out to file its notice of appeal.”17
    The Court noted that Civil Rule of Procedure 306a ensures parties receive notice, but the Court refused to create such a rule from scratch. The Court said this proposal was “more appropriately addressed to this Court’s Rules Committee” to revise the current rules of appellate procedure.18
    In sum, the No-Notice Rule is here to stay. Given this, Texas prosecutors should be aware of a few things.

What to know about the No-Notice Rule
While the result in Wachtendorf and other cases seems unfair to the State, the Court of Criminal Appeals noted that “the State was not entirely powerless to preserve its interests in this case.”19 In Wachtendorf, defense counsel said the State waived its right to appeal, and the prosecutor wrongly replied that the order was “not entered of record if it’s not file-stamped.”20 The Court pointed out the prosecutors were “simply unaware of the holdings in Rosenbaum and Bage.”21
    It’s hard to blame those prosecutors for not knowing the counterintuitive No-Notice Rule, but their ignorance cost the State. So what could those prosecutors—or you—do in that situation? Here are six suggestions:
1. Ask for notice. The simplest solution, requesting notice should alleviate any good-faith mistake by the judge, though it would not prevent good-faith mistakes by the clerk. It also does not prevent an unethical defense counsel or a judge really trying to clear his docket from taking away the State’s right.
2. Babysit the file. When a judge takes a motion under advisement, check the clerk’s file every seven to 10 days looking for the signed order. But with many prosecutors’ large caseloads, this task could ask a lot from a prosecutor. Further, as demonstrated in Rollins, it does not guarantee success.22
3. Premature notice of appeal. The State can file its notice to appeal at any time. The rules of appellate procedure make notices “effective and deemed filed on the same day, but after … the appealable order [was] signed by the trial court.” This also is a lot of work, and prosecutors have to worry how the judge would interpret this move.23
4. Post-dated orders. An interesting exception to the rule, an order stating that it is authenticated on a future date is deemed signed on that future date. For instance, the order in Rosenbaum, which the judge signed June 28, stated the following:

Should the State elect to appeal this order pursuant to Art. 44.01 C.C.P. and Article 5, Section 26 of the Texas Constitution, this order will be stayed pending the outcome of such an appeal. This order is to be entered of record by the District Clerk on Monday, July 2, 1990 and will become final 15 days thereafter. Art. 44.01(d) C.C.P.24

The Court held that the judge actually authenticated the order on July 2—not the date he signed it, June 28. The State’s timetable began to run from the later date. A similar, handwritten message appeared on the order in State v. Poe.25 As routine practice, a prosecutor could add similar language, such as “This order is to be entered of record on the day the State receives notice,” to any proposed orders on appealable rulings.
5. Motion to Rescind. What happens if you just received notice of the order and your deadline has passed? Presiding Judge Keller recommends the prosecutor request that the trial court rescind its order and then issue a new order.26 The appellate timetables, she says, “would then run from that new order.”27
6. Do not rely on e-filing for notice. For those lucky enough to work in courts where the staff e-files orders, do not be complacent. Neither the clerk nor judge are required to notify you. Under the No-Notice Rule, the trial court could still file the order more than 20 days after the judge signed it, and it would not matter when you received notice via email.
    We hope these suggestions help you—but we realize they add more work to the already busy life of a Texas prosecutor. What is really needed is a change to the rules.

Adopt the Civil Rule
Not that anyone from the rules committee asked us, but we have come up with a suggestion to replace the No-Notice Rule.28 Article 44.01(d) should be revised to include the notice requirement found in Rule 306a of the Texas Rules of Civil Procedure and Rule 4.2 of the Texas Rules of Appellate Procedure, which provide a notice requirement for signed orders.29 Rule 306a.3 requires clerks to immediately notify parties when an appealable judgment is signed.30 If a party can prove to the trial court that the party did not receive notice of the signed order, the clock will not begin running until the party has actual knowledge.31 With this notice language, a prosecutor under the revised 44.01(d) would no longer be prejudiced by not receiving notice.

Conclusion
Most of the time, the No-Notice Rule will not come into play. Either the judge will rule on an appealable order immediately following a hearing, or prosecutors will hear from the court staff, defense attorney, or the judge. But to avoid becoming another fact pattern—assuming the Court of Criminal Appeals Rules Committee does not read this article and implement the excellent suggested changes to the No-Notice Rule—make sure to check that file. Additionally, tell or remind a judge about the No-Notice Rule. And if you miss the chance to appeal because you did not receive notice, follow Judge Keller’s advice and request that the trial court rescind its order and issue a new one.32
    Whatever path you choose, checking the file is probably the safest way to avoid missing the State’s opportunity to appeal.

Endnotes

1  Tex. Code Crim. Proc. Art. 44.01(d).

2  State v. Sellers, 790 S.W.2d 316 (Tex. Crim. App. 1990).

3  Tex. Code Crim. Proc. Art. 44.01(d).

4  State v. Rosenbaum, 818 S.W.2d 398, 403 (Tex. Crim. App. 1991) (Baird, J., concurring).

5  State ex rel. Sutton v. Bage, 822 S.W.2d 55, 57 (Tex. Crim. App. 1992) (McCormick, P.J., dissenting) (“The instant case presents in dramatic fashion the mischief that is potential in [the No-Notice Rule].”).

6  4 S.W.3d 453 (Tex. App.—Austin 1999, no pet.).

7  Id. at 454.

8  Id. at 454.

9  Id. at 455.

10  State ex rel. Sutton v. Bage, 822 S.W.2d 55, 58 (Tex. Crim. App. 1992).

11  Id.

12  See Rosenbaum, 818 S.W.2d at 400.

13 Id.

14  Id. at 401.

15  Id. at 402.

16  State v. Wachtendorf, 475 S.W.3d 895 (Tex. Crim. App. 2015).

17  Id. at 901.

18  Id. at 902.

19  Id. at 903.

20  Id. at 897.

21 Id.

22  Rollins, 4 S.W.3d 453.

23  Tex. R. App. P. 27.1(b).

24  Rosenbaum, 818 S.W.2d.398.

25  900 S.W.2d 442 (1995).

26  Wachtendorf, 475 S.W.3d at 905 (Keller, P.J., dissent).

27 Id.

28  See Tex. Code Crim. Proc. Art. 44.01(d).

29  John v. Marshall Health Servs., Inc., 58 S.W.3d 738, 740 (Tex. 2001) (citing Rule 306a of the Texas Rules of Civil Procedure).

30 Id.

31 Id.

32  Wachtendorf, 475 S.W.3d at 905 (Keller, P.J., dissent).