Rubio, John Allen

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS



NO. WR-65,784-02

EX PARTE JOHN ALLEN RUBIO

ON NOTICE OF NO APPLICATION FOR WRIT OF HABEAS CORPUS

FILED IN CAUSE NO. 03-CR-457-B

IN THE 138TH JUDICIAL DISTRICT COURT

CAMERON COUNTY

Per Curiam.



O R D E R



This case is before us because no application for writ of habeas corpus has been timely filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071. (1)

On August 10, 2010, the trial court appointed David A. Schulman to represent applicant in a post-conviction writ of habeas corpus under Article 11.071. On November 9, 2011, the State filed in this Court its brief on applicant's direct appeal. Pursuant to Article 11.071, § 4(a), applicant's application for writ of habeas corpus was due in the convicting court on or before December 24, 2011. (2)

According to applicant's counsel, counsel delivered to the trial judge on November 30, 2011, an unopposed motion for an extension of time to file applicant's habeas application as permitted by Article 11.071, § 4(b). On December 12, 2011, counsel faxed a letter to the judge reminding him of the pendency of the motion. To counsel's knowledge, the trial judge did not rule on the motion for extension before the date the application was due to be filed. Therefore, the application is apparently untimely, and the trial court may take no further substantive action in the case until and unless so instructed by this Court under Article 11.071, § 4A.

However, because counsel provided this Court with notice that no writ was filed instead of the trial court as required by Article 11.071, § 4(d), we find that we need further information before we can determine whether or what action is appropriate under Article 11.071, § 4A. Specifically, within ten days of the date of this order, the trial court shall notify this Court in writing (1) whether it ruled on applicant's motion for an extension of time to file his Article 11.071 application for writ of habeas corpus, and (2) if it ruled, how and when it ruled. If the court did rule on the motion, it shall include a copy of the order issued with its response to this Court.

IT IS SO ORDERED THIS THE 29TH DAY OF FEBRUARY, 2012.



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1. Unless otherwise indicated all references to Articles refer to the Code of Criminal Procedure.

2.

Because December 24, 2011, was both a Saturday and a holiday, applicant's application would have been timely filed if filed in the trial court on or before December 27, 2011, the first day after the 24th that was neither a weekend day nor a holiday.