I respectfully dissent and would affirm the trial court’s order granting Velasquez’s motion to suppress. Although I agree with the majority that article 28.01 requires the trial court to provide the defendant, defense counsel, and the State’s attorney with notice of the time and place of a pretrial hearing, I believe the State was on notice that the trial court had discretion to consider the defendant’s pending motion to suppress at the April 13, 2015 trial setting. I also believe article 28.01 of the Texas Code of Criminal Procedure (the “Code”) does not entitle the State to notice of “what kind of evidence the judge will consider” at a motion to suppress hearing.
A review of the record reveals this case was originally set for trial on February 23, 2015, but then was reset for trial on April 13, 2015. At the trial setting on April 13, 2015 but prior to the commencement of trial, the trial court considered Velasquez’s motion to suppress, which had been filed approximately six weeks earlier on February 26, 2015. When asked for its argument, the State objected to having the hearing because it did not have notice that a hearing on the motion to suppress would be held at that time and the trial court did not permit the State to call two witnesses, who were not present at that moment but were available to call, to testify. In support of its argument, the State relied on article 28.01 of the Code. See Tex. Code CRim. PROG. Ann. art. 28.01 (West 2006).
As noted by the State and the majority, this case is understandably one of first impression because the meaning of the notice requirement outlined in article 28.01 of the Code has never been before our Texas courts. On appeal, the State argues article 28.01 of the Code requires the trial court to give the State notice of two things: (1) the date and time of a pre-trial hearing on a motion to suppress, and (2) the type of evidence to be considered at a pre-trial hearing.
Section 1 of article 28.01 of the Code reads:
The court may set any criminal case for a pre-trial hearing before it is set for trial upon its merits, and direct the defendant and his attorney, if any of record, and the State’s attorney, to appear before the court at the time and place stated in the court’s order for a conference and hearing.
Id. art. 28.01, § 1. Section 1 goes on to list the type of matters — including, as is relevant here, a motion to suppress — to be determined at the hearing. Id. art. 28.01, § 1(6). When reviewing the plain lan*669guage of section 1,1 believe it is a general, discretionary provision. See Ford v. State, 305 S.W.3d 530, 537 n.26 (Tex.Crim.App. 2009); Calloway v. State, 743 S.W.2d 645, 649 (Tex.Crim.App.1998). In other words, the question of whether to hold a. pretrial hearing on a motion to suppress is within the discretion of the trial court. See Ford, 305 S.W.3d at 537 n. 26;, Calloway, 743 S.W.2d at 649. If the trial court decides to hold a hearing, section 1 then requires the trial court to provide the defendant, his attorney, and the State’s attorney with the time and place of the hearing. Here, the record reflects the parties were directed to appear on April 13, 2015 for trial. The record also reflects Velasquez filed a motion to suppress on February 26, 2013, and the motion was still pending on April 13, 2015 — the trial setting date and the date at which both parties were directed to appear. Based on these facts, I believe the State was on notice that the pending motion to suppress could be considered by the trial court at 'that time on the date of trial.
It seems that both .the State and the majority believe article 28.01 entitled the State to additional notice that the pending motion would be considered at the April 13, 2015 proceeding. I do not agree. My belief — that additional notice is not required by article 28.01 — is supported by a decision from one of our sister courts, which held the State is on notice of a trial court’s discretion to consider pending matters at a trial setting prior to the commencement of trial. See State v. Wolfe, 440 S.W.3d 643, 645 (Tex.App.—Austin 2011, pet. ref d).
In State v. Wolfe, Wolfe filed a Brief in Support of Defendant’s Motion to Suppress on May 10, 2004. Id. at 644. The case remained pending for several years and was , reset for trial several times. Id. Then, on January 28, 2009 — five years later and the trial setting date — the trial court considered Wolfe’s motion as a pending matter. Id. The State appealed, arguing it was entitled to prior notice that the matter would be- considered on that particular date; however, the court of appeals concluded the State was on notice the trial court might consider the brief at the trial setting. Id. I believe State v. Wolfe is instructive in this case.
Here, the State acknowledges it was served with Velasquez’s motion to suppress prior to the trial reset date, and it was aware the case was reset for trial on April 13, 2015. - Thus, I believe the State was on notice Velasquez sought to suppress evidence and the trial court had discretion to hold a hearing on the pending motion prior to the commencement of trial at the April 13, 2015 trial setting. See id. at 645. ' '
The State also seems to suggest that implicit in the language of article 28.01, the State is entitled to notice of the type of evidence to be heard at the hearing. The State reasons there is a well-recognized public policy argument supporting such a notice requirement. The State specifically argues that “an interpretation of article 28.01 allowing a trial court to hold a suppression hearing limited to documents without notice would seriously undermine this sound public policy,” The State seems to believe the trial court, .based on public policy grounds, should give notice as to what type of evidence the trial court will permit even though section 1 specifically states such a determination is within the trial court’s discretion. See Tex. Code Crim. PROC, Ann. art. 28.01, § 1(6).
As discussed above, section 1 is a discretionary provision with regard' to whether a hearing will be held as well as to what type of evidence will be considered. See id. With regard to motion to suppress hearings, section 1(6) specifically states that *670“the court may determine the merits of [a] motion [to suppress] on the motions themselves, or upon opposing affidavits, or upon oral testimony.” See id. It is well established that under article 28.01, section-1(6) the trial court may use its discretion as to the type of evidence to be considered. See Ford, 305 S.W.3d at 541 (commenting that although it is better practice to produce witness testimony, there is no best evidence rule mandating procedure in motion to suppress hearing). The State’s public policy argument that article 28.01 requires the trial court to give notice of. the type of evidence that will be considered at a hearing is a separate issue from the issue of notice concerning the time and place of a pre-trial hearing. Such a public policy determination is best suited for the legislature, and under the current language of section 1, there is no requirement for the trial court to give the State notice of the type of evidence to be considered at the hearing. See Tex Code CRIM. Proc. Ann. art. 28.01, § 1(6). ■ ' ’
With regard to section 2 of article 28.01, it provides that once a criminal case is set for pre-trial hearing, then the defendant— not the State — is entitled to notice of preliminary matters not raised or filed seven dáys before the hearing. See id. art. 28.01, § 2. Section 2 states:
When a criminal case is set for such pretrial hearing, any such preliminary matters not raised or filed seven days before the hearing will not thereafter be allowed to be raised or filed, except by ■ permission of the court for good cause shown; provided that the defendant shall have sufficient notice of such hearing to allow him not less than 10 days in which to raise or file such preliminary matters. The record made at such pretrial hearing, the rulings of the court and the exceptions and objections thereto shall become a part of the trial record of the case upon its merits.
Id. Section 2 applies specifically to the defendant with regard- to “matters not raised or filed before the hearing.” Id. Nowhere in the section is the trial court required to provide notice .to the State, and I decline to impose such a requirement where one is not stated. See id.
Next, section 3 addresses the type of notice that shall be sufficient for section 2 notice, listing announcement in open court, personal service, or mail. Id. art. 28.01, § 3. Howevér, like section 2, section 3 is limited to the defendant with regard to “preliminary matters not raised or filed before the hearing.” Id. The State is never mentioned.
Accordingly, based on the foregoing, I believe the State was on notice of Velasquez’s pending motion to suppress and the trial court was within its discretion to hear the matter at the trial, setting.. See id. art. 28.01,' § 1; Wolfe, 440 S.W.3d, at 645. Moreover, article 28.01 does not impose an additional notice requirement to the. State concerning the type of evidence to be discussed at the hearing as such a determination is' within the trial court’s discretion. See Tex. Code Crim. PROC. Ann. art. 28.01, § 1(6). Accordingly,' I would affirm the trial court’s order granting the motion to suppress.