dissenting.
“A judge should not make himself a lawmaker by reading his moral notions into the Constitution in order to invalidate [legislative] policy decisions with which he disagrees.” 1
I dissent because the majority fails to fulfill our obligation to give effect to the clear and plain meaning of the language found in Tex. R.App.Proc. 91 and Article 26.04(a), V.A.C.C.P. See Boykin v. State, 818 S.W.2d 782, 785-86 (Tex.Cr.App.1991). I would hold applicant had no right to be represented by appointed counsel once the intermediate appellate court finally disposed of his appeal as of right; therefore he could not have been deprived of his Sixth Amendment right to the effective assistance of counsel by counsel’s failure to assist applicant in filing a petition for discretionary review of the intermediate appellate court’s decision.
The majority remands this case to the habeas court one more time apparently pursuant to an interpretation of state law on the duties appointed counsel owes to the client once an intermediate appellate court disposes of the client’s appeal as of right. It is clear this State may, without violating the fundamental fairness guaranteed by the Sixth and Fourteenth Amendments to the Federal Constitution, decline to provide counsel at taxpayer expense to an indigent defendant to assist him in filing a petition for discretionary review in this Court. See Ayala v. State, 633 S.W.2d 526, 527 (Tex.Cr.App.1982) (an indigent defendant may not be deprived of ineffective assistance of counsel due to counsel’s failure to file a petition for discretionary review of an intermediate appellate court’s decision because an indigent defendant has no constitutional right to counsel in seeking discretionary review beyond the first step of appeal from a criminal conviction); see also Polk v. State, 676 S.W.2d 408, 409 (Tex.Cr.App.1984).
While recognizing that appellate counsel has no duty to file a petition for discretionary review, the majority holds Rule 91 requires appointed counsel “to notify the appellant of the actions of the appellate court and to consult with and fully advise the appellant of the meaning and effect of the opinion of the appellate court.” Rule 91 actually says:
“On the date an opinion of an appellate court is handed down, the clerk of the appellate court shall mail or deliver to the clerk of the trial court, to the trial judge *942who tried the case, and to the State and each of the defendants in a criminal case ... a copy of the opinion handed down by the appellate court and a copy of the judgment rendered by the appellate court as entered in the minutes. Delivery to a party having counsel indicated of record shall he made to counsel. (Emphasis Supplied)”
By its very terms, Rule 91 sets out the duties of the clerk of the appellate court and has nothing to do with appointed counsel’s duties to the client once the intermediate appellate court disposes of the client’s appeal as of right.
The majority further holds Rule 91 and Article 26.04(a) require appointed counsel “to advise the appellant of the possibility of review by this Court as well as expressing his professional judgment as to possible grounds for review and their merit, and delineating the advantages and disadvantages of any further review.” Article 26.04(a) actually says:
“Whenever the court determines that a defendant charged with a felony or a misdemeanor punishable by imprisonment is indigent or that the interest of justice require representation of a defendant in a criminal proceeding, the court shall appoint one or more practicing attorneys to defend him. An attorney appointed under this subsection shall represent the defendant until charges are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is relieved of his duties by the court or replaced by other counsel. (Emphasis Supplied).”
The plain language of Article 26.04(a), as applied to this case, requires appointed counsel to represent the client until “appeals are exhausted.” An appeal is exhausted when the intermediate appellate court finally disposes of a defendant’s appeal as of right since a Texas defendant in a noncapital case has no right to an appeal to this Court. See Ayala, 633 S.W.2d at 527-28. That is when appellate counsel’s duty to the client ends because that is where the Legislature in Article 26.04p(a) intended for it to end. See Boykin, 818 S.W.2d at 785-86; Ayala, 633 S.W.2d at 527-28.
The plain language of Rule 91 and Article 26.04(a) does not support the majority’s holdings, and the majority cites no other direct authority for its holdings probably because none exists. Instead, the majority substitutes moralistic rhetoric for the rule of law, and it cites some cases, mostly dealing with a lawyer’s duties to the client in an appeal as of right of a conviction to an intermediate appellate court, that have nothing to do with this case. See, e.g., Ex Parte Axel, 757 S.W.2d 369 (Tex.Cr.App.1988).
When Rule 91 and Article 26.04(a) are read together, appellate counsel’s only duties arguably are to inform the client of the intermediate appellate court’s disposition and to inform the client of his right to file a petition for discretionary review. Of course, a different situation would arise if appellate counsel somehow deprived the client of his right to file, pro se, a petition for discretionary review in this Court. See, e.g., Ayala, 633 S.W.2d at 528 fn 4. But that is not the situation here.
What is equally disturbing as the majority’s failure to give effect to the plain language of Rule 91 and Article 26.04(a) is the manner in which the majority reaches out to address a claim applicant never raised in the habeas court. Here, even under the majority’s recitation of the facts, applicant claimed he received ineffective assistance of counsel only because appointed counsel failed to notify him the intermediate appellate court had affirmed his conviction. That is why we initially remanded this case to the habeas judge to make findings on whether applicant’s lawyer informed applicant that the intermediate appellate court had affirmed his conviction and that he had a right to seek discretionary review from this Court.2 The *943habeas court made findings adverse to applicant on both of these issues.3 Now, the majority again remands the case to the habe-as court to make more findings on the additional duties the majority mandates on appointed counsel today.4
Our proper role here should be to determine whether the record supports the habeas court’s first set of findings, which it does, and that should end the matter. However, in its zeal to act as a super-legislature and to waste more tax-payer money to achieve a desired result, the majority reaches beyond the specific complaint applicant asserted in the ha-beas court, and mandates additional duties on appointed counsel contrary to the plain language of the applicable statute.
This is judicial activism at its worst, and I dissent.
. The Wall Street Journal, August 30, 1994, Letter to the Editor by Lino A. Graglia, Professor of Law, University of Texas at Austin.
. In our first order remanding this case to the habeas court, we ordered the habeas court either to obtain an affidavit from applicant’s counsel addressing applicant’s factual allegations and allow applicant an opportunity to respond by affidavit, or to conduct an evidentiary hearing at *943which applicant would have an opportunity to prove his allegations. Applicant’s counsel filed an affidavit stating,
"I was appointed to represent [applicant] on appeal in the above-referenced cause number. I filed an appellate brief which the First Court of Appeals received on January 28, 1991. The judgment was affirmed and the appellate opinion was filed on October 17, 1991. Shortly thereafter I received a copy of the appellate court's opinion. Almost contemporaneously, I received a letter from [applicant] expressing his desire to have me withdraw and handle his direct appeal pro se. I then sent him a letter advising him that the appellate court had affirmed his conviction in a published opinion and additionally advising him of his rights to petition for discretionary review and the applicable time limits. I mailed the letter and a copy of the opinion to the address which was indicated on the last letter I received from him."
. The habeas judge found that applicant’s lawyer notified applicant of the resolution of his appeal and advised him of his right to file a petition for discretionary review.
. Based on applicant's counsel’s affidavit filed in response to our first remand order, it should not be too hard to figure out that the habeas court on second remand probably will find applicant received ineffective assistance of counsel.