dissenting.
I respectfully dissent to the disposition of appellant’s first point of error, and the interpretation given to the statutes involved by the majority.
In his first point of error appellant advances the contention that the trial court “erred in not allowing court-appointed attorney ten days to prepare for trial, there being no written or oral waiver of the right accorded by the statute.” See Tex.Code Cr.P.Ann. art. 1.051(e) (Supp.1990).
The indictment, returned January 27, 1988, charged the appellant and twenty-one other named defendants and four named but unindicted co-conspirators with conspiracy with the intent to commit the offense of aggravated delivery of cocaine over 400 grams. Twenty-two (22) overt acts were alleged, ranging in time from October 6, 1986 until January 17, 1988. Appellant’s retained counsel were permitted to withdraw on February 16, 1988. Upon the filing of an affidavit of indigency, attorney John Gauntt was appointed to represent the appellant on the date retained counsel withdrew. On May 10, 1988, attorney Gauntt filed a “Motion to Substitute Attorney For Defendant” requesting that Fancy Jezek, an attorney, be substituted “in his place and stead to serve as the attorney for Defendant.” The motion was signed by Gauntt and Jezek. The court granted the motion on the same date. The docket sheet reflects Jezek was “apt.,” and there was no showing of any change at the time in appellant’s status as an indigent.1 There appears to be no question but that Jezek was appointed counsel for the trial on the merits.2 Gauntt withdrew and did not participate in the trial where appellant was tried jointly with five co-defendants. Excluding May 10, 1988, Jezek had five days to prepare for trial. Attorney Jezek did not request a continuance or object in any way to being substituted as appointed counsel less than ten days before trial. She announced “ready” and proceeded to represent appellant throughout the trial. Following the conviction, appellant did not file a motion for new trial. The record is devoid of any waiver of the ten-day preparation period as required by statute.
*953In 1987, article 1.051 was added to the Code of Criminal Procedure. 1987 Tex. Gen.Laws, ch. 979, § 1, at 3321, effective September 1, 1987. Section (e) thereof provides in part:
An appointed counsel is entitled to 10 days to prepare for a proceeding but may waive the preparation time with the consent of the defendant in writing or on the record in open court....
Tex.Code Cr.P.Ann. § 1.051(e) (Supp.1990).
This provision replaced former subsection (b) of article 26.04 of the 1965 Code of Criminal Procedure which contained similar language.3 The purpose of that statute was to guarantee an indigent defendant that he and his appointed counsel would have a reasonable time to prepare a defense. Hamel v. State, 582 S.W.2d 424, 428 (Tex.Cr.App.1979); Moore v. State, 493 S.W.2d 844, 845 (Tex.Cr.App.1973). It was designed to prevent infringement of the indigent accused’s right to the effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 10 of the Texas Constitution.
As the majority has noted, article 26.-04(b) was held to be mandatory, and failure to comply therewith constituted reversible error without the necessity of showing harm or prejudice. See Pollinzi v. State, 541 S.W.2d 445, 446 (Tex.Cr.App.1976); Hayles v. State, 507 S.W.2d 213, 214 (Tex. Cr.App.1974); Crothers v. State, 480 S.W.2d 642, 643 (Tex.Cr.App.1972); Steward v. State, 422 S.W.2d 733, 737 (Tex.Cr. App.1968) See also Young v. State, 752 S.W.2d 235 (Tex.App.1988), aff'd 796 S.W.2d 195 (Tex.Cr.App.1990); Claybon v. State, 672 S.W.2d 881 (Tex.App.1984, pet. ref'd). A violation of the statute could be raised for thé first time on direct appeal. Houston v. State, 490 S.W.2d 851, 852 (Tex.Cr.App.1973). A defendant was not required to file a motion for continuance, to request the ten-day period, or file a motion for new trial in order to be considered on appeal. Id. It was wholly immaterial whether any complaint regarding the sufficiency of the preparation was raised at trial. Henson v. State, 530 S.W.2d 584, 585 (Tex.Cr.App.1975). The issue of a violation of the statute could even be considered on appeal as unassigned error in the interest of justice. Id.
67 Tex.Jur.3d., Statutes, § 143 at 766-67 (1989) provides:
When a statute is reenacted without material change, it is generally presumed that the legislature knew and adopted or approved the interpretation placed on the original act, and intended that the new enactment should receive the same construction as the old one. Accordingly, the construction of the old act is regarded as a part of the new, and a different interpretation will be given only for impelling and cogent reasons.
This is a well-recognized rule of statutory construction.
Article 1.051(e) should thus be given the same interpretation as previously given to art. 26.04(b) which it replaced. This was obviously the legislative intent. If it had been the legislative intent that the ten-day preparation period was to be accorded only upon request, the Legislature could have so worded the statute as it did in Tex.Code Cr.P.Ann. 28.10(a) (1989). Of course, a defendant may generally waive any right secured him by law except the right of trial by jury in a capital felony case. See Tex. Code Cr.P.Ann. art. 1.14(a) (Supp.1991). However, the Legislature provided the form the waiver must take in article *9541.051(e). See also waiver forms required by Tex.Code Cr.P.Ann. arts. 1.051(g) (Supp. 1991) and 1.13 (1977).
The majority concludes that the adoption of the Texas Rules of Appellate Procedure by the Court of Criminal Appeals in 1986 changed “prior law,” so that the fact that the relevant provisions of former article 26.04(b) were brought forward in article 1.051(e) is not significant. The majority does not suggest that the indigent appellant waived his right for his appointed counsel to have, the ten-day preparation period or that there was no violation of the statute, but holds that in order to complain on appeal appellant must have presented a timely and specific objection or request to the trial court. This is so, the majority reasons, because the waiver of the right is governed by Rule 52(a) of the Texas Rules of Appellate Procedure and not by article 1.051(a).
In 1985, the Legislature authorized the repeal of certain designated statutes and granted the Court of Criminal Appeals power to promulgate rules of posttrial, appellate and review procedure in criminal cases. 1985 Tex.Gen.Laws, ch. 685, §§ 1-4 at 2472-73. The first Texas Rules of Appellate Procedure adopted under this authority became effective September 1, 1986. See 701-702 S.W.2d (Texas cases) at XXIX. In 1987, the statutory authority for such rulemaking power was amended without substantial change. 1987 Tex.Gen. Laws, ch. 148, § 2.04(a) at 542, see now Tex.Gov’t Code Ann. § 22.108 (1988). While all the rules authorized to be promulgated were procedural in nature, the legislature in its wisdom provided a limitation upon the rulemaking power of the Court of Criminal Appeals. It provided that in adopting appellate rules the court “may not abridge, enlarge or modify the substantive rights of a litigant.” See Tex.Gov’t Code Ann. § 22.108(a). It is also provided that “[T]he rules and amendments to rules remain in effect unless and until disapproved, modified or changed by the legislature.” See Tex.Gov’t Code Ann. § 22.108(b) (1988). Though the rules have been amended several times Rule 52(a) has remained unchanged. This rule, labeled a “General Rule,” codified some of the prior caselaw. See e.g. Zillender v. State, 557 S.W.2d 515, 517 (Tex.Cr.App.1977). I have been unable to find where the Court of Criminal Appeals or any other court has given Rule 52(a) the board sweeping interpretation the majority accords it today.
Article 1.051(e) is clearly a mandatory statute which provides steps to ensure the effectiveness of appointed counsel, a substantive right of an indigent defendant. The majority’s interpretation of Rule 52(a) undercuts the mandatory statute and abridges and modifies the substantive rights of an indigent defendant even if it can be said the rule is only procedural in nature.
The majority says that the Texas Rules of Appellate Procedure in 1986 changed “prior law.” Yet in 1987, the Legislature enacted article 1.051(e). Is it not within the right of the Legislature to disapprove, modify or change the rules of appellate procedure, either directly or indirectly? Certainly it is within the legislature’s authority to do so. The majority does not confront the question of what effect the 1987 enactment would have on its interpretation of Rule 52(a).
Article 1.051(e), like former article 26.-04(b) is a mandatory statute, the violation of which constitutes reversible error without the necessity of showing harm or prejudice. Not all mandatory statutes are now subject to a harmless error analysis. Roberts v. State, 784 S.W.2d 430, 435 (Tex.Cr.App.1990). If it can be argued in any way that Rule 81(b)(2) of the Texas Rules of Appellate Procedure has application to the instant case, I cannot conclude from this voluminous record that the error made no contribution to the conviction or punishment.
I dissent most respectfully.
. Appellant is represented by court appointed counsel on appeal.
. The State does not contend that the contrary is true.
. Article 26.04(b) provided:
The appointed counsel is entitled to ten days to prepare for trial, but may waive the time by written notice, signed by the counsel and the accused.
Tex.Code Cr.P. art. 26.04(b) (1965).
The current statute relates to "a proceeding" rather than "trial” and thus is somewhat broader than the former statute. The principal difference between the two statutes is the provision that the waiver of the ten-day preparation period may now be oral if “on the record in open court.” Cf. Ex parte Cooper, 388 S.W.2d 939 (Tex.Cr.App.1965) (holding oral waiver insufficient).