dissenting on state’s motion for rehearing.
I.Procedural background of the case.
The Court of Appeals held that Appellant was denied her right to counsel during the time in which to file a motion for new trial. Oldham v. State, 889 S.W.2d 461, 462-63 (Tex.App.-Houston [14th DistJ 1994). The Court of Appeals used Rule 2(b) to suspend that time period, and the court remanded the case to the trial court so Appellant could file a motion for new trial. Id. at 463.
The State’s petition for discretionary review raised two grounds for review:
1. Whose burden is it to show that an appellant was or was not abandoned by counsel during a critical stage of the prosecution?
2. May an appellate court suspend application of the rules of appellate procedure without any firm basis in the record for finding good cause?
We granted review of both grounds, but we later dismissed the petition as having been improvidently granted. Oldham v. State, No. 1350-94, 977 S.W.2d 569 (Tex.Crim.App.1996). The State filed a motion for rehearing urging a jurisdictional complaint for the first time in the following ground for rehearing, which we granted:
This Court erred in allowing to stand the decision of the court of appeals, in which the court of appeals gave jurisdiction to the trial court to hold a hearing on a motion for new trial when the trial court had already lost jurisdiction over the case.
II.Introduction.
Because neither the State’s motion for rehearing nor the State’s petition for discretionary review asserts that Rule 2(b) of the Texas Rule of Appellate Procedure does not authorize courts of appeals to allow out-of-time motions for new trial, because I believe this is not the type of case in which to resolve the Rule 2(b) out-of-time motion for new trial issue even if it were raised, because I do not agree with the majority’s holding on that issue, and because I believe that the majority twice exceeds the scope of the State’s motion for rehearing, I respectfully dissent.
III.: The issue presented.
The majority addresses whether Rule 2(b) authorized the court’s action. The State never has complained that it does not. The State’s petition for discretionary review questioned whether the appellate record supported the Court of Appeals’ conclusion that Appellant was denied his right to counsel during the time in which to file a motion for new trial. The State’s petition did not contest the scope of Rule 2(b). The State’s motion for rehearing complains that the Court of Appeals lacked authority to restore jurisdiction to the trial court for a motion for new trial. In support of its ground for rehearing, the State relies on this Court’s opinion in Olivo v. State, 918 S.W.2d 519 (Tex.Crim.App.1996), as the intervening circumstance. The State pointed out that the trial court lost jurisdiction to hear any motion for new trial under former Rule 31(a)(1). The State contends that a court of appeals may not utilize the Texas Rules of Appellate Procedure to create jurisdiction where none exists, citing Olivo, 918 S.W.2d at 523. The State argues that because the trial court had already lost jurisdiction to hear a motion for new trial, the Court of Appeals did not have authority to give that jurisdiction to the trial court. The State’s motion for rehearing does not even mention Rule 2(b), much less argue how that rule operates. The State’s position is simply that once a trial court loses jurisdiction, a court of appeals may not give the trial court jurisdiction to entertain a motion for new trial.1
*369The majority never answers the question presented by the State’s motion for rehearing, although the majority alludes to the answer when stating:
Our holding on this issue is strictly limited to the use of Rule 2(b). We should not be understood as restricting a court of appeals’ power to abate an appeal and remand a case under authority other than Rule 2(b).... [A] denial of constitutionally guaranteed counsel will be remedied, and the use of Rule 2(b) to effectuate this remedy is not necessary.
Oldham v. State, 977 S.W.2d at 360 (Tex.Crim.App.1998). Instead, the majority addresses an issue not raised by the petition for discretionary review or the motion for rehearing — the scope of Rule 2(b). Had we granted the State’s petition for discretionary review on our own motion under former Rule 201, or had we granted rehearing on our own motion, assuming we have the authority,2 we could have framed whatever issue presented by the case that we wanted to address. We did not do that, so we are limited to addressing the issue presented by the State’s motion for rehearing. Unfortunately, that is the very issue that the majority expressly notes it is not addressing.
Courts of appeals have no need to resort to Rule 2(b) in this type of situation. In cases in which a defendant is improperly denied counsel at a hearing on a motion for new trial, appellate courts remand the case for a proper hearing on the motion for new trial. Trevino v. State, 565 S.W.2d 938 (Tex.Crim.App.1978). Of course, by then, the time has long passed for a trial court to act on a motion for new trial. See former Tex. R.App.P. 31(e). Nevertheless, there is no suspension of the rules under Rule 2(b) in that situation; it is just a matter of the proper appellate remedy, which involves restoring limited jurisdiction in the lower court. See also Green v. State, 906 S.W.2d 937 (Tex.Crim.App.1995) (trial court’s findings entered under Art. 38.22, § 6, V.A.C.C.P., but after trial court lost jurisdiction, were void, so capital murder appeal abated and case remanded to revive trial court’s authority to enter findings); Trevino v. State, 841 S.W.2d 385 (Tex.Crim.App.1992) (trial court erred in denying appellant a Batson hearing, so capital murder appeal abated and case remanded to trial court for a Batson hearing); Spence v. State, 758 S.W.2d 597 (Tex.Crim.App.1988) (trial court erred in precluding appellant from making offer of proof at hearing on pretrial motion to dismiss indictment, so capital murder appeal abated and case remanded to trial court for hearing at which appellant could perfect record). Similarly, when a petition for discretionary review is filed, the court of appeals loses authority to act on the case once fifteen days have passed under former Rule 101 or thirty days have passed under new Rule 50. Garza v. State, 896 S.W.2d 192 (Tex.Crim.App.1995). However, this Court can remand a *370case to the court of appeals for further consideration or for further action if that is the appropriate remedy. See, e.g., Woods v. State, 956 S.W.2d 33 (Tex.Crim.App.1997). We have never invoked Rule 2(b) to do so; it is simply within this Court’s authority to fashion the proper remedy and, if necessary, to restore jurisdiction in a lower court.
In a case such as this, if an appellate court were to conclude that an appellant was abandoned by counsel during the time in which to file a motion for new trial, the proper appellate remedy would be to return the appellant to the point at which a motion for new trial can be filed. Cf. Connor v. State, 877 S.W.2d 325 (Tex.Crim.App.1994) (motion for new trial is a critical stage at which a defendant is entitled to representation by counsel; case remanded to court of appeals to determine if appellant was entitled to counsel to assist in preparing and filing motion for new trial). Again, courts of appeals have authority to restore jurisdiction in the lower court if that is the appropriate remedy. No suspension of the appellate rules would be required. The majority seems to recognize this in passing. Oldham v. State, 977 S.W.2d 360 (Tex.Crim.App.1998).
Consequently, in answer to the issue posed by the State in its motion for rehearing, the Court of Appeals had authority to restore jurisdiction in the trial court as a remedy for what it concluded to be the deprivation of Appellant’s right to counsel during a critical stage, without resorting to Rule 2(b). Because the intervening circumstance relied on by the State in its motion for rehearing does not pertain to the propriety of the Court of Appeals’ holding that Appellant was denied his right to counsel, and because the ground for rehearing does not re-raise that matter, this Court should just address the issue, that was presented and hold that appellate courts have authority to restore jurisdiction to trial court’s in order to effectuate an appellate remedy. Alternatively, since this is hardly a novel revelation of law, the Court could dismiss the motion for rehearing as having been improvidently granted.
IV. The Rule 2(b) issue.
The majority, however, addresses the Rule 2(b) issue. The majority holds that using Rule 2(b) to suspend or enlarge appellate time limits oversteps the contemplated uses of Rule 2(b), except in truly extraordinary circumstances. Oldham, 977 S.W.2d at 359, 360. I disagree with this Court’s holding on the merits.
A. State ex. rel Cobb v. Godfrey and certainty in the finality of a judgment.
The majority relies on State ex rel. Cobb v. Godfrey, 739 S.W.2d 47 (Tex.Crim.App.1987), for the proposition that “Rule 31 serves the vital function of promoting certainty regarding the finality of a judgment.” Oldham, 977 S.W.2d at 359. In that case the State sought a writ of mandamus requiring the trial judge to dismiss an untimely order granting a motion for new trial. In response, the trial judge asked this Court to suspend the rules and permit the granting of the motion for new trial after it had been overruled by operation of law. We declined to do so As the majority points out, we discussed the function of Rule 31(e) as “promoting certainty regarding the finality of a judgment, in a case in which a motion for new trial has been filed.” Id at 49 (emphasis added). We observed that the trial court lost jurisdiction to rule on the motion for new trial when it was overruled by operation of law. Id. We did not hold that Rule 2(b) could not be used to suspend Rule 31. Instead, we held, “Respondent has failed to show good cause why this Court should suspend this rule, other than to remedy his own tardiness. For these reasons, we decline to suspend the rules pursuant to Rule 2(b), supra, as suggested by respondent.” Id. We simply declined to exercise our discretion to utilize Rule 2(b) because we were not persuaded that there was good cause to do so. Our discussion about the certainty regarding the finality of a judgment after a motion for new trial has been filed must be read in the context of the situation presented in that case.
After a motion for new trial is filed, it is deemed denied, or overruled by operation of law, if the trial court does not act on the motion within seventy-five days. Tex. *371R.App.P. 21.8(c); former Rule 31(e). If that time period passes without action by a trial judge, and the judge can grant the motion sometime after the seventy-five day period, then there are serious problems with and legitimate concerns about the finality of a judgment in cases in which a motion for new trial was deemed denied or overruled by operation of law. Therefore, taking into account the concerns with the finality of a judgment in such a situation, we declined to invoke Rule 2(b) because good cause was not shown. However, when a case is on appeal, there is no doubt that the judgment is not final. Those same problems with finality of a judgment do not arise when a court of appeals uses Rule 2(b) to allow for an out-of-time motion for new trial.
Additionally, contrary to the majority’s holding regarding the contemplated uses of Rule 2(b), I read this Court’s opinion in State ex rel. Cobb v. Godfrey as do Professors Dix and Dawson: “The Court of Criminal Appeals has assumed it has the power to suspend the thirty day requirement of Rule 31(e) but found the ease before it did not call for the exercise of that power.” G. Dix & R. Dawson, Criminal Practice and Procedure § 43.349 n. 1 (Texas Practice 1995) (citing State ex rel. Cobb v. Godfrey, 739 S.W.2d at 49).
B. Tallant v. State and disregarding rules.
The majority also relies on our decision in Tallant v. State, 742 S.W.2d 292 (Tex.Crim.App.1987), for the proposition that “the Rules may not be disregarded.” Oldham, 977 S.W.2d at 359. In Tallant, the Court of Appeals held that evidence was inadmissible because it was seized pursuant to an invalid search warrant. In its petition for discretionary review, the State argued for the first time that the error was not preserved. This Court observed that our review is limited to those issues decided by courts of appeals, included in petitions for review, and granted as grounds for review. Tallant, 742 S.W.2d at 294. We stated:
There was and is a provision for suspending rules of appellate procedure. See former rule 4 and Tex.R.App.Pro. Rule 2(b). There is none for ignoring, disregarding or violating them on the part of any party or appellate court, especially this one. Transgressions of rules of appellate procedure which this Court has insisted be followed cannot be summarily dismissed.
Id.
The rule at issue in Tallant went to the very heart of this Court’s discretionary review power, which is that we may review decisions of courts of appeals. Tex. Const. Art. V, § 5; Art. 44.45(a), (b), V.A.C.C.P.; Tex.R.App.P. 67.1, 68.1. Davis v. State, 870 S.W.2d 43, 47 (Tex.Crim.App.1994) (this Court cannot review issues which have not first been properly presented to and ruled on by the court of appeals); Montalbo v. State, 885 S.W.2d 160, 161 n. 1 (Tex.Crim.App.1994) (this Court is without authority to address a legal issue not addressed by the court of appeals); Owens v. State, 827 S.W.2d 911, 917-18 n. 7 (Tex.Crim.App.1992) (the discretionary review system under the Texas Constitution dictates that the function of this Court in noncapital cases is to pass only on legal questions that have been resolved by the courts of appeals); Lee v. State, 791 S.W.2d 141, 142 (Tex.Crim.App.1990) (under Tex. Const. Art. V, § 5, Art. 44.45, and former Rule 200(a), this Court reviews decisions of courts of appeals, so case remanded for court of appeals to address the merits of an issue in the first instance). Of course we could not use Rule 2(b) in Tallant to exceed our constitutionally granted authority. In that context, we could not suspend, ignore, disregard, or violate a rule that restates our constitutional limitations.3 As for our discussion in Tallant that indicates that rules gen*372erally may be suspended, but they may not be ignored, disregarded, or violated, that makes no sense.
When a rule is suspended, technically that rule is not ignored, disregard, or violated. It is suspended pursuant to Rule 2(b). To the extent that we meant in Tallant that the practical effect of suspending a rule is that the rule is ignored, disregarded, or violated, then that will be true in every instance in which a rule is suspended. Under that rationale, Rule 2(b) would be meaningless.
For the foregoing reasons, I do not believe that Tallant requires the majority’s holding regarding Rule 2(b).
C. Garza v. State and Olivo v. State.
Next, the majority cites Garza v. State, 896 S.W.2d 192 (Tex.Crim.App.1995), for the proposition that “the time limits in the Rules are not discretionary.” Oldham, 977 S.W.2d at 359. In Garza v. State, the question presented was whether the Court of Appeals could issue an opinion pursuant to Rule 101 after the time in which to do so expired. The appellant argued that Rule 2(b) permitted the Court of Appeals to suspend the time limits of Rule 101. As the majority states, we rejected that contention. However, we did so as follows: “... Rule 2(a) specifically states that the Rules ‘shall not be construed as to extend or limit the jurisdiction of the courts of appeal _(emphasis added). Further, the Court of Appeals did not purport to invoke the provisions of Rule 2(b) rendering this portion of appellant’s argument inapplicable.” Garza v. State, 896 S.W.2d at 194. We also stated, “The time limits set forth in the Rules of Appellate Procedure are not discretionary. The courts of appeals have no authority to suspend the operation of a rule of appellate procedure in order to create jurisdiction in the court of appeals where no jurisdiction exists. See Jones v. State, 796 S.W.2d 183 (Tex.Cr.App.1990).” Garza v. State, 896 S.W.2d at 194. This Court opined, “If appellate courts were able to suspend the timetables, to which they are held to comply, there would be nothing this Court could do to promote the timeliness of the appellate process and the every purpose of the Rules would be undermined.” Id. We concluded the timely filing of a petition for discretionary review vests this Court with jurisdiction, and after the time in which a court of appeals may act under Rule 101 expires, this Court has exclusive jurisdiction. Id. at 195.
We discussed Garza v. State in Olivo, 918 S.W.2d 519. In Olivo this Court stated that our discussion of Rule 2(a) in Garza v. State was dicta, because in Garza v. State we had concluded that the appellant’s argument concerning Rule 2(b) was inapplicable since the Court of Appeals did not purport to invoke that rule. Olivo, 918 S.W.2d at 523 n. 7. We also pointed out that in Garza v. State we did not explain how Rule 2(a) affected the appellant’s Rule 2(b) argument. Id. Finally, as the majority notes, we recognized in Olivo that Rule 2(a) does not operate as a limitation on the suspension of time limits under Rule 2(b), contrary to this Court’s suggestion in Garza v. State. Id. at 522-23. As we explained in Olivo, neither Rule 2(b) nor Rule 2(a) prohibits an appellate court from suspending appellate procedural time limits. Olivo, 918 S.W.2d at 522-23. The time limits set forth in the Rules of Appellate Procedure are not discretionary, as we observed in Garza v. State. However, the decision to invoke Rule 2(b) to suspend those time limits is discretionary. Consequently, the underpinnings for this Court’s discussion in Garza v. State of Rule 2(b) and the suspension of appellate procedural time limits, relied on by the majority in the present case, were removed in Olivo.
D. State v. Garza and the meaning and purpose of Rule 2(b).
1. State v. Garza
Next, the majority draws on State v. Garza, 931 S.W.2d 560 (Tex.Crim.App.1996), to discern that “Rule 2(b) is to be reserved for cases where suspending a rule will actually facilitate processing the case through the appellate court.” Oldham, 977 S.W.2d at 359 (emphasis in majority opinion). In State v. Garza the trial judge granted a motion for new trial which had already been overruled by operation of law. The defendant appealed his subsequent judgment, in which he re*373ceived a greater sentence than he had received in the first trial, claiming that the second judgment was void, since the trial court lacked authority to untimely grant the motion for new trial. The Court of Appeals agreed and set the second judgment aside. The Court of Appeals declined the State’s invitation to invoke Rule 2(b) and suspend Rule 31(e)(3). We granted the State’s petition for discretionary review and addressed the Rule 2(b) issue. We observed that, in essence, the State was complaining that the Court of Appeals abused its discretion in failing retroactively to re-confer jurisdiction on the trial court to grant the motion for new trial and the State appeared to contend that this case presented good cause as a matter’ of law, so that the Court of Appeals abused its discretion in refusing to suspend Rule 31(e)(3). State v. Garza, 931 S.W.2d at 562, 563. We rejected the State’s argument for three reasons. First, the State failed to present even colorable good cause in the ease. Id. at 563. Secondly, Rule 2(b) is phrased in permissive terms, and it does not contemplate such a thing as good cause as a matter of law so that a court of appeals would have no option but to suspend a rule. Id.
Finally, and most importantly, in our view Rule 2(b) does not authorize the retroactive suspension of rales governing events that have already occurred at the trial level before the record has been conveyed to the appellate court. True, on its face the rale allows suspension of provisions of “any” rale, even those governing motion for new trial. Nevertheless, the suspension of a rule is permitted only in accordance with the conditions enumerated in the rale, viz: “in the interest of expediting a decision or for other good cause shown[J” This language signifies that what Rule 2(b) contemplates in the way of “good cause” is one of the relatively rare situations in which suspending a rule, rather than following it, will actually facilitate processing the case through the appellate court, by “expediting a decision” or otherwise. It does not authorize courts of appeals to reach back, after appeal has been perfected and the record filed, and alter the course of events at the trial court level, as the State asked the court of appeals to do here.
Id.
2. Limitations on use of Rule 2(b).
I agree with this Court’s characterization of Rule 2(b) in State v. Garza as permissive, such that a court of appeals cannot be said to have abused its discretion by failing to invoke Rule 2(b). I also agree with this Court’s conclusion in State v. Garza that Rule 2(b) may not be used to retroactively restore jurisdiction in the trial court, thereby making an action which was void ab initio valid.
In State v. Garza, we stated, “The only boundary we have set upon the courts of appeals in exercise of their Rule 2(b) discretion is to preclude them from suspending a rule under some circumstances. Thus, as the court of appeals here noted, this Court has held that Rule 2(b) does not authorize an appellate court to extend its own jurisdiction. Garza v. State, supra, 896 S.W.2d at 194.” State v. Garza, 931 S.W.2d at 563. Unfortunately, in State v. Garza we failed to take notice of our opinion in Olivo.
As pointed out previously in this opinion, in Olivo we retreated from the dicta in Garza v. State concerning the operation of Rules 2(a) and 2(b). We explained in Olivo that neither Rule 2(b) nor Rule 2(a) prohibits an appellate court from suspending appellate procedural time limits. Olivo, 918 S.W.2d at 522-23. Nevertheless, in Olivo, which concerned the use of Rule 2(b) to suspend the time in which to file a motion for extension of time to file a notice of appeal under Rule 41(b), we did not end our examination of the role of Rule 2(b) at that point.
We stated that when a notice of appeal is filed within the fifteen-day period of Rule 41(b), but without a concomitant motion for extension of time, a court of appeals lacks jurisdiction to dispose of the purported appeal other than by dismissing it for lack of jurisdiction. Olivo, 918 S.W.2d at 523. We explained that in that situation, a court of appeals lacks jurisdiction over the purported appeal, so it lacks the power to invoke Rule 2(b) in an effort to obtain jurisdiction of the case. Id. Under that rationale, we reaffirm*374ed the statements from Garza v. State, 896 S.W.2d at 194, and Jones, 796 S.W.2d at 187, that a court of appeals may not utilize Rule 2(b) to create jurisdiction where none exists. Olivo, 918 S.W.2d at 623.
We failed to recognize in State v. Garza that although an appellate court may not utilize Rule 2(b) to create jurisdiction where none exists, the rationale for that prohibition was not based on the operation of Rules 2(a) and 2(b), as suggested by Garza v. State. Instead, our rationale in Olivo was that an appellate court in that instance lacks jurisdiction and, as a result, lacks the power to invoke Rule 2(b). Simply put, under the terms of Rule 2(b), there is no “particular case” over which the appellate court has jurisdiction so that it may use Rule 2(b). The boundary of Rule 2(b) previously established by this Court was created by a basic lack of jurisdiction over a case in which to invoke Rule 2(b).4
3. Construing Rule 2(b).
I believe this Court misconstrued Rule 2(b) in State v. Garza. I disagree with this Court’s determination in State v. Garza that the language of Rule 2(b) signifies it is to be used only to facilitate processing a case through the appellate court by expediting a decision or otherwise. Rule 2(b) does not purport to limit its application to the facilitated processing of cases. The plain and logical construction of Rule 2(b) does not lead to the conclusion this Court reached in State v. Garza.
Literally, Rule 2(b) provides that an appellate court “may suspend the requirements and provisions of any rule in a particular case” “in the interest of expediting a decision or for other good cause shown,” “except as otherwise provided in these rules.” By its very terms, Rule 2(b) may be used to suspend any rule, except as otherwise provided by the rules.5 Rule 2(b) also literally provides that an appellate court may suspend any rule “in the interest of expediting a decision or for other good cause shown.”
The rule contemplates two instances in which any rule may be suspended. The first is in the interest of expediting a decision, and the second is for other good cause shown. “Other” means “being the ones distinct from the those first mentioned.” State v. Johnson, 939 S.W.2d 586, 587 (Tex.Crim.App.1996) (citing The New Merriam-Webster Dictionary (1989)). “Other” obviously refers to “in the interest of expediting a decision.” The plain and logical construction of the rule leads to the conclusion that “good cause shown” means something distinct from “in the interest of expediting a decision.” In State v. Garza this Court accurately ascertained the rule’s contemplated use “in the interest of expediting a decision.” It plainly and logically follows that a suspension of a rule in this first instance is to facilitate the processing of a case through the appellate court. However, since “other good cause shown” necessarily means something distinct from “in the interest of expediting a decision,” this Court’s similar construction of Rule 2(b)’s contemplated use in that second instance does not follow. The rule does not provide “or for similar good cause shown.” Had it done so, our interpretation of the rule *375in State v. Garza would make sense. The rule means exactly what it says — a rule may be suspended for good cause shown other than in the interest of expediting a decision.
Therefore, except as otherwise provided by the rules, Rule 2(b) may be applied to any rule for good cause shown or to expedite a decision, provided the appellate court has jurisdiction over the case, Olivo, 918 S.W.2d at 523, and in doing so the appellate court does not encroach upon this Court’s primary jurisdiction. Garza v. State, 896 S.W.2d at 195.
E. Policy considerations.
The majority discusses policy considerations in support of its holding on the scope of Rule 2(b). The majority recognizes the appeal of the argument suggested by courts of appeals, that abating an appeal and allowing an out-of-time motion for new trial will have the ultimate effect of speeding up the appellate process. Oldham, 977 S.W.2d at 359-360. However, the majority concludes, “While in a small number of cases the litigation process may ultimately be shortened, we think that the associated delays and restarting of the appellate process upon such speculation makes this an improper use of Rule 2(b).” Id. at 360 (citing Torres v. State, 804 S.W.2d 918, 920 (Tex.App.—El Paso 1990, pet. ref'd), overruled on other grounds in M.B. v. State, 905 S.W.2d 344, 348 (Tex.App.—El Paso 1995, no writ)).
In Toms, the appellant sought an abatement of his pending appeal so he could develop a record to support his claim of ineffective assistance of counsel. The El Paso Court of Appeals denied the motion to abate because of the prohibition imposed by Rule 2(a), which this Court later rejected in Olivo, and because the appellant failed to establish good cause under Rule 2(b) by identifying specific, suspected deficiencies in trial counsel’s performance. Torres, 804 S.W.2d at 920. The Court of Appeals stated, “[W]e are not disposed to encourage a practice of disrupting the orderly and prompt flow of direct appeals by what could well become a routine defense practice of seeking such abatement for random trolling of the record for signs of ineffective assistance.” Id. The El Paso Court of Appeals did not conclude that, but for Rule 2(a), the use of Rule 2(b) to abate an appeal and to remand to the trial court would improperly disrupt the appellate process. The court concluded that abating and remanding on a general request, which does not specify counsel’s suspected deficiencies, for the purpose of determining whether the appellant received effective assistance of counsel, would lead to the improper disruption of the appellate process. In other words, the El Paso Court of Appeals did not find that the appellant showed good cause for suspending the rules, and that court declined to exercise its discretion by suspending the rules under Rule 2(b), had the court believed Rule-2(a) did not prohibit that use of Rule 2(b).
The majority focuses on the appellate process as an end itself, rather than as a means to an end. The majority believes that Rule 2(b) may be used when the interests of justice compel speeding up the appellate process, but the majority rejects the notion that the interests of justice also compel the correct result in an appeal. Oldham, 977 S.W.2d at 360 (“[Rule 2(b)] should not be used as a method to lengthen procedural time limits absent truly extraordinary circumstances, even in an effort to protect the substantive rights of litigants”). I disagree with this approach which elevates procedure over substance and the resulting glorification of procedure for procedure’s sake.
Even under the majority’s economic cost-benefit analysis of Rule 2(b), the majority accedes that the litigation process may ultimately be shortened in a small number of cases if courts of appeals were authorized to restore motion for new trial jurisdiction in trial courts. The majority, however, believes that the costs of delay and restarting the appellate process are too high.
As a historical matter, the suspension of appellate rules was authorized prior to the adoption of the Texas Rules of Appellate Procedure in 1986. Rule 2(b) was derived from Rule 4 of the Rules of Post Trial and Appellate Procedure in Criminal Cases, which provided in part, “In the interest of expediting a decision or for other good cause *376shown, a court of appeals or the Court of Criminal Appeals may, except as otherwise provided in these rules, suspend the requirements or provisions of any of these rules in a particular case on application of a party or on its own motion and may order proceedings in accordance with its discretion.” This Court referred to former Rule 4 on several occasions. McGee v. State, 711 S.W.2d 257, 260 (Tex.Crim.App.1986); Lopez v. State, 708 S.W.2d 446, 447 n. 1 (Tex.Crim.App.1986) (circumstances of Lopez explained in Shanks v. State, 710 S.W.2d 585, 587 (Tex.Crim.App. 1986) (Clinton, J., concurring)); Mead v. State, 656 S.W.2d 494 (Tex.Crim.App.1983) (Campbell, J., dissenting) (discussing procedural circumstances of the ease); and Reyes v. State, 630 S.W.2d 277, 278 (Tex.Crim.App.1982). Of these opinions, Lopez is the most instructive. In that case, this Court invoked Rule 4; suspended former Rule 309(f), which provided that a party may file a motion for rehearing if the Court delivers an opinion on rehearing that changes the disposition of the cause from the disposition on original submission; and granted the State leave to file a second motion for rehearing after denying the State’s initial motion for rehearing. Lopez, 708 S.W.2d at 447 n. 1; Shanks, 710 S.W.2d at 587 (Clinton, J., concurring) (explaining what happened in Lopez). The majority’s view of the scope of Rule 2(b), as being limited to shortening, not lengthening, time limits and as a means of speeding up the appellate process, is inconsistent with this Court’s use of former Rule 4 in Lopez.
Also, prior to the adoption of the Texas Rules of Appellate Procedure, courts of appeals had authority exceeding their current authority relating to the extension of time in which to file a notice of appeal. Former Art. 44.08(e), V.A.C.C.P., provided, “For good cause shown, the court of appeals may permit the giving of notice of appeal after the expiration of [the] 15 days [in which notice of appeals must be filed under Art. 44.08(b) ].” Now, a court of appeals may grant a motion for extension of time to file a notice of appeal only if the notice of appeal and the motion are filed within fifteen days after the deadline for filing the notice of appeal. Tex. R.App.P. 26.3. I mention former Art. 44.08(e) to show that giving appellate courts authority to exercise discretion in allowing untimely appellate events is not a completely new concept.
Before the extension of criminal jurisdiction to courts of appeals in 1981, former Art. 40.09(9), V.A.C.C.P., required a defendant to file the appellate brief in the trial court. The trial court had thirty days in which it was required to determine from the briefs, and oral argument if desired by the trial court, whether the defendant should be granted a new trial. Former Art. 40.09(12). Judge Morrison’s commentary to former Art. 40.09 states that “if a trial judge were given an opportunity to study the record of the trial over which he had presided, read briefs and hear argument on the points raised, in many eases he would recognize the fact that reversible error was in the case and that he would promptly grant a new trial and set the case down at once for retrial, thus avoiding the inherent delay occasioned by an appeal and protecting his appellate record of which so many able trial judges are justifiably proud.” Former Art. 40.09, V.A.C.C.P., Interpretive Commentary (Vernon’s 1979). Commenting on this procedure, Judge Onion observed, “While the time between conviction and appeal will be undoubtedly lengthened in some cases, the number of cases appealed should be reduced and many unnecessary reversals eliminated.” Former Art. 44.09, Special Commentary (Vernon’s 1979). This procedure was abandoned when courts of appeals were given criminal jurisdiction. Nevertheless, the cost-benefit policy considerations espoused by Judge Onion and Judge Morrison remain valid and are inconsistent with the majority’s analysis of policy considerations in the present ease.
As a final historical note, extensions of time for meeting appellate deadlines were authorized on a showing of good cause. Former Art. 40.09(13), V.A.C.C.P. Moreover, our current Rules of Appellate Procedure specifically allow extensions of time for certain appellate events. Tex.R.App.P. 10.5(b), 21.6, 26.3, 31.1, 38.6(d), 49.8, 68.2(e), and 79.6. Similarly, other Rules of Appellate Procedure have the effect of delaying resolution of appeals, some of which are designed to protect the appellant’s substantive rights, such *377as the right to effective assistance of counsel on appeal. Tex.R.App.P. 9.4(i), 18.7, 19.1, 34.6(e)(3), 35.3(c), 38.8(b), and 50. Additionally, there are no time constraints regarding when appellate courts must issue a decision on original submission or on rehearing.
Although the speedy resolution of appeals is a valid policy consideration, the Rules of Appellate Procedure are not designed solely to meet that goal. Apparently, other policy considerations were taken into account and resulted in rules which have the effect of delaying an appeal for some other purpose, such as the protection of an appellant’s rights. See, e.g., Rule 38.8(b).
The majority’s cost concerns are factored into Rule 2(b). Courts of appeals have discretion in deciding whether to use Rule 2(b) to suspend the rules pertaining to the filing of motions for new trial. If a court of appeals does not believe that good cause is shown, or if a court of appeals simply declines to exercise ’'ts power under Rule 2(b), perhaps based on the speculative nature of the underlying reasons asserted by an appellant, the court is not compelled to suspend the rules. State v. Garza, 931 S.W.2d at 563 (a court of appeals is not bound to employ Rule 2(b) even on a showing of good cause).
The majority cites numerous cases in which the courts of appeals have considered whether Rule 2(b) could or should be used. Oldham, 977 S.W.2d at 356-358. In my view, the courts of appeals that have considered using Rule 2(b) have demonstrated they use it sparingly and properly, reserving Rule 2(b) for that small number of cases which might end up in the black on the majority’s accounting ledger. The courts of appeals have followed this Court’s admonition in State ex rel. Cobb v. Godfrey that the suspension of rales is a serious matter and is not to be taken lightly.6 Some have used Rule 2(b) to allow for late notices of appeal, but we resolved that issue in Olivo. The courts of appeals have demonstrated that they are cognizant of the cost-benefit concerns expressed by the majority and that those concerns are weighed in deciding whether to take the extraordinary step of invoking Rule 2(b) to suspend the rules and permit an out-of-time motion for new trial to be filed. See, e.g., Tuffiash v. State, 878 S.W.2d 197, 201 n. 2 (Tex.App.—San Antonio 1994, pet. ref'd) (after considering whether a claim of newly-discovered evidence is cognizable on habeas corpus, court of appeals concluded it was more efficient to have the issue of whether a forensic serologist committed perjury decided then, rather than many years later); Bowler v. State, 822 S.W.2d 334, 335 (Tex.App.—San Antonio 1992, review refused) (claim of ineffective assistance of counsel may be raised by post-conviction writ of ha-beas corpus, so court of appeals declined to use Rule 2(b) to suspend the rales and permit out-of-time motion for new trial); Harris v. State, 818 S.W.2d 231, 233 (Tex.App.—San Antonio 1991, no pet.) (a factor to consider when deciding whether to allow out-of-time motion for new trial under Rule 2(b) is whether the issue of newly-discovered evidence that the undercover informant in a drug case was subsequently indicted for perjury in other cases, and that district attorneys subsequently dismissed over seventy cases in which the witness was an undercover operative, can serve as a basis for habeas corpus relief).
F. Conclusion on Rule 2(b) out-of-time motion for new trial issue.
For the foregoing reasons, I believe Rule 2(b) authorizes a court of appeals to suspend former Rule 31(a)(1) on a showing of good cause, and to restore limited jurisdiction in the trial court for the purpose of an out-of-time motion for new trial. I agree with the rationale of the first appellate court to utilize Rule 2(b) in that manner, Harris v. State, 818 S.W.2d 231 (Tex.App.—San Antonio 1991, no pet.). That court’s rationale is consistent with this Court’s determination of how Rule 2(b) operates in Olivo. Neither State ex rel. Cobb v. Godfrey, Tallant v. State, Garza v. State, State v. Garza, nor policy considerations compel the majority’s holding. I therefore dissent to this Court’s resolution of this issue.
*378G. Meaning of the majority’s holding on the Rule 2(b) issue.
Notwithstanding my disagreement with the majority’s ultimate view of the scope of Rule 2(b), the majority’s conclusion regarding Rule 2(b) is puzzling. After exploring courts of appeals decisions on Rule 2(b), this Court’s decisions on the rule, and policy considerations, the majority arrives at the conclusion that Rule 2(b) may not be used to lengthen procedural time limits absent truly extraordinary circumstances. Oldham, 977 S.W.2d at 360. Did the Court of Appeals err in this ease because truly extraordinary circumstances were not present? Does a court of appeals have authority to suspend the rules and permit an out-of-time motion for new trial to be filed if there are truly extraordinary circumstances? May Rule 2(b) be used to lengthen procedural time limits only if they do not pertain to motions for new trial, as long as there are truly extraordinary circumstances for doing so? Is the question of whether there are truly extraordinary circumstances present really a question about whether good cause is shown? If so, will this Court review courts of appeals’ determinations regarding good cause, despite this Court’s indication to the contrary in State v. Garza?
V. The denial of counsel issue.
After the majority decides the Court of Appeals erred in utilizing Rule 2(b), the majority seems to recognize that courts of appeals have authority to restore a trial courts jurisdiction to entertain a motion for new trial even without the use of Rule 2(b). Of course, that was the extent of the issue presented in the motion for rehearing — whether courts of appeals have that authority. The majority hints at an answer to the actual issue posed by the State, but expressly leaves it unaddressed.
Nevertheless, the majority plows onward and reviews the Court of Appeals’ holding that Appellant was denied counsel. That issue is not presented in the State’s motion for rehearing, and we did not grant rehearing on the Court’s own motion. The dismissal of a petition as having been improvidently granted is tantamount to having refused the petition in the first place. See Tex.R.App.R. 69.3, former Rule 202(k). A motion for rehearing after the refusal of a petition had to have been limited to intervening circumstances of substantial and controlling effect. Former Tex.R.App.R. 230(b) (current Rule 79.2(c) provides that a motion for rehearing of an order that refuses or dismisses a petition for discretionary review may be grounded only on substantial intervening circumstances). The motion for rehearing claimed that once the trial court lost jurisdiction for a motion for new trial, the Court of Appeals lacked authority to restore jurisdiction in the trial court for a motion for new trial. The State cited Olivo as the intervening circumstance. Olivo and the State’s argument in the motion for rehearing do not pertain to whether the record shows that Appellant was denied counsel.
I disagree with the majority’s decision to address the denial of counsel issue, which is not before this Court. If this Court is going to hold that the courts of appeals have been wrong in using Rule 2(b) to allow out-of-time motions for new trial, this Court should at least do so in a case in which we follow our rules ourselves.7
VI. Conclusion.
For the foregoing reasons, I respectfully dissent to the majority’s decision to reverse the Court of Appeals’ judgment.
. Ironically, in this case sparked by a complaint concerning the right to counsel, there has been no brief filed on Appellant's behalf in this Court. Appellant's brief was due on April 3, 1995. Although on June 19, 1996, we dismissed the State’s petition as having been improvidently granted, we granted the State's motion for rehearing on October 16, 1996. This Court’s policy of granting a State's petition for discretionary review and deciding the case without inquiry into the lack of an appellant’s brief is disturbing. Courts of appeals may not decide an appeal of a criminal case without such an inquiry. Tex. R.App.P. 38.8(b). This Court may not do so in a direct appeal of a case in which the death penalty has been assessed. Tex.R.App.P. 71.3 (briefs *369in a direct appeal should be prepared and filed in accordance with Rule 38). The petitioning party must file a brief after discretionary review is granted. Hunter v. State, 954 S.W.2d 767 (Tex.Crim.App.1995) (order on appellant's motion to dismiss). In Hunter we construed former Rule 203(a), which provided that the petitioning party shall file a brief. The same rationale holds for current Rule 70.2, which provides that the opposing party must file a brief within thirty days after the petitioner’s brief is filed. Moreover, Appellants are entitled to be represented by counsel when this Court grants a petition for discretionary review, and indigent appellants are entitled to appointed counsel after discretionary review is granted. Peterson v. Jones, 894 S.W.2d 370 (Tex.Crim.App.1995). It makes no sense to require a brief be filed on an appellant’s behalf after a State’s petition is granted, to require the appointment of counsel for indigent appellants when a petition is granted, to require an inquiry into the lack of an appellant’s brief in courts of appeals and in death penalty appeals, but then to fail to make such an inquiry ourselves in a discretionary review setting.
. See Mosley v. State, — S.W.2d -, 1998 WL 349513 (Tex.Crim.App. No. 72,281, delivered July 1, 1998) (rehearing granted on Court’s own motion); and Ex parte Patterson, 969 S.W.2d 16 (Tex.Crim.App., delivered 1998) (rehearing granted on Court's own motion); but see Oldham, 977 S.W.2d at 358 (discussing our use of Rule 2(b) in Rose v. State, 752 S.W.2d 529 (Tex.Crim.App.1987), to rehear a case on our own motion); and Oldham, 977 S.W.2d at 361 (Rule 2(b) is to be used when a case becomes unduly stalled or delayed in the appellate process due to procedural rules, and the interests of justice compel speeding up the process). Granting rehearing on our own motion does not speed up the appellate process.
. In conjunction with Tallant, the majority cites Ex parte Herrera, 860 S.W.2d 106 (Tex.Crim.App.1993), observing that we refused to use Rule 2(b) to allow an out-of-tinie motion for new trial based on newly discovered evidence. Oldham, 977 S.W.2d at 358. In Herrera the applicant filed a request for leave to file an original application for writ of habeas corpus and a request to suspend Rule 31. Again, we did not hold in Herrera that Rule 2(b) could not be used to suspend the time limit for filing a motion for new trial under Rule 31. We simply stated that "applicant’s request for this Court to suspend the Rules of Appellate Procedure under Tex.R.App. Pro., Rule 2(b) is denied_” Herrera, 860 S.W.2d at 106.
. This is consistent -with the ultimate holding of this Court in Garza v. State, the Rule 101 case. The filing of a petition for discretionary review vests this Court with jurisdiction, and courts of appeals are extended limited jurisdiction under Rule 50, formerly Rule 101, to act. If a court of appeals attempts to suspend that rule and give itself more time in which to issue an opinion on reconsideration, that encroaches on this Court's primary jurisdiction. That is far different from a situation in which a higher court suspends a rule to reinvest jurisdiction in a lower court, as the Court of Appeals sought to do in the present case.
. I construe the phrase "except as otherwise provided by these rules” to refer to Rule 2(a), the operation of which was explained in Olivo. Rule 2(a) applies to rules that specifically prohibit an appellate court from taking certain action, such as former Rule 74(0(2) (appellant's failure to file a brief shall not authorize dismissal of appeal except as provided) and former Rule 83 (a judgment shall not be affirmed or reversed or an appeal dismissed for procedural defects or irregularities without allowing time to correct the defect), and to rules that require an appellate court to take certain action, such as former Rule 74(0(2) (requiring appellate court to take certain steps when no appellant’s brief is filed) and former Rule 90 (appellate court shall address every issue raised and necessary to final disposition of the appeal).
. For a survey of case law development in this area among the courts of appeals, see Dix and Dawson, Criminal Practice and Procedure, § 43.349 (Texas Practice 1995).
. This is not to say that the question of whether a record such as the one in the present case demonstrates that an appellant has been denied counsel is not worth reviewing. If this Court is inclined to address that issue, it should do so in a case in which that issue is properly before this Court. We have a case pending that squarely presents the issue, although we have not yet acted on the petition for discretionary review: Stamper v. State, No. 02-96-486-CR (Tex.App.— Fort Worth, delivered February 5, 1998), PDR No. 450-98.