dissenting and concurring.
On motion for rehearing, Robert A. Muller, appellee, takes us to task for permitting the State of Texas to file an amended notice of appeal eight months after the judgment. After reconsidering the issue, I agree and withdraw the earlier opinion, of which I was the author. I dissent from the new majority opinion on the issue of the notice of appeal and concur in the finding that the statute is constitutional.
The State charged Robert Muller, appel-lee here and defendant below, with operating a motor vehicle in a public place while intoxicated. Muller filed a motion to strike the paragraph of the information that alleged a .10 alcohol concentration, and to suppress all intoxilyzer evidence. In the motion, Muller contested the constitutionality of Tex.Rev.Civ.Stat.Ann. art. 6701Z-5, § 3(a) and (b) (Vernon Supp.1990) and the Texas Department of Public Safety’s (DPS) Breath Alcohol Testing Regulations (the regulations).
The trial court granted Muller’s motion, struck the paragraph, ruled that the regulations and article 67011-5, § 3(a) and (b) were unconstitutional, and suppressed the evidence. The State filed a notice of appeal to appeal that order on February 17, 1989. The notice said:
Now comes the State of Texas, by and through its District Attorney, John B. Holmes, Jr., pursuant to Tex.Code Crim. Proc. art. 44.01(a)(1) and (a)(5)_
I certify to this Court that this appeal is not taken for the purpose of delay and that the evidence suppressed in this cause is of substantial importance.
/s/ John B. Holmes, Jr. by [undecipherable].
At oral argument, the State identified the signature on the notice as that of the first assistant to the district attorney. After argument, the State filed a motion for leave to file an amended notice of appeal, which we granted. The State filed an amended notice of appeal, signed by John B. Holmes, on October 30, 1989. The critical parts of that notice are:
2. The original notice of appeal in this cause was executed by the First Assistant District Attorney on a date that the undersigned John B. Holmes, Jr., the Harris County District Attorney, was out of town. The First Assistant is fully authorized to exercise the functions of the District Attorney in the District Attorney’s absence.
3. Counsel for the appellee, Robert A. Muller, recently filed a brief in this Court, challenging for the first time the validity of the notice of appeal in this cause ... The undersigned submits that the First Assistant’s signature was adequate and that the appellee should be estopped from challenging the validity of the appeal at this late date but submits this amended notice of appeal out of an abundance of caution.
4. Accordingly, on this the 30th day of October, 1989, the Harris County District Attorney hereby submits amended notice of appeal in this cause, incorporating by reference the content of the original notice of appeal in this cause. This amended notice shall be filed with this Court because this Court presently has jurisdiction, and a duplicate original is being filed in the trial court.
In his original brief and in his motion for rehearing, Muller claims the State did not give proper notice of appeal because an assistant prosecutor signed the notice. Muller contends we have no jurisdiction to consider the State’s appeal because the prosecuting attorney did not certify to the trial court that (1) the appeal was not taken for the purpose of delay, and (2) the evidence was of substantial importance in the case.1
Muller contends the amendment did not cure the jurisdictional error. Once the State filed a notice of appeal without the signature of the prosecuting attorney, and the time to file a notice of appeal expired, *324Muller argues it was too late to file an amended notice.
The majority deletes the requirement for the prosecuting attorney’s signature by finding it “improbable” that the legislature meant what it said. By such finding, the majority dispenses with the need for legal analysis. As an intermediate appellate court, we have no authority to interpret legislation contrary to its express language or re-write it to make it more “probable.” Dickens v. Court of Appeals for Second Supreme Judicial Dist. of Tex., 727 S.W.2d 542, 546 (Tex.Cr.App.1987).
I. The State’s notice to appeal
Article 44.01, Tex.Code Crim.P.Ann. (Vernon Supp.1990), controls appeals by the State. Relevant subsections are:
(a) The state is entitled to appeal an order of a court in a criminal case if the order:
(1) dismisses an indictment, information, or complaint or any portion of an indictment, information, or complaint;
* He * * * *
(5) grants a motion to suppress evidence, a confession, or an admission, if jeopardy has not attached in the case and if the prosecuting attorney certifies to the trial court that the appeal is not taken for the purpose of delay and that the evidence, confession, or admission is of substantial importance in the case.
* * * * Sic *
(d) The prosecuting attorney may not make an appeal under Subsection (a) or (b) of this article later than the 15th day after the date on which the order, ruling, or sentence to be appealed is entered by the court.
* * * * * *
(h) The Texas Rules of Appellate Procedure apply to a petition by the state to the Court of Criminal Appeals for review of a decision of a court of appeals in a criminal case.
* * * * * *
(i) In this article, “prosecuting attorney” means the county attorney, district attorney, or criminal district attorney who has the primary responsibility of prosecuting cases in the court hearing the case and does not include an assistant prosecuting attorney.
Tex.Code Crim.P.Ann. art. 44.01(a), (d), (h) & (i) (Vernon Supp.1990) (emphasis added).
A. Notice to appeal the dismissal of the information
Under artilce 44.01(a)(1), the State can appeal the striking of a paragraph of the indictment. The only requirements for appealing the striking of the paragraph of the information is that the State file a notice of appeal signed by the prosecuting attorney within 15 days of the judgment. Tex.Code Crim.P.Ann. art. 44.01(a)(1) & (d) (Vernon Supp.1990). In State v. Barker, 780 S.W.2d 927, 928 (Tex.App—Austin 1989, pet. ref d), the court held that a notice of appeal, signed by the assistant prosecutor and amended by the prosecuting attorney, was sufficient to comply with the requirements of article 44.01(i) for an appeal under article 44.01(a)(1).
Although I have serious reservations about the propriety of the amended notice of appeal given under article 44.01(a)(1), I do not address that issue in this dissent.
B. Notice to appeal the motion to suppress
Under article 44.01(a)(5), the State can appeal an order suppressing the evidence. Article 44.01(a)(5), like article 44.01(a)(1), requires the State to file a notice of appeal signed by the prosecuting attorney (not the assistant prosecuting attorney) within 15 days of the judgment.
The only difference between the requirements of 44.01(a)(1) and article 44.01(a)(5) is that the legislature created a condition precedent to appeal an order suppressing the evidence: Under article 44.01(a)(5), the State can appeal an order suppressing evidence only ¾/the prosecuting attorney (not the assistant prosecuting attorney), certifies to the trial court that (1) the appeal was not taken for the purpose of delay, and (2) the evidence was of substantial importance in the case.
*325We said in our original opinion that the State’s appeal was governed by the Texas Rules of Appellate Procedure, citing rule 1, Tex.R.App.P., and State v. Demaret, 764 S.W.2d 857 (Tex.App.—Austin 1989, no pet.). In our analysis, however, we overlooked the rule 2, Tex.R.App.P., which limits the application of the Rules of Appellate Procedure in criminal cases:
(a) These rules shall not be construed to extend or limit the jurisdiction of the courts of appeals [or] the Court of Criminal Appeals....
(b) [N]othing in this rule shall be construed to allow any court to suspend requirements or provisions of the Code of Criminal Procedure.
We noted in our original opinion that under rule 46(f), Tex.R.App.P., which applies to the appeal bond in civil cases, we may allow a party to amend the bond to cure a problem with the bond. We admitted there is no comparable rule that permits the amendment of a notice of appeal in a criminal case. We held, under rule 83, Tex.R.App.P., we had the authority to permit the State to amend the notice of appeal.
In Jiles v. State, 751 S.W.2d 620, 621 (Tex.App.—Houston [1st Dist.] 1988, pet. ref’d), this Court said we have other options, besides dismissal, when a party fails to file a proper notice of appeal. I beg to differ with this Court on that point. When a court holds there is no jurisdiction, by necessity, there is no other remedy.
In Jiles, we also said rule 2, Tex.R. App.P., gives us the authority to suspend any rule in an appropriate case. Under rule 83, Tex.R.App.P., we said we could cure any irregularity in appellate procedure, “either of form or substance.” Again I disagree with Jiles. I do not believe an intermediate appellate court can suspend any rule of procedure. Even if we could, we are not dealing with a rule of procedure. We are dealing with an article of a code enacted by the legislature. The legislature said the State could only appeal a motion to suppress if the prosecuting attorney certified two facts to the trial court, within 15 days of the judgment. “Certify” is defined as “to guarantee as certain; to declare or attest by a formal or legal certificate.” The Oxford English Dictionary Vol. II, 1054 (2d ed. 1989). We are not confronted with a mere irregularity in form or substance; we are dealing with jurisdiction, that is, the power to entertain the appeal.
I do not think that the certification required by article 44.01(a)(5), can be made by an assistant prosecuting attorney. When the legislature said the certification must be made by the prosecuting attorney, I think the legislature wanted the prosecuting attorney to guarantee to the trial court in a formal, legal certificate, that (1) the appeal was not taken for the purpose of delay, and (2) the evidence was of substantial importance in the case.
After considering the impact of rules 1 and 2 on rule 83, I would hold that we had no authority to permit the State to amend its notice of appeal eight months after the deadline. Rule 83, a general rule of procedure, cannot suspend a specific statute to the contrary. To permit rule 83 to extend the jurisdiction of the courts of appeals to hear appeals where the prosecuting attorney did not file notice under article 44.-01(a)(5), would violate rule 2, Tex.R.App.P.
II. Inconsistency in opinions
The majority acknowledges that the Fourteenth Court of Appeals has held a defendant’s oral notice of appeal, made in open court, was not an effective notice of appeal. Corbett v. State, 745 S.W.2d 933, 934 (Tex.App.—Houston [14th Dist.] 1988, pet.ref’d). The majority attempts to distinguish Corbett from this case by noting that in Corbett, no one signed the notice, and here the notice was signed by the assistant prosecutor. At 319. That distinction is not a valid one in light of this Court’s holding in Jiles, where this Court held, in a case exactly like Corbett, to the contrary: an oral, unsigned notice of appeal was an effective notice of appeal. Jiles, 751 S.W.2d at 621. If Jiles is any indication, the majority would also hold that an unsigned notice of appeal by the State was effective to invoke jurisdiction.
*326In Shute v. State, 744 S.W.2d 96, 97 (Tex.Crim.App.1988), the Court of Criminal Appeals held that an oral notice of appeal, which was acknowledged in the clerk’s records, did not invoke jurisdiction. In spite of this, the Court of Criminal Appeals refused petition in Jiles, indicating, if not approval, at least an acceptance of the result of the case. Both Shute and Jiles cannot be correct: The facts of the two cases are almost exactly alike; only their holdings are different.
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In Shute, the Court of Criminal Appeals affirmed the unpublished opinion by the Fourteenth Court of Appeals. The opinions in Shute and Jiles, thus, represent the conflicting views on the requirements for the notice of appeal between the Fourteenth and First Courts of Appeals. These two courts review eases from the same 14 county district. Presently, with this conflict unresolved, the Court of Criminal Appeals has left the courts, the prosecutors, and the defendants in this district without guidance on the jurisdictional requirements for the notice of appeal.
The confusion continues unabated. In Mullins v. State, 767 S.W.2d 166, 167-68 (Tex.App.—Houston [1st Dist.] 1988, no pet.), this Court again held that an oral notice of appeal, acknowledged in the judgment, invoked jurisdiction. In Jones v. State, 752 S.W.2d 150, 151 (Tex.App.—Dallas 1988, pet.ref’d), the Dallas Court of Appeals held a written but unsigned notice of appeal, invoked jurisdiction. I agree with the dissenters in Jones, that Shute cannot be distinguished from Jones. As stated by Justice McClung in his dissent in Jones, to be effective as a notice of appeal, the notice must be, (1) timely filed, (2) in writing, and (3) signed. 752 S.W.2d at 154.
For the State to appeal an order suppressing evidence under article 44.01(a)(5) & (d), there are four requirements for an effective notice of appeal. The State’s notice must be:
(1) timely filed;
(2) m writing;
(3) and signed by the prosecuting attorney (not the assistant prosecuting attorney),
(4) who shall certify to the trial court that:
(a) the appeal was not taken for the purpose of delay; and
(b) the evidence was of substantial importance in the case (emphasis added).
Because the State’s notice of appeal was not signed by the prosecuting attorney, and because the prosecuting attorney did not make the article 44.01(a)(5) certification to the trial court until nine months after the judgment, I would hold, under the guidance of Shute, the State did not perfect its appeal of the motion to suppress.
. Article 44.01(a)(5), (d) & (i) Thx.Codk Crim.Proc. Ann. (Vernon Supp.1990) require the prosecuting attorney, and not an assistant, to certify that (1) the appeal is not take for the purpose of delay; and (2) the evidence is of substantial importance in the case.