OFFICE OF THE AlTORNEY GENERAL OF TEX+
AUSTIN
IIoaorableRonry Sebesta
County Attorney
CSStXOF hUflty
Eastr~op,Texas
Deer Sir:
he appeal was talcan,eta.**
In Wavorro Y. Stat (1940) 143 S. W; (2d) k81,the
'aonrtre-affixma the aeneral r ie that~afttor notias 02 appeal
had been given, whioh &id not'beeliwithdraw%.,*the oar tiKl.&S
wh;ichthe trial court may do. . ; is to 8qfktituM ‘lotit or
destroyed reoox+ds.* Jadgs Beauohcfnp In the ~aonr$~~aMg.inaX
opinion said: "ThBre is 110okatentionthat ,thetr@$ o~oti
did not have the power to aet aside the ordcir‘and*hat &ueetLon
HonorableHBnry,Sebesta,page 2
-ia not here passed upon" (top 0r page 1083, col. 1). How-
ever, Judge Hawklne in the opinion on the motion for rehear-
ing stated: -The trial court wae without jurisdictionto en-
tsrtain the motion*
._ _ to set aaide hia order overruling
. the
..-__de-
renaant's motion ror a new trial for the reason that =Sald
notice of appeal was never withdrawn." And here Judge Hawkins
re-statedanother general rule: *There is no question but that
the trial court had oontrol over its judgment and orders during
the term at which they were entered,provided the 4ourt had not
lost jurieClctionby reason oi.the notioe of appeal. Said notioe
ot appeal was never withdrawn." (Syl. 5-7,p. 1084).
However, in Tore8 v. State, (1914) 166 S. H. 523,
at p. 526 (Syl. 14), It was held that an aooused. who on then
ovei-ruling 0r his m&ion for new trial gave notiae in open
oourt.of an appeal, oan than wlthdraw hie notioe of appeal --
as the~trial 4ourt has control Over its judgmentsduring the
tsw'at whlah such jttdmnt waa rendered.
9urhg the term at whloh the judgment ie reii-
dared, the notiae of ,appaalmay be withdrawnan&
the jurlsdictl~onor the.trfal.aourt rsinstated..e
Ex mrte Maple; (1.990) 33 8. W. (2d) 735, at p. -
*.
"It is the well-settledlaw oi the state
that a defendant may~waivd every legal right ex-
oept'the right or trial by jury, and that may ba
waivedQaow In oertaln oases-andunder oertain air-
oumat~na~s. Henoe, relator oould uaive all the
errors, ii aw, whloh w8r,aoommitted in'the trial
of the'case. He couLd also wlthdraw his notio4 or
appeal; if he desired to do so,-eventhough his
attorney wished to appeal.' Ex parte Wood, (1933)
87 S. W.~ (2d) 489, at p. 488.
The &ate&expression of the Court of Criminal Ap-
peals on this quaatlon is Williama v. State, (i94f) ,'zdS. W.
(2$)482,wherein that COW%, at p. 486, Syl. , , :
"It ie the general rule that a trial aourt
hae rull power and aontrol or ita judgments, or-
dere and deoraes, during the te~rmat which they.
have been made, and that, in the exercise of that
.’
Honorable Henry Sebesta, page 3
-
power, he may, at the same term of court, oorrect,
modify, or set them aside. The rule has been rec-
ognized In oases involvingnotice of appeal. Un-
der the expreaa provieions of Art. 828,C.C.P., the
giving 0r notice 0r appeal in a oriminal oaae SUB-
psnda and arrest8 al& further pxoceedi s in the
44oaein the trial court, pending detel-2nation or
the appeal, except to substitute loat papepe.or
records in the oases: Rotwithstandingthe atatute
mentioned. the trial aourt is empowerad. under the
general.rulementioned, at the request of the ao-
cused. during the 8ame termof oourt., to set aside
the notice or iwpeal.w (&uph+s ourej
In the last analysis, our oourts by oomtruing the
statute; declare the law and %t ia our duty to tosow their
construatlon;see Courta, Il..Tex.Fur. 83S, par..,fjS;Statutes,
39 TOX.~ Jur. 174, par.2. .~ .
Answering your question; .WBthareiore~ky that the
trial court, durisg the same term of,oqurt, mai~pbr&t'the
derenilant'towithdraw her notloe oi appoaaa "
Dw;dbr rt
‘APPFlOVED
”IdAY 9, 1944 .’
/a/ GEO. P. BL4CKBURW
ACTIWG ATTORWEY GWWWSALOF TEKAS
AgTRovED .
0PIaI0mrcoI+6@rEE
By B.W.B., @f$IIiMAW
Untitled Texas Attorney General Opinion
Combined Opinion