IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0279-20
ANDREW ANDERSON, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIFTH COURT OF APPEALS
DALLAS COUNTY
YEARY, J., filed a dissenting opinion.
DISSENTING OPINION
The real problem in this case is that the record does not seem to reveal when
Appellant’s notice of appeal was actually “received” by the appropriate court clerk for
purposes of the operation of the so-called “mailbox rule.” 1 The clerk did not formally file
1
Rule 9.2(b)(1) of the Texas Rules of Appellate Procedure provides:
(b) Filing by Mail.
(1) Timely Filing. A document received within ten days after the
filing deadline is considered timely filed if:
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the notice of appeal until December 2nd, which was considerably later than the November
6th deadline for filing. Even so, if all the criteria for the application of Rule 9.2(b)(1) had
been met, Appellant might have been granted an additional ten days beyond the November
6th due date, so long as the clerk actually “received” the notice for filing within ten days of
that date.
But the Court today holds that Appellant may not rely on Rule 9.2(b)(1) because he
did not send his notice of appeal to the “proper clerk” for purposes of triggering Rule
9.2(b)(1)(A). Instead, he addressed it to the trial court; specifically, to “Dallas County
Court #265.” For that reason, according to the Court, the “mailbox rule” does not apply,
and it makes no difference when the clerk might have “received” the notice of appeal for
filing. The Court concludes that the court of appeals lacked jurisdiction because the notice
of appeal was not actually filed until well after November 6th.
None of this should matter, of course, if the so-called “prisoner mailbox rule” were
to apply. Unlike the regular “mailbox rule” embraced in Rule 9.2(b)(1), which only extends
the time for “filing” a document, the “prisoner mailbox rule” would render Appellant’s
(A) it was sent to the proper clerk by
United States Postal Service or a commercial
delivery service;
(B) it was placed in an envelope or
wrapper properly addressed and stamped; and
(C) it was deposited in the mail or
delivered to a commercial delivery service on or
before the last day for filing.
TEX. R. APP. P. 9.2(b)(1) (emphasis added).
ANDERSON — 3
notice of appeal “filed” as of the date he submitted it to prison authorities for mailing. See
Campbell v. State, 320 S.W.3d 338, 342 (Tex. Crim. App. 2010) (“We hold that the
pleadings of pro se inmates shall be deemed filed at the time they are delivered to prison
authorities for forwarding to the court clerk.”). We do not know exactly when Appellant
did that, but it must have been prior to November 4th, two days before the due date of
November 6th, because the envelope in which his notice of appeal was mailed was
postmarked November 4th.
The Court today relies upon Campbell v. State, 320 S.W.3d at 342, for the
proposition that “the prisoner mailbox rule is still subject to the requirements of Rule
9.2(b).” Majority Opinion at 5. That would include the requirement of sending a document
to the “proper clerk.” I am not entirely sure that is what Campbell truly holds, but even if
it were, I agree with Judge Walker that those requirements were satisfied when Appellant
addressed his notice of appeal to the trial court.
The Texas Supreme Court has construed Rule 9.2(b)(1)(A)’s nearly identical
predecessor (former Texas Rule of Appellate Procedure 4(b)) with sufficient leeway that a
pleading addressed to the proper trial court should be deemed also to constitute a pleading
addressed to the “proper clerk.” See Stokes v. Aberdeen Ins. Co., 917 S.W.2d 267, 268
(Tex. 1996) (“The ministerial servant of the court is neither separate from nor above the
court itself. We hold the Stokes timely filed their motion for new trial . . . by mailing it to
the proper court.”). It seems to me that we do the opposite of benefitting the jurisprudence
of this state by construing the same appellate rule differently than the other of our two state
high courts has construed it, especially when there is not a good reason to do so. Perhaps I
ANDERSON — 4
would reach a different conclusion if I could think of a good reason, but I cannot. And the
Court does not suggest one. I am persuaded that the Texas Supreme Court’s construction
of Rule 9.2(b)(1)(A) is a reasonable one, and I would follow it here.
Because Appellant addressed his notice of appeal to the trial court, and it was in fact
deposited in the mail, he has satisfied all of Rule 9.2(b)(1)’s criteria. Therefore, even
assuming that the “prisoner mailbox rule” is subject to all the same requirements as Rule
9.2(b)(1), Appellant has properly invoked it, and his notice of appeal should be deemed to
have been filed at least as of the date of the postmark on the envelope, namely, November
4th. This was timely.
It is true that the “prisoner mailbox rule” is a creature of judicial decision. We have
adopted it—as have the United States Supreme Court and the Texas Supreme Court—not
as a matter of construing Rule 9.2(b), but as a judicial enhancement to the rule. See
Campbell, 320 S.W.3d at 342–44 (“Like the United States Supreme Court, the Texas
Supreme Court recognized the unique circumstances of pro se inmate litigants. We also
recognize those circumstances.”) (citing Houston v. Lack, 487 U.S. 266 (1988), Ramos v.
Richardson, 228 S.W.3d 671, 673 (Tex. 2007), and Warner v. Glass, 135 S.W.3d 681,
684–85 (Tex. 2004)). Indeed, it is an eminently sensible enhancement, given that a jail or
prison inmate is at the complete mercy of correctional authorities to actually deposit his
pro se legal pleadings into the mail in time to invoke Rule 9.2(b)(1)’s ten-day grace period.
Perhaps the Court’s Rules Committee should consider formally incorporating the “prison
mailbox rule” within Rule 9.2 itself.
I respectfully dissent.
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FILED: June 30, 2021
PUBLISH