Opinion on Motion for Rehearing of Motion for Extension of Time

KEITH, Justice.

In the matter above captioned, the record was approved on August 11, 1981. Art. 40.09, § 7, V.A.C.C.P., as amended, Vernon's Texas Session Law Service 1981, Acts 67th Leg., Reg.Sess., Ch. 291, Sec. 108, at 804, 807. Counsel was advised by the trial court of such fact and that his appellate brief was due to be filed within thirty days thereafter. See Art. 40.09, § 9, V.A.C.C.P.

No brief was filed within the prescribed time; but, on September 9, 1981, counsel filed a motion for an extension of time within which to file such brief. By an order dated September 24, 1981, we denied the motion for an extension, citing Art. 40.09, § 13, V.A.C.C.P., and Tex.Cr.App.R. 6. Appellant has timely filed a motion for rehearing of our order denying the extension of time.

In considering the question now before us, we note that the only limitation upon the time within which a motion for extension of time for the filing of an appellate brief is that contained in Rule 6. This Rule promulgated by the Court of Criminal Appeals, insofar as applicable to the instant question, is predicated upon statutory authority contained in Art. 44.33, V.A.C.C.P.:

"(a) The Court of Criminal Appeals shall make rules of posttrial and appellate procedure as to the hearing of criminal actions not inconsistent with this Code."

Other than housekeeping changes to accommodate an amended statute, the only significant change in old Rule 13 (as quoted in Yates v. State, 557 S.W.2d 115, 116-117 fn. 1 (Tex.Cr.App. 1977) ) and new Rule 6 was the addition of a single sentence:

"All motions shall be filed at least one week before the deadline for the filing of the item in question."

The Court did not articulate the reasons prompting the adoption of the new time requirement.

It is implicit in the Rule that upon failure to comply with any of the provisions thereof, including the time requirement, the appellate court is authorized to deny the relief sought, i.e., the extension of time. But, if we follow Rule 6 as to the timely filing of the motion for the extension of time to file the brief, we will deny appellant one of his constitutional rights, as will be shown hereafter.

While the motion does not complain that our reliance upon Rule 6 deprives the appellant of rights guaranteed to him by law, we reach such theory sua sponte.

Under our record, we are of the opinion that Rule 6 is inapplicable to motions for extension of time to file an appellate brief on behalf of an indigent. In so holding, we rely upon the well-established precedent that rule-making authority of any court may not validly modify a statute or conflict with constitutional provisions. See, generally, 20 Am.Jur.2d, Courts § 84, at 446 (1965); 21 C.J.S. Courts § 170, at 260, 262-263 (1940). If there is a conflict, the Rule is inoperative.

In Vitela v. State, 566 S.W.2d 933, 935 (Tex.Cr.App. 1978), the Court restated the rules governing representation of counsel on appeal, saying:

"It is settled that the Texas and United States Constitutions require that an indigent defendant is entitled to the effective assistance of counsel on appeal. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Currie v. State, 516 S.W.2d 684 (Tex.Cr.App. 1974); Hawkins v. State, 515 S.W.2d 275 (Tex.Cr.App. 1974); McMahon v. State, 529 S.W.2d 771 (Tex.Cr.App. 1975). Furthermore, the decision of the Supreme Court of the United States in Anders v. California, supra, requires that court-appointed counsel file a brief in appellant's behalf."

See also, Yates v. State, supra 577 S.W.2d at 117, holding that the effective assistance of counsel cannot be afforded without requiring that counsel file a brief in an appellant's behalf.

Thus, it is clear that appellant's counsel will not have discharged his constitutional duty to his indigent client until he shall have filed an appellate brief in the client's behalf. Vitela v. State, supra. And, conversely, the indigent appellant will not have been afforded his constitutional rights until counsel shall have discharged this duty.

It follows, therefore, that we were in error in denying counsel's motion for an extension of time within which to discharge his duty set out above. Our action had the effect of relieving appellant's counsel of his duty, a consequence far from our intended result. The order of this Court dated September 24, 1981, denying leave for an extension of time within which to file such brief is vacated.

However, we are not authorized to take the same action as was taken by the Court in Yates, supra, because of a statutory change. At the time Yates was decided, and until September 1, 1981, a defendant was required to file the appellate brief "with the clerk of the trial court." Art. 40.09, § 9, V.A.C.C.P. (Supp. 1980-1981); now, and at all times subsequent to September 1, 1981, the brief must be filed "with the clerk of the appellate court." Art. 40.09, § 9, V.A.C.C.P.

We are of the opinion that "the trial court still has a duty under the Texas and federal constitutions to provide an indigent defendant with an adequate record on appeal, . . ." Guillory v. State, 557 S.W.2d 118, 120 (Tex.Cr.App. 1977), and authorities therein cited. This continuing duty also includes the duty of providing the indigent defendant with counsel. Guillory v. State, supra at 121.

However, we are of the opinion, under the present statute, the responsibility of enforcing the requirement that appointed counsel file the appellate brief is now that of the appellate court. This is so for the reason that the record has been closed and approved by the trial court and all subsequent proceedings are for appellate court determination. Having accepted the responsibility and duty delegated to this Court, we will make use of such tools for the enforcement of the responsibility as are available to us. Guillory v. State, supra.

We turn now to the reserved question of the sufficiency of the "good cause" for the requested ninety-day extension sought by appellant's counsel. The sole reason set forth in the motion is that he "has not had ample opportunity to prepare his Brief due to the following: (here are listed two divorce actions, two `modifications' and one `contempt', all in the District Court of Jefferson County handling Domestic Relations cases)."

A cursory review of the transcript indicates that the appeal is from an order revoking probation and the entire record-the transcript of the clerk's documents and the transcription of the court reporter's notes-comprises only 169 pages.

This Court, along with trial courts generally, are sympathetic to and cooperative with busy trial counsel in their efforts to meet all of the demands upon their professional time schedule. However, we are unwilling to consider an additional ninety days delay in this case because of the pendency of five domestic relations proceedings. We do not accept counsel's "excuse" tendered as being in compliance with the "good cause" requirement of the Rule.

But, though we are of the opinion that counsel's motion for the extension of time was and is insufficient, both factually and legally, its denial would result in the deprivation of the indigent appellant of his constitutional rights. Under these circumstances, we are constrained to grant the motion and extend the time for the filing of such brief.

Appellant's motion for a rehearing of his motion to extend the time for the filing of the brief is granted; the time for the filing of such brief is extended for a period of twenty-one days from and after the date of this opinion.

Rehearing granted and motion for extension of time granted to the extent herein set forth.