Opinion
Appellate case number: 01-17-00025-CR
08-15-2017
Ex parte Anthony Martin
ORDER Trial court case number: 389613A Trial court: 174th District Court of Harris County
The State filed a motion to abate the appeal and to remand to the trial court for the trial court to prepare findings of fact and conclusions of law which are required to be included with the written order denying appellant application for habeas relief. See TEX. CODE CRIM. PROC. art. 11.072 § 7(a) (requiring written order with findings of fact and conclusions of law if trial court does not enter written order denying relief under Article 11.072).
The clerk's record contains no written order denying relief, but only a court directive order, with the box "Relief Denied" checked. Under these circumstances, Article 11.072, Section 7(a) requires a written order including findings of fact and conclusions of law. Id. However, the trial judge who presided over the case below, the Honorable Ruben Guerrero, is no longer on the bench. We asked the State to address this issue and to address a recent case from the Texas Supreme Court, Ad Villaral, LLC v. Pak, 519 S.W.3d 132 (Tex. 2017).
In Pak, the trial judge who presided over the bench trial left office before the filing requested findings of fact and conclusions of law. Id. at 136. The newly-elected judge filed the requested findings and conclusions, but on appeal, the Texas Supreme Court ruled that no provision grants a successor judge the authority to file findings and conclusions on behalf of their predecessor who was displaced by an election and held that the findings filed by the successor judge were invalid. Id. at 140. In reaching its decision, the Court relied in part on Section 30.002(a) of the Texas Civil Practices and Remedies Code, which provides that, if a district judge's term expires during the time for filing findings of fact and conclusions of law, the judge may file the findings and conclusions. TEX. CIV. PRAC. & REM. CODE § 30.002(a).
In its response, the State agreed that former Judge Guerrero should prepare and file the written findings and conclusions based on Pak and criminal cases relying on the same authority on which the Pak court relied. See Richardson v. State, 158 S.W. 517 (Tex. (Tex. Crim. App. 1913) (relying on predecessor to Section 30.002(a) in evaluating propriety of newly-elected judge entering statement of facts and bill of exceptions); Kaufman v. State, 163 S.W. 74 (Tex. (Tex. Crim. App. 1914) (relying on Richardson analysis regarding propriety of former judge approving statement of facts). Thus, the State contends that former Judge Guerrero is the only judge with authority to enter the written findings and conclusions required by Article 11.072, Section 7(a). We agree.
Accordingly, we abate the appeal and remand to the trial court for the former Judge Ruben Guerrero to file a written order including findings of fact and conclusions of law in accordance with Article 11.072, Section 7(a). We further order the trial court clerk to file a supplemental clerk's record containing the written order including findings of fact and conclusions of law with this Court within 30 days of the date of this order.
If appellant wishes to amend its brief after the filing of these findings and conclusions, the amended brief will be due 15 days after the supplemental clerk's record is filed in this Court.
It is so ORDERED. Judge's signature: /s/ Harvey Brown
[v] Acting individually [ ] Acting for the Court Date: August 15, 2017