             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS

                                       NO. AP-75,963

                           EX PARTE JUAN JOSE REYNOSO

                ON APPLICATION FOR WRIT OF HABEAS CORPUS
                       IN CAUSE NO. 941651-A FROM THE
                  263RD DISTRICT COURT OF HARRIS COUNTY

      P RICE, J., filed a concurring opinion.

                    CONCURRING OPINION ON REHEARING
                        ON COURT’S OWN MOTION



      On June 27, 2007, we entered an order dismissing the applicant’s initial application

for writ of habeas corpus as untimely under Article 11.071, Section 4 of the Texas Code of

Criminal Procedure.1 We do not entertain rehearings from the denial of relief in writ




      1

       Ex parte Reynoso, 228 S.W.3d 163 (Tex. Crim. App. 2007).
                                                                                              Reynoso — 2

applications, under Rule 79.2(d) of the Texas Rules of Appellate Procedure.2 Accordingly,

the applicant filed, not a motion for rehearing, but a suggestion that we reconsider our initial

disposition on our own initiative, which Rule 79.2(d) authorizes us to do.

        In dismissing the applicant’s initial writ application as untimely, our calculation was

based upon a construction of Article 11.071, Section 4(b), which provides that a 90-day

extension may be granted, to begin running “on the filing date applicable to the defendant

under Subsection (a).” 3 Even though the “filing date applicable to the defendant under

Subsection (a)” fell on a Saturday, we held that the 90-day extension that the applicant

obtained should begin to run on that date, according to the plain language of Subsection (a).

        In his motion suggesting that we reconsider the case on our own initiative, the

applicant argues that when one considers the application of Rule 4.1(a) of the Texas Rules

of Appellate Procedure,4 his initial application was timely filed. This question was not

briefed by the parties prior to our dismissal of the initial writ application. We therefore



        2

          TEX. R. APP. P. 79.2(d) (“A motion for rehearing an order that denies habeas corpus relief under
Code of Criminal Procedure, articles 11.07 or 11.071, may not be filed. The Court may on its own
initiative reconsider the case.”).
        3

         TEX. CODE CRIM. PROC. art. 11.071, § 4(b).
        4

          TEX. R. APP. P. 4.1(a) (“The day of an act, event, or default after which a designated period begins
to run is not included when computing a period prescribed or allowed by these rules, by court order, or by
statute. The last day of the period is included, but if that day is a Saturday, Sunday, or legal holiday, the
period extends to the end of the next day that is not a Saturday, Sunday, or legal holiday.”).
                                                                                            Reynoso — 3

granted rehearing on our own initiative of our order dismissing the applicant’s initial writ

application, limited to the issue of how Rule 4.1(a) should apply in this situation, and

whether the applicant’s initial writ application was timely filed in view of that rule.

        A 90-day extension, if granted under the provisions of Article 11.071, Section 4(b),

begins to run, by the plain terms of the statute itself, “on the filing date applicable to the

defendant under Subsection (a)” of Section 4. Subsection (a) of Section 4, as it applies to the

applicant’s case, required him to file his initial writ application “not later than the 45 th day

after the date the state’s original brief [was] filed on direct appeal with” this Court. The

Court’s order on original submission assumed, without deciding, that “the filing date

applicable . . . under Subsection (a)” would be determined without resort to provisions

outside of Article 11.071 that ordinarily inform our interpretation of statutory time

computations.5      One of those outside provisions is Rule 4.1(a).                 Another is Section

311.014(b) of the Code Construction Act,6 which applies to judicial interpretation of

amendments and revisions to the Code of Criminal Procedure.7

        5

        Ex parte Reynoso, supra, at 165.
        6

         TEX. GOV’T CODE § 311.014(b) (“If the last day of any period is a Saturday, Sunday, or legal
holiday, the period is extended to include the next day that is not a Saturday, Sunday, or legal holiday.”).
        7

         See TEX. G OV’T CODE § 311.002(2) (“This chapter [including § 311.014] applies to . . . each
amendment, repeal, revision, and reenactment of a code or code provision by the 60th or a subsequent
legislature[.]”). Article 11.071 of the Code of Criminal Procedure was enacted by the 74th Legislature.
See Acts 1995, 74th Leg., ch. 319, § 1, eff. Sept. 1, 1995. Therefore, Section 4(b) of Article 11.071 must
                                                                                             Reynoso — 4

        According to these explicit time-computation provisions, a period of time that is

designated by statute or code should never be construed as ending on a weekend or holiday.

Indeed, “any period” of time so designated shall be calculated in this way,8 regardless of the

context, unless the specific statute that sets out that period expressly and explicitly provides

otherwise. Subsection 4(a) of Article 11.071 does not provide otherwise.9 It merely

designates a particular period of time, namely, 45 days from the date the State files its




be construed with reference to the provisions of the Code Construction Act. Ex parte Ruthart, 980 S.W.2d
469, 472 n.4 (Tex. Crim. App. 1998); Ex parte Torres, 943 S.W.2d 469, 473 n.5 (Tex. Crim. App. 1997);
Postell v. State, 693 S.W.2d 462, 464 (Tex. Crim. App. 1985); Barbee v. State, 432 S.W.2d 78, 82 (Tex.
Crim. App. 1968). See George E. Dix & Robert O. Dawson, 40 TEXAS PRACTICE: CRIMINAL PRACTICE
AND PROCEDURE § 0.63 (2d ed. 2001) at 23.
        8

         TEX. GOV’T CODE § 311.014(b).
        9

         By contrast, Subsection 4(b) of Article 11.071 does expressly designate a method of computing
the 90-day extension period that deviates from the usual code-construction norm. Subsection 4(b)
expressly provides that the 90-day extension “begins on the filing date applicable to the defendant under
Subsection (a).” This means that the last day of the 45-day period (however that should be determined)
is also the first day of the 90-day extension. In other words, the first day is included in the 90-day
calculation, contrary to the general rule of statutory and code construction embodied in both the first
sentence of Rule 4.1(a) of the Rules of Appellate Procedure (“The day of an act, event, or default after
which a designated period begins to run is not included when computing a period prescribed or allowed
by these rules, by court order, or by statute.”) and Section 311.014(a) of the Code Construction Act (“In
computing a period of days, the first day is excluded and the last day is included.”). This express deviation
from the code-construction norm should of course control, since the Code Construction Act itself
contemplates that specific provisions should control over general ones. TEX. GOV’T CODE § 311.026(b)
(where general and special statutory provisions are irreconcilable, special provision will prevail). But
Article 11.071 contains no comparable language to indicate that the general rule embodied in Rule 4.1(a)
and Section 311.014(b)—that the last day of any given period should not be construed to fall on a weekend
or holiday—should not apply, or that it should be deemed to apply only selectively (for example, at the
end of the 90-day extension, but not at the end of the 45-day initial period whenever a 90-day extension
is granted).
                                                                                Reynoso — 5

appellate brief. In calculating that 45-day period time, for whatever purpose, both Rule

4.1(a) and Section 311.014(b) express a legislative intent that we should extend the period

to the next business day should the last day happen to fall on a weekend or holiday. These

computation of time provisions are indifferent to whether we are calculating the period of

time for purposes of determining when an initial capital writ application should be filed,

assuming no 90-day extension has been granted pursuant to Subsection 4(b), or whether,

instead, we are calculating when a 90-day extension that is granted under Subsection 4(b)

should be construed as beginning to run. The statutory construction provisions do not

instruct us to take into account why we are calculating a relevant period of time—they only

tell us how to calculate it.

       If my understanding of how the 45-day period should be calculated is faulty, and the

Court is correct not to consider the application of Rule 4.1(a) and Section 311.014, it

nevertheless cannot be gainsaid that my understanding is at least a plausible one. It would

not have been unreasonable for the applicant’s attorney to have believed his initial writ

application was timely filed. Indeed, neither the parties nor the trial court questioned its

timeliness, and it was this Court that first declared that there was a problem. Even by the

Court’s (in my view erroneous) calculation, the applicant’s writ application was filed on the

next business day after it was due. It is clear that the applicant was not personally at fault

here; any fault was with his attorney. The lateness of the filing (if any) was plainly
                                                                                          Reynoso — 6

attributable to habeas counsel’s “dereliction” (if any) in miscalculating (assuming he did) the

due date, not to any obstructive or contumacious conduct on the applicant’s part, as the Court

concluded on original submission.10 For all of the applicant’s apparent uncertainty with

respect to whether he wanted to waive his right to proceed with a habeas application, any

lateness of the application that ultimately was filed on his behalf obviously proceeded from

habeas counsel’s miscalculation, not from the applicant’s vacillation. We have treated such

reasonable miscalculations in the past as sufficient to justify permitting late-filing under

Article 11.071, Section 4A(b)(2).11 For this reason the Court ultimately reaches the merits

of the applicant’s single (albeit, in the Court’s view, untimely filed) claim, and appropriately

denies it. I concur in that result.



Filed: July 2, 2008
Publish


        10

         See Ex parte Reynoso, supra, at 165 (“The provision for appointment of new counsel is designed
to safeguard the statutory right to a habeas remedy from the actions of derelict counsel. That provision
should not be used to afford a remedy when the applicant himself is responsible for the lateness of the
application. Otherwise, applicants would acquire a new tool for ‘gaming the system’ in order to delay
execution.”).
        11

        TEX. CODE CRIM. PROC. art. 11.071, § 4A(b)(2) (“At the conclusion of the counsel’s presentation
[of good cause] to the court of criminal appeals, the court may . . . permit the counsel to continue
representation of the applicant and establish a new filing date for the application, which may not be more
than 180 days from the date the court permits the counsel to continue representation[.]”). See, e.g., Ex
parte Perez, (Tex. Crim. App., No. WR-56,440-01, delivered July 15, 2003); Ex parte Masterson, (Tex.
Crim. App., No. WR-59,481-01, delivered July 6, 2004; Ex parte Murphy, (Tex. Crim. App., No. WR-
63,549-01, delivered December 14, 2005).
