Though most cases in municipal and justice court are not appealed, the following scenario occurs on a regular basis: Defendant is found guilty, a judgment is entered, the defendant is informed that he or she has 10 days to perfect an appeal by filing an appeal bond with the local trial court. More than 10 days later, the defendant arrives with bond in hand. Pursuant to Article 45.0426(a) of the Code of Criminal Procedure, the appeal is untimely.

Should the court inform the defendant that the appeal bond was not timely filed and deny the defendant’s appeal? Alternatively, should the court go through the effort of sending the bond and related paper work to the appellate court knowing that the defendant did not perfect the appeal?

The Code of Criminal Procedure provides that it is not the role of the municipal or justice court to act as the gatekeeper of appeals. Without reference to whether the bond is filed in a timely manner, Article 45.043 states that when a defendant files the bond, “all further proceedings in the case in the justice or municipal court shall cease.”

But wait a minute. Chapter 45 only applies to proceedings in municipal and justice courts, right?¹ And Article 45.0426(a) provides that “When the appeal bond has been filed with the justice or judge who tried the case
not later than the 10th day after the day the judgment was entered, the appeal in such case shall be held to be perfected.”² Then doesn’t the italicized clause suggest that it is the role of the local trial court judge to determine if the appeal is perfected?³

On its surface, it would appear so. However, this appears to be an instance where, during legislative drafting, the “cut and paste” technology of word processing has caused some confusion. Article 45.0426 has not always been a part of Chapter 45. Prior to being moved in 1999, it was formerly Article 44.14 (Chapter 44 is entitled Appeal and Writ of Error).

Reading the law in context of its former location – Chapter 44 – it becomes more readily apparent that it is the appellate court’s function (generally a county court) to hold the appeal perfected, not the municipal or justice court. Considering that the American judicial system was built around the adage “one appeal as a matter of right,” it seems hardly fair that a judge who found a defendant guilty can also unilaterally deny a defendant the opportunity to appeal. Accordingly, Texas law leaves the decision making up to a different court. As provided in Article 45.0426(b), “if an appeal bond is not timely filed, the appellate court does not have jurisdiction over the case and shall remand the case to the justice or municipal court for execution of the sentence.”

Because of the possible appearance of obstructionism, a number of municipal and justice courts leave it up to the appellate court to remand the case pursuant to Article 45.0426(b).

But how exactly does such a remand occur? The Code of Criminal Procedure provides no express guidance or name for such procedure. Alas, in such situations, what can a city or county attorney do to ensure that the judgment of the original trial court is executed?

It Rhymes with Innuendo (and not much else)

While its use has become obsolete in some states, the writ of procedendo remains alive but obscure in Texas law. While originally “procedendo” was a writ used to compel a judge to proceed to judgment, in Texas “procedendo” has come to mean an appellate court order for an inferior court to execute judgment .⁴The writ of procedendo is the appropriate remedy for the State to utilize when seeking to have a case effectively remanded from county to municipal or justice court when a defendant has not perfected his or her appeal in criminal cases.⁵

It is “Extraordinary”

As previously stated, the writ of procedendo is an “extraordinary writ,” meaning an original action in an appellate court. Other extraordinary writs include the writ of certiorari (which enables an appellate court to direct a court of inferior jurisdiction to transmit to it the record of some proceeding for review), the writ of prohibition (an order from a court of superior jurisdiction to prevent an inferior court from acting beyond its jurisdiction), and a writ of quo warranto (an order from a court of superior jurisdiction to determine disputed questions about whether a person is entitled to hold public office and exercise the office’s legal authority).

Authority to Issue

While the Texas Supreme Court and Texas Court of Criminal Appeals have express authority to issue the writ of procedendo,⁶ the authority of a county court to issue the writ stems from its constitutional and statutory authorization to issue any writ necessary to exercise supervisory jurisdiction of the local trial courts (e.g., municipal and justice courts).⁷ The authority of the county trial court of limited jurisdiction to exercise authority over local trial courts of limited jurisdiction is known as incidental appellate jurisdiction.⁸

Illustrations of Application

When a county court has obtained jurisdiction of an appeal from a non-record municipal or justice court, the judgment of the local trial court is essentially annulled.⁹ To the chagrin of city attorneys who have not obtained the consent of the county attorney to prosecute the trial de novo¹⁰ once the appeal has been perfected, any dismissal (including a voluntary dismissal by the State) is not merely the end of the appeal but a dismissal of the entire case as if it had never been filed in municipal or justice court. Consequentially, efforts to execute the judgment of the local trial court following dismissal at the county trial court by means of procedendo would be erroneous.¹¹

Consider another instance where the defendant appeals from the local trial court to the county court. Assume the defendant perfects the appeal, but thereafter fails to appear for trial. May the county court dismiss the appeal, and issue a writ of procedendo ordering the local trial court judge to issue a capias pro fine ordering the defendant to be committed to jail in satisfaction of the local trial court’s original judgment?

The answer, once again, is “No.” In Ex parte Swift, the Court of Criminal Appeals held that once the appeal was perfected, procedendo was no longer an option.¹² Rather, the Court issued a writ of habeas corpus and stated that in such circumstances, a county court should enter an order forfeiting the defendant’s bond.

But what if the defendant appeals from municipal court and afterwards it is discovered in county court that there is a defect in the bond? In Martin v. State, the county court dismissed the appeal from the judgment of the municipal court due to the defendant’s failure to specify to which county court at law notice of the appeal was made.¹³ The Court of Criminal Appeals disagreed with the county court’s hyper-technical construction of the statute that is now Article 45.0425(b), Code of Criminal Procedure. In doing so, the Court stated that “It has long been the rule that a criminal appeal, dismissed for want of sufficient bond, will be reinstated upon motion accompanied by a sufficient bond.”¹⁴

Article 44.15, Code of Criminal Procedure, provides that when an appellate court determines that a bond is defective, at its discretion, the court may allow the appellant to amend such bond by filing a new bond on such terms as the court may prescribe. What if the appellant fails to avail him or herself of the opportunity provided by the appellate court? Such was exactly the case in Lopez v. State.¹⁵ Lopez was convicted in a municipal court of record. He appealed. A defect was discovered in the bond. Lopez was afforded time to correct it. No effort was made to do so and the appeal was held to be properly dismissed.

Would this be a circumstance that could warrant procedendo? In light of Mann v. Brown, the answer would be “Yes.”

Conclusion

In complying with the mandate of Article 45.0426, C.C.P., many county courts act in the spirit of procedendo on a regular basis, though they may or may not know it. In simplest terms, procedendo is merely the means by which the county court remands the case as contemplated in Article 45.0426(b).

While in Mann the county judge ordered the county clerk to issue the writ of procedendo, prosecutors should be prepared to apply for the writ, especially in instances where there is reason to believe that the appeal to the county court is untimely or where the county court has held the appeal to not be perfected but nevertheless fails to procedendo to the local trial court on its own motion.

It is recommended to prosecutors that in making application for procedendo, a copy of the writ should be provided (see page 6 in this newsletter ). Along with prairie dogs and horn frogs, forms for procedendo are sparse. Two years ago, I went on a quest for a copy of the writ that led me all the way to the Court of Criminal Appeals. With the assistance of the municipal prosecutors listserv, TMCEC developed related forms that were incorporated in the prosecutor’s section of the 2004 TMCEC Forms Book. While presumably the joint application (see page 7) could be used in defunct appeals stemming from municipal courts of record, for reasons previously stated in this article, it is not applicable in perfected appeals stemming from non-record courts. The State’s application, on the other hand, can be used regardless if the appeal comes out of a record or non-record local trial court.

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¹ Correct. See, Article 45.001 and 45.002, Code of Criminal Procedure.
² Italics added for emphasis.
³ No, but please read on.
⁴ Cavazos v. Hancock, 686 S.W.2d 284, 285 (Tex. App. Amarillo 1985).
⁵ Mann v. Brown, 516 S.W.2d 22 (Tex. App. Tyler 1974) citing Minchew v. State, 366 S.W.2d 942 (Tex. Crim. App. 1963).
⁶ Tex. Const. Art. V. Sect. 3 and 5.
⁷ Tex. Const. Art. V. Sect. 16; Section 25.004, Government Code.
⁸ Texas is one of only six states in the nation to utilize incidental appellate jurisdiction among its courts of limited jurisdiction. U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, State Court Organization (1998).
⁹ Article 44.17, Code of Criminal Procedure, instructs that the proceeding in county court are conducted “as if the proceedings had been originally commenced in that court.”
¹⁰ Article 45.201(c), Code of Criminal Procedure.
¹¹ 6 Tex. Jur. 3d Appellate Review Sect. 919 (2003).
¹² 358 S.W.2d 629 (Tex. Crim. App. 1962).
¹³ 346 S.W.2d 840 (Tex. Crim. App 1961).
¹⁴ Id.
¹⁵ 649 S.W.2d 165 (Tex. App. El Paso 1983).