Rule 31 Appeals in Habeas Corpus, Bail, and Extradition Proceedings in Criminal Cases

31.1. Filing the Record and Briefs When written notice of appeal from a judgment or order in a habeas corpus or bail proceeding is filed, the trial court clerk must prepare and certify the clerk’s record and, if the appellant requests, the court reporter must prepare and certify a reporter’s record. The clerk must send the clerk’s record and the court reporter must send the reporter’s record to the appellate court within 15 days after the notice of appeal is filed. On reasonable explanation, the appellate court may shorten or extend the time to file the records.

(a) For an appeal from a habeas corpus proceeding challenging a conviction or an order placing the defendant on community supervision—but not challenging any particular condition of community supervision—the appellate court should use the same briefing rules, deadlines, and schedule that apply to direct appeals from criminal cases. On motion of any party, or on its own initiative, the appellate court may impose a more expedited timeline or submit the case without briefing, if necessary to do substantial justice to the parties.

(b) For an appeal from a bail proceeding or any other habeas corpus proceeding, including one that challenges a particular condition of community supervision, the court will—if it desires briefs—set the time for filing briefs. 31.2. Submission; Hearing The applicant need not personally appear. The appellate court will not review any incidental question that might have arisen on the hearing of the application before the trial court. The sole purpose of the appeal is to do substantial justice to the parties.

(a) In an appeal from a habeas corpus proceeding challenging a conviction or an order placing the defendant on community supervision— but not challenging a particular condition of community supervision—the appellate court should use the same submission and hearing schedules that apply to direct appeals from criminal cases. On motion of any party, or on its own initiative, the appellate court may impose a more expedited timeline or submit the case without briefing, if necessary to do substantial justice to the parties.

(b) An appeal in any other habeas corpus or bail proceeding, including a challenge to a particular condition of community supervision, shall be submitted and heard at the earliest practicable time. 31.3. Orders on Appeal The appellate court will render whatever judgment and make whatever orders the law and the nature of the case require. The court may make an appropriate order relating to costs, whether allowing costs and fixing the amount, or allowing no costs. 31.4. Stay of Mandate

(a) When Motion for Stay Required. Despite Rule 18 or any other of these rules, in the following circumstances a party who in good faith intends to seek discretionary review must — within 15 days after the court of appeals renders judgment — file with the court of appeals clerk a motion for stay of mandate, to which is appended the party's petition for discretionary review showing reasons why the Court of Criminal Appeals should review the appellate court judgment:

(1) when a court of appeals affirms the judgment of the trial court in an extradition matter and thereby sanctions a defendant's extradition; or

(2) when a court of appeals reverses the trial court’s judgment in a bail matter — including bail pending appeal under Code of Criminal Procedure article 44.04(g) — and thereby grants or reduces the amount of bail.

(b) Determination of the Motion. The clerk must promptly submit the motion and appendix to the court of appeals, or to one or more judges as the court deems appropriate, for immediate consideration and determination.

(1) If the motion for stay is granted, the clerk will immediately forward the petition for discretionary review to the clerk of the Court of Criminal Appeals.

(2) If the motion is denied, the clerk will issue a mandate in accordance with the court of appeals' judgment.

(c) Denial of Stay. If the motion for stay is denied under 31.4(b)(2), the losing party may then present the motion and appendix to the clerk of the Court of Criminal Appeals, who will promptly submit them to the Court, or to one or more judges as the Court deems appropriate, for immediate consideration and determination. The Court of Criminal Appeals may deny the motion or stay or recall the mandate. If the mandate is stayed or recalled, the clerk of the Court of Criminal Appeals will file the petition for discretionary review and process the case in accordance with Rule 68.7. 31.5. Judgment Conclusive The court of appeals' judgment is final and conclusive if the Court of Criminal Appeals does not grant discretionary review. If the Court of Criminal Appeals grants discretionary review, that court's judgment is final and conclusive. In either case, no further application in the same case can be made for the writ unless the law provides otherwise. 31.6. Defendant Detained by Other Than Officer If the defendant is held by a person other than an officer, the sheriff receiving the appellate court mandate so ordering must immediately cause the defendant to be discharged, for which discharge the mandate is sufficient authority. 31.7. Judgment to be Certified The appellate court clerk will certify the court's judgment to the officer holding the defendant in custody or, if the defendant is held by a person other than an officer, to the appropriate sheriff. 31.8. Expedited Appeal by the State of an Order Granting Bail

(a) Application. This rule applies to an appeal by the State of a magistrate’s order granting bail, in an amount considered insufficient by the prosecuting attorney, to a defendant who:

(1) is charged with an offense under any of the following sections of the Penal Code:

(A) section 19.02 (murder);

(B) section 19.03 (capital murder);

(C) section 22.02 (aggravated assault) if;

(i) the offense was committed under section 22.02(a)(1); or

(ii) the defendant used a firearm, club, knife, or explosive weapon, as those terms are defined in section 46.01 of the Penal Code, during the commission of the assault;

(D) section 20.04 (aggravated kidnapping);

(E) section 29.03 (aggravated robbery);

(F) section 22.021 (aggravated sexual assault);

(G) section 21.11 (indecency with a child);

(H) section 20A.02 (trafficking of persons); or

(I) section 20A.03 (continuous trafficking of persons); or

(2) is charged with an offense punishable as a felony while the defendant was released on bail for an offense punishable as a felony at the time the instant offense was committed.

(b) State’s Notice of Appeal.

(1) Contents. The State’s notice of appeal must comply with Code of Criminal Procedure Article 44.01 and expressly state that the appeal is an expedited appeal under Articles 44.01(a)(7), (f-1), and (f-2) and this rule.

(2) Time and Where to File. Within 10 days after an order is signed granting bail in an amount considered insufficient by the prosecuting attorney, the State must file the notice of appeal with the district clerk.

(3) Service of Notice and Rule. The State must immediately serve on the defendant the notice of appeal and a copy of this rule.

(c) Appellate Record.

(1) State Duties. The State must file with its notice of appeal a bookmarked appendix containing a certified or sworn copy of:

(A) the order granting bail in an amount considered insufficient by the prosecuting attorney, bail findings, bail conditions, and any supervision order;

(B) any reporter’s record from a bail hearing resulting in the order granting bail in an amount considered insufficient by the prosecuting attorney, including any exhibits; and

(C) every document that was filed with or presented to the magistrate making the bail decision, including as applicable:

(i) the charging documents;

(ii) the risk assessment;

(iii) the mental health assessment under Code of Criminal Procedure Article 16.22;

(iv) the arraignment forms;

(v) the indigency affidavit;

(vi) the magistrate’s orders for emergency protection or other protective orders in effect; and

(vii) the pretrial supervision documents, including documents related to violations.

(2) Supplementation Permitted. The defendant may supplement the State’s record with a certified or sworn copy of any additional material filed with or presented to the magistrate that the State failed to provide.

(d) Reporter’s Record. The magistrate must ensure that any reporter’s record from a bail hearing is prepared within 5 days of the State’s requesting the record and arranging for payment.

(e) Further Bail Decisions. While the appeal is pending, the State must immediately notify the court of appeals and supplement the record if any subsequent action has been taken on the bail order.

(f) Briefing on Appeal.

(1) Form and Length. Briefs need not comply with Rule 38 and may be in the form of a motion or letter. A brief must not exceed 3,000 words.

(2) No Extensions. No extensions of time will be granted.

(3) State’s Brief. The State’s brief must include the identity of parties and counsel, specify the reasons it considers the bail amount insufficient, and be supported by citations to authorities and to the record. The State’s brief must also include the State’s requested relief on appeal, including the bail amount the prosecuting attorney considers sufficient. The State must file a brief within 5 days after filing the notice of appeal.

(4) Defendant’s Brief. The defendant’s brief, if any, should respond to the State’s brief. The defendant’s brief must be filed within 5 days after the State’s brief is filed.

(g) Representation on Appeal. The defendant’s trial counsel, if any, is authorized to respond to the State’s appeal.

(h) Order by the Court of Appeals.

(1) Review and Time. The court of appeals must conduct a de novo review of all issues presented, expedite the appeal, and issue an order within 20 days after the date the appeal is filed.

(2) Types of Orders. The court of appeals may:

(A) affirm the bail amount set by the magistrate;

(B) modify the bail amount set by the magistrate; or

(C) reject the bail amount set by the magistrate and remand the case to the magistrate, with or without guidance, for modification of the bail amount.

(3) Opinion Not Required. The court of appeals may hand down a written opinion but is not required to do so.

(i) Implementation of Modified Bail Amount. If the court of appeals modifies the bail amount, the court of appeals must direct the magistrate to certify the bail form on the court of appeals’ behalf, update any reporting systems, and submit any required forms by the relevant deadlines.