Brinkley v. State

BELCHER, Judge.

The conviction is for driving while intoxicated; the punishment, 3 days in jail and $100 fine.

This case was tried in the County Court at Law No. 4, of Harris County, during the December term, 1957, which expired February 1, 1958.

The jury returned its verdict on January 9, 1958, and judgment was entered thereon on the same date. The original motion for a new trial was filed on January 9, 1958, and it was never amended.

No action was taken by the trial court on the original motion for a new trial within twenty days after it was filed. Therefore, it was overruled by operation of law within the term in which the judgment of conviction was rendered. Art. 755, Vernon’s A.C.C.P. Mahan v. State, 163 Texas Cr. Rep. 361, 288 S.W. 2d 508; Dehay v. State, 163 Texas Cr. Rep. 516, 294 S.W. 2d 401. No notice of appeal was given at the December term, 1957, of said court. Therefore, the judgment became final upon the expiration of the December term. Notice of appeal during said term was requisite in order to confer jurisdiction of the appeal upon this court. Art. 827, Vernon’s A.C.C.P. Woodward v. State, 163 Texas Cr. Rep. 634, 295 S.W. 2d 659.

The appeal is dismissed.

Opinion approved by the Court.

ON MOTION TO REINSTATE APPEAL

WOODLEY, Judge.

We are urged to reconsider our holdings in Mahan v. State, 163 Texas Cr. Rep. 36, 288 S.W. 2d 508; DeHay v. State, 163 Texas Cr. Rep. 516, 294 S.W. 2d 401; Barton v: State, 310 S.W. 2d 90; Pruitt v. State, 165 Texas Cr. Rep. 641, 310 S.W. 2d 338; Atkinson v. State, 164 Texas Cr. Rep. 421, 299 S.W. 2d 951; and Torrez v. State, No. 29,947 (page 25, this volume), 320 S.W. 2d 817. Therein, in construing Art. 755 V.A.C.C.P., we held that a motion for new trial was overruled by operation of law upon the expiration of twenty days from the time it was filed.

We are now asked to hold that the provision of Art. 755 V.A.C.C.P., that the motion for new trial or amended motion “shall be determined by the court within twenty (20) days after the filing of the original or amended motion,” should be held to be discretionary and not mandatory.

We agree that the word “shall” when used in a statute may sometimes be construed as permissive or directory, but we understand the rule to be that “shall” must be given that meaning which will best express the legislative intent. Schlemmer et al v. Board of Trustees of Limestone County, (Civ. App.) 59 S.W. 2d 264, 265.

“Must” and “shall” are synonymous and are usually mandatory when used in statutes.

The conclusion appears inescapable that the requirement that the motion for new trial or amended motion be disposed of promptly is in the public interest, and that it was the intent of the legislature that the motion or amended motion be determined by the court within twenty days after the filing thereof.

To say that the legislature intended by the provision in question to permit the court to determine the motion or amended motion within twenty days, or direct the court to do so if he found it convenient, would make the provision a useless and meaningless thing.

The case of Atkinson v. State, 164 Texas Cr. Rep. 421, 299 S.W. 2d 951, is but one illustration of how a judgment may become final when the court enters his order on the motion rather than at the expiration of the twenty days. In that case leave to amend was granted, and the amended motion was disposed of the day it was filed.

We may have been in error in so holding, but we concluded that the fact that the order granting leave to amend was dated after the expiration of twenty days was not fatal, the statute (Art. 755 V.A.C.C.P.) providing that for good cause shown the time for filing or amending may be extended by the court; that a motion may be filed after the expiration of the term at which the conviction resulted and there being no requirement that the order extending the time for filing or amending be in writing.

With the possible exception of Atkinson v. State, the decisions of this court under Art. 755 V.A.C.C.P. are to the effect that the motion for new trial or amended motion for new trial is overruled by operation of law at the expiration of the period of twenty days within which the statute requires it be determined by the court.

These holdings are consistent with the decisions of our courts of civil jurisdiction construing present Rule of Civil Procedure 329b, Secs. 3 and 4, and the prior statute, Art. 2092 V.C.S.

Rule 329b applies only to motions for new trial in the district court. Art. 2092 applied in certain district courts only. The rule provides, among other things, that the motion for new trial must be determined within not exceeding forty-five days after its filing (unless by written agreement of the parties in the case, the decision of the motion is postponed to a later date).

This provision is held to be mandatory. (Highland Farms Corp. et al v. Fidelity Trust Co., of Houston, 125 Texas 474, 82 S.W. 2d 627, holding that a motion for new trial not determined within such forty-five days will be overruled by operation of law forty-five days after the same is filed; Christner v. Mayer, Texas Civ. App., 123 S.W. 2d 715, where the court took the motion under advisement the day it was filed; Senter v. Shanafelt, Texas Civ. App., 233 S.W. 2d 202, where judge set hearing for May 12 and overruled motion that day, but Court of Civil Appeals held that the motion had been overruled by operation of law; Martinez v. Stephens, Texas Civ. App., 246 S.W. 2d 707, where the court’s order overruling the motion made after the forty-five days had expired was a nullity, the motion having been overruled by operation of law at the expiration of the forty-five days.)

Nevitt v. Wilson, 116 Texas 29, 285 S.W. 1079, and Townes v. Lattimore, 114 Texas 511, 272 S.W. 435, construed Sec. 28 of Art. 2092 V.C.S. as directory wherein it provided that the motion for new trial “shall” be presented within thirty days and “shall” be determined within not exceeding forty-five days.

After the opinions in these two cases the legislature, in the emergency clause of an amendment of Art. 2092 in 1930, changed the word “shall” to “must” as pointed out in Dallas •Storage and Warehouse Co. et al v. Taylor, 124 Texas 815, 77 S.W. 2d 1031.

“From the change of the word ‘shall’ to ‘must’ and from the recitals in the emergency clause, it unmistakably appears that the Legislature intended to make mandatory rules * * 77 S.W. 2d p. 1033.

Nothing is found in the opinion of the court to suggest that the decision was based in any way upon a distinction between the word “shall” and the word “must.”

The decisions of this court are consistent with the Nevitt v. Wilson case as to the inherent power of the court to correct its judgments nunc pro tunc.

Our conclusion is that the use of the word “shall” rather than “must,” in Art. 755 Y.A.C.C.P., will not support a holding that Art. 755 is directory only.

Motion to reinstate the appeal is overruled.