Ex Parte Henderson

ODOM, Judge,

dissenting.

The majority now hold that the appellant in a habeas corpus appeal is responsible for securing a transcription of the court reporter’s notes for inclusion in the record on appeal. This they do despite the plain language of Art. 44.34, V.A.C.C.P., which governs habeas corpus appeals. It is not a prerogative of this Court to ignore the clear mandate of the Legislature.

I adhere to the position taken by the majority on original submission in Ex parte Sims, Tex.Cr.App., 565 S.W.2d 45 (No. 55139). The majority fall short of expressly saying that they are relying on the procedures for preparing an appeal from a conviction under the provisions of Art. 40.09, V.A.C.C.P., but it is nevertheless clear that this is precisely what is being done without acknowledging the fact. See the dissenting opinion on original submission in Ex parte Sims, supra. This is in disregard of the rule that a special statute (Art. 44.34, supra) controls over a general statute in the event of conflict. In Ex parte Watson, 455 S.W.2d 300 , this Court, in a unanimous opinion authored by today’s voice for the majority, held that Article 44.34, supra, controlled over the provisions of Article 40.09, supra. The appellant in that case argued he was entitled to the time authorized by Art. 40.09 for filing the transcription of the court reporter’s notes and for filing briefs. Judge Douglas wrote:

“Article 44.34, supra, applies. This article as titled ‘Appeal in habeas corpus’ shows the intent of the Legislature that it should apply in such proceedings. No definite time has been provided for preparation for forwarding the record for review. Judge Brown did not err in ordering the record sent to this Court some six weeks after its completion.”

Of course, Article 44.34 has since been amended to require the record be sent to this Court within fifteen days of judgment, as pointed out in the majority opinion on original submission in Sims, supra. Such *56 amendment further evidences the intent of the Legislature that habeas corpus cases be speedily heard and decided. 1 The majority advance no reason for ignoring the clear mandate of the Legislature.

Assuming arguendo, however, that the majority are correct that the burden is on the appellant to request and secure a transcription of the court reporter’s notes and deliver it to the clerk for inclusion in the record on appeal, as is the practice under Art. 40.09, supra, this appeal should nevertheless be abated.

The trial court denied appellant’s motion to reduce bail and notice of appeal was given on November 22, 1977, and the record was approved by the trial judge fifteen days later on December 7, 1977. Appellant was not allowed sixty days to designate matters for inclusion in the record as is the practice under Art. 40.09(3), supra. How can the majority fault appellant for not putting the transcription in the record when he was not given time to do so? Appellant was not given notice of completion of the record before its approval as is also the practice under Art. 40.09(7), supra, and thus was denied the opportunity to object to the omission of the transcription from the record on appeal. How can the majority hold the absence of a transcription against appellant when he was not given an opportunity to examine the appellate record and object to this defect? If the burden is on the appellant to secure the transcription and put it in the record as concluded by the majority, then this appeal should be abated for failure to accord appellant the rights that arise under the other provisions of Art. 40.09, supra, and the opportunity to present a full appellate record to this Court under the practice set out in that article.

The majority have created a catch-22 where appellant is given an impossible task and then faulted for not doing the impossible. Habeas corpus and its appeal were designed by the legislature under the mandate of Article I, Sec. 12, Texas Constitution, to be speedy. Applying to habeas corpus appeals the practice urged by the majority and its fair consequences is contrary to the legislative scheme, frustrates the constitutionally-founded purpose of speedy disposition, and denies this appellant the opportunity to have his case heard by this Court. This plain fact was acknowledged by Judge Douglas in Watson, supra:

“If we were to hold that the provisions for appeal after a trial and a conviction in a criminal case under Article 40.09, supra, should apply in habeas corpus proceedings, the State could delay the final decision for so long a time that our constitutional right to the habeas corpus relief could be suspended and made meaningless. According to appellant’s contention and computation the minimum time for such appeal to reach this Court would be 150 days after the giving of the notice of appeal.”

Why does Judge Douglas disavow today what he acknowledged in Watson, and why do the majority overrule that case sub silen-tiol The adverse impact on the criminal justice system feared by the majority from following the legislative mandate in Art. 44.34 is inconsequential when contrasted with the impact of ignoring it, which was so well described in the words of Judge Douglas quoted above.

I respectfully dissent.

ROBERTS and PHILLIPS, JJ., join this opinion.

. Article I, Section 12, of the Texas Constitution provides:

“The writ of habeas corpus is a writ of right, and shall never be suspended. The Legislature shall enact laws to render the remedy speedy and effectual." (Emphasis added.) See also Art. 44.36, V.A.C.C.P.