Santibanez v. State

CLINTON, Judge,

concurring.

Though the majority reaches a correct result, it obscures an important and significant question of law presented in this cause that needs to be addressed squarely and answered clearly — again.

The Texas Speedy Trial Act, Acts 1977, 65th Leg., ch. 787, p. 1970, eff. July 1,1978, as amended by Acts 1979, 66th Leg. ch. 3, p. 4, eff. September 1,1979 (Act), is largely codified in Chapter Thirtytwo A, Y.A.C. C.P. Article 32A.02 requires the State to be ready for trial within a prescribed period of time, but § 4 permits exclusion of certain periods in computing the time by which it must be ready. One is § 4(10), viz:

“(10) any other reasonable period of delay that is justified by exceptional circumstances.”

In the instant cause the Eastland Court of Appeals found:

“The crowded condition of the docket was an exceptional circumstance which justified excluding the period from August 14, 1981, to October 13, 1981, from the 120-day time period [footnote citing and paraphrasing § 4(10) omitted]. The *332 district attorney and the trial judge presented evidence showing the overcrowded condition of the court’s docket at the time the court granted the State’s motion for continuance. Ordunez v. Bean, 579 S.W.2d 911 (Tex.Cr.App.1979); Ostoja v. State, 631 S.W.2d 165 (Tex.Cr.App.1982).” 1

Santibanez v. State, 677 S.W.2d 539, 541 (Tex.App.—Eastland 1982). That is the finding on which we granted review. 2

The problem here lies in misreading the opinion of the Court in Ordunez v. Bean, 579 S.W.2d 911 (Tex.Cr.App.1979). The Court did not hold as a matter of law that a condition of “overcrowded dockets” of trial courts is an “exceptional circumstance” within the intendment and meaning of § 4(10). In an original mandamus proceeding it is the nature and quality of the judicial act under attack rather than the correctness of the judicial determination made that is at issue. So realistically speaking, all the Court did was to deny extraordinary mandamus relief, in part because the finding of the trial court “that overcrowded dockets are an ‘exceptional circumstance’ is necessarily a judicial determination rather than a ministerial act,” id., at 913, 914. Denial of mandamus for that reason is not a determination that the finding by the trial court is correct as a matter of law, but is merely an application of the rule that mandamus is not available to compel a discretionary as distinguished from a ministerial act. Ibid.

Concurring in Ordunez v. Bean, I tried to explain that under the Act “a crowded court docket is simply not a circumstance that conditions readiness for trial on the part of the State,” id., at 918-919. 3 There the matter rested until Judge Odom reviewed it again in Barfield v. State, 586 S.W.2d 538 (Tex.Cr.App.1979). Going over much the same ground he concluded:

“In light of these several considerations, we construe and hold that the threshold standard for dismissal under Article 32A.02, Sec. 1, supra, i.e., ‘the state is not ready for trial,’ refers to the preparedness of the prosecution for trial, and does not encompass the trial court and its docket.”

Id., at 541. Barfield means for example the fact that a judge of a district court embracing three counties must apportion his time to both civil and criminal dockets will not avail the State. Lee v. State, 641 S.W.2d 533, 535 (Tex.Cr.App.1982); Scott v. State, 634 S.W.2d 853, 855 (Tex.Cr.App. *333 1982); see also Lyles v. State, 653 S.W.2d 775, 779 (Tex.Cr.App.1983). 4

Despite spotty misunderstanding of Ordunez v. Bean and Barfield , however, this Court still “focuses on delay within the control of the prosecutor” in considering § 4 exclusions to determine whether the State is timely ready for trial. Lloyd v. State, 665 S.W.2d 472, 475 (Tex.Cr.App. 1984). 5 In finding that the crowded condition of the court docket is an exceptional circumstance the Eastland Court of Appeals fell into error. Since that was the sole basis on which it overruled the single ground of error advanced by appellant, we are not required to address other reasons the State assigned for not being ready for trial.

This Court is authorized to review “decisions of the court of appeals [on its own motion and] upon a petition for review,” Article 44.45, V.A.C.C.P., which is to say “the reason for such decision,” Article 44.-24(c), V.A.C.C.P. Nevertheless, the majority plows right ahead to find an answer to the question it poses, viz:

“Did the trial court err in denying the appellant’s motion to dismiss the indictment because the State had failed to comply with the provisions of the Speedy Trial Act?” At p.329.

With deference, that is too broad a question to be answered in this case. The East-land Court of Appeals did not consider it, much less make it the reason for its decision. Furthermore, it has not been raised by appellant in his petition for discretionary review. The issue is simply not before this Court in this cause.

For the reasons given I concur in the judgment of the Court.

ONION, P.J., joins.

. All emphasis is mine throughout unless otherwise indicated.

. The majority opinion buries its treatment of that finding in the paragraph beginning "Because the Speedy Trial Act ...” on page 329.

. “It must always be kept in mind that what we are addressing is the condition of readiness of the prosecuting attorney to try the particular case at issue rather than that of the trial court. It follows, therefore, that ‘exceptional circumstances’ that are found sufficient to exclude a reasonable period of delay in computing the time within which the State must be-ready for trial necessarily arise from something about the case rather than the business of the trial court or, indeed, the state of affairs in the office of the prosecuting attorney. Thus it has been held that to qualify as 'exceptional' within the meaning of the federal plan the circumstances may ‘not be something with which the Plan’s drafters were familiar,' United States v. Rodriguez, 529 F.2d 598, 600 (2 Cir. 1976) [footnote omitted]. Plainly, it being a matter of general common knowledge, we may attribute to the Legislature its familiarity with the fact of overcrowded dockets in the trial courts throughout the State [footnote omitted] — actual awareness is revealed by Article 32A.01 of the Speedy Trial Act itself whereby trial of a criminal action is given preference over a civil case and trial of an accused who is detained in jail is given preference over trial of other criminal actions.

But, more significantly, a crowded court docket is simply not a circumstance that conditions readiness for trial on the part of the State. The exceptional circumstance exclusion pertains to the State being ready for trial, just as it does to the United States Attorney under a federal plan containing substantially the same provision, US. v. Rollins, 475 F.2d 1108 (2 Cir.1973). * * * Thus, so far as the State was concerned the highly overcrowded dockets in the district courts of El Paso County was of no moment whatsoever. The State being ready, or prepared to dismiss the case otherwise, the letter, intent and purpose of the act were satisfied in this case [footnote omitted].”

. That the holding of Barfield has been misunderstood cannot be denied. See, e.g., Ostoja v. State, 631 S.W.2d 165, 167-168 (Tex.Cr.App. 1982), in which Ordunez v. Bean and Barfield are cited to support the statement that the Court "has also reasoned that Sec. 4(10) of the Act ... applies to overcrowded dockets of our trial courts.” But reading Barfield in its entirety should convince one that such claim is untenable. First off, the contention under consideration was that "the word ‘state’ includes the trial court and that the complaint and information should have been dismissed when the court was not ready to try the case within 90 days,” id., at 539 . Noting a universal concern over delay of trials ⅛ criminal cases, the Court reviewed at least three "speedy trial schemes” at work in the federal system and from its similarity with one of them concluded that the Act “is of the type of speedy trial scheme that addresses itself to pros-ecutorial delay rather than the judicial process as a whole,” pointing out that its draftsmen “could have easily included the courts in its terms, but instead chose to declare that dismissal would ensue if ‘the state’ was not ready for trial," id., at 541 . Then the Court found further evidence in the Act indicating that "the Legislature was addressing itself to prosecutorial delay rather than delay resulting from the judicial process itself," ibid; the opinion quotes at length from my concurring opinion in Ordunez v. Bean to the conclusion that instances of exclusions in determining when the State must be ready "plainly contemplate only the prosecuting attorney and just as clearly exclude the idea that the trial court is embraced within the term ‘the state’ being ready for trial," ibid. After finding still further reinforcing evidence, the Court held as quoted in the text above. Necessarily, it rejected the contention that the charging instrument should have been dismissed when the trial court was not ready to try the case within the prescribed period of time.

Thus, in sum, what Barfield teaches is that the condition of the docket of a trial court in which a case in pending is utterly irrelevant to a determination of whether the State is timely ready for trial. Therefore, whatever that condition, it is not an "exceptional circumstance." Happily the author of Ostoja, supra, now recognizes that "we need not concern ourselves with whatever problems may have then judicially existed.” At p. 329.

. Alas, by perpetuating earlier misconceptions the Lloyd opinion may well contribute to renaissance of confusion over applicability of § 4(10) to "court delays as opposed to State delays." id., at 475. This Court must absolutely declare again that "exceptional circumstances” within contemplation of § 4(10) "does not encompass the trial court and its docket," Barfield, supra.