KLEINMAN, MICHAEL

Kleinman pled no contest to 42 Class C misdemeanor violations of municipal ordinance and Texas Health and Safety Code provisions in the Cedar Park Municipal Court. He attempted to perfect de novo appeals of the resulting judgments to the county court at law, but did not personally sign his appeal bonds as principal as required by TEX. CODE CRIM. PROC. art. 17.08(4). Instead, Kleinman’s attorney signed them. The municipal court judge checked the “Not approved” box on the bonds. The State filed an application for writ of procedendo in the county court, arguing that the county court did not have jurisdiction because the appeal bonds were insufficient to perfect the appeals. After a hearing at which all parties were present, the county court dismissed the appeals and remanded the causes to the municipal court for enforcement of final judgment. It relied on art. 45.0426(b), which says, “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.”

The court of appeals reversed. It relied primarily on art. 44.15, which says that when an appeal bond is timely filed “and the court to which appeal is taken determines that such bond is defective in form or substance, such appellate court may allow the appellant to amend such bond by filing a new bond, on such terms as the court may prescribe.” The fact that the appellate court—the county court, in this case—could allow for amendment means its jurisdiction did not “evaporate” immediately upon finding the appeal bond defective. The court of appeals recognized the “may” in art.
44.15 but held that the appellate court must allow an appealing party who “substantially complied” with the requirements for an appeal bond an opportunity to cure the defect. It discounted the municipal court’s explicit disapproval of the defective appeal bonds.

The State raises two main arguments in its petition. First, it reiterates the Court of Criminal Appeals’s holdings that there is no such thing as “substantially invoked” jurisdiction. See Olivo v. State, 918 S.W.2d 519, 525 (Tex. Crim. App. 1996). That court rejected the civil “bona fide attempt” doctrine the court of appeals appears to embrace. Second, the court of appeals was wrong to use art. 44.15 to require appellate courts to allow an opportunity to correct defective appellate bonds. The “may” in art. 44.15 is clearly discretionary; it requires courts to do nothing. There is nothing absurd about adhering to the statutory language, as the right to appeal is wholly a creature of statute.