Ex Parte Mario Amaro CASTILLO, Appellant, v. The STATE of Texas.
Appellant filed his notice of appeal one day late. His notice of appeal and motion for extension of time were picked up by Federal Express after business hours on the last day of filing and delivered to the trial court the next day. The court of appeals dismissed his appeal for lack of jurisdiction.1 Appellant argues that the “timely mailed, timely filed” mailbox rule of Texas Rule of Appellate Procedure (TRAP) 9.2(b), which explicitly requires timely mailing via the United States Postal Service, is antiquated and should be read to include private couriers, such as Federal Express.2 We conclude that the plain, unambiguous language of the rule requires timely mailing with the U.S. Postal Service, not a private courier. Until and unless the Supreme Court of Texas and this Court change the language of Rule 9.2(b), the “timely mailed, timely filed” mailbox rule applies only to documents delivered to the U.S. Postal Service.
Appellant pled nolo contendere to the misdemeanor offense of assault—family violence in 2006. He successfully completed his sentence of twenty months of community supervision in 2008. Three years later, appellant filed an 11.0723 application for a writ of habeas corpus in the county court. He alleged that his original plea was involuntary based on ineffective assistance of counsel because he was not properly admonished of the deportation consequences of that plea. The trial judge denied relief on March 30, 2011.
Appellant's notice of appeal was due on April 29, 2011. But that due date could be extended for an additional fifteen days4 —until May 16th—by filing a request for an extension of time under TRAP 26.3. Appellant filed both a notice of appeal and a motion for extension of time on May 17, 2011. The court of appeals referred to TRAP 9.2(b)(1)(A) which states that a document received within ten days after the filing deadline is considered timely if it was sent to the proper clerk via the United States Postal Service.5 Appellant did not use the U.S. Postal Service. Instead, he “provided internet print-outs indicating that the notice of appeal was picked up for delivery by Federal Express at 6:49 p.m. on May 16, 2011, and delivered to the trial court clerk on May 17, 2011.”6 The court of appeals therefore dismissed the appeal because appellant's notice was untimely by one day.7
Appellant petitioned this Court for discretionary review, claiming that the court of appeals's holding exalts form over substance by dismissing his appeal “based on a technical non-compliance with the rules of procedure[.]”8
Timely filing of a written notice of appeal is a jurisdictional prerequisite to hearing an appeal.9 If a notice of appeal is not timely filed, the court of appeals has no option but to dismiss the appeal for lack of jurisdiction.10 Normally, a notice of appeal is “filed” when it is physically delivered to, and received by, the clerk of the trial court.11 Thus, a notice of appeal may be timely delivered to the clerk by any means: personal delivery, private courier, U.S. mail, or, as permitted or required by local rules, by electronic means, such as fax or e-mail.12
A long-standing exception to this “physical delivery” filing requirement was the common-law mailbox rule. As the United States Supreme Court stated in 1884,
The rule is well settled that if a letter properly directed is proved to have been either put into the post-office or delivered to the postman, it is presumed, from the known course of business in the post-office department, that it reached its destination at the regular time, and was received by the person to whom it was addressed.13
The rationale for the “timely mailed, timely filed” mailbox rule is two-fold. First, many citizens who must file a document with a governmental entity live too far away to personally deliver that document to the entity; they should not be penalized by being required to send their documents earlier than those citizens who happen to live in close proximity to that entity. Second, the law assumes that governmental entities, such as the United States Postal Service, perform their jobs diligently, if not always in a timely manner.14
In 1954, Congress codified a version of the common law “timely mailed, timely filed” mailbox rule for documents filed with the Internal Revenue Service. “The codified rule was designed to alleviate taxpayer hardship resulting from the vagaries of the I.R.S. and the postal system[.]”15 Under that statutory mailbox rule, a document that must be filed on a certain date is considered to be timely filed if it is postmarked on that date and timely deposited in the United States mail system on that date.16 The plain, unambiguous language of that statute has been strictly construed to cover only those documents that have been delivered to and postmarked by the United States Postal Service, so delivery by private couriers, such as FedEx and UPS, is not covered by the mailbox rule.17
Texas has long followed that same mailbox rule in its Rules of Civil Procedure and Rules of Appellate Procedure. Rule 5 of the Texas Rules of Civil Procedure is titled “Enlargement of Time.” It was amended, effective March 1, 1950, to codify the “timely mailed, timely filed” mailbox rule.18 Rule 5 continues to provide an exception to the rule that documents are filed upon physical delivery. It currently reads:
If any document is sent to the proper clerk by first-class United States mail in an envelope or wrapper properly addressed and stamped and is deposited in the mail on or before the last day for filing same, the same, if received by the clerk not more than ten days tardily, shall be filed by the clerk and be deemed filed in time. A legible postmark affixed by the United States Postal Service shall be prima facie evidence of the date of mailing.19
The mailbox rule in Civil Rule 5, like the federal statute, applies only to documents that are deposited with the U.S. Postal Service, not to documents delivered by a private courier.20
That same “timely mailed, timely filed” mailbox rule is in the Texas Rules of Appellate Procedure. Rule 9.2(b)—applicable to both civil and criminal cases—reads,
(b) Filing by Mail.
(1) Timely Filing. A document received within ten days after the filing deadline is considered timely filed if:
(A) it was sent to the proper clerk by United States Postal Service first-class, express, registered, or certified mail;
(B) it was placed in an envelope or wrapper properly addressed and stamped; and
(C) it was deposited in the mail on or before the last day for filing.
(2) Proof of Mailing. Though it may consider other proof, the appellate court will accept the following as conclusive proof of the date of mailing:
(A) a legible postmark affixed by the United States Postal Service;
(B) a receipt for registered or certified mail if the receipt is endorsed by the United States Postal Service; or
(C) a certificate of mailing by the United States Postal Service.21
The plain, unambiguous language of this rule speaks to the timely mailing of a document via the “United States Postal Service.” It does not permit any other type of delivery or private courier system.
In this case, appellant did not timely deliver his notice of appeal to the clerk of the trial court. It was due on April 29, 2011. However, Rule 26.3 provides a measure of relief for the inadvertent slowpoke.22 It permits an extension of time after the deadline to file notice of appeal, if, within fifteen days after the deadline, the party files (a) the notice of appeal in the trial court; and (b) a motion for extension of time under Rule 10.5(b)(2) in the court of appeals. Appellant did not comply with Rule 26.3 either; he did not physically deliver the notice of appeal within that fifteen-day grace period to the trial court by any appropriate means—personal delivery, private courier, U.S. mail, fax or e-mail. And he did not comply with the “timely mailed, timely filed” mailbox-rule exception to the physical-delivery rule by delivering his notice of appeal to the United States Postal Service within that fifteen-day extension period. He waited until 6:49 p.m.—after the close of business hours at the courthouse—to have Federal Express pick up his documents and deliver them to the trial court clerk the next day. That next day was the sixteenth day after the notice of appeal (and the motion for an extension) was due. This was just one day late, but one day is enough to deprive the appellate court of jurisdiction to consider appellant's appeal under the Texas Rules of Appellate Procedure.23
Appellant argues that he “took all steps necessary in order to perfect a late filing of his Notice of Appeal except the requirement of Tex.R.App. Proc. 9.2(b)(1) to send by United States Postal Service.” But that requirement is not optional. Like the federal taxpayers in Petrulis and Pugsley, appellant argues that the mailbox rule should not be confined to U.S. Postal Service mailboxes, but should include any private courier or delivery system that delivers the documents within ten days.24 Appellant argues that a mailbox rule that applies only to documents deposited in the U.S. mail is “archaic and to hold otherwise [would] frustrate the purpose clearly embodied in the rule.” But, as noted above, the “timely mailed, timely filed” mailbox rule provides a very specific means by which those who cannot timely deliver documents to a given government entity—such as courts or the Internal Revenue Service—in person may timely deliver them to another governmental entity (the United States Postal Service for most litigants or the prison system mailroom for pro se prisoners). If filings are timely delivered to that mailbox or mailroom, the filing citizen bears no blame for delays in the U.S. mail system so long as the document arrives within ten days of the filing date.
As times change, the rules governing acceptable delivery systems may change as well. Our appellate rules already provide for the delivery of documents by electronic means; perhaps they will be amended to provide for a “timely picked-up, timely filed” rule for private couriers.25 But courts must apply the rules that exist today. Those rules contain a “timely mailed, timely filed” mailbox rule that applies only to documents deposited with the United States Postal Service. Appellant did not comply with the plain, unambiguous rule, and so he did not invoke the jurisdiction of the appellate court.
We affirm the judgment of the court of appeals.
I respectfully dissent. I conclude that the court of appeals had jurisdiction over this appeal filed by appellant, Mario Amaro Castillo. It is undisputed that, had appellant sent his notice of appeal and motion for extension of time through the United States Postal Service (USPS), the court of appeals would have jurisdiction over his appeal. But he did not use USPS and, instead, used Federal Express. Consequently, according to the majority opinion, the court of appeals lacked jurisdiction over his appeal.
The only rational basis for disallowing an untimely filed notice of appeal sent by Federal Express while permitting the same notice of appeal sent through USPS is that the plain language of Texas Rules of Appellate Procedure 9.2 refers only to USPS. See Tex.R.App. P. 9.2(b)(1)(A). That rule states, in relevant part, “A document received within ten days after the filing deadline is considered timely filed if it was sent to the proper clerk by United States Postal Service first-class, express, registered, or certified mail[.]” Id. It is time to update the rule to include modern-day, nationally recognized mail carriers. But until then, we must decide (1) whether an appellate court does not have jurisdiction over an appeal delivered by a private courier because the plain language includes only USPS, or (2) whether interpreting the rule to include delivery by Federal Express, a nationally recognized private courier that has demonstrated reliability comparable to that of USPS, better effectuates the intent of that rule.
The Texas Supreme Court has consistently held that appellate courts should not dismiss an appeal for a procedural defect whenever an arguable interpretation of the appellate rules would preserve the appeal:
We have repeatedly held that a court of appeals has jurisdiction over any appeal in which the appellant files an instrument in a bona fide attempt to invoke the appellate court's jurisdiction. Our decisions reflect the policy embodied in our appellate rules that disfavors disposing of appeals based upon harmless procedural defects. Thus, we have instructed the courts of appeals to construe the Rules of Appellate Procedure reasonably, yet liberally, so that the right to appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of a rule.
Verburgt v. Dorner, 959 S.W.2d 615, 616–617 (Tex.1997); see also Stokes v. Aberdeen Ins. Co., 917 S.W.2d 267, 268 (Tex.1996) (rejecting lower court's reading of appellate procedural filing requirements as “too restrictive”). This Court has “functionally embraced an approach to perfecting appeals and notice of appeal closer to that of the Texas Supreme Court” and “decline[s] to elevate form over substance.”1 Few v. State, 230 S.W.3d 184, 189 (Tex.Crim.App.2007) (quoting Bayless v. State, 91 S.W.3d 801, 806 (Tex.Crim.App.2002)). I would hold that appellant's mere failure—delivery through an undesignated, but reliable, carrier—does not constitute a jurisdictional defect but a procedural irregularity. Compare Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App.1996) (complete failure to file motion for extension of time to file notice of appeal was jurisdictional defect).
Federal Express is a well-established, nationally recognized courier widely regarded as a leader in parcel-delivery reliability. See Fed. Express Corp. v. UPS, 765 F.Supp.2d 1011, 1015 (W.D.Tenn.2010) (discussing 2009 Morgan Stanley Research Parcel Returns Survey ranking Federal Express first under “Service Reliability”).2 According to its website, Federal Express “uses a global air-and-ground network to speed delivery of time-sensitive shipments, usually in one to two business days with the delivery time guaranteed,” a claim substantiated by the company's track record.3 If the mailbox rule originated because “it is presumed, from the known course of business in the post-office department, that [a document] reached its destination at the regular time, and was received by the person to whom it was addressed,” Rosenthal v. Walker, 111 U.S. 185, 193, 4 S.Ct. 382, 28 L.Ed. 395 (1884), then that presumption must logically extend today to include a private courier such as Federal Express, which has provided over forty years of reliable, nationwide service. See Fed. Express Corp., 765 F.Supp.2d at 1015.4 To conclude otherwise would frustrate the intent of the rule of ensuring timely delivery of documents to be filed with the court. As this Court has noted, “[a]s societal conditions change, so do procedural requirements and rules.” Few, 230 S.W.3d at 190. We should construe Rule 9.2 accordingly.
In this case, Federal Express delivered appellant's documents to the proper designated address within 24 hours of the time appellant tendered the documents to it. Had appellant used USPS, the documents would have been considered timely received if they have been received nine days after that. A criminal defendant's entire appeal should not be thrown out merely because he used a mail carrier that is at least as reliable as USPS, particularly when his mail was actually received on the first of the ten days to which he would have been entitled had he used USPS. To decline jurisdiction on this basis would be to elevate form over substance in contravention of this Court's precedent. See Few, 230 S.W.3d at 189; Bayless, 91 S.W.3d at 806. Because appellant's use of Federal Express instead of USPS is a harmless procedural defect in light of that company's status as a reliable mail carrier, I respectfully dissent.
COCHRAN, J., delivered the opinion of the Court in which KELLER, P.J., and MEYERS, PRICE, WOMACK, KEASLER, and HERVEY, JJ., joined.
ALCALA, J., filed a dissenting opinion in which JOHNSON, J., joined.