Johnny Ray ABBOTT, Appellant v. The STATE of Texas, Appellee, 245 S.W.3d 26

ORDER PER CURIAM. On December 12, 2007, we reversed the trial court’s order denying Abbott’s motion for time credit and remanded this cause to the trial court with the instructions to apply Abbott’s prison time served as a credit toward the 180-day confinement as a condition of community supervision and, because that credit greatly exceeds 180 days, to immediately release Abbott from jail. Abbott v. State, 245 S.W.3d 19, 23 (Tex.App. — Waco, 2007, pet. filed). Despite the instruction in our opinion and judgment to immediately release Abbott from jail, he was not released.

On the morning of December 14, Abbott filed with us a “Motion to Issue Mandate Immediately” under the authority of Rule of Appellate Procedure 18.1(c). See Tex. R.App. P. 18.1(e) (“The mandate may be issued earlier if the parties so agree, or for good cause on the motion of a party.”). We requested a response from the State to Abbott’s motion by 5:00 p.m. In its response, the State asserted that it had not had adequate time to respond to Abbott’s motion, that it was preparing a petition for discretionary review, and that it had a right under Rule 68.1 to file its petition before issuance of our mandate.

Also on December 14, the State filed with the Court of Criminal Appeals a “Motion for Leave to File Motion to Stay the Premature Issuance of Mandate by the Tenth Court of Appeals” and a “Motion to Stay the Premature Issuance of Mandate by the Tenth Court of Appeals.” In a December 14 letter order issued at approximately 5:10 p.m., we granted Abbott’s Motion to Issue Mandate Immediately, as follows: The Court grants Appellant’s “motion to issue mandate immediately.” The State appears to assert that issuing the mandate will preclude its right to file a petition for discretionary review. We disagree.

In our December 12, 2007 opinion and judgment, we instructed the trial court to immediately release Appellant from jail, and apparently the trial court has not done so. Accordingly, the Clerk shall issue the mandate forthwith. The Clerk of this Court also issued the mandate, and both it and the above letter order were prepared for delivery to the parties and the trial court. However, a deputy clerk of the Court of Criminal Appeals telephoned us around 5:15 p.m. to inform us that the Court of Criminal Appeals was considering the State’s motion for stay and asked us to refrain from issuing our mandate.

To comply with the spirit of that request, we did not transmit the order or the mandate, previously issued, to the trial court or the parties. Around 6:15 p.m., the Court of Criminal Appeals clerk telephoned again to tell us that the Court was granting the State’s motion to stay. At 7:01 p.m. on December 14 (a Friday), we received by telefax the Court of Criminal Appeals’ per curiam order, which states in whole: The State’s Motion for Leave to File and Motion to Stay the Premature Issuance of the Mandate by the Tenth Court of Appeals are Granted.

The Court of Appeals for the Tenth Judicial District is ordered to withhold issuance of the mandate pending further action by this Court. Abbott v. State, No. PD-1816-07 (Tex.Crim.App. Dec. 14, 2007) (order) (per curiam). As a result of this order, we now withdraw our issued but undelivered December 14 letter order granting Abbott’s motion and we recall our issued but undelivered December 14 mandate. Dissent to Order by Chief Justice GRAY. . The State asserted that issuing our mandate would preclude it from filing a petition for discretionary review. Because Rule 18.1(

c) allows for the early issuance of the mandate, it is difficult to reconcile how early issuance could preclude a party from filing a petition for discretionary review. . Abbott received ten years’ community supervision, but the trial court ordered him to serve 180 days in county jail as a condition of community supervision.

In its motion to stay, the State asserted that issuance of the mandate would prevent it from filing a petition for discretionary review (without citing any authority) and that the State would suffer "irreparable harm by the release of Appellant from jail" (without explaining the alleged irreparable harm). We note the obvious: if our decision is reversed on the State’s petition for discretionary review, our mandate can be recalled and Abbott can be ordered to complete his 180-day incarceration.

However, if our decision stands but Abbott has already erroneously served the 180 days (he has already served two-thirds of it), it is Abbott who will have been irreparably harmed. Also, whether Abbott is released from jail now or in two months, he will still be under community supervision. .Chief Justice Gray dissented to this ruling. . Rule of Appellate Procedure 67.2 requires a signed order by a judge of the Court of Criminal Appeals to stay a court of appeals mandate. See TexR.App. P. 67.2 ("The order [staying the court of appeals’ mandate] must be signed by a judge of the Court of Criminal Appeals.”).

It is debatable whether the order in this case to us to withhold issuance of the mandate comes precisely within the purview of Rule 67.2, but the effect of the per curiam order is the same.