Lead Opinion
delivered the opinion of the unanimous Court.
In a prior decision, we suggested that there was a time limit on the trial court’s power to rescind the granting of a new trial. We now conclude that there is no specific time limit on the trial court’s power to do so.
A. Trial Proceedings
The trial court revoked appellant’s deferred-adjudication probation, adjudicated him guilty of aggravated robbery, and sentenced him to eight years’ imprisonment. Appellant’s sentence was imposed in open court on March 7, 2013. On March 20, appellant filed a “Motion for Commutation of Sentence,” in which he requested a “time cut” and' a new sentence of zero years. On March 25, appellant filed a notice of appeal. On May 17, the trial court entered an order granting a new trial on punishment. On May 20, the State filed a motion to rescind that order and requested that the trial court rule on the State’s motion no later than May 21. The trial court signed an order rescinding its order granting a motion for new trial on punishment on May 22, seventy-six days after the imposition of sentence.
B. Appeal
Appellant subsequently filed a motion to dismiss his appeal on the ground that the trial court’s latest order (rescinding the previous order granting the motion for new trial on punishment) was untimely. Relying upon our decision in Awadelkariem v. State,
II. ANALYSIS
In its third ground for review, the State seeks to overturn our prior pronouncement in Awadelkariem that a trial court’s ability to rescind an order granting a motion for new trial is limited to seventy-five days after the trial court’s judgment.
In Awadelkariem, we disagreed. Noting that a trial court has seventy-five days in which to rule on a motion for new trial, we held that a trial court may rescind its order granting or denying a motion for new trial, as long as the rescinding order was made within that seventy-five-day window.
The Supreme Court has since overruled prior caselaw to the extent that it imposed the seventy-five-day time limit.
Other state supreme courts have agreed with this conclusion in the context of criminal trials.
An order granting a new trial is not final in the sense of being a final resolution of the case or .a final determination of the defendant’s guilt or innocence. On the contrary, an order granting a new trial does not finally dispose of the matter. In a criminal case, the granting of a new trial places the parties in the same position as if no trial had been had. Thus, an order granting a new trial is an interim order in the sense that it requires further proceedings before the case may be resolved and judgment may be pronounced.21
The California Supreme Court further found practical reasons for allowing a trial court to rescind an order granting a new trial in criminal cases:
Because new trials substantially prolong criminal proceedings, allowing trial courts some authority to reconsider and to vacate orders granting new trials may lead to earlier resolution of the matter and thereby promote the interests underlying judicial finality rules.... If, as here, the trial court after reconsideration concludes that it erred in granting a new trial, and it reinstates the jury verdicts, then reconsideration avoids repetitive litigation of the charges and permits an earlier resolution of the case in the trial court by pronouncement of judgment. In this way, reconsideration of an erroneously granted new trial promotes confidence in the judicial system, conserves judicial resources, and spares the parties from the inconvenience and expense of a second trial.22
We find the rationales articulated by our sister court and courts from other states to be persuasive. Our rules of appellate procedure do not expressly prescribe a time limit for when a trial court can rescind an order granting a new trial in a criminal case. Rule 21.8 simply provides that a trial court “must rule on a motion for new trial within 75 days after imposing or suspending sentence in open court” and that any motion “not timely ruled on by written order will be deemed denied” after expiration of the seventy-five-day period.
The Supreme Court noted that the seventy-five-day time limit for rescinding an order granting a new trial may have been designed to prevent the late reinstatement of a judgment from depriving a party of the ability to appeal, but the Court observed that this concern was adequately addressed by rules that allowed the appellate timetables to be reset.
We reverse the judgment of the court of appeals and remand the case to that court for further proceedings consistent with our opinion.
. We do not address whether the trial court’s ability to rescind an order granting a new
. 974 S.W.2d 721 (Tex.Crim.App.1998).
. Kirk v. State, No. 11-13-00130-CR, 2013 WL 3701979, *1-2, 2013 Tex.App. LEXIS 8466, *2-6 (Tex.App.-Eastland July 11, 2013) (not designated for publication).
. Id. at *2, 2013 Tex.App. LEXIS 8466 at *5.
. Id. The court of appeals later issued an ' opinion denying the State’s motion for rehearing. Kirk v. State, No. 11-13-00130-CR, 2013 WL 4052472, 2013 Tex.App. LEXIS 9880 (Tex.App.-Eastland August 8, 2013) (not designated for publication).
. See Awadelkariem, 974 S.W.2d at 726.
. Id. at 722.
. 40 Tex.Crim. 316, 50 S.W. 368 (1899).
. Awadelkariem, 974 S.W.2d at 725-28.
. 40 Tex.Crim. at 318, 50 S.W. at 369. In English v. State, we distinguished Matthews by holding that the rule of that case would apply only to situations involving judicial error and would not apply when a trial court had erroneously granted a new trial as a result of clerical error. 592 S.W.2d 949 (Tex.Crim.App.1980). Under Matthews as modified by English, the prevailing rule; prior to Awadelkariem, was that a trial court was barred from rescinding an order granting a new trial "absent clerical errors.” Ex parte Drewery, 677 S.W.2d 533, 536 (Tex.Crim.App.1984).
. 974 S.W.2d at 728.
. Id. at 726.
. See id. at 726-27 (citing Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex.1993) and concluding that the case “carries persuasive weight concerning the issue at hand”).
. In re Baylor Med. Ctr. at Garland, 280 S.W.3d 227, 229-32 (Tex.2008).
. Id. at 229.
. Id.
. Id. at 230.
. Id. at 230-31.
. Id. at 232 (quoting 6A JAMES WM. MOORE, MOORE’S FEDERAL PRACTICE P 59.13[1], at 59-277 (2d ed.1996)) (brackets and internal quotations marks omitted).
. People v. DeLouize, 32 Cal.4th 1223, 13 Cal.Rptr.3d 302, 89 P.3d 733, 738 (2004); People v. Mink, 141 Ill.2d 163, 152 Ill.Dec. 293, 565 N.E.2d 975, 978-79 (1990) (upholding trial court’s reconsideration and withdrawal of new-trial order and observing that "[a] court in a criminal case has inherent power to reconsider and correct its own rulings, even in the absence of a statute or rule granting it such authority”); Ussery v. State, 758 P.2d 319, 321 (Okla.Crim.App.1988) ("A trial court may, at any time prior to the time final judgment is entered in a criminal prosecution, exercise its sound discretion and reconsider its interlocutory order granting or denying a motion for a new trial.”); People v.
. DeLouize, 13 Cal.Rptr.3d 302, 89 P.3d at 738 (quotations and citations omitted).
. Id., 13 Cal.Rptr.3d 302, 89 P.3d at 738-39.
. Tex.R.App. P. 21.8(a), (c). See also Stokes v. State, 277 S.W.3d 20, 21 (Tex.Crim.App.2009).
. See Tex.R.App. P. 21.8.
. 974 S.W.2d at 724 (quoting Rodriguez v. State, 852 S.W.2d 516, 519 n.4 (Tex.Crim.App.1993)).
. Id. at 726, 728.
. Baylor Med. Ctr., 280 S.W.3d at 230.
. Baylor Med. Ctr., 280 S.W.3d at 231.
. See Tex.R.App. P. 26.2(a)(1).
. See Tex.R.App. P. 27.1 (b).
Concurrence Opinion
CONCURRING OPINION
filed a concurring opinion.
I join the majority opinion. I write separately to explain why I. believe the Court’s holding today signals the expansion of the State’s avenues for challenging the propriety of an order granting a new trial. Until today, the State’s primary avenue for challenging a new-trial order in a criminal matter has been through an interlocutory appeal. See Tex.Code Crim. Proc. art. 44.01(a)(3). The majority opinion’s holding makes clear that the State may also obtain relief from an order granting a new trial through a second avenue — by filing a motion directly in the trial court in an effort to persuade the trial judge that his ruling was erroneous. And, as explained further below, the State’s decision to pursue one avenue over the other may carry with it significant implications for the trial court’s authority to rescind or modify its new-trial order going forward in the case.
With respect to the first avenue, the Texas Code of Criminal Procedure provides that the State is authorized to appeal
Article 44.01 provides that the State “is entitled to a stay in the proceedings [in the trial court] pending the disposition” of an appeal of a new-trial order. See Tex.Code Crim. Proc. art. 44.01(e). In light of that provision, once the State seeks to exercise its right to appeal an order granting a new trial, the trial court would be deprived of jurisdiction over the case during the pen-dency of such an appeal, and the court would be unable to modify or alter its ruling on the new-trial motion during that period. See id.; see also Tex.R.App. P. 25.2(g) (providing that, once record has been filed in appellate court, “all further proceedings in the trial court ... will be suspended until the trial court receives the appellate-court mandate”).
Furthermore, it appears that after an appellate court rules on the merits of an appeal by the State, the trial court would be bound to follow the appellate court’s ruling as to whether the granting of a new trial was proper because such a ruling would constitute the law of the case. See, e.g., State v. Swearingen, 424 S.W.3d 32, 36 (Tex.Crim.App.2014) (observing that, under law of the case doctrine, appellate court’s resolution of questions of law in a previous appeal are binding in subsequent appeals concerning the same issue; “when the facts and legal issues are virtually identical, they should be controlled by an appellate court’s previous resolution”).
As the Court’s majority opinion makes clear, in addition to the option of pursuing an interlocutory appeal, the State may opt to seek relief directly in the trial court by requesting that the court reconsider its order granting a new trial. And, as the majority opinion holds today, in the absence of any appeal of a new-trial order by the State, the trial court retains plenary power over the case as it would over any other pending matter, and it may rescind its order at any point during the pendency of the case. Unlike the option of an interlocutory appeal, this avenue is subject to no precise time limit, nor is it subject to the limitations that necessarily flow from the appellate court’s exercise of jurisdiction over a case. But this avenue may be subject to other legal limitations ordinarily applicable to criminal cases. For example, after the trial court grants a motion for new trial, the case would proceed in an ordinary fashion and a jury may be selected and sworn. While hearing evidence on retrial, it is possible that some event could occur that would motivate the trial judge to reconsider his earlier decision to grant a new trial, thereby causing him to rescind the new-trial order and reinstate the original judgment. On appeal, an appellant might then argue that the original judgment could not be reinstated after the point at which jeopardy had attached in the second trial. See Ex parte Garza, 337 S.W.3d 903, 914 (Tex.Crim.App.2011) (discussing that jeopardy attaches prior to point in time when trial court erroneously declares a mistrial after jury has been sworn). In light of these considerations, I conclude that it remains an open question whether, at the point that jeopardy has attached in the retrial, a trial court could rescind its new-trial order and reinstate the original judgment. Because that question is not presented by the facts of this case, the majority opinion correctly reserves judgment as to that matter for another day.
Although I join this Court’s majority opinion’s holding that a trial court generally has continuing authority to rescind its order granting a new trial, I observe that a trial court must always proceed cautiously when either granting or denying a motion for new trial because there are limitations to the grounds upon which a trial court may properly grant a new trial. Recently, in State v. Thomas, this Court reaffirmed the principle that “[tjhere must be some legal basis underpinning the grant of a new trial,” and a trial court may not grant a new trial for a “non-legal or a legally invalid reason.” See State v. Thomas, 428 S.W.3d 99, 104, 105, 107 (Tex.Crim.App.2014) (holding that “motion for a new trial, whether for guilt or punishment, requires a valid legal claim”; a court cannot grant a new trial “unless the defendant shows that he is entitled to one under the law”) (citations omitted); see also Tex.R.App. P. 21.3 (identifying list of grounds upon which trial court “must” grant a new trial). In deciding whether to rescind its new-trial order, I believe that the trial court should determine whether its granting of a new trial was in accordance with the principle that there must be some valid legal basis underpinning that action and, if it was not, then the trial court must rescind its order.
With these comments, I join the majority opinion.
. In relevant part, Texas Code of Criminal Procedure Article 44.01 provides, "(a) The state is entitled to appeal an order of a court in a criminal case if the order: ... (3) grants a new trial[.]” Tex.Code Crim. Proc. art. 44.01(a)(3). That section further provides that "[t]he prosecuting attorney may not make an appeal [of a new-trial order] later than the 20th day after the date on which the order, ruling, or sentence to be appealed is entered by the court.” Id. art. 44.01(d).
. See also Satterwhite v. State, 858 S.W.2d 412, 430 (Tex.Crim.App.1993) (applying. law of the case doctrine in context of ruling on motion to suppress when none of facts surrounding search as analyzed during first appeal had changed); Ex parte Granger, 850 S.W.2d 513, 516 (Tex.Crim.App.1993); Ex parte Schuessler, 846 S.W.2d 850, 852 n.7 (Tex.Crim.App.1993) ("The ‘law of the case’ doctrine provides that once a question of law in a particular case has been finally resolved, that question will not be reconsidered in subsequent proceedings of the same case.”).