Court of Appeals Unable to Take

Immediate Action 21 (B) no timely filed motion to extend time to file a petition for review or petition for discretionary review is pending; and (C) in a criminal case, the Court of Criminal Appeals has not granted review on its own initiative. (2) Ten days after the time has expired for filing a motion to extend time to file a motion for rehearing of a denial, refusal, or dismissal of a petition for review, or a refusal or dismissal of a petition for discretionary review, if no timely filed motion for rehearing or motion to extend time is pending. (b) In the Supreme Court and the Court of Criminal Appeals. Ten days after the time has expired for filing a motion to extend time to file a motion for rehearing if no timely filed motion for rehearing or motion to extend time is pending. (c) Agreement to Issue. The mandate may be issued earlier if the parties so agree, or for good cause on the motion of a party. 18.2. Stay of Mandate A party may move to stay issuance of the mandate pending the United States Supreme Court's disposition of a petition for writ of certiorari. The motion must state the grounds for the petition and the circumstances requiring the stay. The appellate court authorized to issue the mandate may grant a stay if it finds that the grounds are substantial and that the petitioner or others would incur serious hardship from the mandate's issuance if the United States Supreme Court were later to reverse the judgment. In a criminal case, the stay will last for no more than 90 days, to permit the timely filing of a petition for writ of certiorari. After that period and others mentioned in this rule expire, the mandate will issue. 18.3. Trial Court Case Number The mandate must state the trial court case number. 18.4. Filing of Mandate The clerk receiving the mandate will file it with the case's other papers and note it on the docket. 17.1. Inability to Act A court of appeals is unable to take immediate action if it cannot — within the time when action must be taken — assemble a panel because members of the court are ill, absent, or unavailable. A justice who is disqualified or recused is unavailable. A court of appeals’ immediately may be established by certificate of the clerk, a member of the court, or a party’s counsel, or by affidavit of a party. inability to act 17.2. Nearest Available Court of Appeals If a court of appeals is unable to take immediate action, the nearest court of appeals that is able to take immediate action may do so with the same effect as the other court. The nearest court of appeals is the one whose courthouse is nearest — measured by a straight line — the courthouse of the trial court. 17.3. Further Proceedings After acting or refusing to act, the nearest court of appeals must promptly send a copy of its order, and the original or a copy of any document presented to it, to the other court, which will conduct any further proceedings in the matter. Notes and Comments Comment to 1997 change: This is former Rule 16. The rule is rewritten and simplified.