Can a Court Change (Modify) Litigant's Substantive Rights ?
In Davis v. State, 870 S.W.2d 43 (Tex. Crim. App. 1994), the court of criminal appeals was confronted with an issue of whether the rules of appellate procedure impermissibly gave a defendant a greater scope of appeal than the predecessor statute. Id. at 45.
The court construed the rule so that it conformed to the predecessor statute in order to abide by the legislature's prohibition against abridging, enlarging, or modifying the substantive rights of a litigant. Id. at 46.
It is true that the court of criminal appeals has not always recognized the prohibition against modifying the substantive rights of the litigants.
For example, in Reyes v. State, 849 S.W.2d 812 (Tex. Crim. App. 1993), the court upheld the rule of appellate procedure which had deleted the former statute's phrase "and for no other" after the enumerated reasons for granting a new trial. Id at 815.
This change enlarged the scope of a motion for new trial thereby enlarging the substantive rights of the defendant.
The court apparently did not consider the prohibition, however, in Reyes.
Moreover, the court was dealing with ineffective assistance of counsel which, the court acknowledged, had been considered a ground for granting a new trial even under the former statute. Id at 814.
Indeed, two judges concurred on the basis that ineffective assistance of counsel falls within a listed ground, where the defendant "has been denied counsel." Id at 816.