Mike HJALMARSON, et al., Relators, v. Honorable J.D. LANGLEY, Judge, 85th District Court, Brazos County, Texas, Respondent.
No. 10-92-142-CV.
Court of Appeals of Texas, Waco.
Oct. 21, 1992.
841 S.W.2d 153
In the case before us, nothing in the record reflects upon Mr. Tatum‘s intelligence. He consistently answered all questions asked of him. We concede that assessing a venireperson‘s intelligence is a highly subjective matter. We find, however, that simply stating that a venireperson “didn‘t appear to be quite that swift,” without more, is insufficient to overcome the presumption of discrimination in a Batson hearing. “Whimsical explanations will simply not get the job done.” Whitsey, 796 S.W.2d at 738. The only other reason given for striking Mr. Tatum, his wife‘s eye injury claim, suggests disparate treatment of black and nonblack venirepersons by the defendants. Both of the reasons offered by defendants for striking Mr. Tatum from the jury panel suggest that the peremptory strike against him was motivated by race. Given the facts before us and the nature of the prosecutor‘s explanation, we hold that the trial court‘s implied conclusion that the peremptory challenge was not a pretext but was exercised for race-neutral reasons is clearly erroneous, because it is not supported by the record.
The exclusion of even one member of appellant‘s race from the jury panel for racial reasons invalidates the entire jury selection process. Whitsey, 796 S.W.2d at 716. Having been denied due process in the jury selection process, appellants are entitled to a new trial. Id. Appellants’ points of error seven, eight, and nine are sustained.
Having so held, we need not address appellants’ remaining six points of error dealing with the legal and factual sufficiency of the evidence.
The judgment of the trial court is reversed and the case is remanded for a new trial.
Before THOMAS, C.J., and CUMMINGS and VANCE, JJ.
OPINION
THOMAS, Chief Justice.
Attorneys Mike Hjalmarson, Eric Nielsen, and Elliott Flood, the relators, seek a writ of mandamus to set aside a sanction order entered against them under
On January 6, 1992, Gonzalez took a nonsuit in his case against Kent Moore. See
EFFECT OF THE NONSUIT
Gonzalez’ right to a nonsuit was absolute because Kent Moore had no claim for affirmative relief or motion for sanctions then pending. See id. at 162; BHP Petroleum Co., Inc. v. Millard, 800 S.W.2d 838, 840 (Tex.1990, orig. proceeding). The court‘s signing of the January 6 order of nonsuit was a ministerial act. See Hooks v. Fourth Court of Appeals, 808 S.W.2d 56, 59 (Tex.1991, orig. proceeding). Under the circumstances, the nonsuit discontinued the entire cause. See Greenberg v. Brookshire 640 S.W.2d 870, 872 (Tex.1982, orig. proceeding) (quoting Hoodless v. Winter, 80 Tex. 638, 16 S.W. 427, 428 (1891)). Thus, any action taken thereafter without reinstating the cause was erroneous. See Greenberg, 640 S.W.2d at 871; Ashpole v. Millard, 778 S.W.2d 169, 171 (Tex.App.—Houston [1st Dist.] 1989, orig. proceeding); Gibson v. Gibson, 653 S.W.2d 646, 647 (Tex.App.—Waco 1983, no writ).
The court never reinstated the cause. Accordingly, it should not have heard the motion for sanctions or entered the sanction order based on the motion. See Greenberg, 640 S.W.2d at 871. The February 17 sanction order was thus void because the cause was never reinstated and the court signed the sanction order after its plenary power to reinstate had expired. See Merrill Lynch Relocation Man. v. Powell, 824 S.W.2d 804, 806 (Tex.App.—Houston [14th Dist.] 1992, orig. proceeding); Ashpole, 778 S.W.2d at 171.
We recognize that our holding is contrary to the result in Wolma v. Gonzalez, 822 S.W.2d 302 (Tex.App.—San Antonio 1991, orig. proceeding), authority relied on by Kent Moore. There the parties entered into a settlement agreement that resulted in the plaintiff taking a nonsuit. Id. at 302. After the court entered an agreed judgment, the defendant then moved to sanction the plaintiff under
Relying on a mixture of federal and Texas case law, the court in Wolma essentially held that: (1) a motion for
A court has no more power to act in sanction matters without jurisdiction than it does elsewhere. What is most troubling about the decision in Wolma is that it cannot be squared with established legal principles relating to jurisdiction. A court must have jurisdiction to act or its acts are void. State v. Olsen, 360 S.W.2d 398, 399 (Tex.1962, orig. proceeding). Moreover, its jurisdiction must be legally invoked or its power to act is nonexistent. Id. Where did the trial court‘s jurisdiction to enter the sanction order come from? How was it invoked?
A court loses jurisdiction of a cause once its plenary power expires. Jackson v. Van Winkle, 660 S.W.2d 807, 808 (Tex. 1983). Notwithstanding this most basic rule, the court attempts to predicate the sanction order on the trial court‘s jurisdiction over the nonsuited cause: “While [the trial court‘s] plenary power to alter the agreed judgment may have expired, that fact did not affect [its] jurisdiction to grant
Nor could the trial court‘s jurisdiction spring from the inherent power to sanction. Texas recognizes inherent judicial power—a power that is not derived from a specific legislative grant or constitutional provision but exists to enable a court to effectively perform its judicial functions and to protect its dignity, independence, and integrity. Eichelberger v. Eichelberger, 582 S.W.2d 395, 398-99 (Tex. 1979). However, a court‘s inherent judicial power does not confer jurisdiction where none pre-exists by statutory or constitutional grant. Id. at 399 (“Under our system there is no such thing as the inherent power of a court, ‘if, by that, be meant a power which a court may exercise without a law authorizing it’ “). As the authors of a law review article recently noted, the inherent power of a court to sanction has “ancient roots in a court‘s jurisdiction.”2
Moreover, we note several other anomalies in the Wolma opinion. First, the court ignored
Second, the result in Wolma conflicts with the plain intent of this proviso in
A court retains plenary power to reinstate a cause after a nonsuit. Missouri Pacific R. Co. v. Whitaker, 815 S.W.2d 348, 349 n. 2 (Tex.App.—Tyler 1991, orig. proceeding). The defendant in Wolma should have moved to reinstate the cause while the court retained its plenary power over the dismissed proceeding, alleged in the motion to reinstate the basis for sanctions under
WRIT OF MANDAMUS
The sanction order against Hjalmarson, Nielsen, and Flood is void because the court lacked jurisdiction to enter it. Thus, the court abused its discretion when it entered the order. For the reasons stated above, and contrary to the decision in Wolma, relators do not have an adequate remedy by appeal. See Olsen, 360 S.W.2d at 399. We therefore conditionally grant the writ of mandamus.
We assume that Judge Langley, the respondent, will expeditiously vacate his February 17 sanction order and that issuance of a writ will not be necessary. If the order is not withdrawn, however, the writ will issue.
VANCE, Justice, concurring.
Although I concur in the order conditionally granting the writ of mandamus, I do not agree with the discussion of Wolma v. Gonzalez, 822 S.W.2d 302 (Tex.App.—San Antonio 1991, orig. proceeding).
Greenberg v. Brookshire is dispositive of this appeal. See Greenberg v. Brookshire, 640 S.W.2d 870 (Tex.1982, orig. proceed-
I would distinguish Wolma. It involved a take-nothing judgment rather than a non-suit. Wolma, 822 S.W.2d at 303. Thus,
For these reasons, I concur.
THOMAS, Chief Justice